author: RASBURY, J.

text:
    SPARKS v. KAUFMAN COUNTY.
    (No. 7673.)
    (Court of Civil Appeals of Texas. Dallas.
    March 24, 1917.
    Rehearing Denied April 28, 1917.)
    1. Counties <⅜=^74(2) — Clerks — Compensation-Population op County — Determination.
    Acts Sp. Sess. 25th Leg. e. 5, § 10, as amended by chapter 15, § 1, provides that the maximum of fees of office that could be retained by county clerks is an amount not in excess of $2,000 per annum, plus one-fourth of the excess above such amount, provided that up to 1902 in counties in which there were cast at the last presidential election as many as 5,-000 votes and thereafter in counties shown by congressional census of 1900 to contain as many as 25,000 inhabitants such clerk should receive not exceeding $2,250, plus one-fourth of the excess fees above the said amount. Section 17 of said act provides that the officers named in section 10 in those counties having a population of 15,000 or less shall not be required as provided in section 11 to keep a statement provided for in section 16 of this act, the population of the county to be determined by the vote cast at the next preceding presidential election on the basis of 5 inhabitants for each vote cast at such election. Held that, as applied to the county clerk in a county containing over 25,000 inhabitants according to census, but easting less than 3,000 votes at the last presidential election, the method of computing the population provided in section 17 must give way to the provisions of section 10.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 105.]
    2. Statutes ⅞=»181(1) — Construction—Legislative Intent.
    Under the direct provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5502, the Legislature’s intent must be kept in view in construing statutes.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 259.]
    3. Counties <§=>114 — Clerks—Supplies.
    A county clerk has no authority to acquire new typewriters, by purchase or exchange, or expend money for postage stamps, although such supplies are necessary in conducting his office.
    [Ed. Note. — For other eases, see Counties, Cent. Dig. §§ 174, 175.]
    4. Counties <@=>113(1) — County Commissioners — Exchange or Purchase op Typewriters.
    The authority to acquire new typewriters by purchase or exchange for the county clerk’s office is vested, if in any one, in the commissioners’ court under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2256, authorizing them to contract for stationery.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 176.]
    5. Counties <@=>124(1) — Liability por Property Used.
    A county is not liable on equitable principles for new typewriters and postage stamps used by a county clerk in conducting his office, where the commissioners’ court did not authorize nor consent to the supplies being acquired.
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by Henry Sparks against Kaufman County consolidated with an action by Kaufman County against Henry Sparks and others. From an affirmative judgment for Kaufman County, Henry Sparks appeals.
    Affirmed.
    Lee R. Stroud and Wynne & Wynne, all of Kaufman, for appellant. G-. O. Crisp, of Kaufman, and Bond & Bond, of Terrell, for appellee.
   RASBURY, J.

Appellant sued appellee for certain excess fees paid appellee by appellant while county clerk of Kaufman county, under the belief that such excess fees belonged to the county, but which under the provisions of law it was alleged belonged to appellant; also for certain other special items which will be detailed at another point in this opinion. Another suit by appellee against appellant to recover from appellant certain excess fees withheld by appellant then pending was consolidated with the instant case, and both proceeded to trial simultaneously. There was trial before the court, who rendered judgment against appellant on his claim. Judgment was rendered for appellee on its claim against appellant for certain sums of money, aggregating $4,702.16, found to be due by' appellant as excess fees, after allowing him credit for all fees actually paid into the county treasury and those due him and not so paid in. From such judgment this appeal is taken.

. The court filed conclusions of fact, those essential being in substance these: Appellant was elected county clerk of Kaufman, county in November, 1910, qualifying and assuming the office "November 9, 1910, serving therein until November 12, 1912, at which time, he having been re-elected, he again qualified and assume the qffice, and served therein until November 10, 1914. Appellant for the first three fiscal years in office paid into the county treasury certain excess fees collected by him aggregating $1,780.30, being the fees sued for by him, and refused to pay any such fees-for the fourth year. The excess fees sued for by him and actually paid into the treasury were not all the excess fees by him collected. Allowing appellant all fees to which he was entitled and crediting him with all fees paid into the county treasury, he was due appellee at trial $4,702.16. The approximate total of all excess fees collected by appellant was $6,482.46. As shown by the United States census of 1900, Kaufman county in the year 1910 had a population of 33,373 inhabitants. As shown by the same census for 1910, Kaufman county for the years 1911, 1912, 1913, and 1914 had a population of 35,322 inhabitants. At no presidential election next preceding either term of office so held by appellant did the vote cast thereat equal 3,000 votes. There are certain other facts found by the court which will be stated in connection with the issues they support.

The court found as matter of law that appellant was not entitled to recover the fees paid in by him, and that appellee was entitled to recover those not paid in by appellant for the reason that Kaufman county came within the provisions of the law limiting the fees of certain county officers, including county clerk, and that after allowing appellant his limit, to wit, $2,250, plus one-fourth of all fees in excess of that amount, he was due appellee the amount for which judgment was rendered.

The effect of the first assignment of error is to challenge the construction placed by the trial court upon the several statutory provisions popularly known as the “maximum fee bill.” As argued by appellant, it is well known that the purpose of the law is to fix a maximum of compensation for certain officers in some of the counties in the state, and, for reasons not necessary to recite, to exempt those in certain sparsely inhabited counties from the provisions of the law. For the purpose of better understanding the issue presented we recite those provisions of the law applicable thereto in force during the period the items accrued. There have been some recent changes in the law not necessary to detail. The original act was passed in 1897. Gen. Laws, Sp. Sess. 25th Log. c. 5, § 10, as amended by chapter 15, p. 42; 10 Laws Texas, 1482; Batts’ Civ. Stats, art. 2495c. As amended, the act provided that the maximum of fees of office that could be retained by county clerks and others enumerated was an amount not in excess of $2,000 per annum, plus one-fourth of the excess above said amount, provided that “up to 1902, in counties in which there were cast at the last presidential election as many as 5,000 votes, and thereafter any counties shown by the national census of 1900 to contain as many as 25,000 [inhabitants],” such clerk and the others enumerated should receive not exceeding $2,250, plus one-fourth of the excess fees above said amount. By the act county clerks and others were «required to make annually to the district court under oath a complete statement showing the fees collected and not collected, etc., by him, the deputies and assistants employed, together with the amounts paid them, any excess fees shown to have been collected to be paid into the county treasury, such reports to be submitted to the grand jury, etc. Sections 11 and 16. By the act it is also provided that county clerks and others named in section 10, in counties containing a population of 15,000 or less, based upon 5 inhabitants for each vote cast, shall not be required to make the report just mentioned. Section 17. The only change in the law applicable to the particular facts of the present case appears in article 3882, R. S. 1911, effective September 1st the same year, where it is declared that among others county clerks, in those counties shown by the national census to contain as many as 25,000 inhabitants, shall receive not exceeding $2,250 per annum, plus one-fourth of all fees in excess of said amount. As we have-shown'in our statement of the essential facts, the trial judge found that Kaufman county during the time appellant was in office contained by the national census, more than 25,000 inhabitants. He further found, as we have also shown, that at no presidential election during the time appellant held office did the votes cast thereat equal 3,000. As a consequence, based upon the last finding of fact, Kaufman county during appellant’s incumbency in office had a population of less than 15,000, which exempted him from making the report required by sections 11 and 16 of the act. Counsel for appellant argues that, being exempt by the basis fixed by section 17 from making report of excess fees, he may, notwithstanding other provisions! retain such excess. The question depends upon the construction to be placed upon section 10 of the original act as amended and section 17. Section 10, it occurs to us, is easily understood. It first declares that county clerks and others shall receive as compensation $2,000 annually, plus one-fourth of all fees in excess of said amount and no more. By section 11 it is provided, in substance, among other things, that in the event the fees collected by such officer is less than his maximum compensation or insufficient to pay his deputies and assistants, the state shall not be responsible for such deficit, from which it is apparent that it was the purpose of the Legislature to allow such officer $2,000 and one-fourth of the fees in excess of that amount, in -any event if the income from the office was sufficient. Section 10 next, declares that such officer may have $2,250, plus one-fourth of the fees in excess of that sum, if the population of the county is as much as 25,000. From such declaration it is deducible that the legislature was of opinion that a county of 25,000 population would return revenue in excess of the maximum compensation of $2,000. As we have said, the act was passed in 1897, and for the purpose of determining the population, and the consequent right to the greater compensation, it was further declared that until 1902, in any county easting as many as 5,000 votes at the last presidential election the larger compensation should be paid; and after said year (1902) in any county shown by the national census of 1900 to have 25.000 inhabitants the larger compensation should be paid. That it was the intention of the Legislature that no more than the amounts specified should be paid is made further manifest by section 11, requiring such officer to make sworn reports of all fees collected by him to the district' court and to pay into the county treasury any excess, and by section 16, requiring the district judge to refer such reports to the grand jury for examination and report. By the facts in the present ease it appears that appellant has retained in excess of his maximum compensation of $2,250, plus one-fourth of the excess, $4,702.16. The issue then narrows to the proposition whether appellant may, despite the plain provisions of section 10, definitely fixing his maximum compensation, retain that sum, under the provisions of section 17. Section 17 does not in any respect qualify the provisions of section 10. It deals, not with the compensation to be received by the officers named nor how it is to be ascertained, hut with an entirely different subject. But it must be confessed that it does deal with the same subject as section 11, since by that section every officer named in section 10 must make a report, while by section 17 such officers in counties having less than 15,000 inhabitants are not required to make such report.

