text:
    STANOLIND OIL & GAS CO. v. MIDAS OIL CO. et al.
    No. 9016; Motion No. 9444.
    Court of Civil Appeals of Texas. Austin.
    July 3, 1940.
    Rehearing Denied Sept. 25, 1940.

      Turner, Rodgers & Winn, W. W. Prior, Jr., and Frank J. Scurlock, all of Dallas (Donald Campbell, of Tulsa, Okl., of counsel), for appellant.
    Gerald C. Mann, Atty. Gen., and Edgar Cale, Asst. Atty. Gen., for appellee Railroad Commission of Texas.
    Carl W. Wade, of Dallas, and Wheeler & Wheeler, of Austin, for appellee Midas Oil Co.
   BAUGH, Justice.

This is a Rule 37 case on second appeal to this court. The first appeal is reported in 123 S.W.2d 911, writ dismissed. On the former appeal we set aside as invalid the permit involved and reversed and remanded the case with instructions. On the motion for rehearing, however, and because the trial court had rendered judgment against plaintiff, appellant therein, at the close of its evidence, and without any evidence having been offered on the part of the defendants, we reversed and remanded the case for another trial. Upon the second trial hereof, the trial court, upon motion of the defendants made at the close of plaintiff’s evidence, again instructed a verdict in favor' of defendants and rendered judgment accordingly; from which the plaintiff again appeals.

In the • interest of brevity, we refer to our former opinion in 123 S.W.2d 911, for a statement of the facts there and here involved. The permit involved was for a second well on a narrow strip -containing 2.14 acres. This strip, and an adjoining strip containing .62 of an acre on which one well had been drilled, had been voluntarily segregated from each other after the spacing provisions of Rule 37 had become applicable thereto; consequently, under the now well established rules laid down by the decisions, and under the Commission’s own rule of May 29, 1934, neither of these tracts was entitled to an exception to develop such tracts separately; The issues here presented are referable, therefore, to the combined tracts, aggregating 2.76 acres, treated as one tract; and upon which two wells had already been drilled prior to the granting of the permit here involved.

Our former opinion was written prior to the decision of the Supreme Court in Gulf Land Co. v. Atlantic Ref. Co., 134 Tex. 59, 131 S.W.2d 73. The opinion of the Supreme Court in that case, in addition to the determination of the specific issues raised by the facts of that particular case, was manifestly intended as a comprehensive discussion of the law applicable to Rule 37 cases generally, to clarify confusion which had theretofore arisen in the interpretation of prior decisions of the Supreme Court, and of the Courts of Civil Appeals; and as an expression of the conclusions of the Supreme Court on the questions therein discussed, whether particularly necessary to a decision of the exact issues involved in that case or not. We so construe that opinion.

On the former appeal, the majority opinion determined the following issues:

1. That appellant was an interested party within the meaning of Art. 6049c, Sec. 8, Vernon’s Ann.Civ.St., authorizing it to prosecute this suit.

2. That appellant was not, under that statute guilty of laches, as such, in not bringing its suit sooner than it did bring it.

3. That the 2.14-acre tract was a voluntary subdivision after Rule 37 became applicable to it.

4. That no confiscation of Midas Oil Company’s property without said well would result under the established facts.

5. That waste would be caused by the drilling of the additional well.

In the light of the Gulf Land Company case, supra, the parties replead-ed, eliminating the issue of waste as sustaining said permit, as that was not passed-upon by the Commission. Under the voluntary subdivision rule both under the decisions and the rule of the Commission itself, the permit in question was invalid. And where the Commission has improperly considered only the voluntary subdivision as entitled to separate development as such, and has granted a permit to prevent confiscation as to the subdivided tract alone, but has not determined whether the combined subdivisions, if treated as one tract, would be entitled to additional wells, the question ordinarily should r'evert to the Commission for determination of the confiscation issue on a proper basis. But where the uncontroverted facts show that if the owners of the subdivided tracts, considered as a unit of one tract, in its relation to surrounding tracts, with the wells already drilled thereon, have been given an equal opportunity with such adjacent or surrounding tracts to recover their fair share of the oil in place beneath such combined tracts, as a matter of law no confiscation results, and there is nothing further for the Commission to determine on the issue of confiscation. Gulf Land Co. v. Atlantic Ref. Co., supra; General American Oil Co. v. Gulf Oil Corp., Tex.Civ.App., 139 S.W.2d 314, writ refused. This exact question was presented and determined by us in the case last above cited. It was also determined by us on the former appeal of this case; and the facts, without detailing them here, presented by the record in the instant case clearly disclose the same. The permit in question was therefore clearly invalid.

The only remaining question is that of estoppel. The issue of confiscation, that is, whether the owner of one tract, through the wells on his land, is enabled to produce more than his fair share of the oil in place beneath it by draining it from beneath his neighbor’s land, primarily involves private property rights between them. That being true, as between them, the doctrine of estoppel becomes applicable. The permit granted was prima fa-cie valid, and unless and until set aside the permittee, Midas Oil Company, had a clear legal right to drill a well under it. The Stanolind, owner of the adjoining leasehold, also had a clear legal right, under Sec. 8 of Art. 6049c of the statutes, for the protection of its own property rights, to attack it by suit in the District Court. As between the Stanolind and the Midas each had its clear legal rights relating to its own property, the one to drill under the permit, the other to sue to set it aside.

Can the Stanolind, whose primary interest and objective in bringing such suit is to protect its own property rights, sit silently by for four months after such permit is granted, apparently acquiescing in its presumed validity, until the holder thereof has, as he had a clear legal right to do, incurred heavy expense towards drilling such well, and then be permitted to assert that drilling it will injure Stano-lind’s property rights? Such situation was manifestly what the Supreme Court had in mind, if not in fact the former appeal herein which had been before it on application for writ of error, when the question of estoppel was discussed in the Gulf Land Company case.

On the second trial hereof the defendants pleaded estoppel against appellant’s right to have said permit set aside for the protection of its own property rights. Manifestly that constituted an affirmative (defense. And when the appellant showed, as it clearly did, that the permit was arbitrarily granted by the Commission, it was entitled to have it set aside unless the Midas by pleading and proof showed that Stanolind had, by its own conduct, become estopped from doing so. This burden, as an affirmative defense, therefore clearly rested upon the Midas. It was predicated, upon acts and conduct occurring subsequent to the granting of the permit, and consequently was a matter not before the Railroad Commission on its hearing, and one with which the Commission had nothing to do.

Nor can the trial court’s judgment herein be sustained on the ground that estoppel against appellant was shown as a matter of law. Appellee did not by proof undertake to show estoppel as against an invalid order. Its contention in the trial court, and its motion for an instructed verdict at the close of plaintiff’s evidence, was predicated entirely on the contention, and its motion affirmatively so shows, that “the plaintiff has wholly failed to discharge the burden of proof placed upon it,” to show that there was not before the Railroad Commission sufficient evidence to sustain said permit. Manifestly this was the ground on which the trial .court based his judgment. On that ground it cannot be- sustained, and the issue of ■estoppel, wherein the burden rested upon appellee, was not adjudicated.

What constituted a reasonable ■time, none being fixed by statute, in which a protestant must act in suing to set aside such permit; and whether an unreasonable delay in doing so has damaged the holder of such a permit, are fact questions to be determined under all the facts, and circumstances of the particular case.

The invalidity of said permit as not being authorized to prevent confiscation, and as being in violation.of the Commission’s own rule of May 29, 1934, relating to voluntary subdivisions, has now been twice definitely adjudicated by this court; and is now foreclosed. Since, however, the trial court erroneously rendered judgment in favor of the defendant without Requiring it to make any proof on its affirmative defense of estoppel, a defense available to it as against Stanolind even on an invalid permit, we think it should be permitted to have that issue determined. The judgment will therefore be reversed and the cause remanded for trial solely upon the issue of estoppel pleaded by the defendant. If that be determined against the defendant, Midas Oil Company, then judgment should be rendered for plaintiff, appellant here, as prayed for. If it be determined in favor of the defendant,'then judgment should be rendered against the plaintiff.

Reversed and remanded with instructions.

On Appellees’ Motion for Rehearing.

In their motion for rehearing ap-pellees urge, among other things, that our holding herein is in conflict with, and contradictory to, our holding in Humble Oil & Refining Co. v. Potter, 143 S.W.2d 135. That is, that under our holding in the Potter case, the entire controversy here presented should revert to the Railroad Commission to determine whether the 2.14-acre tract and the .62-acre tract, taken together and treated as a unit of one tract, were entitled to an additional well to prevent confiscation, since the Commission has not determined that question. Such proposition is, as a general rule, now settled as correct. But such a contention has no application where the established ' facts show as a matter of law, that when so considered, no confiscation of the combined tracts would result without the additional well. Not only was this question definitely determined by us on the former appeal, but we were careful to again point it out in our original opinion herein. No such' issue was presented in the Potter case, and the judgment in that case was reversed because the facts in that case did not show as a matter of law that confiscation would not result without additional wells. It thus becomes manifest that no conflict exists between our holding herein and our holding in the Potter case.

Appellees’ motion is overruled.

Overruled.


source: Caselaw Access Project

author: BLAIR, Justice.

license: Public Domain

text:
    McDONALD v. McDonald et al.
    No. 8944.
    Court of Civil Appeals of Texas. Austin.
    July 17, 1940.
    Rehearing Denied Sept. 25, 1940.
    Callaway & Callaway, of Brownwood, for appellant.
    Frank Bowman, of Goldthwaite, and Stinson, Hair, Brooks & Duke, of Abilene, for appellees.
   BLAIR, Justice.

This litigation arose out of the following facts and transactions:

A. J. McDonald died leaving his widow, Amanda McDonald, and six children of a former marriage, namely: four sons, Newton, H. N., H. R. and R. S. McDonald, and two daughters, Betty and Annie McDonald. There were no children of the marriage of A. J. McDonald and Amanda McDonald, but she had two children of a former marriage, namely: a son, T. J. Clen-dennen, and a daughter, Elsie J.' Clenden-nen. T. J. Clendennen married his stepsister, Annie McDonald. Betty McDonald married Edgar G. Harp, and Elsie J. Clen-dennen married W. G; Boyd.