Considered, then, together, the effect of sections 11 and 17 is that all officers named in section 10 shall make the reports required by section 11, save in counties containing less than 15,000 inhabitants. . But the difficulty lies in the further provision of section 17 declaring that the population of the counties to be exempted shall be determined by multiplying the presidential vote by 5. Such computation would, under the facts in this case, exempt appellant from reporting excess fees, and by inference, as argued by counsel for appellant, permit him to retain such excess. On the other hand, it is declared by section 10 that appellant is not entitled to the excess if the county contains 25,000 inhabitants based upon the national census. So computed, the county did contain 25,000 inhabitants during appellant’s incumbency in office, and from which the inference is to be drawn, as argued by opposing counsel, that appellant was bound to report and account for the excess and could not retain it. The illogical result arising from the dissimilar method of computing the population is apparent. Such being the case, the controlling and fundamental rule is to ascertain and give effect to the legislative intent. The rule with us is statutory, and declares that courts in construing statutes “shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.” Article 5502, Yernon’s Sayles’ Civ. Stats. Such intention, when ascertained, will control over the strict letter of the law, when the latter “would lead to palpable injustice, contradiction and absurdity.” Cannon v. Yaughan, 12 Tex. 399. “For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise by the Legislature to express its intent, and to follow which would pervert that intent.” Russell v. Farquhar, 55 Tex. 355; Edwards v. Morton, 92 Tex. 152, 46 S. W. 792. The preamble to the act under consideration recites its purpose, ■ among other things, to be “to limit and regulate the compensation of the clerk of the, county court, * * * and to prescribe penalties for the violation of” the act. Section 10 of the act unequivocally declares that such officers as are named therein shall receive no more than the amounts enumerated according to the county’s population based on the national census. Section 11 declares they shall report and account for all excess by paying same into the county treasury. Section 14 declares that failure to make the report shall constitute a misdemeanor punishable by fine of not less than $25 nor more than $500. Thus viewed from every single section of the act, save section 17, it is undeniably true that the intention of the Legislature was to allow the officers named the compensation outlined in section 10, ascertained in the manner therein prescribed. No other conclusion could be justified by the plain meaning of the language used. While it is true that the language used in section 17 is equally plain, it is so inconsistent with those material parts of the law dealing with the real object in hand that its literal construction and application would lead to the very absurdities and contradictions and consequent injustices that all authority asserts should he avoided. It is not conceivable that the Legislature intended, in exempting the officers in counties containing less than 15,-000 inhabitants from making the reports required of all officers named in section 10, to adopt a basis of. computing population, the effect of which would be to pervert and render nugatory the carefully arranged and considered provisions of the law in reference to the maximum of compensation. We conclude such was not their intention, and that the method of computing the population provided in section 17 must give way to those provi-I sions of section 10, on the same subject,

Appellant also sought to recover of appellee $105, the value of a typewriter. The court refused recovery, and his action is assigned as error. The facts concerning the item are that appellee owned a typewriter, which appellant, while county clerk, without the knowledge or consent of the county commissioners, traded, together with one owned by him personally, for two new machines, agreeing to pay the difference. The county commissioners refused to pay the difference, whereupon the Underwood Typewriter Company, with whom the trade was made, took possession of the two new machines. Appellant seeks to recover the value of one of the old machines traded for the two' new ones. The court found that the typewriter was necessary for running the office. Appellant urges that, since the typewriter was necessary to the conduct of the office, and was actually used by appellant in the performance of his duties, appellee received the benefits derived therefrom, and is hence liable therefor. We conclude that the county was not liable for this item. Appellant was without authority in law to make the exchange or to purchase a new machine. Such authority is reposed in the county commissioners, if in any one. Article 2256 et seq.., Vernon’s Sayles’ Civ. Stats. The facts further show that the commissioners’ court not only did not authorize the exchange and purchase, but that it was without its consent. Therefore it cannot be said that the county acquiesced •in the transaction and accepted its benefits •So as to make the county on equitable ground liable therefor.

Appellant also complains of the refusal of the court to allow him $500 expended for ¡postage stamps. The court found that the stamps were furnished and used and were necessary in the conduct of the office, but were purchased without the consent of the ■commissioners’ court. For the same reasons that we hold the court’s action in reference to the typewriter to be correct do we hold also correct his action in reference to furnishing stamps. Further, we do not anywhere find in the law authority for commissioners’ courts to allow such an item.

For the reasons stated in this opinion, we conclude it is our duty to affirm the action •of the trial court. It is accordingly so directed.

Affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    EMERSON-BRANTINGHAM IMPLEMENT CO. v. BROTHERS.
    (No. 1148.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 4, 1917.
    On Motion for Rehearing, April 25, 1917.)
    1. Husband and Wife <§=>133(7) — Separate Property — Evidence—Sufficiency.
    Evidence held to show that the money with which an automobile was- purchased was intended when borrowed to be the separate estate I of the wife, so that the automobile was not subject to execution for the husband’s debts.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 491.]
    2. Husband and Wife <§=>257 — Community Property — Rents of Separate Estate.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, as amended March 21, 1913 (Acts 33d Deg. c. 32), do not make the rents from the separate real estate of the wife her separate property, but merely give her control thereof, and the rents received from such property are community property and exempt from the debts contracted by the husband.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 904-908, 910.]
    3. Husband and Wife <§=>149(1) — Community Property — Rents of Separate Estate.
    Where the wife owned separate real estate, and the rents thereof were exempt from the husband’s debts, creditors of the husband, could not, when she purchased an automobile with such rents, levy on the automobile.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 573.]
    4. Husband and Wife <§=>249 — Community Property — Money Borrowed.
    In the absence of an understanding or agreement at the time, money borrowed by either the husband or wife is community property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 887, 889-892.]
    5. Husband and Wife <§=>131(1) — Community Property — Presumptions.
    Evidence held insufficient to rebut presumption created by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4622, that funds deposited in the name of the husband or wife are the separate property of the person t in whose name they stand.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 471.]
    Appeal from District Court, Cottle County; J. A. P. Dickson, Judge.
    Action by the Emerson-Brautingham Implement Company against O. B. Brothers, wherein defendant’s wife filed a claimant’s affidavit. Judgment for the claimant, and plaintiff appeals. Afiirmed. On motion for rehearing.
    Motion overruled.
    Spence & Haven and W. J. Rutledge, Jr., all of Dallas, for appellant. W. J. Arrington and Bell & Bell, all of Paducah, for appellee.
   HUFF, C. J.