During the married life of A. J. McDonald and Amanda McDonald they acquired a community estate of real and personal property valued at more than $20,000. A. J. McDonald left a will by which he undertook to dispose of the entire community estate, which was duly probated; but Amanda McDonald elected to take her share of the community estate rather than under the will. The will excluded R. S. McDonald from any share in the estate of A. J. McDonald, reciting that he had been previously paid his share; and at the time of the trial of the instant case it had been judicially determined in a suit brought by him that he had no interest as an heir in the estate of A. J. McDonald. The sum of $2,525.83 had been deposited in a bank, which represented the interest of R. S. McDonald in the estate if he established his claim to an interest as an heir by his suit, which he failed to do, and this suit was instituted by the remaining interested children of A. J. McDonald against their stepmother, Amanda McDonald, to recover dne-half of said $2,525.83.

After the will 'of A. J. McDonald ■ was probated, all of the above-named parties, except R. S. McDonald, who was excluded by the will from sharing in the estate, executed a written instrument wherein it was agreed that Amanda McDonald, the widow, was to' have an undivided one-half interest in the community estate, and that the five children of A. J. McDonald, namely : Newton, H. N., H. R. McDonald, and Mrs. Annie Clendennen and Mrs. Betty Harp, were to each have an undivided one-tenth interest in the community estate, it being agreed that the children of Amanda McDonald by her former marriage had no interest in the said estate. T. J. Clenden-nen owed notes to the estate of more than his wife’s interest, but it was agreed by all of the parties that the notes would be cancelled in consideration of the Clenden-nens conveying and relinquishing all of Mrs. Clendennen’s interest or share in the estate to the estate, which they did by executing a deed to Mrs. Amanda McDonald as executrix, and the notes were cancelled.

Appellees alleged, offered proof tending to show, and the jury found that at or about the time of the execution of the ■Clendennen deed, the remaining four children of A. J. McDonald and Amanda McDonald, the widow, entered into an oral agreement that the remainder of the estate should be divided, one-half to Amanda McDonald and one-half to the four children who had remaining interests in the estate. It was upon the basis of this oral agreement that, the partition and division of the lands, livestock, and part of the money were made between the parties to it; and it was upon the basis of the oral agree- ' ment that appellees sought to and did recover judgment for one-half of the $2,-525.83 deposited in the bank.

Appellant denied making the oral agreement, but in the alternative alleged that it was not enforceable for several reasons ; and that the division of the estate should now be made on the basis of the prior written agreement. That is, appellant contends that under the written contract there were,ten parts to the whole estate; that Amalada McDonald, the widow, was entitled to five parts and the five children of A. J. McDonald, the four appellees and Mrs. Clendennen, were each entitled to one part, or to an undivided one-tenth interest in the whole estate. That after Mrs. Clendennen conveyed her undivided one-tenth interest in the whole estate back to the estate, there were left nine parts, which should be divided five parts to Amanda McDonald, the widow, and four parts to the four appellees, who, after Mrs. Clen-dennen conveyed her interest, were the remaining children of A. J. McDonald having an interest in the estate. And further, that since the four appellees had already received in the division under the oral agreement approximately four-ninths of the entire estate, the $2,525.83 bank deposit, which together with what Amanda McDonald had already received, would be approximately equal to her one-half of the original estate to which she was entitled.

Appellant contends that the oral agreement is .unenforceable, because it varied the terms of the prior written agreement. This contention is untenable for two reasons. In the first place, it is obvious that the agreement of all the parties for the estate to purchase the interest of Mrs. Clendennen itself rendered ineffectual the terms of the written contract to divide the estate one-half to Mrs. McDonald and one-half to the five children of A. J. McDonald, because as contended by appellant, the respective interests of the parties in the estate after the purchase of the Clendennen interest were different from what they were under the written contract. Such difference is the foundation of appellant’s claim that after the purchase of the Clendennen interest by the estate, she was entitled to a five-ninth interest instead of the one-half interest given under the written contract. Manifestly, the oral contract was brought about and necessitated by reason of the fact that after the purchase of the Clendennen interest the basis of division prescribed by the written contract •was no longer applicable, the respective interests of the parties being different from what they were when the written contract was executed.

In the second place, the rule is applicable here that where the written contract is not required by law to be in writing, and is executory, the parties may subsequently enter into an oral contract modifying the terms of the written contract. The written contract is rescinded, and the rights of the parties are thereafter determinable by the terms of the subsequent oral contract. Groce v. P. B. Yates Mach. Co., Tex.Com.App., 288 S.W. 161; Oilbelt Motor Co. v. Hinton, Tex.Civ.App., 11 S.W.2d 338; 17 C.J. Secundum, Contracts, 861, § 376.

Nor do we sustain the .contention of appellant that the oral contract is invalid upon the ground that it is one for the sale of land, and therefore in violation of our statute of frauds. The Texas authorities are uniform in holding that co-owners may by oral agreement partition land; and that such partition is not regarded as a sale of land, and therefore not in violation of the statute of frauds. Zanderson v. Sullivan, 91 Tex. 499, 14 S.W. 484; Aycock v. Kimbrough, 71 Tex. 330, 12 S.W. 71, 10 Am.St.Rep. 745; Gibbons v. Bell, 45 Tex. 417.

Nor is the oral contract in suit invalid for want of consideration. In Groce v. P. B. Yates Mach. Co. and Oilbelt Motor Co. v. Hinton, supra, it is held that mutual promises, expressed or implied, furnish sufficient consideration for the no-vation or modification of an executory contract. In addition, the fact that appel-lees suffered detriment in permitting Mrs. Clendennen to take more than her share of the estate is sufficient consideration for a promise of appellant to them to thereafter divide the estate one-half to appellant and one-half to the four appellees.

Appellant contends that the court erred in permitting witness, Newton McDonald, to testify to certain statements made by Mr. E. B. Anderson to him. Mr. Anderson was the agent and legal representative of appellant at the time the statements were made, which statements were to the effect that' Mr. Anderson, while acting as agent for appellant, made and entered into the oral contract in suit. The testimony was objected to as being hearsay.

Mr. Anderson represented the McDonald estate as the attorney and was shown to apparently have the authority to make the contract on behalf of appellant; and it has been held that testimony as to statements made out of court is not regarded as hearsay where the statements, as in the instant case, constitute the operative facts of an oral contract. St. Louis S. W. Ry. Co. v. Kennedy, Tex.Civ.App., 96 S.W. 653, error refused; 6 Wigmore, Evidence, 3d Ed. 1940, § 1770. But, in any event, there is ample other evidence to establish the fact that the oral agreement in suit was made, and to support the jury’s -finding that .it was made; and that the parties actually acted upon the oral agreement in the division of all of the property, except a small amount of personal property and the $2,525.83 bank deposit in suit.

Other points raised in appellant’s brief are either disposed of by our above conclusion, or are without merit and are overruled.

The trial court disposed of certain items of personal property in accordance with the agreement of the parties made in open court, and its judgment awarding one-half of the bank deposit to appellees and one-half to appellant, in accordance with the oral agreement between them, is affirmed.

Affirmed.


author: SMITH, Chief Justice.

text:
    TRICKEY v. HORTON.
    No. 10722.
    Court of Civil Appeals of Texas. San Antonio.
    May 29, 1940.
    Appellant’s Motion for Rehearing Granted Aug. 15, 1940.
    Appellee’s Motion for Rehearing Denied Sept. 18, 1940.
    Johnson & Rogers, of San Antonio, for appellant.
    Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellee.
   SMITH, Chief Justice.

This appeal is from an order of the District Court of Dimmit County overruling the plea of privilege of Walter Trickey, a defendant below, to be sued in Frio County, of which he is a resident. The suit was brought by Mrs. John T. Horton against Trickey and Carrie V. Horton, a resident of Dimmit County, as well as other defendants who are not concerned in this appeal. The suit was. for damages for conversion of cattle and monies alleged-to belong to Mrs. Horton. Trickey alone complains of the order denying change of venue.

Appellee seeks to sustain venue against appellant Trickey upon the fourth exception to the general venue act in which it is provided that “if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” Art. 1995, § 4, R.S.1925.

Among many allegations not pertinent to this appeal, appellee alleged in her petition that she and Ben D. Horton each owned an undivided one-half interest in certain live stock located in Dimmit County; that by agreement Ben D. Horton tended and cared for said live stock until the summer of 1937, when he died, survived by his wife, Carrie V. Horton, who qualified as survivor in community, and thereafter in such capacity sold off a substantial portion of said live stock hut failed to account to appellee in full for the proceeds of such sale; that in one instance said Carrie V. Horton received a draft for $2,500 as payment for a part of the cattle sold by her and that said draft was the property of and payable jointly to said Carrie V. Horton and appellee; that Carrie V. Horton fraudulently procured ap-pellee to endorse said draft and deliver it back to said Carrie V. Horton, who in turn endorsed it and delivered it over to appellant, Trickey, who, with knowledge of the fraud, applied its proceeds upon a debt owing to him by Carrie V. Horton and thereby appropriated said sum to his own uses, notwithstanding appellee’s ownership of one-half thereof; that by reason of the facts Carrie V. Horton and appellant wrongfully converted said funds; that appellee has persistently demanded an accounting of Carrie V. Horton, who refused the same.

Appellee prayed for an order requiring Carrie V. Horton to account to appellee for the monies received and’ disbursed in said transactions; and for judgment against Carrie Horton and Trickey, each, for one-half the amount of said draft for $2,500.

In order to sustain venue over Trickey in Dimmit County it was necessary to show, first, by a preponderance of the evidence adduced upon the hearing of the plea of privilege, that the plaintiff had a cause of action against the resident defendant, and that such cause of action was so intimately connected with the cause of action alleged against the non-resident defendant that the two were properly joined in one suit under the rule intended to prevent’a multiplicity of suits. Proof of the nature of the action against the non-resident defendant, as well as its relation to the action against the resident defendant, is made by the petition or the controverting affidavit, which in this case embraces the allegations of the petition. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

The trial court has held that the independent proof offered in this case is sufficient to show by a preponderance of the evidence that plaintiff has a cause of action against the resident defendant, Carrie Horton. The 'evidence is sufficient to sustain such finding.

The allegations of the petition, which are copied in the controverting affidavit as a part thereof, are sufficient to show that the nature of- the cause of action asserted against the nonresident defendant, Trickey, is such that said cause of action may be joined with the action against the resident defendant, under the rule designed tb prevent a multiplicity of suits. The nature of this cause of action must be determined by the allegations of the petition and the controverting affidavit, and independent testimony tending to show that in truth and in fact plaintiff has no cause of action against Trickey is immaterial. This is an issue to be properly determined upon the trial of the cause upon its merits and is not an issue in determining the venue of the case. Stockyards Nat. Bank v. Maples, supra.

According to the plaintiff’s petition and controverting affidavit, to which we must look to determine the nature of the cause of action against the non-resident defendant, Carrie V. Horton first converted the draft and thereafter Trickey, with notice of this fact, converted said draft and appropriated the proceeds thereof to his own use. The case of Robertson v. Hunt, 77 Tex. 321, 14 S.W. 68, is in point here. In that case it was held that a joint recovery may be had for the fraudulent conversion of personal property against the original wrongdoer and each purchaser from him, in succession, who at the time of the purchase had notice of the fraud. It seems that under this case an action against Walter Trickey could be joined with an action against Carrie V. Horton, under the rule intended to avoid a multiplicity of suits.

Appellant contends that there was no evidence of defendant Carrie Horton’s residence in Dimmit County. We overrule this contention. We think the record shows the challenged fact sufficiently to support venue.

The judgment is affirmed.

On Motion for Rehearing.

Further consideration o,f the record convinces us that there is no competent proof that defendant Carrie V. Horton was or is a resident of the county of the forum. The burden of making this essential proof was upon appellee as the defendant below and in view of its omission the trial court erred in overruling appellant’s plea of privilege.

Appellant’s motion for rehearing will be granted and the judgment reversed, but as it is inferable that the evidence was omitted through inadvertence, the matter of venue will be remanded for further hearing below.

Reversed and remanded.

On Appellee’s Motion for Rehearing.

It is contended by appellee that appellant, through his' counsel, admitted in oral argument in this court and the court below that Carrie V. Horton, his co-defendant, was a resident of Dimmit County, for the purpose of fixing venue in this cause. Appellant denies that such .admission was made.

We are of the opinion that the statements made of record in the court below by appellant’s counsel were not sufficient to constitute an efficient admission of the material fact in question. What counsel said in oral argument in this court is not of record, and as the members of this court do not recall the specific language used, and the parties disagree as to its import, we prefer not to resolve the issue thus presented.

Appellee’s motion for rehearing is overruled.


text:
    TEXAS GUARANTY LIFE CO. v. SEALE.
    No. 8938.
    Court of Civil Appeals of Texas. Austin.
    July 17, 1940.
    Rehearing Denied Sept. 25, 1940.
    Carney & Carney and Tom J. Mays, all of Atlanta, for appellant.
    Orville M. Jobe, of Waco, for appellee.
   BLAIR, Justice.

Appellee, C. M. Seale, sued appellant, Texas Guaranty Life Company, to recover a balance of $500 due on its insurance policy for $1,000, insuring the life of ap-pellee’s mother, he being named beneficiary. Appellant plead settlement and release of all liability on the policy in consideration of the payment of $500 to ap-pellee. Appellee replied that the settlement and release were invalid for two reasons: (1) Because without consideration under the rule that part payment is no consideration for the discharge of the liquidated demand of $1,000 due on the policy; and (2) because the settlement and release were induced by fraud. A trial to the court without a jury resulted in judgment for appellee as prayed; hence this appeal.

Appellee states in his brief that he does not rely upon his fraud allegation, and in consequence the portion of appellant’s brief relating to the fraud issue need not be considered. Appellant contends, however, that its plea of accord and satisfaction should have been sustained, because liability under the policy was not liquidated, but was uncertain and unliquidated. The policy provided for the payment of a' maximum sum of $1,000 upon receipt of proof of death of the insured, with condition as follows: “The obligation of the Company to make payments of any sum of sums specified in its policy contract or supplemental contract shall be the amount realized from the net mortuary collection of one monthly premium, plus any amount in the reserve fund at the date of death of the insured. not to exceed the maximum sum.”

After proof of death of. the insured was received, appellant employed a special claim adjuster to settle the claim of appel-lee. He showed appellee a letter from appellant authorizing him to adjust the claim for fifty cents on the dollar, which was also claimed to have been authorized by the State Insurance Commission. This letter and the claim adjuster represented to appellee that appellant did not have enough money in its mortuary fund to pay. the claim, and that appellant desired to settle the claim for fifty cents on the dollar. Appellee had no other information as to the mortuary fund, and believing the representations Of the claim adjuster accepted his offer. The claim adjuster issued appellee a draft on appellant for $500, which was accepted and cashed by ap-pellee, who also executed the release form on the back of the policy, releasing the claim in full in consideration of the payment to him of the $500, and delivered the policy so released to the adjuster.

The rule is settled that where an insurance policy provides on its face for a certain maximum' sum, and conditions which might limit or reduce the amount specified, the amount stated as the maximum sum payable on the face of the policy is a liquidated demand. Cox v. Bankers’ Guaranty Life Co., Tex.Civ.App., 45 S.W.2d 390; Ft. Worth Mut. Benev. Ass’n v. Haney, Tex.Civ.App., 17 S.W.2d 104; Ft. Worth Mut. Benev. Ass’n of Texas v. Guire, Tex.Civ.App., 292 S.W. 910; Stone v. Brady Mut. Life Ins. Ass’n, Tex.Civ.App., 2 S.W.2d 538.

The evidence is also undisputed that appellant acknowledged and accepted its liability on the policy as being $1,000, because by letter and representation of its adjuster it proposed to settle the claim for fifty cents on the dollar, and accordingly paid $500 on the claim. Thus the proof was conclusive that appellee’s claim for $1,000 was a liquidated demand.

Nor do we sustain the contention of appellant that there was a bona fide dispute in good faith as to its liability for “any greater sum conclusively shown by the evidence.” Appellant admitted that it was liable for the face value of the policy, but represented that there was not enough in the mortuary fund to pay that amount. Appellee did not dispute this claim or representation, and had no information about the matter other than as represented by appellant’s letter and the adjuster, which he accepted as true in making the settlement and executing the release of the claim in full. The trial court found upon sufficient testimony' that for a period of six months appellant collected for each month an average of about $2,300, out of which the full claim in suit could have been paid. The rule is settled that where, as in the instant case, a claim is based upon a liquidated demand, in absence of a bona .fide dispute over the amount due, a settlement for a less sum than due is without consideration. First Texas Prudential Ins. Co. v. Conner, Tex.Civ.App., 209 S.W. 417; Franklin Ins. Co. v. Villeneuve, 25 Tex.Civ.App. 356, 60 S.W. 1014; Chicago Frat. Ins. Ass’n v. Herring, Tex.Civ.App., 104 S.W.2d 901; 24 Tex.Jur. 1168, § 327; 2 Tex.Jur.Supp., 1660; Tex.Jur.1939 Supp. 609; Business Men’s Assur. Co. v. Bradley, Tex.Civ.App., 275 S.W. 622.

Nor do we sustain the contention ■of appellant that it was shown to be insolvent and that therefore the acceptance from an insolvent debtor of part payment of a liquidated undisputed debt is based upon a sufficient consideration to take the case out of the general rule and the transaction operates as a good accord and satisfaction. Appellant was not shown to be insolvent, but was shown to be a going concern collecting an average of more than $2,300 per month over the six months period pertinent here. In any event, the issue was at most one of disputed fact and was found by the trial judge in favor of ■appellee.

The remaining contentions of appellant are without merit and are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: BAUGH, Justice.

text:
    HARRIS et al. v. SUGG.
    No. 8919.
    Court of Civil Appeals of Texas. Austin.
    July 10, 1940.
    Rehearing Denied July 24, 1940.
    R. G. Hughes, of San Angelo, for plaintiffs in error.
    Collins, Jackson & Snodgrass, of San Angelo, for defendant in error.
   BAUGH, Justice.

Appeal is from an order of the trial, court overruling a motion for a new trial filed' under the provisions of Art. 2236, R.C.S.1925. Sugg sued numerous named defendants and their unknown heirs in trespass to try title to several described tracts of land in Irion County, Texas, among them W. C. Harris. Upon affidavit duly filed, these defendants were cited by publication. None of them answered. An attorney ad litem was appointed to represent all defendants, and filed on their behalf a general demurrer, general denial and-'plea of not guilty. Judgment was entered in favor of Sugg against all defendants on April 1, 1936. On March 29, 1938, plaintiffs in error herein, alleging that they were the heirs of W. C, Harris, filed their motion for a new trial, alleging that they were the owners of an interest in said lands, and that they knew nothing of the suit filed by Sugg until about eight months after judgment was rendered therein; and prayed that the former judgment be set aside and the case retried upon its merits. This motion was .verified by one of the plaintiffs in error and by the attorney in fact for the others. It was duly controverted and all allegations therein denied. This answer to said motion was likewise sworn, to.

Plaintiffs in error appear to contend that upon a showing that service by publication only was had, their right to have their motion for a new trial granted and a new trial had upon the merits is to be then determined from their allegations in said motion, relying particularly on Smith v. Higginbotham, Tex.Civ.App., 112 S.W.2d 770. In that case, however, no hearing was had upon the motion itself. No such case is here presented. The sufficiency of the motion as a pleading is not involved.' In the instant case the trial court had a hearing in which evidence was introduced on the motion itself, before the trial court acted thereon. This was the proper method of procedure, rather than to grant such motion and then at a subsequent hearing determine its merits. Ashton v. Farrell & Co., Tex.Civ.App., 121 S.W.2d 611, 616, and cases therein cited.