Emerson-Brantingham Implement Company, appellant, levied an execution, issued on a judgment in its favor, against O. B. Brothers, the husband of appel-lee, Mrs. O. B. Brothers, on an automobile claimed by the wife, Mrs. Brothers. She filed her claimant’s affidavit and bond under the statute for the trial of the right of property. The trial court found the car so levied on the separate property of Mrs. Brothers, purchased by her from her separate estate. The facts show that Mrs. Brothers herself bought the car from the dealer, paying therefor $635, by checks drawn and signed by her, one for $100 on the First National Bank, and the other for $535 on the First State Bank. She at the time of drawing the checks to pay for the car, had standing in her name a deposit of $100 in the First National Bank and a deposit in her name of $535 in the First State Bank. The deposit of $100 was money given to her by her father. The other deposit of $535 was at that time from a note executed by herself, joined by her husband, to the First State Bank, and the money so received was placed in the bank on deposit to her credit. The evidence shows that her father had some nine years previous given her a farm, and. that she rented the farm, and the rents received from her tenant she deposited in the bank to her credit, upon which she checked by checks signed by her, and that she had done so ever since she owned the land. The rents collected after the execution of th’e note were so deposited. She testified she owned a Ford car and the proceeds thereof, $300, was paid on the note, and the balance whs paid out of the rents from her farm, $235. The vice president of the bank testified he loaned the money to her and that he would not have loaned it to her husband; that he passed in to her separate account which she kept at his bank. The husband signed the note with her. Mrs. Brothers borrowed the money for herself and on her own account. The facts are sufficient to show that it was the understanding and agreement between the parties that the money borrowed on the note at the time of the transaction should be the separate property of Mrs. Brothers. -

It is urged the money received from the rents of Mrs. Brothers’ farm was community property. It is our opinion that this contention is correct. The amendment of March 21, 1913, of articles 4621 and 4622, Vernon’s Sayles’ Civil Statutes, does not change the rents from the separate estate of real estate of the wife into the separate estate of the wife. The change in the law in this particular is that the control and management is now in the wife, instead as formerly in the husband, and such rents are exempt from the debts contracted by the husband. Tannehill v. Tannebill, 171 S. W. 1050; Scott v. Scott, 170 S. W. 273; Bank v. McWhorter, 179 S. W. 1147; Speer’s Law of Marital Rights, §§ 195, 196, 312, 315, 316, and 332.

It is also the contention of appellant that if the rents, as such, were exempt, the wife having converted a part thereof into money and invested it in property not exempt, or under the control of the wife, it would lose its exemption. If rents be sold or exchanged for other property, the proceeds or prop'erty taken in exchange immediately assume the same status of that sold or given in exchange. That received stands in lieu of that given. “The statute is intended to give to the wife absolute control over a part of a particular estate, and not over specific articles, as an exemption.” The observations made by Judge Speer in his treatise on marital rights meet in the main with our approval. These comments, coming from this able jurist and accurate writer on this subject, are entitled to great weight. See Speer's Marital Rights, §§ 302, 331, 332, 334. The rents from her estate being exempt, the creditor of the husband could not appropriate them to the payment of his debt. The change or mutation in the form from rents to money with which the automobile was purchased will not destroy her control thereof, or its exemption. The creditors, having no right to appropriate it in its original form, are not defrauded by its being invested or used in the purchase of the car, or in making it her separate property by understanding or agreement between them. This automobile was paid for by $100 given to the wife by the father, $300 by the proceeds of the sale of her Ford car, and $235 by rents, which were exempt. None of the purchase money or property which went into the auto could have been appropriated by the creditors of her husband. This act of Brothers and his wife withdrew nothing from their reach to which they were entitled to have subjected to their debts.

It is true that it is established by the decisions of the courts in this state, in the absence of an understanding or agreement at the time, that money borrowed by either the husband or wife is community property. This is true if they borrow it without the intention that it should be the separate property. Heidenheimer v. McKeen, 63 Tex. 229; Canfield v. Moore, 16 Tex. Civ. App. 472, 41 S. W. 718; Goddard v. Reagan, 8 Tex. Civ. App. 272, 28 S. W. 352.

However, we think in this case the evidence sufficient to warrant the trial court in finding that it was the understanding and agreement between the parties when the money was borrowed that it should be the separate estate of the wife. The amendment of article 4622, after defining community property, and placing under her control and management certain community property, among which is rents from the wife’s separate estate, adds the following:

“And further provided, that any funds or deposit in any bank or banking institution, whether in the name of the husband or the wife, shall be presumed to be the separate property of the party in whose name they stand, regardless of who made the deposit, and unless said bank or banking institution is notified to the contrary, it shall be governed accordingly in honoring checks and orders against such account.”

The appellant has not rebutted the presumption above specified by the statute. The deposit stood in both banks in the name of Mrs. Brothers. She checked it out by checks signed by her and honored by the bank, in payment for the car. The fact that she made a note and secured $535 would, perhaps, be in some measure a rebuttal of that presumption; but the evidence is she borrowed the money and the banker loaned it to her, and that her husband signed the note with her. The money on the note was immediately passed to- her separate account, which she kept with the bank. It is therefore inferable and will justify the finding, that it was the understanding and agreement that this money, should be her separate property. If one of the spouses borrow, intending to repay it from her separate estate, and both intend that the fund shall belong separately to the one borrowing, then such would be its status, even though the other sign the note as surety, or pledged property in such capacity. Somes v, Ainsworth, 67 S. W. 468; Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 L. R. A. (N. S.) 381; Evans v. Purinton, 12 Tex. Civ. App. 158, 34 S. W. 350.

Mr. Justice Hawkins, speaking for the Supreme Court, as we think, very clearly expressed the rule in McClintic v. Midland, etc., 106 Tex. 32, 154 S. W. 1157:

“Execution by the husband of notes for balance of purchase money for land conveyed to the wife does not constitute such land community property. In various cases in which the first payment for land deeded to the wife has been made with her separate funds, and notes for deferred payments have been executed by the husband, with the understanding between them that they were to be paid out of the wife’s separate estate, the land has been held to be her separate property. Such were the facts in Parker v. Fogarty, 4 Tex. Civ. App. 615, 23 S. W. 700, in which the distinguished former Chief Justice Bightfoot of the Court of Civil Appeals for the Fifth Supreme Judicial District, after a careful review of numerous decisions involving that question, said: ‘The right of a married woman to buy property for part cash and part notes, where the payments are to be made out of her separate estate, is now too firmly established to be called in question’ — citing Ullmann v. Jasper, 70 Tex. 447, 7 S. W. 763; McBride v. Banguss, 65 Tex. 174; Matlock v. Glover, 63 Tex. 239; Schuster v. Jewelry Co., 79 Tex. 179, 15 S. W. 259, 23 Am. St. Rep. 327; Evans v. Welborn, 74 Tex. 530, 12 S. W. 230, 15 Am. St Rep. 858. Subsequently, in Sparks v. Taylor, supra, this court, after reviewing various decisions upon the question, including the Parker Case, supra, said, in overruling the contention, that, because the husband joined the wife in signing a note secured by a lien on her separate property, the money borrowed thereon was community property. ‘It is evident that this contention is not sustained by the decisions of this court, for in every case cited above the husband signed the notes for deferred payments, and the court held in each case that the fact of agreement that the notes should be paid by the separate funds of the wife fixed upon the land purchased the character of separate property; the controlling facts being the intention of the parties and the investment of the wife’s separate funds.’ ”

This court substantially so held the rule to be in the case of Amend v. Jahns, 184 S. W. 729. The Supreme Court, however, in that case has granted a writ of error, evidently not upon this holding, as that proposition is now firmly established by the Supreme Court.

We have concluded that the trial court was justified in finding the car to be the separate property of Mrs. Brothers.

The judgment will be affirmed.

On Motion for Rehearing.

The evidence in this case will warrant the inference that it was the purpose to buy the automobile for the separate use and benefit of Mrs. Brothers; that she was to pay for it out of her money and property and the rents from her land; that she in effect made a part payment on the automobile out of her separate estate, and the note ,was executed to pay the balance, which was to be repaid out of her separate estate and by exempt property, which by law was in her exclusive control. We believe, therefore, the rule announced in McClintic v. Midland can properly be applied in this case. The funds so received was by consent of all parties placed to her separate account in the bank, thereby evidencing an agreement to make it her separate estate. The community never in fact received these funds, but it was paid direct in to her separate estate.

The motion is overruled.
      <6=>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    AKIN et al. v. FIRST NAT. BANK OF BRIDGEPORT et al.
    (No. 8587.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 31, 1917.
    On Motion for Rehearing, April 28, 1917.)
    1. Husband and Wine <®^238(7) — Judgment —Collateral Attack — Evidence.
    Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 4621, providing that all the property of a wife owned or claimed before marriage and acquired afterwards by gift, devise, or descent shall be the separate property of the wife and subject to her sole management, etc., and article 4622, in relation to community property, and article 4624, providing that neither the separate property of tho husband nor the community property other than personal earnings of the wife and income from her separate property shall be subject to payment of debts contracted by the wife except those contracted for necessaries furnished her or her children, on a collateral attack on judgment against husband and wife, proof aliunde the judgment is inadmissible to show that the judgment was not based on a contract for necessaries for the wife or her children, or for the benefit of her separate estate.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 862.]

    2. Husband and Wine <@=»238(7) — Judgment —Collateral Attack — Evidence.
    A default judgment against a married woman is not open to collateral attack, except as to some irregularity or defect disclosed on the face of the record in the original case, and is merely voidable, even in a direct action to set it aside.
    [Ed. Note. — For other cases, see Husband- and Wife, Cent. Dig. § 862.]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Suit for injunction by Nellie P. Akin and others against the First National Bank of Bridgeport and another. From a judgment dissolving a temporary injunction, the .plaintiffs appeal.
    Affirmed.