It was incumbent, therefore, upon the plaintiffs in error not only to show in such hearing that citation by publication was the only process issued, and that they had no notice of said suit; but also to show that they were the heirs of W. C. Harris, and had a meritorious defense to the plaintiff’s suit. Dennis v. McCasland, 128 Tex. 266, 97 S.W.2d 684; Smalley v. Octagon Oil Co., Tex.Civ.App., 82 S.W.2d 1049, 1052. This they wholly failed to do. None of the plaintiffs in error, nor their attorney in fact testified. There was no evidence whatever that they were the heirs of W. C. Harris, or had any interest in the lands involved. The motion itself, though sworn to, was not evidence of the facts therein alleged. See 17 Tex. Jur. § 119, p. 356. Especially is this true where the answer thereto was, as here, a sworn denial. The only evidence introduced in their behalf was the record of the proceedings on the trial on which the original judgment was rendered; and a sheriff’s deed, executed in 1881 pursuant to an execution issued out of the County Court of Williamson County in favor of John Andres & Company against P. C. Duer, wherein the sheriff sold the interest ‘of Duer in 1813 acres of land in Irion County, including the lands here involved, to W. C. Harris and J. S. McWilliams for $20.50. There was no proof of any claim or interest of Harris to said land subsequent to that time.

On the other hand, Sugg had pleaded title to said lands under the 3, 5, 10 and 25-year statutes of limitation, Vernon’s Ann.Civ.St. arts. 5507, 5509, 5510, 5519, proved his chain of title on the trial by numerous recorded instruments, and by oral testimony showed open adverse possession, use and occupancy of all of said lands for a period of more than 25 years. Not only, therefore, did plaintiffs in error wholly fail to discharge the burden of proof, after judgment rendered, resting upon them oh their own motion to set it aside; but they wholly failed to show, had their motion been granted and a retrial on the merits had, any probability that any different judgment would or could have been rendered than that which the trial court had already rendered.

Finding no error in the record, the judgment of the trial court will in all things be affirmed.

Affirmed


author: BAUGEt, Justice.

text:
    SMITH et al. v. LIGHTFOOT et al.
    No. 8934.
    Court of Civil Appeals of Texas. Austin.
    July 24, 1940.
    Rehearing Denied Sept. 25, 1940.
    Baker & Baker, of Coleman, for appellants.
    E. M. Critz, of Coleman, for appellees.
   BAUGEt, Justice.

On May 16, 1930, Dale Smith obtained a judgment, recited therein to b¿ upon citation by publication, against R. P. Lightfoot and J. M. Senter, for' the sum of $1,806.05, upon a verified account accruing in 1921 and 1922. On December 27, 1938, he caused to be issued an execution, directed to the Sheriff of Jack County, Texas, to be levied upon lands belonging to J. M. Senter, situated in Jack County. Phis, according to the testimony, was the first time that either Senter or Lightfoot knetv of the existence of said-judgment.

On January 12, 1939, Lightjoot and Sen-ter filed this suit in the District Court of Coleman County, against Dale Smith, as a direct attack upon the judgment of May 16, 1930, on the ground that said judgment was void, sought to have it set aside on numerous grounds; and to enjoin the Sheriff of Jack County from the sale of Senter’s lands under said execution.

The case was tried to the court without a jury, and judgment entered herein on April 12, 193⅞ granting the relief prayed for; hence this appeal. The trial c.ourt in its judgment herein found that the citation upon which the 1930 judgment was entered was fatally defective, and that the court had no jurisdiction over the persons of the defendants therein to sustain that judgment.

Appellants • present several assignments and propositions thereunder, but in none of them do they contend that the 1930 judgment was not void for want of legal service on the defendants. All of their propositions are directed to the contention that under the undisputed facts the appellees herein, plaintiffs below, were barred by both the two and four-year limitation statutes,' Art., 2236 and 5529, R.C.S.1925, from attacking the 1930 judgment. This on the ground that eight years and eight months had transpired since the date of that judgment before the instant suit was bfought to set it aside.

We find it unnecessary to discuss these issues at length. Manifestly, Art. 2236 has no application. It is now settled that as against a suit constituting a direct attack'upon a void judgment, the four-year statute of' limitation applies. Levy v. Roper, 113 Tex. 356, 363, 256 S.W. 251, and cases there cited.

It now seems settled, however, that where the judgment is procured by fraud, or there is a total lack of service, this period of limitation does not expire until four years after the fraud was discovered, or in the exercise of reasonable diligence should have been discovered; and in cases where no citation was had, or where citation by publication was fatally defective, as the trial court found in the instant case, the action would be barred at the expiration of four years after the defendant discovered, “or by the use of reasonable diligence might have discovered, the existence of the judgment.” Foust v. Warren, Tex.Civ.App., 72 S.W. 404, 405, 407; Stewart v. Robbins, 27 Tex.Civ.App. 188, 65 S.W. 899; Dashner v. Wallace, 29 Tex.Civ.App. 151, 68 S.W. 307; Swearingen v. Swearingen, Tex.Civ.App., 193 S.W. 442; Levy v. Roper, 113 Tex. 356, 363, 256 S.W. 251; 25 Tex.Jur. § 227, p. 644. No contention is made that the appellees did not show sufficient grounds to set aside the 1930 judgment; nor that they did not have a meritorious defense against that suit at the time it was heard.

While there is some contention of want of diligence on the part of the appel-lees in not sooner discovering the existence of the 1930 judgment; the evidence was amply sufficient to sustain a finding by the trial court that there was no lack of diligence in discovering the existence of that judgment; and that nothing occurred to put the appellees upon notice or inquiry of the existence of the 1930 suit, until the property of Senter in Jack County was levied upon. In any event, the trial court in the instant case having rendered judgment setting aside that judgment and against Dale on his pleas of limitation, it must be presumed that he found this fact issue against such contention; and there being ample evidence to sustain such finding, it is, of course, binding upon us.

The contention of the appellants that the appellees were barred by limitation from attacking said judgment not being tenable, and that being the only issue presented on this appeal, the judgment of the trial court is in all things affirmed.

Affirmed.


text:
    WALKER v. MANN et al.
    No. 9032.
    Court of Civil Appeals of Texas. Austin.
    July 10, 1940.
    Rehearing Denied Sept. 25, 1940.

      Wilkinson 8¿ Wilkinson, of Brownwood, for appellant.
    Gerald C. Mann, Atty. Gen., and Billy Goldberg and Cecil C. Rotsch, Asst Attys. Gen., for appellees.
    Wm. H. Evans, of Lubbock, amicus curiie.
   BLAIR, Justice.

Appellant, J. A. Walker, individually and as independent executor of the estate of his wife, M. Elizabeth Walker, deceased, sued appellees, the State Treasurer, the State Comptroller, the Attorney General, and the Tax Assessor and Collector of Brown County, to recover the sum of $8,219.90, paid under protest by appellant executor as a part of the inheritance taxes due the State of Texas under its Inheritance Tax Law. Chap. 5, Title 122, R.S.1925, as amended in 1929, Vernon’s Ann.Civ.St. art. 7117 et seq. Appellant is the sole beneficiary under the will of. his deceased wife’s estate, and as executor paid the sum of $49,645.47 as the inheritance taxes levied and assessed against the estate by appel-lees on a valuation of the net estate at $1,-139,924.45. Appellees refused to permit appellant to deduct from the net value of the estate the sum of $213,502.25, paid as the federal estate taxes due the United States Government under Title 26 U.S.C.A. In’t.. Rev.Code, § 810 et seq., which deduction, if allowed, would have reduced the state inheritance taxes from $49,645.47 to $41,425.-57, the difference being the $8,219.90 sued for by appellant. The trial court denied any recovery by appellant, hence this appeal.

The 'case turns upon a construction of the Texas Inheritance Tax Law to determine whether the sum paid to the United States ■ as the federal estate taxes is deductible from the value of the estate in determining the amount due the state as inheritance taxes.

Article 7117, R.S.1925, as amended in 1929, Vernon’s Ann.Civ.St. art. 7117, provides : “All property within the jurisdiction of this State, * * * which shall pass absolutely or in trust by will or by the laws of descent or distribution-of this or any other State, or by deed, grant, sale or gift made or intended to' take effect in possession or enjoyment after the death of the grantor or donor, shall,upon passing to or for the use of any person, corporation or association, be subject to a tax for the benefit of the State’s general revenue fund in accordance with the following classifications.”

Article 7125, R.S.1925, as amended in 1929, Vernon’s Ann.Civ.St. art. 7125, provides : “The only deductions permissible under this law are the debts due by the estate, funeral expenses, expenses incident to last illness of deceased, all Federal, State and County and Municipal Taxes due at the time of, the death of decedent * *

It is the contention of appellant that this “statute expressly limits the tax to the 'property'’which actually passed to and for the use of the beneficiary under the will”; and that “the actual, market value that is to be taxed must be such value after deducting the incumbrance of the Federal Estate tax.”

Appellant further contends that properly construed or interpreted the word “due,” as used to enumerate permissible tax deductions, should not be construed as meaning matured, or taxes presently payable, but should be considered in the connection in which it is used as meaning “owing”; and that if the word “due” was not intended to be synonymous with the word “owing”, then the word “due” is ambiguous and of doubtful meaning, which doubt should be now resolved in favor of the taxpayer in accordance with established rules of construction of tax statutes.

It was the view of appellees and the trial court that properly construed or interpreted the statutes imposed the inheritance taxes upon the actual market value of the property of the decedent, less only such permissible deductions as were specifically enumerated in Art. 7125, supra. They were also of the view that since Revenue Act of 1935 § 203(a) Title 26, U.S.C. A. Int.Rev.Acts, page 806, provides that “the tax imposed (Federal Estate tax) by this subchapter [title] shall be due and payable fifteen (15) months after decedent’s death, and shall be paid by the executor to the collector,” it necessarily followed that the phrase, “all Federal * * * Taxes 'due at the time of the death of decedent,” as used in Art. 7125, was not intended to allow the deduction of the federal estate taxes, because same were not “due at the time of the death of decedent.” They were further of the view that the phrase, “all Federal * * * Taxes due at the time of the death of decedent,” is clear and unambiguous, but if not, then the departmental constructions given this language of the statute since its enactment in 1923, as not allowing the deduction of federal estate taxes in 'determining the net value of the property- subject to the state inheritance tax, should- be given proper weight by the courts in now construing the statute. We agree with the construction or interpretation given the Inheritance Tax Law by appellees and the trial court.

As preliminary it may be observed that the parties agree that the Texas Legislature is under no , obligation, constitutional or otherwise, to allow the -deduction of the amount paid as a federal estate tax from the net value of the estate of the decedent upon which a state inheritance tax may be levied. Frick v. Pennsylvania, 268 U.S. 473, 45 S.Ct. 603, 69 L.Ed. 1058, 42 A.L.R. 316; Knowlton v. Moore, 178 U.S. 41, 58-60, 20 S.Ct. 747, 44 L.Ed. 969, 976, 977.

Also as preliminary to the discussion of the principal question here involved, we hold that the allowance of the federal estate taxes is not authorized by the phrase, “debts due by the estate,” as used in Art. 7125. Taxes are not considered as debts in the ordinary sense of the word. 1 Cooley on Taxation, 4th Ed., 88; 26 Ruling Case Law, 25; 61 C.J. 70; Meriwether v. Garrett, 102 U.S. 472, 26 L.Ed. 197; State v. Thomas, 127 Neb. 891, 257 N.W. 265, 96 A.L.R. 1470; Derry Township School District v. Barnett Coal Co., 332 Pa. 174, 2 A.2d 758; State v. Hirst, 53 Wyo. 163, 79 P.2d 489; Brunner v. Morrison, 123 N.J.Eq. 224, 196 A. 716; Kathleen Citrus Land Co. v. City of Lakeland, 124 Fla. 659, 169 So. 356; Forest City Mfg. Co. v. Levy, Mo.App., 33 S.W.2d 984; People v. Bank of Rushville, 355 Ill. 336, 189 N.E. 299; City of Sapulpa v. Land, 101 Okl. 22, 223 P. 640, 35 A.L.R. 872; Moore v. Mitchell, 2 Cir., 30 F.2d 600, 65 A.L.R. 1354. And if the Legislature had intended that the phrase, “debts due by the estate,” should include taxes, it would have said so, and would not have by other language specifically enumerated certain taxes which may be deducted in determining the value of the estate subject to the state inheritance tax. In view of these conclusions, the sole question for determination is whether by the language, “the only deductions permissible under this law are * * * all Federal * * * Taxes due at the time of the death of decedent,” the Legislature intended to not allow the deduction of federal estate taxes in determining the value of the property subject to the State Inheritance Tax Law.

It will be observed that the statute quoted was intended as one of limitation because it states that “the only deductions permissible” are those specifically enumerated therein. It does not enumerate all federal or other taxes, but limits the deductions to “taxes due at the time of the death of decedent.” This language is significant when viewed in the light of the Federal Estate Tax Law, which provides ■“that the tax imposed * * * shall be due and payable fifteen months ‘after the decedent’s death.” Manifestly, the Legislature did not intend to allow as deductions taxes not “due at the time of the death of decedent.” The Federal Estate Tax Law has always provided that such taxes are not due at the time of the death of the decedent, but that they become “due and payable” under the act, as amended in 1935, “fifteen months after the decedent’s death,” instead of one year as the act had provided since its enactment in 1916. It is also of importance to note that approximately two years prior to the enactment of the Texas Inheritance Tax Law, the Supreme Court of the United States held in the case of United States v. Woodward, 256 U.S. 632, 41 S.Ct. 615, 616, 65 L.Ed. 1131, that the federal estate tax. became “due not at the time of the decedent’s death, as suggested by counsel for the government, but one year thereafter, as the statute plainly provides.” With this provision of the federal law, and this court decision construing it, in view at the time the Legislature enacted our State Inheritance Tax Law, we think it is clear that, the Legislature did not intend to allow as deductions federal estate taxes due and payable at that time one year after the death of the decedent; because it specifically provided that “the only deductions permissible under this law are *, * * all Federal * * * Taxes due at the time of the death of decedent.”

Nor dp we sustain the contention of appellant that the word “due”, as' used in allowing permissible tax deductions, should, be considered as meaning “owing”. The Legislature did not use the word “owing”, which it could have easily done if it had so desired. Nor did it use the word “due” as including all taxes whether payable in praesenti or in futuro, but by clear and specific language limited the deduction of taxes to those “due at the time of the death of decedent.” Appellant’s interpretation of the word “due” as meaning “owing”, and as including taxes “due and payable” in the future, would add to the statute the word “owing”; and would strike from it the phrase, “due at the time of the death of decedent.” If, however, the word “due” may be considered as being synonymous with the word “owing”, then the federal estate taxes in question were not owing “at the time of the death of decedent,” because under the federal law, and the court decision construing it, they became “due and payable fifteen months after the decedent’s death.”

Appellant further contends that since the rights of both the State'and Federal government to collect their respective taxes arise at the time of the death of the decedent, it should be held that the federal estate taxes in question became due at the time. In support of this contention, appellant cites the case of Old Colony Trust Co. v. Burrill, 238 Mass. 544, 131 N.E. 321, 16 A.L.R. 689, which holds that the rights of both the State and the Federal government to their respective taxes vest at the time of the death of the decedent. The fact, however, that such rights do so vest at the time of the death of the decedent is not material and has no relation to the time the statutes in question make the taxes due and payable, which is the matter specifically dealt with by each of these statutes. That is, the federal statute plainly provides that federal estate taxes are “due and payable fifteen months after the decedent’s death.” The Texas statute plainly provides- that “only * * * Federal * * * Taxes due at the time of the death of decedent” are deductible in determining the net value of the estate subject to the inheritance tax. Manifestly, the Legislature did not intend by this quoted language to allow the deduction of federal estate taxes which were not due at the date of the death of the decedent, but became “due and payable fifteen months after the decedent’s death.”

The contention of appellant that “the great weight of authority is to the effect that the Federal Estate tax should be deducted from the gross estate before the inheritance tax is computed and paid,” is not material if true, because the question of what deductions are allowable in determining the net value of the estate subject to the inheritance tax is determined by statutory provision. Suffice it to say that 47 states have enacted inheritance tax laws, some 27 of which either tax only the net estate, or expressly provide for the deduction of federal estate taxes; 19 do not allow their deduction; and one state allows their deduction in part. Thus it is shown that the question of deductions is not based upon weight of authority, but upon whether or not the particular state statute allows or denies the deduction of federal estate taxes in determining the net value of the estate subject to the inheritance tax. No court has construed our statute as allowing such deduction, and no decision of another state having a statute similar to ours has been cited or found which construes its statute as allowing the deduction of federal estate taxes. The several cases cited by appellant from other jurisdictions are not in point. '• Most of these cases are from states which have no statutory provision for deductions, and of course the courts hold that since the statutes make no provision as to federal estate taxes, their deduction should be allowed in determining the net value of the estate subject to the inheritance tax. Other cases cited hold that the particular statute construed authorized their deduction. So, it is manifest that the weight of authority is not involved, and in so far as conflict is concerned it is more apparent than real, because the statutes of the several states differ both as to the wording and the meaning of the various legislative acts. No case is cited by appellant which directly or by reasonable analogy aids in the construction of our statute to determine whether the Legislature intended to allow as deductions federal estate taxes “due and payable” under the federal law fifteen months after the death of the decedent, when it specifically provides by Art. 7125 that “the only deductions permissible under this law are * * * all Federal * * * Taxes due at the time of the death of decedent.”

But appellant contends that the language last quoted is ambiguous and of doubtful meaning, which doubt should be resolved in favor of the allowance of the deduction of federal estate taxes in determining the net value of the estate subject to the inheritance tax. As herein stated we think the language of both the federal and the state statutes in question is plain and unambiguous and does not authorize the deduction of federal estate taxes in determining the net value of the estate for inheritance tax purposes. If, however, we should be mistaken in this view, then the departmental constructions or interpretations given these statutes for a period of about seventeen years should be given proper weight in now construing the statutes as not allowing the deduction of the federal estate taxes. An opinion of the Attorney General to the State Comptroller in 1925, ruled that “the amount due as Federal Estate tax is not deductible under our statute.” An opinion of another Attorney General to another State Comptroller in 1934, also ruled that the language “Federal taxes due at the time of death of decedent,”' did not include federal estate taxes. So far as this record reveals, no State Comptroller has ever construed the statutes otherwise, and the deduction of the federal estate tax has never been allowed.^ The tax in question is “a source of revenue, the consideration of which is one of the primary duties of the Legislature,” and since it has apparently acquiesced in the departmental construction of the statutes in question for a period of seventeen years, and if the statutes are of doubtful meaning, then they should now be given that construction placed upon them for such a long period of years by the departments of government having charge of their enforcement. Houston & T. C. Ry. Co. v. State, 95 Tex. 507, 521, 68 S.W. 777; Ramsey v. Tod, 95 Tex. 614, 69 S.W. 133, 136, 93 Am.St.Rep. 875; McCallum v. Associated Retail Credit Men, Tex.Com.App., 41 S.W.2d 45.

Our views, as above expressed, are limited to a consideration of the deductibility of the federal estate tax. This tax did not arise until after the death of the deceased and was therefore in no sense a charge of any character against her or against her property at the time of her death.

We believe it was the clear intention of the lawmakers to allow deduction of all federal and state taxes which constitute a charge against the deceased or against her property at the time of her death, whether or not then due in the sense that they are then payable. Ad valorem real estate taxes become a lien on the property as of January 1st of the year for which they are assessed. They cannot be paid, however, until September of that year. Should the owner die between January 1st and September 1st, his real property would devolve upon heirs or beneficiaries charged with a lien to secure the taxes thereon for the current year. It was no doubt the intention of the legislature to include such taxes in the allowed deductions. The department has uniformly so construed the statute. The same departmental construction is given the federal act. See U.S. Treas. Dept. Estate Tax Regulations 80, p. 69, Art. 37.

The judgment of the trial court is affirmed.