      Bumpass & Crumbaugh, of Terrell, for appellants. MeMurray & Gettys, of Decatur, for appellees.
   BUCK, J.

This is an appeal from a judgment and order of the district court of Wise county, dissolving a temporary injunction theretofore granted, which temporary injunction restrained the First National Bank of Bridgeport, Tex., and the sheriff of Wise county, from selling certain lands, other than the lands covered by a mortgage hereinafter mentioned, alleged to be the separate property of Mrs. Akin, in satisfaction of a certain judgment theretofore secured by the bank against Mr. and Mrs. Akin on a note to the bank signed by both Mr. and Mrs. Akin. The court has filed his findings of fact and conclusions of law, which findings of fact are not assailed by appellants and are adopted by us, and are as follows:

1. “I find that on the 16th day of November, 1915, First National Bank of Bridgeport filed 'suit in the district court of Wise county, Texas, in cause No. 3987 on the docket of said court against W. J. Akin and wife, Nellie P. Akin [the petition did not disclose the coverture of Mrs. Akin], seeking judgment against said de-fondants on certain note dated 2d day of December, 1914,- given by them and secured by deed of trust on certain lands, and seeking a personal judgment against both defendants as makers of said note and to foreclose the hen of said deed of trust on said land. That both of defendants were served and both made default. That said Akins were husband and wife when said note was executed and the judgment thereon rendered. That on or about the 3d day of January, 1916, said plaintiff took a default judgment against both of the defendants for the sum of $561.45 and cost of suit and foreclosure of said lien. Said judgment describing a recovery in general terms in said amount against both defendants in that suit and awarding execution generally against them both.”

2. “That on or about the 7th day of March, 1916, said plaintiff caused an execution to be issued out of this court on said above-described judgment, and caused the same to be placed in the hands of defendant J. Dee Mann as the sheriff of Wise county, Texas, who levied said execution upon the following lands and property, to wit: Dots Nos. 14 and 15 in block No. 71, and also the following tract, a part of the J. M. Kirman survey in Wise county, Texas, beginning at the southwest corner of said Kirk-man survey, thence north 587½ varas; thence cast 970 varas to the west boundary line of the R. Coleman survey a corner in what is known as Round Dake; thence south with said fine 587⅛ varas to the most southern southeast corner of said J. M. Kirkman survey; thence west 970 varas to the place of beginning, containing 103 acres of land. The court further finds that said sheriff was about to levy upon lots Nos. 12 and 13 in block No. 71, First addition to the city of Bridgeport, Wise county, Texas.”

3. “The court further finds that all the above-described property was the separate property of the plaintiff Mrs. Nellie P. Akin, bought and paid for out of the separate funds of the said Mrs. Akin.”

4. “The court further finds that the evidence fails to show that lots Nos. 14 and 15 in block No. 71 in the town of Bridgeport, Wise county, Texas, was the homestead of plaintiffs when said execution was levied.”

5. “The court further finds that the evidence shows that the note to the First National Bank of Bridgeport, and which was sued on in cause No. 3987, First National Bank of Bridgeport v. W. J. Akin and Nellie Akin, was signed by both said parties defendants.”

The court’s conclusions of law are as follows:

1. “The court concludes that the note named in paragraph 1 of above findings of fact, having been executed by both the husband and wife after the law relating to contracts of married women was amended, binds the wife personally and supports personal judgment against her and authorizes execution and levy on her separate property.”

2. “That if mistaken in this, the said judgment general in.terms and awarding execution authorizes the levy of execution issued on such judgment on the separate property of Mrs. Akin, one of the defendants against whom said judgment was rendored.”

3. “I conclude that the temporary injunction ought to be dissolved in whole, and the judgment is rendered accordingly.”

It has been repeatedly held, under the law as it existed prior to the amendment, by the Thirty-Third Degislature, 1913, of articles now numbered 4621, 4622, and 4624, Vernon’s Say les’ Texas Civil Statutes, that, under a collateral attack, proof aliunde the judgment was inadmissible to show that the judgment against husband and wife was not based upon a debt contracted for necessaries for the wife or her children, or for the benefit of her separate estate. Carson v. Taylor, 19 Tex. Civ. App. 177, 47 S. W. 395, writ denied; Walters v. Cantrell, 66 S. W. 790; Smith v. Ridley, 30 Tex. Civ. App. 158, 70 S. W. 235. We are of the opinion that under the present statute the rule has not been changed. Furthermore, it will be noted that the judgment on the note was by default, and in a proceeding of this character the door of inquiry is closed except as^ to some irregularity or defect disclosed on the face of the record in the original case. Speer’s Daw of Marital Rights in Texas, §§ 500 and 504. As noted by us in brackets, in the first paragraph of the court’s findings, the petition of the plaintiff bank in the original suit did not disclose the coverture of Mrs. Akin, and there ⅛ nothing in that record to show that she was a married woman. We all agree that for these reasons the court did not err in dissolving the injunction. As the judgment can be sustained on that ground, the majority decline to decide the question whether or not it can also be sustained on the first ground) stated by the trial judge in his conclusions of law, as the decision of that question is unnecessary. The writer is ol the opinion that the first ground assigned by the trial court is sound. Judge Speer, in his Daw of Marital Rights in Texas, § 148, in discussing this amendment, says:

“When it is considered that the old law, with its well-recognized limitations upon the right of a wife to contract, is, for that reason, considered by the lawmakers to he unjust, and the declared object, as expressed in the caption of the bill, is to confer upon the wife the power to make contracts, the purpose to remove the unjust restrictions and to enlarge the contract capacity of married women is apparent, and the act in pursuance of such purpose should be liberally construed with a view of accomplishing the end desired. Generally speaking, under the old law a wife could not contract. This was considered to bo, as it was, unjust. It is just that wives should be allowed to contract, and the whole purpose of the act upon this point is to empower them to do so, except as they are forbidden in the act itself.
“It is to be observed the language of the amending article is radically different from that of the amended. The old articto specially-authorized the wife to contract certain liabilities, which by a well-known rule of construction forbade any other. The new article forbids her making a contract of joint liability on a note or of suretyship on any bond or obligation of another,- without the joinder of her husband with her in making such contract, and by the same well-known rule of construction necessarily authorizes her to make any other contract. In other words, the change wrought is that whore the power to contract was originally denied generally, but authorized specially, it is now denied specially and authorized generally. Under tho terms of the present law a married woman can make any contract an unmarried woman can make, with the sole exceptions named in tho statute. This view is supported and rendered well nigh conclusive by the nainstaking reservation in the amending article that ‘neither the separate property of the husband nor the community other than the personal earnings of the wife, and the income, rents, and revenues from hor separate property shall be subject to the payment of debts contracted by the wife, except those contracted for necessaries for herself or her children.’ The old article,_ which had always been held to restrict her right to contract, has been repealed, and another substituted, exempting certain property from liability for her contracts, and forbidding her specially to make a certain class of contracts without the joinder of hor husband. From the history of the legislation, the consideration of the well-known and expressed evil intended to be remedied, and the general language of the bill, with its limitations specially expressed, there can be no other conclusion than that the Legislature intended to confer upon married women tho power generally to contract, subject only to some minor limitations.”

The argument of the author above quoted rather appeals to the writer, and in the absence of any contrary authoritative judicial construction of this article as amended, the writer would be inclined to adopt the views so expressed. With her enlarged capacity to manage and control her separate estate, provided in article 4621 of the present Statutes, as amended by the Thirty-Third Legislature, would naturally come an enlarged responsibility, and an increased capacity to bind herself by her contracts, not specially or impliedly prohibited by statute. It appearing that Mrs. Akin was the joint maker with her husband of the note to the bank, which note formed the basis of the original judgment, and that by article 4624, a married woman is not prohibited from being the joint maker of a note with her husband, and by implication is so permitted, the writer is inclined to agree with the trial court’s conclusion of law as to this basis for his judgment. But is is not necessary for us to so decide, and the writer contents himself with this expression of his personal views.

For the reasons given, the judgment is affirmed.

On Motion for Rehearing.

We do not think we are in conflict with the Texarkana Court of Civil Appeals in Pierson et al. v. Beard et al., 181 S. W. 765. That was a direct appeal, and hence constituted a direct attack on the judgment, and the Court of Civil Appeals merely held that when it appeared from tile petition itself that one of the parties was a married woman and it was not shown that the debt was contracted for the benefit of her separate estate, nor did it otherwise appear that facts existed rendering her personally liable, no personal judgment should be rendered against her.