Affirmed.


author: BROWN, Justice.

text:
    ROUTON v. RUX.
    No. 14109.
    Court of Civil Appeals of Texas. Fort Worth.
    June 28, 1940.
    Rehearing Denied Sept. 27, 1940.
    Lee Aycock, of Graham, for appellant.
    Tom M. Miller and Ruben Loftin, both of Graham, for appellee.
   BROWN, Justice.

Appellee Rux alleged that he rented a certain tract of land from appellant Routon for farming purposes, and that Routon also agreed to furnish him twenty-five turkey hens and a sufficient number of gobblers and all feed, and coops,, and that Rux was to raise turkeys on the shares, on a one-half basis. That Routon breached such contract, and he sued for damages for his one-half of the lost profits. Rux also alleged that he was too poor to buy the turkeys and that this fact was well known to Routon.

Routon answered by a general demurrer and several special exceptions attacking specifically the allegations of the petition for failure to show that the plaintiff sought to minimize his damages; also that such damages as were pleaded are too remote, uncertain and speculative, and other exceptions which we will not notice at this time.

The demurrer and all exceptions were, overruled.

The cause being tried to a jury, same was submitted on special issues, which the jury answered" as follows: (1) that plaintiff would have raised and marketed 200 turkeys, if defendant had furnished him with the 25 turkey hens, (2) the average weight would have been 11 pounds, (3) the market value was set at 12 cents per pound, (4) that the plaintiff, by reasonable effort, could not have minimized his damages, the fifth issue on the question of ■ the amount of money plaintiff could have minimized his damages was submitted conditionally and was not answered.

On this verdict, the trial court rendered judgment for plaintiff in the sum of $132, and the defendant Routon has appealed, and presents only two propositions. .

The first contends that the damages are too remote, speculative, uncertain and indefinite to afford a basis for recovery.

It appears that the rule is now more liberal than in times past and that such lost profits as are sought to be recovered in this suit are permitted under proper allegation and proof. 13 Tex.Jur., par. 102, pp. 198, 199, and cases cited.

The second proposition is well taken, and asserts that upon the breach of a contract there can be no recovery therefor unless the plaintiff alleges -and proves that he did that which was reasonable to minimize his damages.

One - of the cases cited by appellee to sustain his judgment is Lamar v. Hildreth, Tex.Civ.App., 209 S.W. 167, 171, and we' find this in the- opinion: “In such action the injured party will be entitled to such damages as would have arisen from nón-performance at the appointed time, subject to abatement by any means he may have had for mitigating his loss.”

' We do not believe that the mere allegation that plaintiff was too poor to buy the turkeys furnishes an excuse; and, if it did, there was no testimony establishing such fact.

We believe that if this share cropper contract was valuable, appellee could have obtained the turkeys from some other source, on" a similar contract, or that he should have made a reasonable effort to do so.

But there is another reason why this judgment.cannot stand, and it is apparent in the record. It is not reasonable to suppose that the plaintiff sat down and wasted the time that he would have been compelled to give in the performance of this contract. It is altogether reasonable to suppose that he and his wife employed such time 'in some other profitable way.

Mr. Justice Gaines, speaking for the Supreme Court, in Long v. McCauley, 3 S.W. 689, 692, said: “Appellee’s loss was the contract price, less the cost to him of carrying it out. This cost includes the value of his own services, in addition to the outlay of money on his part necessary to carry out the stipulations of his agreement.”

To permit plaintiff to recover what may be found to be the net value of one-half of the turkeys that in all reasonable probability would have been raised is to .wrongfully allow him to also recover the value of his services and those of his wife, which would have been expended in raising and caring for and marketing the turkeys, which services they must of necessity have employed in some other direction.

Plaintiff not having pleaded a proper measure of damages, his petition was subject to the exceptions urged, and not having -introduced the required proof to establish a proper measure of damages, the cause was not properly submitted and there is no verdict sufficient to support the judgment.

For the reasons stated, the judgment is reversed and the cause is remanded.


text:
    KENT v. KENT.
    No. 14106.
    Court of Civil Appeals of Texas. Fort Worth.
    June 21, 1940.
    Rehearing Denied Sept. 27, 1940.
    C. W. Goerte, of Fort Worth, for appellant.
    John W. Culp, of Gainesville, for ap-pellee.
   BROWN, Justice.

Appellant filed a petition in the District Court of Tarrant County, naming appellee as defendant, in which she sought a decree dissolving the bonds of matrimony which she alleged then existed between her and the defendant, and her petition prayed for a division of certain property as between the parties.

Appellee answered by a plea of res ju-dicata, alleging that he procured a decree of divorcement against appellant, in the District Court of Cooke County, at the January term, 1939, of said court, and that the subject matter sought to be adjudicated by the instant suit was fully adjudicated in the said prior action and that such judgment is in full force and effect. Appellee attached certified copies of all proceedings and pleadings had and filed in the Cooke County case, including the final decree, to his plea and made them a part thereof.

It appears that appellant answered in such suit and filed a cross-action and then caused her cross-action to be dismissed, whereupon appellee proceeded to trial and secured a decree dissolving the bonds of matrimony then existing between the parties. The decree is silent as to a division of the property.

The Tarrant County District Court sustained the plea of res judicata and dismissed appellant’s suit. Hence the.appeal.

It will be noted that in the Cooke County suit Mr. Kent prayed, as plaintiff, for a division of the community property. The decree does not attempt to divide same, and we are warranted in saying that appellee waived all relief as to such issue, or matters.

Appellant’s reply to the plea of res judi-cata is that the Cooke County judgment is void, because the District Court of such county had no jurisdiction to grant a decree of divorcement in the light of the petitioner’s pleadings filed in such case.

He pleaded: “That he is a resident citizen of Cooke County, Texas, and has actually resided within said county and state for more than one year next preceding the filing of this petition.”

In our opinion the mere fact that the petitioner did not literally follow the verbiage. of the Statute (Art. 4631, R.C.S.) makes no material difference, in the light of his averments.

A citizen is an inhabitant and is so universally defined.

We hold that the averments are sufficient to meet the Statute.

But the prior judgment must be upheld under the authority of Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198, in which cause it is declared that Art. 4631 is not a jurisdictional statute but merely one prescribing the qualifications of the plaintiff in divorce cases.

This brings us to appellant’s pleadings, wherein she asks recovery of certain community property.

If, after stripping appellant’s pleadings of her prayer for a decree of divorcement, it can be said that the remaining portion of the petition is sufficient to raise the issue of a proper disposition of the community property owned by the parties, it is clear that appellant cannot maintain her suit in Tarrant County, because of the plea of privilege filed by appellee.

The judgment of the District Court of Tarrant County is affirmed without prejudice to the right of appellant to bring suit in Cooke County, Texas, for a settlement of the property rights, if any, between the parties.


author: SHARP, Justice.

text:
    KADANE et al. v. CLARK.
    No. 7694.
    Supreme Court of Texas.
    Oct. 2, 1940.
    Kilgore & Rogers and Ray Bland, all of Wichita Falls, for plaintiffs in error.
    Bonner, King, Dawson & Jones and Harold Jones, all of Wichita Falls, for defendant in error.
   SHARP, Justice.

This suit involves the construction of the Securities Act. Vernon’s Annotated Civil Statutes, Article 600a, Sections 1 to 29, and 31 to 38; Vernon’s Annotated Penal Code, Article 1083a, Section 30.

C. W. Clark filed this suit against George E. Kadane, Jack Kadane, Mike E. Kadane, Edwin G. Kadane, Charles Kadane, Fred A. Kadane, and Big Six Oil Company, a corporation, to recover a specified sum as commission, or, in the alternative, for the reasonable value of the services rendered in procuring a purchaser for an oil and gas leasehold interest. The case was submitted to a jury on special issues. In compliance with the findings of the jury, the trial court entered judgment for plaintiff, against the defendants, for $10,500. The Court of Civil Appeals at Fort Worth reversed the judgment of the trial court, and remanded the cause for further proceedings. 134 S.W.2d 448.

The parties will be designated as they were in the trial court.

Plaintiff alleged that he performed certain services for defendants in selling certain oil and gas leases, that he procured a purchaser therefor, and that he was entitled to a commission of five per cent, for such services. Defendants contested the claim of plaintiff on several grounds, among which was' that his allegations disclosed that the contract he was seeking to enforce was in violation of the Securities Act and invalid. As applicable to the question for decision before us, we quote the pertinent provisions of the Act as follows:

“Section 1. This Act shall be known and may be cited as ‘The Securities Act.’
“Sec. 2. The following terms shall, unless the context otherwise indicates, have the following reespective meanings:
“(a)' The term ‘security’ or ‘securities’ shall include any share, stock, treasury stock, stock certificate under a voting trust agreement, collateral trust certificate, equipment trust certificate, preor-ganization certificate or receipt, subscription or reorganization certificate, note, bond, debenture, mortgage certificate or other evidence of indebtedness, any form of commercial paper, certificate in or under a profit sharing or participation agreement, certificate- or any instrument representing any interest in or under an oil, gas or mining lease, fee or title, or any certificate or instrument representing or secured by an interest in any or all of the capital, property, assets, profits or earnings of any company, investment contract, or any other instrument commonly known as a security, whether similar to those herein referred to or not.
“(b) The term ‘company’ shall include a corporation, a person, joint stock company, partnership, association, company, syndicate trust, incorporated or unincorporated, heretofore or hereafter formed under the 1 laws of this or any other State, country, sovereignty or political subdivision there-q-£ ⅜ ⅜ ⅜
“(c) The term ‘dealer’ shall include every person or company, other than a salesman, who engages in this State, either for all or part of his or its time, directly or through an agent, in selling, offering for sale or delivery or soliciting subscriptions to, or orders for, or undertaking to dispose of, or to invite offers for, or dealing in any other manner in any security or securities within this State. * * *
“Sec. 3. Exempt transactions. Except as hereinafter in this Act specifically provided, the provisions of this Act shall not apply to - the sale of any security when made in any of the following transactions and under any of the following conditions, and the company or person engaged therein shall not be deemed a dealer within the meaning of this Act; that is to say, the provisions of this Act shall not apply to any sale, offer for sale, solicitation, subscription, dealing in or delivery of any security under any of the following transactions or conditions. * * *
“(c) Sales of securities made by, or in behalf of a vendor in the ordinary course of bona fide personal investment of his personal holdings, or change of such investment, if such vendor is not otherwise engaged either permanently or temporarily in selling securities,- provided, that in no event shall such sales or offerings be exempt from the provisions of this Act when made or intended, either directly or indirectly, for the benefit of any company or corporation within the purview of this Act. * * * ”

Provision is made in the Act for registration and the issuance of permits by the Secretary of State; and the Act authorizes any dealer, salesman, or agent dissatisfied by any decision of the Secretary of State to appeal to the District Court of Travis County. Section 28, Vernon’s Annotated Civil Statutes, Article 600a, Section 28.