In the instant case, as to the original trial and judgment, it did not appear from the petition or otherwise that the defendant' Mrs. Nellie P. Akin was a married woman; the judgment was by default, and, moreover, the qttaek on the judgment is collateral. Therefore we adhere to our original holding. A default judgment against a married woman, where the petition does not disclose her coverture, is not thereby void, but merely voidable, even on direct action to set it aside. Focke et al. v. Sterling et al., 18 Tex. Civ. App. 8, 44 S. W. 611. In Baxter v. Dear, Adm’r, 24 Tex. 17, 76 Am. Dec. 89, it was held that a married woman could not set up, in a proceeding by scire facias to revive a judgment, a defense existing at the time of and concludéd by the original judgment.

Since writing our original opinion herein, there has appeared in the Southwestern Advance Sheets, 192 S. W. 1088, the case of Red River National Bank v. Ferguson et al., in which the Texarkana Court of Civil Appeals announces conclusions in consonance with the views, if not the holding, of the majority in the instant case, and goes somewhat into the history of the enactment of article 4624, Vernon’s Sayles’ Texas Civil Statutes. With this additional light thrown upon the question, the writer is prepared to withdraw the personal views expressed, to the effect that under the present law, that even though the original judgment herein were not by default, and even though the attack thereon-were direct, Mrs. Akin should be held liable.

Being of the opinion that our original judgment was correct, and that no conflict with the holding of any other Court of Civil Appeals is presented, we overruled the motion for rehearing, and also the motion to certify.

       , <g=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    BRUNDRETT et al. v. LUCAS.
    (No. 5777.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 4, 1917.
    Rehearing Denied May 2, 1917.)
    1. Taxation <§=>449(1) — Equalization—Powers 03? Boaed — Necessity of Complaint.
    Under Rev. St. 1911, art. 7570, empowering hoards of equalization to supervise assessment of property and to increase or diminish the same and to affix a proper valuation, and ai’ticle 7564, giving the board full power to equalize assessments regardless of whether any complaint has been made by the assessor or any one else, it is not a prerequisite to an equalization that complaint be made by the assessor.
    [Ed. Note. — Eor other cases, see Taxation, Cent. Dig. §§ 790-792, 795, 797.]
    2. Taxation <§==>482(4) — Assessment—Equalization — Waiver of Defects.
    A property owner who attended a meeting and objected to the raising of his assessment waived all defects in notice, and an order entered at such meeting cannot be attacked for defects in the proceedings antedating such meeting.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 857.]
    3. Taxation <§=>485(3) — Equalization—Proceedings — Evidence.
    Evidence held to show that at an equalization hearing no testimony of value of land was taken other than that of the property owner’s witnesses, so that the increase was unwarranted.
    [Ed. Note. — For other eases, see Taxation, Cent. Dig. § 863.]
    4. Taxation <§=>480 — Equalization — Proceedings — Y ALIDITY — EVIDEN CE.
    Rev. St. 1911, art. 7569, provides that, when any person, firm, or corporation renders property for taxation, and makes oath as to the quality and quantity of such property, the officer shall list it according to such value,-or his own estimate, and, if the owner is not satisfied with the value placed on the property by the assessor, he shall notify the assessor, and may make oath that such valuation is excessive; then such officer shall furnish such rendition, with his valuation and the oath, to the commissioners’ court, which shall hear evidence and determine the true value of such property. Article 7570 provides that the boards of equalization shall have power, and it is made their official duty, to supervise assessment, and, if the valuation of any property is not in accordance with the laws of the state, to increase or diminish the same and affix a proper valuation thereto, as provided for in article 7569; and, when any assessor shall have furnished said court with the rendition as provided for in article 7569, it shall be the duty of such court to call before it such persons as in its judgment may know the market value of true value of such property, who shall testify under oath the quality and quantity of such property, as well as the value thereof, and the court shall fix the value of such property in accordance with the evidence so introduced and as provided for in article 7569, and their action in such case or cases shall be final. Held, that the method indicated in article 7570 must be followed whether the issue is raised by the board or by a controversy between the assessor and owner.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 853.]
    5. Taxation <§=>485(4) — Equalization—Pro-CEEDIN GS — E VIDBN CE.
    Under Rev. St. 1911, arts. 7569, 7570, the board of equalization could not legally disregard testimony of value introduced on the ground that it was not believed, but, if it fails to summon witnesses of its own, must fix values according to the evidence actually introduced.
    [Ed. Note. — For other eases, see Taxation, Cent. Dig. § 864.]
    6. Taxation <§=>485(4) — Equalization—Proceedings — Evidence.
    Under Rev. St. 1911, arts. 7569, 7570, where the board of equalization failed to summon witnesses of its own, the property owner could not rely upon such failure to invalidate the proceedings.
    [Ed. Note. — For other eases, see Taxation, Cent. Dig. § 864.]
    7. Taxation <§=>485(4) — Wrongful Assessment-Remedies.
    The action of the board of equalization in disregarding testimony introduced which was not disputed nor impeached, contrary to Rev. St. 1911, arts. 7569, 7570, furnishes a sufficient basis for a suit to enjoin collection of taxes on the increased value.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 864.]
    8. Taxation <§=>480 —Equalization —Proceedings.
    The oath of the taxpayer is not a prerequisite to procedure as to witnesses when the board of equalization on its own motion undertakes to raise values.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 853.]
    9. Taxation <§=>485(3) — Equalization—Rendition of Assessment — Evidence.
    Evidence that parts of the land in a certain town were assessed below market value is insufficient on which to base a finding that such condition existed generally.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 863.]
    10. Taxation <§=>485(3) — Equalization—Increase of Assessments — Evidence.
    Evidence held insufficient to show that banks in a certain county were assessed at 75 per cent, of their real value.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 863.]
    11. Taxation <§=>40(7) — Uniformity — Evidence.
    The mere fact that certain property was assessed at less than its real value does not show discrimination in assessing other property at its real value, in the absence of evidence of a scheme or plan to permit inadequate valuations.
    [Ed. Note. — For other cases, see’ Taxation, Cent. Dig. § 78.]
    12. Taxation <§=>494(3) — Equalization — Proceedings — Validity.
    Where the board of equalization failed to summon witnesses, but raised assessments in the face of evidence showing that they should not be raised, the district court in suit to enjoin collection of the assessment could only set it aside.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 886.]
    13. Taxation <§=>611(6) — Restraining Collection — Equalization — Evidence — Admissibility.
    In suit to enjoin collection of taxes after the assessment had been raised, evidence of what the owner paid for the land was admissible.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1252.]

      14. Taxation @=»611(6) — Equalization—Evidence — Admissibility.
    In suit to enjoin collection of taxes after the assessment had. been raised, evidence of a standing offer of a certain amount per acre for the land was admissible.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1252.]
    Appeal from District Court, Aransas County; E. G. Chambliss, Judge.
    Suit by Cyrus B. Lucas against J. A. Brundrett and others. Judgment for plaintiff in part, and defendants appeal.
    Affirmed.
    W. H. Baldwin, of Rockport, and Kleberg, Stayton & Picton, of Corpus Christi, for appellants. E. A. Stevens, of Rockport, an'd Templeton, Brooks, Napier & Ogden, of San Antonio, for appellee.
   MOURSUND, J.

We adopt appellants’ statement of the pleadings, as follows:

“Cyrus B. Lucas brought this suit against the tax collector, the county judge, and the several county commissioners of Aransas county to vacate raises in tax assessments on some of his real property and an assessment on his personal property alleged to have been made by the latter, sitting as a board of equalization in May and June, 1915, and to enjoin the collection of taxes based thereon, setting up many grounds for such relief, some of which were charged to have been illegal and void under the Fourteenth Amendment of the federal Constitution, and under the due process, equal protection, equal and uniform taxation, and due taxation provisions of the state Constitution.
“Besides that concerning the personal property, the grounds alleged were that:
“(1) The board raised the valuations on the real estate without complaint or recommendation from the assessor.
“(2) It first, without notice to the plaintiff, raised such valuations, then caused plaintiff to be notified to appear and contest its action, and then confirmed what it had first done without notice.
“(3) Its valuations were without any legal basis.
“(4) It did not itself summon, swear, and bear any witnesses on such question, plaintiff’s witnesses being the only ones examined.
“(5) It found on values contrary to the testimony of plaintiff’s witnesses at the hearing, who were the only witnesses heard.
“(C) It failed to classify lands in the county.
“(7) Its action in raising the valuations was arbitrary and fraudulent, in being contrary to the undisputed testimony before the board and in imposing uniform valuations on lands of unequal value, in failure of notice, and in most of the other alleged acts and omissions of the board.
“(8) Its valuations were excessive and discriminative.
“Defendants denied all of the above allegations on the part of plaintiff.
“The trial judge, on final hearing, by his conclusions, found in favor of plaintiff upon all issues, save as to the assessment of his personal property, and failure to classify, arbitrariness, and fraud, and rendered judgment in favor of defendants as to the personal property assessment, and in favor of plaintiff as to the valuations on the real estate above those made by the assessor.”