Section 30 reads as follows: “Any dealer, agent, salesman, principal, officer, or employee, who shall, within this State, sell, offer for sale or delivery, solicit subscriptions to or orders for, dispose of, invite offers for, or who shall deal in any other manner in any security or securities, without being registered as in this Act provided, or who shall within this State, sell, offer for sale or delivery, solicit subscriptions to and orders for, dispose of, invite orders for, or who shall deal in any other manner in any security or securities issued after the -effective date of this Act without having secured a permit as herein provided, or who knowingly makes any false statement of fact in any statement or matter of information required by this Act to be filed with the Secretary of State, or in any advertisement, prospectus, letter, telegram, circular, or any other document containing an offer to sell or dispose of, or in or by verbal or written solicitation to purchase, or in any commendatory matter concerning any securities, with intent to aid in the disposal or purchase of the same, or who knowingly makes any false statement or representation concerning any registration made under the provisions of this Act, or who is guilty of any fraud or fraudulent practice in the sale of, offering for sale or delivery of, invitation of offers for, or dealing in any other manner in any security or securities, or who shall knowingly participate in declaring, issuing or paying any cash dividend by or for any person or company out of any funds other than the actual earnings of such person or company or from the lawful liquidation of the business thereof, shall be deemed guilty of a felony and, upon conviction thereof, shall be sentenced to pay a fine of not more than One Thousand Dollars ($1000), or imprisoned in the penitentiary for not more than two (2) years, or by both such fine and imprisonment.” Vernon’s Annotated Penal Code, Article 1083a, Section 30.

Defendants contend that plaintiff having failed to comply with the Securities Act, the contract under which he sought to recover is invalid. The Court of Civil Appeals held that the act of plaintiff, regardless of whether or not he should have obtained his license, comes within the exemption expressed in Section 3(c). of Article 600a, which exempts “sales of securities made by, or in behalf of a vendor in the ordinary course of bona fide personal investment of his personal holdings, or change of such investment, if such vendor is not otherwise engaged either permanently or temporarily in selling securities.”

The Court of Civil Appeals also held that the Securities Act did not include an oil and gas lease within the definition of a “security.” The Court of Civil Appeals also held that if it should be mistaken in that interpretation of the Act, and that an oil and gas lease is included in the Act, the exemption to the Act expressed in Section 3(c), above quoted, applies.

This Act classifies an oil and gas lease as a security. Section 2(a) of Article 600a defines the term “security” as follows “(a) The term ‘security’ or ‘securities’ shall include * * * any instrument representing any interest in or under an oil, gas or mining lease, fee or title * * *

The evidence clearly shows that all of the defendants were, and are, engaged in the oil business. Plaintiff testified that in November and December, 1937, he was active in undertaking to sell various oil and gas leases. It is undisputed that plaintiff had not qualified as a dealer in securities and had not procured a license under the provisions of this law. It is also undisputed that plaintiff was neither the owner of the fee nor interested in the title to the oil and gas leases which he claims to have sold.

The history relating to the sale of securities in this State is well known. The development of the oil industry emphasized the necessity of regulating sales of securities issued on oil leases and other instruments relating to the oil business. An enormous number of worthless securities were sold to the public, and nothing was realized on many of these investments by the buyers. There was no restraint upon such sales nor upon those who made them. The public was notoriously imposed .upon, and ofttimes people were defrauded out of their life’s savings. There was a public demand for protection against such sales. The legislature sought to cope with the situation by enacting the Securities Act. This law defines specifically the requirements necessary to authorize the sale of securities thereunder. It definitely prohibits any person from making sales of certain securities without first complying with the terms of this Act. The penalty for its violation is particularly heavy, and anyone who violates such law “shall be deemed guilty of a felony and, upon conviction' thereof, shall be sentenced to pay a fine of not more than One Thousand Dollars ($1,-000), or imprisoned in the penitentiary for not more than two (2) years, or by both such fine and imprisonment.” Section 30.

Clearly the outstanding purpose of this Act is for the protection of the public. Its object is to regulate the sale of securities and to protect the public from fraud and imposition by those engaged in selling worthless securities. The public policy of this State with reference to such sales is clearly expressed in this Act. That the State has power to enact such regulations for the sale of securities is well established. Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 220, 61 L.Ed. 480, L. R.A.1917F, 514, Ann.Cas.1917C, 643; State v. Nordstrom, 169 Minn. 214, 210 N.W. 1001; State v. Pullen, 58 R.I. 294, 192 A. 473; People v. Estrada, 24 Cal.App.2d 341, 74 P.2d 1084, 1085; People v. Daniels, 25 Cal.App.2d 64, 76 P.2d 556.

The statute is strictly penal in nature, and was enacted solely to protect the interests of the public. While- the law does not specifically provide that a contract made in violation of this Act shall be void, yet, when the Act as a whole is read, and the purposes for which it was passed are considered, we think the very letter and spirit of the law is to absolutely prohibit sales of securities not made under the terms of this law. The very language used in the Act excludes the theory that it was enacted in any manner as a revenue measure. The construction of this Act resolv-es itself into one of legislative intent, which is to be determined from the terms used and the object in view in enacting the law. The conclusion is inescapable that a contract made in violation of its terms is not enforcible. Any other construction would nullify the very purpose for which it was enacted.

The State has the power to enact statutes to protect the public from fraud and imposition, prohibiting certain things from being done and imposing a penalty. The great weight of authority sustains the rule that the legislature has the power to enact such laws, and that all contracts in violation thereof are void. Rogers v. Traders & Gen. Ins. Co., Tex.Com.App., 139 S.W.2d 784, 128 A.L.R. 1305; Pollock’s Principles of Contract, 293; Drury v. Defontain, 1 Taunt. 136; Myers v. Meinrath, 101 Mass. 366, 3 Am.Rep. 368; Lyon v. Strong, 6 Vt. 219; Harris v. Runnels, 12 How. 79, 13 L.Ed. 901; Gibbs v. Gas Co., 130 U.S. 396, 9 S.Ct. 553, 32 L.Ed. 979; Miller v. Ammon, 145 U.S. 421, 12 S.Ct. 884, 36 L.Ed. 759, and cases cited; Cashin v. Pliter, 168 Mich. 386, 134 N.W. 482, Ann. Ca’s.1913C, 697; Shattuck v. Watson, 164 Mich. 167, 129 N.W. 196; 17 C.J.S., Contracts, p. 656, § 272; 12 Am.Jur., p. 658, § 163.

The spirit of comity that exists between the Court of Criminal Appeals and the Supreme Court has long been recognized, and each court recognizes the supreme authority of the other court in certain fields. This Court has followed, and will follow, the Court of Criminal Appeals in its interpretation of penal laws. Caples v. Cole, 129 Tex. 370, 102 S.W.2d 173, 104 S.W.2d 3; Roberts v. Gossett, Tex.Civ.App., 88 S.W.2d 507; 11 Tex.Jur., p. 853. In two well-considered cases the Court of Criminal Appeals has construed and upheld the validity of this Act. That court has held that an assignment of an oil and gas lease is a security, and has upheld convictions for violations of the law. Atwood v. State, 135 Tex.Cr.R. 543, 121 S.W.2d 353; Muse v. State, 137 Tex.Cr.R. 622, 132 S.W.2d 596.

In our opinion, the construction given this Act by the Court of Criminal Appeals conflicts with the construction given it by the Court of Civil Appeals in this case. We are constrained, in view of the long-existing comity between the two courts, to sustain the holdings of the Court of Criminal Appeals in the two cases above cited.

Under the undisputed facts of this case, and under the above-mentioned Act, as construed and interpreted by the Court of Criminal Appeals in the Atwood and Muse "cases, supra, Clark acted in violation of the criminal law in doing the things that he claims he did to earn the commissions here sued for. It follows that he has no legal claim on which a judgment in his favor can stand. ■

The judgments of the District Court and Court of Civil Appeals are both reversed, and judgment is here rendered for defendants.


author: FOLLEY, Justice.

text:
    SCHULZE et al. v. LIGHT et al.
    No. 5191.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 16, 1940.

      James Spiller and Curtis Douglass, both of Panhandle, for appellants.
    H.. H. Smith, of Panhandle, and Light & Light, of Liberal, Kan., for appellees.
   FOLLEY, Justice.

This suit was filed in the District Court of Carson County, Texas, by C. M. Light and six other individuals, appellees, who were alleged to have been partners doing business under the firm name of “Light Grain & Milling Company” and to have resided in Seward County, Kansas. They sued the appellants, A. R. Schulze and wife, Bula Schulze, who were alleged to have been doing business under the firm name of Schulze Bakery .at Panhandle, Texas. The suit was to recover judgment for a debt of $745.58, with interest and attorneys’ fees, as evidenced by a note in such amount executed by Schulze and wife payable to “The Light Grain and Milling Co.” and to foreclose a chattel mortgage upon certain property used in connection with such bakery, said mortgage executed by the appellants to secure said note.

The appellants answered by the general issue. Upon a trial before the court without a jury judgment was rendered for the appellees for their debt with interest and attorneys’ fees totaling $847, and for foreclosure of. their chattel mortgage lien upon the property described in their petition.

This appeal is before us without a statement of facts. All fact issues must therefore be resolved in favor of the'validity of the judgment.