The court rendered judgment in favor of defendants as to the personal property assessment and in favor of plaintiff as to the valuations on the real estate above those made by the assessor. Defendants appealed.

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

“Finding of Facts.
“(1) I find that the tax assessor of Aransas county listed all the lands of the plaintiff in said county and assessed the same for the taxes levied for the year 1915 at valuations as alleged by the plaintiff, and that the plaintiff did not complain of the valuations so fixed by the said assessor.
“(2) That the plaintiff entered his personal property upon said list, and the said assessor valued the same.
“(3) That the said tax assessor delivered the plaintiff’s said tax list to the board of equalization as the law requires without any complaint or recommendation as to the valuations which he himself had fixed upon said lands.
“(4) That on the 29tn day of May, 1915, the board of equalization of said county without notice to the plaintiff raised the valuations of certain tracts of said land as alleged in the plaintiff’s petition.
“(5) That on the 1st day of June, 1915, the said board of equalization by an order entered in its minutes directed the county clerk to notify the plaintiff that his assessments for taxation in said county for the year 1915 had been raised and that said board would meet on the 15th day of June, 1915, to hear persons who desired to come before said board to show cause why their assessments should not be raised and that said clerk did give such notice.
“(6) That on the 15th day of June, 1915, the plaintiff appeared before said board and filed a written protest against the action of said board in raising his said assessments, and that he introduced before said board credible persons who were duly sworn as witnesses and who testified before said board as witnesses concerning the character, quality, quantity, and value of said lands, and that the testimony of said witnesses showed that the value of said lands were very much' less than the valuations to which said board had raised said lands and were not of greater value than as fixed by said assessor.
“(7) That said board of equalization did not summon any witnesses to testify before it as to the character, quality, quantity, or value of said lands, nor did it swear other witnesses than those introduced by the plaintiff, nor hear other testimony than that offered by the plaintiff.
“(8) That, after hearing said protest and said testimony offered by the plaintiff, the said board caused to be entered in its minutes _ an order reciting that said board confirmed its action of May 29, 1915, in raising the assessments of said lands.
“(9) That the plaintiff’s said lands, the valuations of which had been raised by said board of equalization, as aforesaid, had no market value in the year 1915, and that the real or intrinsic value of said lands did not exceed the valuations fixed thereon by the said tax assessor, and that the valuations to which said board had raised said lands was very much above the real or intrinsic value of said land.
“(10) That the valuations at which real estate in the city of Rockport in said county was fixed by said tax assessor and approved by said board of equalization at from 50 to 75 per cent, of its market value generally, and that the banks of said county were assessed at 75 per cent, of their real value, which valuations were approved by said board.
“Conclusions of Law.
“(1) I find that the action of said board of equalization in raising the valuations of the plaintiff’s said lands was voidable for tbe reason that the valuations fixed by said board were excessive and discriminative.
“(2) That the action of said board in raising the assessments of the plaintiff’s said lands was unauthorized by law, and was therefore void, and that it created no additional liability on the part of the plaintiff.
“(¾ That the temporary injunction heretofore granted should be so modified as to permit the defendants to proceed with the collection of taxes due by reason of the assessments of all personal property, but perpetually enjoining the defendants from endeavoring to collect any taxes upon the increased valuations of said lands as raised by said board.”

The third finding of fact is supported by the evidence, an'd therefore assignments 1 and 2 are overruled.

By assignments 3 and 4 it is contended that the judgment in so far as it may be based upon any failure of the tax assessor to make complaint or recommendation is erroneous, because no duty rested upon the board of equalization to await any such complaint before raising the values.

In the case of I. & G. N. R. R. Oo. v. Smith County, 54 Tex. 1, the court, after stating that under chapter 153, Acts of 1876, the valuation placed upon property in a rendition could only bé changed when the assessor and board of equalization both agreed that it was too low, said:

“In this respect the statute now provides differently” — and cited General Laws of 1879, p. 44, art. 4715.

The act appearing on page 44, General Laws of 1879, became article 5120, R. S. 1895, and article 7564, R. S. 1911. The re-visors shortened the language in 1895, and in 1899' the Legislature changed the time for the convening of the board of equalization. Article 4715, cited by the court, appears in the Revised Statutes of 1879, adopted at the same session of the Legislature during which the act above discussed was enacted, and appears to have originated with the commissioners >vho revised the statutes. The Adoption of said statutes did not affect any laws enacted at the same session. Section 20, final title. Article 4715 became article 5124, R. S. 1895, and read as follows:

“The boards of equalization shall have power, without complaint from any one, to supervise the assessments of their respective counties, and if satisfied that the valuation of any property is not just and fair, to increase or dimmish the same, and to affix a proper valuation therer to; and their action in such cases shall be final and not subject to revision by said board or any other tribunal thereafter.”

We conclude that the act of 1879 which became article 5120, R. S. 1895, and article 4715, R. S. 1879, were both designed to give the board of equalization the power to equalize assessments in all cases, regardless of whether the assessor or any one else made complaint, and this appears to have been the construction, placed thereon by the Supreme Court when it cited, both provisions in support of its statement with reference to the change made.

In 1907 said article 4715, then No. 5124, was amended so that the first portion thereof reads as follows:

.“The boards of equalization shall have power, and it is made their official duty, to supervise the assessment of their respective comities, and, if satisfied that the valuation of any property is not in accordance with the laws of the state, to increase or diminish the same and to affix a proper valuation thereto, as provided for in article 7569 of this chapter. * ⅜ * ”

As thus amended, it now appears as article 7570, R. S. 1911. As it now reads, it still confers ample power to equalize without complaint, even though the words “without complaint from any one” were omitted; but if such omission could be given the effect contended for by appellee, nevertheless article 7564 gives the board full power to equalize and makes it the duty of the board to do so, regardless of whether any complaint has been made by the assessor or any one else. This article received renewed legislative approval in 1909, an'd therefore cannot be said to be affected by the repeal clause of the act of 1907 had there been a conflict between the two acts. We conclude that the judgment cannot be sustained on the theory that, as the assessor made no complaint, the action of the board was not authorized.

The judgment cannot be sustained on the theory that plaintiff had no notice of the proceedings; for it appears that he attended the June meeting, filed a protest, and introduced testimony, an'd thereafter an order was entered confirming, fixing, substantiating, and making binding the valuations fixed at the previous meeting. It is useless to inquire whether the valuations were fixed at the previous meeting or only tentatively entered for purposes of notice so that the parties would be informed of the extent of the raise proposed to be made. Plaintiff waived all defects in notice, and the order entered at the June term cannot be attacked for 'defects in the proceedings antedating the June hearing.

The seventh assignment reads as follows:

“The judgment of the court, in so far as the same is based upon any arbitrary action of the board of equalization in fixing valuations without any basis therefor, is erroneous because the evidence does not negative that such board had a proper basis.”

Nine propositions are submitted. Some of them relate merely to the rules of law to be applied in testing the evidence, and are correct. .The propositions relating to the application of such rules to the evidence in this case may be said to raise the following contentions: (1) That there was no evidence that the board found contrary to the testimony of plaintiff’s witnesses or that as a basis of such increase said board did not have legal evidence to justify the same; (2) that evidence to the effect that the board disregarded the testimony of plaintiff’s witnesses is no evidence that their action had no proper and legal basis; (3) that evidence of the failure upon two occasions to examine witnesses called by tbe board is no evidence that the board did not have a proper and legal basis; (4) that, even it the board never called any witnesses of its own, the failure to do so would not of itself render the board’s action without basis to the extent that a -suit could be maintained in the district court for annulment and injunction; (5) ‘that oath of the taxpayer is prerequisite to the procedure as to witnesses provided in R. S. art. 7570, and, no such oath having been filed, it was not necessary to summon witnesses. Our conclusions on these contentions are as follows:

(1) The sixth and seventh findings of fact filed by the trial court are supported by the evidence. It is contended by appellant that the testimony introduced before the board was sufficient to support a finding as to value in accord with that fixed by the board on plaintiff’s land, and in this connection reference is made to the testimony of Green and Moore. Green only testified that he was more or less familiar with the soils in the county, and that all the land he had seen was “very much of the same grade.” This statement did not show such familiarity with the land in the county as to give Ms opinion any probative force. Moore’s testimony cannot be held to contradict the positive testimony of the witnesses who testified to the value of plaintiff’,s lands, because he had only been over portions of it, and he did not show what portions, so it cannot be said that his testimony contradicts that of the other witnesses. It is urged, however, that plaintiff testified that Kroeger was one of the witnesses who testified upon the hearing and that the testimony of said witness was not introduced in evidence in the district court, and the same might have justified the finding made by the board. We find that Judge Stevens testified that the testimony in the transcript outside of that introduced upon the trial in the district court related to lands other than, the black-jack land (plaintiff’s land, the value of which was involved, being situated upon what was called the black-jack peninsula). Defendants introduced the testimony of Green and Moore, and failed to offer that of Kroeger, which is a circumstance supporting the statement by Judge Stevens. We consider the testimony ample to exclude any inference that Kroeger’s testimony might have supported the action of the board. The evidence satisfies the mind that at no time during the meeting of the board were any witnesses examined on the subject of the value of plaintiff’s lands except those produced by the plaintiff. We do not mean to imply by the foregoing statement that we understand the law to permit the board to hear witnesses or introduce evidence at a time other than the one set for the hearing.

(2) In view of the fact that the first part of article 7570, wherein the general power to increase or diminish valuations is recognized, refers to article 7569 for a method to be observed in determining values, arid article 7569 refers to the latter part of article 7570 for such method, it appears that the Legislature intended that the method prescribed in said latter part of article 7570 is to be followed in determining values, whether the issue is raised by the board or by a controversy between the assessor and the owner. The caption of the act is broad enough to support the construction placed upon the act by us, for it merely says “prescribing rules for determining the value of property.” The emergency clause of the act indicates that it was passed because the laws then in effect were deemed inadequate for the determination of the values of property for tax purposes. The act was designed to- prevent the tax assessor and the county commissioners from accepting valuations which are less than the reasonable cash value, and no good reason can be urged why a different rule should prevail in determining values when the assessor makes complaint than if the board undertakes on its own motion to raise the assessment. It was apparently the intention of the Legislature to place such restrictions upon these officers as to prevent systematic acceptance of renditions of property for less than the reasonable cash value thereof, and if this purpose could be accomplished by the requirement to summon witnesses and fix values in accordance with the evidence, it is improbable that any intention existed to fix some values by that method and other values by the method theretofore- prevailing. If the provision be regarded as one for the protection of the taxpayer, and it must be regarded as so intended if it has that effect, no good reason could be urged why he should not receive the same protection when the tax assessor is satisfied with the values as when such officer is dissatisfied therewith. But it is contended that the mandatory language employed in article 7570 must be construed in connection with the oath prescribed for the members of the board in the same act, which binds them not to vote to allow any taxable property to stand assessed for any sum which they believe to be less than its value, and that, when so construed, it should be held that, if the board docs not believe the witnesses, their testimony must be disregarded and valuations fixed in accordance with the belief of the members of the board. Such a construction would practically destroy that part of article 7570 providing a method for fixing values.

We think it must be held that the oath was prescribed in order to cause members of the board to take steps to determine the value of all property which they believe is assessed too low, and to fix the value at such sum as they believe from the evidence is the reasonable cash value of the property. We conclude, therefore, that the board could not legally disregard the testimony introduced, upon the ground that it was not believed, but, having failed to summon witnesses of its own, as required by law, was required to fix values in accordance with the evidence actually introduced.

In view of the fact that the seventh finding only states that no other testimony was introduced than that offered by plaintiff, it may be said that the court made no finding as to whether any evidence other than oral evidence was introduced. We find, in support of the judgment, that upon the hearing of the matter relating to plaintiff’s rendition no other evidence was introduced than the testimony of the witnesses produced by plaintiff. This finding makes it "unnecessary to decide whether upon such a hearing the board is restricted to oral evidence, a point very uncertain of ascertainment in view of the wording of articles 7564, 7569, and 7570.

(3) Plaintiff having introduced the testimony of witnesses, the failure of the board to summon and examine witnesses of its own cannot be relied upon by plaintiff to invalidate the action of the board, but the board in such case must give the same effect to the testimony of plaintiff’s witnesses as if they had been summoned by the board under the provisions of the statute.

(4) The action of the board in disregarding the testimony introduced, which testimony was not disputed, nor impeached by documentary evidence, was arbitrary and directly in the face of a mandatory statute, and furnished a sufficient basis for a suit in the district court to enjoin the collection of taxes upon the increased value thus made in the assessments.

(5) The oath of the taxpayer is not a prerequisite to the procedure as to witnesses when the board on its own motion undertakes to raise values, whatever may be the holding on such question in a case of disagreement between the assessor and the taxpayer.

The eighth, ninth, tenth, and twelfth assignments relate to matters discussed in considering the sixth assignment, and are overruled for reasons there stated; while the eleventh assignment, which merely asserts that the failure of the board to summon witnesses of its own could not in this case constitute sufficient ground to uphold the judgment, is sustained.

Appellant contends in the thirteenth assignment that the judgment cannot be sustained upon the ground of failure to classify, and we agree with him, but, as the court did not find on such issue, the point is immaterial.

The fourteenth assignment is overruled, because we conclude that the action of the board in disregarding the evidence was arbitrary, as hereinbefore pointed out.

i We have already held that the sixth finding is supported by the evidence, and therefore overrule the fifteenth assignment.

I The sixteenth, seventeenth, and eighteenth [assignments are sustained. However, the |trial court did not base his judgment upon ■any theory of fraud, nor do we base our affirmance thereof upon any such theory, and as we have held that the validity of the raise in valuation cannot be attacked on the ground of irregularities, if any, at the May meeting, the questions raised by said assignments become immaterial.

We sustain the twentieth assignment, in which the tenth finding of fact is attacked, in so far as it relates to real estate in Rock-port, and adopt appellant’s proposition to the effect that the evidence showed no more than that the valuations of an indefinite part of the real estate in Roekport were below market values, and that it therefore furnished no basis for a finding that such condition existed generally.

By the twenty-first assignment complaint is made of that part of the tenth finding relating to the banks of Aransas county. The finding is based on evidence which was intended to show the real value of the assets of the banks, and consisted of financial statements supported by testimony with regard to dividends. We doubt whether this is sufficient, but at best it only shows that one bank was assessed at the rate of approximately 74 per cent, including real estate, while another was assessed at about 66 per cent, of its value, including real estate. This does not support the general finding that the banks; of the county were assessed at 75 per cent, of their real value. We therefore sustain the assignment.

Having held that the tenth finding is not supported by the evidence, the question naturally arises, regardless of an assignment of error, whether the facts as we find them to have existed as shown by the evidence relating to Roekport property and bank valuations, support a conclusion that there was such discrimination and excessive valuation as to sustain the judgment. The evidence wholly fails to show that the undervaluation of the real estate mentioned by the witness as situated in Roekport was the result of any deliberately adopted policy or scheme, such as was shown in the cases of Lively v. Railway, 102 Tex. 559,120 S. W. 852; Brown v. Bank, 175 S. W. 1122, and others cited by appellee, in which it was shown that large classes of property were intentionally and deliberately assessed at a certain per cent, of their value, while other property was intentionally assessed at .its full value. The evidence, considered most strongly for ap-pellee, shows that one bank was assessed at about 75 per cent, of the value of its assets, while another was assessed at about 66 per cent, of the value of its assets, and that quite a number of pieces of property in Roekport were assessed at less than their actual value, without showing that such assessments were made pursuant to any system, such as valuing them for a certain per cent, of their actual value. If a showing of that kind be sufficient, a large portion of the taxpayers in any county could go into the district court and reduce their assessments. Nor does the evidence in 'this case show, as did that in the case of Johnson v. Holland, 17 Tex. Civ. App. 210, 43 S. W. 71, that the discrepancy between appellee’s assessment and others shown by the testimony was not the result of an error of honest judgment, but of intentionally, arbitrarily, and fraudulently fixing the value of one person’s property at more than it was worth, while other property was assessed at less than its value. The court did not find that any actual fraud existed, nor does the evidence support such a finding.