The appellants, however, attack the sufficiency of the pleading of the appel-lees, asserting that the same was subject to a general demurrer because the proper parties were not shown in the petition nor was their capacity to sue- properly set out. Our interpretation of the complaint in this respect is that appellants contend the suit vyas brought by the Light Grain & Milling Company, a ^co-partnership, as a legal entity and not by the members of such partnership. This contention is, in our opinion, without merit. The plaintiffs are named individually at the beginning of the petition and the most reasonable construction of the petition is that they sue as such and not as a partnership. Although they asserted they were partners and composed the partnership named, there is no indication from the pleading as a whole that they were suing in the name of the partnership as a legal entity. The court in the judgment did not so interpret the pleading but on the contrary rendered judgment, not for the partnership as such, but for the partners individually.

We also fail to see any merit in appellant’s further contention that there is fundamental error in the judgment because of the allegations that the note was payable to “The Light Grain and Milling Co.”, and that the mortgage was in favor of “The Light Grain & Milling Co.”. The complaint in this respect is predicated on the use of the word “and” with reference to the name of the partnership mentioned in the note and the use of the character as used in the name of the partnership in the mortgage. If this discrepancy in the name of the partnership was material it would not, in our opinion, present fundamental error since this suit was not brought by the partnership but by the partners composing it, whatever might be its name.

The contention is also made that error is apparent in the record in that the copies of the note and mortgage attached to and made a part of the pleading of the appellees did not show that the required revenue stamps were attached to said instruments and that by reason thereof neither the note nor the mortgage could legally become the subject of litigation. Although the appellants do not refer in their brief to 'any particular statute that they -have mind in this regard, undoubtedly they refer to the requirements outlined in article 7047e, Vernon’s Annotated Civil Statutes of Texas, with reference to payment of a stamp tax on obligations filed for record. We do not understand that the effect of this statute vitiates the note or the mortgage when such tax is unpaid but is merely one of the requirements which must be performed before the mortgage or other instrument may be recorded. We know of no law which requires the recording of a mortgage in order to create an obligation between the parties thereto. Moreover, the alleged copies attached to the pleadings would require no revenue stamps if such was required of the. original instruments, and in the absence of a statement of facts it will be presumed the proper revenue stamps appeared on such instruments. This assignment is overruled.

The appellants further contend there is fundamental error in the judgment by reason of the fact that the value of the mortgaged property was not alleged in appellees’ petition. The amount of the note’was well within the jurisdiction of the district court. This being true the value of the mortgaged property became immaterial. 11 Tex.Jur. 744, para. 28. Appellants, no doubt, have confused the rule in this respect relative to district courts with the rule applied to inferior courts. The rule as applied to the county and justice courts has been announced in many cases, among which are the following: Campsey v. Brumley, Tex.Com.App., 55 S.W.2d 810; Brown et al. v. Peters, 127 Tex. 300, 94 S.W.2d 129; Parsons v. John Deere Plow Co., Tex.Civ.App., 113 S.W.2d 970; McIntyre v. Oliver Motor Co., Tex.Civ.App., 20 S.W.2d 241; Reeves v. Faris, Tex.Civ.App., 186 S.W. 772, and authorities therein cited; Winerich Motor Sales Co. v. Gombert et al., Tex.Civ.App., 293 S.W. 1113. The rule announced in these authorities, and others upon the subject, applies only to courts with maximum limits on their jurisdiction. In suits brought in the district court where the amount of the debt exceeds $500, it is not necessary for the pleadings to allege the value of the mortgaged property because there is no maximum limit to tire jurisdiction of such court. Austin Real Estate & Abstract Co. v. Bahn, 87 Tex. 582, 29 S.W. 646. This assignment is also overruled.

The judgment is affirmed.


author: MONTEITH, Chief Justice.

text:
    LAMB v. ISLEY.
    No. 11039.
    Court of Civil Appeals of Texas. Galveston.
    July 18, 1940.
    Rehearing Denied Oct. 3, 1940.

      Landman & Landman and E. A. Land-man, all of Athens, for appellant.
    Lee & Porter, of Longview, for appellee.
   MONTEITH, Chief Justice.

This is an appeal in a suit brought by appellant, E. A. Lamb, against appellee, I. Isley, to review an action brought by Isley in the 124th Judicial District Court of Gregg County on May 21, 1932, against Lamb and others, styled 1. Isley v. J. L. Duncan et al., for the title and possession of a certain tract of 3.86 acres of land in Gregg County. 'Plaintiff sought to cancel a quitclaim deed and an agreement between himself and others involving said land.

For convenience, appellant will be designated in this opinion as Lamb and appellee as Isley.

Lamb filed a cross-action alleging the ownership of the land in question in himself. Judgment was rendered on February 2, 1935, in favor of Isley and against Lamb for the title and possession of the land'sued for.

On November 20, 1936, Lamb filed a petition in said cause in the nature of a bill of review against Isley and others, attacking said judgment on the ground of fraud alleged to have been committed by Isley and his attorney, W. Edward Lee, who was alleged to have represented both Lamb and Isley in said cause, and to have, in violation of an agreement with Lamb, taken judgment against him in favor of Isley.

A general demurrer of defendants was sustained and upon Lamb’s refusal ,tO‘ amend said cause was dismissed. On appeal, the cause was reversed and remanded on the grounds of fraud' on the part of Isley and his counsel. After the mandate was issued Lamb took a voluntary nonsuit on June 27, 1938. On December 17, 1938, he filed a second bill of review in which he was represented by other, counsel. This cause proceeded to trial on May 15, 1939-During the trial thereof Lamb, with the consent of the court, filed a trial amendment, to which Isley excepted on the ground that it did not allege in what respect defendant had a meritorious defense to plaintiff’s original cause of action, or bring forward the proceedings of the original suit; that the cause of action there alleged had not been alleged in the prior bill of review and that it was barred by the two and four years’ statutes of limitation. All exceptions and motions were overruled and at the conclusion of the evidence the cause was submitted to the jury on fourteen special issues, of which only four were answered by the jury.

On motion of Isley, judgment was rendered in his favor on said verdict on June 2,' 1939. The term of court at which said cause was tried expired on July 1, 1939. No disposition of Lamb’s motion for a new trial having been made, an order was entered on June 27, 1939, extending the term of court for that purpose. On September 1, 1939, Lamb filed an amended motion for a new trial and for judgment non obstante veredicto. These motions were overruled. On September 7, 1939, the court sustained a plea in abatement filed by Isley on the ground that it was without jurisdiction to hear and determine either of these motions.

There is no statement of the facts introduced in the trial court in the record; therefore, in the absence of fundamental error, we must rely upon an examination of the pleadings and the judgment of the court in passing on the correctness of its judgment, in that we .cannot determine from the record whether the evidence introduced was sufficient to sustain the issues not answered by the jury, or whether, under the record, they were material. Lamb was the moving party on this appeal and it became his duty to produce the statement of facts. Hanson v. Ponder et al., Tex.Com.App., 5 S.W.2d 767. In the absence of a statement of the facts introduced we must presume that the issues answered were supported by sufficient evidence.

The record in this court consists only of a transcript of 395 pages, a large part of which is copies of pleadings filed prior to the date of the filing of said second bill of review, and since the record contains no statement of the facts introduced in the trial of the second bill of review, we are not permitted to consider as evidence the matters and allegations contained therein, except in so far as they may show the proceedings in the original suit and the cause of action alleged in the prior bill of review.

The trial court in his judgment found that the jury made answer to all defensive issues (issues Nos. 11, 12 and 13) favorable to defendant; and that by its answer to special issue No. 14 it found against appellant’s contention that the original agreement between Isley and Lamb was changed by the execution of the quitclaim deed executed to Isley by Lamb on March 1, 1932; and that the jury’s answers to said four special issues were sufficient to support and require that judgment be entered for defendant.

The first ten issues submitted by the court, which the jury failed to answer, relate to the location of boundaries, the question of whether Lamb and Isley entered into an agreement prior to the judgment complained of, and as to whether or not the land described in said quitclaim deed included the 3.86 acres of land involved in the original cause. The eleventh issue inquired if Lamb and Isley, during the month of May, 1932, entered into an agreement, whereby Isley executed certain instruments and placed them in escrow pending the determination of a lawsuit involving the location of the south boundary line of the Thomason survey. The jury answered this issue, “YeS”. The twelfth issue inquired as to whether there was an agreement between Lamb and Isley that the oil and gas lease and mineral deed previously inquired about would not be delivered to Lamb and that he would have no interest in said land unless the claimed interest of the Duncans was cancelled. The jury also answered this issue, “Yes”. The thirteenth issue-inquired as to whether there was an agreement between Lamb and Isley that said oil and gas lease and mineral deed would not be delivered to Lamb unless the south boundary line of the Thomason survey was established at about 60 or 66 varas north of a certain fence line. The jury answered this issue, “No”. The fourteenth issue inquired as to whether the agreement concerning the delivery of said oil and gas lease and mineral deed was changed by a quitclaim deed from Isley to Lamb on November 1, 1932. The jury answered this issue, “No”.

It is the settled law in this state that where there is no conflict in the answers to the issues submitted to the jury, the fact that certain issues were not answered does not necessarily render the judgment void, where the issues answered decide the essential question upon which the merits of appellant’s cause depends and warrants and supports the judgment rendered. Jones v. State Fair of Texas, Tex.Civ.App., 127 S.W.2d 948; Coons v. Lain, Tex.Civ.App., 168 S.W. 981; Grice v. Herrick Hardware Co., Tex.Civ.App., 219 S.W. 502.

Further, our courts have uniformly held that where the judgment rendered by the trial court was the proper one under undisputed facts,-it is the duty of the reviewing court to affirm it, even though the trial court gave the wrong reasons therefor. Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298; Id., 111 Tex. 419, 239 S.W. 185; Schuyler et al. v. Lacy et al., Tex.Civ.App., 79 S.W.2d 901; Hanks v. Magnolia Petroleum Co., Tex.Com.App., 24 S.W.2d 5; Pinkston v. Pinkston, Tex.Civ.App., 81 S.W.2d 196; Kimball-Krough Pump Co. v. Judd, Tex.Civ.App., 88 S.W.2d 579.

We find no fundamental error in the record. The judgment of the trial court is, therefore, in all things affirmed.

Affirmed.