We therefore conclude that, if this case had been tried under our statutes as they existed prior to the amendment of 1907, appel-lee would not have made out a case, for there was no such discrimination or excess as, under the well-established rules of law applicable to tax cases, would support a judgment setting aside valuations.

In speaking of excessive valuation, we are taking as correct the finding of the trial judge to the effect that the valuation adopted by the board, namely, of about $5 per acre, was excessive to the extent of about $2 per acre. This finding is not attacked, but several assignments attack the rulings of the court in regard to excluding evidence relating to value, and some of such assignments are deemed by us to be well taken. Therefore, if this affirmance of the judgment must depend upon whether the value fixed by the hoard is in fact in excess of the reasonable-cash value, the sustaining of such assignments would require the reversal of the judgment. However, we do not think the failure of the board to comply with the terms of a mandatory statute can be justified by showing that, if the same witnesses had been summoned and same evidence introduced as upon the hearing in the district court, the order of the board would have been sustained by evidence. When the board arbitrarily failed and refused to follow the law, and raised valuations contrary to the express provisions of the statute, it must be held that the raise should be set aside and held for naught by the district court.

The twenty-second, thirty-first, thirty-second, thirty-third, fifty-first, fifty-second, and fifty-third assignments relate to the questions of discrimination and excess, already discussed, and will he sustained.

The twenty-third assignment is overruled. We cannot say that’the finding that plaintiff’s land had no market value in 1915 is so manifestly against the weight and preponderance of the evidence as to authorize us to set it aside. The twenty-fifth, fifty-fourth, and fifty-fifth assignments are also overruled.

The twenty-sixth assignment is overruled.

The twenty-seventh and twenty-eighth are sustained upon the authority of the case of Railway v. Scurlock, 97 Tex. 30⅜ 78 S. W.' 490.

The twenty-ninth assignment is also sustained. What appellee gave for portions of the land involved was admissible, especially as there was testimony to the effect that land values had risen steadily since ap-pellee made such purchases. Appellee combats these assignments on the theory that the evidence did not tend to show market value, but, as it was a mooted question whether the land had a market value, and the court found it did not, and found as to the intrinsic value, the evidence was clearly admissible.

The thirtieth assignment is also sustained. The witness would have testified that appellee’s offer of $7.50 per acre for 620 acres was a standing offer, that is, a continuing one, and that the land was the brushiest portion of the black-jacks. Even if the offer had not been a standing one, but made in 1908 or 1909, in view of there being testimony that land values had advanced steadily, the evidence was admissible.

The thirty-fourth assignment is overruled.

The point raised in the thirty-fifth assignment has been decided adversely to appellants’ contention, and the assignment is overruled. Brown v. Bank, 175 S. W. 1124; Porter v. Bangley, 155 S. W. 1043.

The questions raised by the thirty-sixth, thirty-seventh, and thirty-eighth assignments are immaterial, in view of our holding upon the fifth and sixth assignments.

The thirty-ninth assignment is sustained for reasons given in discussing the fifth and sixth assignments.

The fortieth assignment is also sustained.

The order of the board referred to by the court merely stated that June 15th had been set as the time for persons to come before the board to show why their assessments should not be raised, and directed the clerk to give notice by publication.

The forty-first, forty-second, forty-third, forty-fourth, and forty-fifth assignments are overruled for reasons given in discussing the seventh assignment. The forty-sixth and forty-seventh assignments are also overruled.

The forty-eighth and forty-ninth assignments raise the same issue as the twentieth assignment and are sustained.

The fiftieth relates to valuations of banks, and does not attack the finding of the court except on the ground that the evidence did not show what the real value of the banks was. This ground cannot be sustained, and the assignment will therefore be overruled.

The fifty-sixth assignment relates to an immaterial issue, and need not be considered.

The fifty-seventh, fifty-eighth, and fifty-ninth assignments attack the second and third conclusions of law filed by the trial court, and assert that the judgment is erroneous because the board acted substantially in accordance with the requirements of law. There is no merit in any of said assignments, and they are overruled.

We fail to find any assignments numbered 19 and 24.

All questions have been disposed of which, in our opinion may be material upon application for a writ of error by either party.

The judgment is affirmed.
      <&=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <3=s>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONLEY, C. J.

text:
    ADAMS v. BOREN.
    (No. 109.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 23, 1916.)
    1. Brokers <s=86(1) — Action for Commission —Evidence—Sufficiency.
    In an action by broker for commission, evidence held sufficient to support a court’s finding that plaintiff had performed his part of contract under which he was to receive $500 cash after closing trade without waiting until all deeds had been passed, and was entitled to agreed commission.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 117, 118.].
    2. Appeal and Error <@=>1010(1) — Findings Amply Supported by Evidence — Setting Aside.
    Bindings of trial court amply supported by evidence will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981, 4024.]
    3. Brokers <®=»86(1) — Action fob Commission — Evidence—Defense.
    In a broker’s action for commission on an exchange of land, evidence held insufficient to show that broker was to receive commission from both seller and purchaser barring recovery.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 117, 118.]
    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Suit by Thomas E. Boren against T. C. Adams. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. G. Woolworth, of Carthage, Young & Young, of Marshall,' and R. W. Priest, of Carthage, for appellant. W. Gerard Banks and II. N. Nelson, both of Carthage, for ap-pellee.
   CONLEY, C. J.

The appellee filed suit against the appellant to recover $1,000 alleged to be due appellee as commission for the sale of 4,000 acres of land belonging to the appellant, and under a contract theretofore entered into. Appellee averred that he had found a purchaser of the property in one Fred Fleming, of Dallas county, Tex., but that appellant had refused to consummate the trade. By a supplemental pleading ap-pellee alleged:

That “the defendant contracted with and agreed to give plaintiff $1,000 for his services in finding a purchaser for said property, and that at the time said contract was closed, and the amount was due, and the plaintiff understanding that the trade was closed, and that he had done all he was to do in said matter, the defendant [appellant], being short on money, proposed to pay to plaintiff [appellee] $500 cash at once, and plaintiff [appellee] agreed to take $500 cash for the amount due him, and the defendant, hav- ' ing been often requested to pay said sum, refused to pay the same, or any part thereof.”

It was further alleged that the $500 was not paid as agreed, and that appellee was therefore entitled to $1,000' commission.

The appellant, Adams, answered by general denial, and by special pleading that he was ready and willing to carry out the proposed trade, and denied the special contract, and alleged further that Fleming, the proposed purchaser, refused to consummate the deal.

The case was tried by the court without a jury, and judgment was awarded the appel-lee for $500, from which judgment appeal has been perfected to this court. The court filed findings of fact and conclusions of law, the following portion of which we adopt:

“Conclusions of Fact.
“(1) The court finds that during the summer of the year 1913 plaintiff and defendant entered into a verbal contract whereby plaintiff was to act as agent for defendant in the sale of about 4,000 acres of land in the .northeastern portion of Panola county, a small portion of which lay in Caddo parish, La.
“(2) That the plaintiff, Boren, found a purchaser for said property in the person of one Fred Fleming of Dallas county, Tex., and carried said purchaser to see the property.
“(3) That some time thereafter, about the 1st of December, 1913, plaintiff and defendant met in the town of Carthage and had a conversation about the amount of commissions to be paid the plaintiff for consummating a trade, in which conversation plaintiff, Boren, stated to defendant, Adams, that he would charge him $1,000 for closing a trade, to which defendant, Adams, asked plaintiff, Boren, if he would not "prefer to have $500 cash and not have to wait, to which question the plaintiff replied that he had, and it was agreed that plaintiff receive $500 cash after closing the trade without the necessity of waiting until all of the deeds had been passed.
“(4) The court further finds that the trade involved an exchange of property, in which said ITred Fleming was to exchange his residence in Dallas county, Tex., in part payment for the land of defendant, Adams,' in Panola county, Tex., which land also comprises the residence of defendant, Adams.
“(5) The court further finds that prior to the time that plaintiff and defendant had their conversation that referred to commissions that defendant, Adams, had gone to Dallas upon one or more occasions and had seen the purchaser Fred Fleming and had seen the property and knew that the property which was to be traded to ■him by Fleming constituted the residence of Bleming.
“(6) The court further finds that just after the conversation between plaintiff and defendant that refers to commissions, in which it was agreed that plaintiff was to have $500, that plaintiff went to the telephone and called Fleming over the phone and had a conversation with him, at which time the plaintiff was accompanied by the defendant, Adams, and that plaintiff closed a trade with purchaser Fleming over the telephone, and that a day or two thereafter plaintiff and defendant went to Dallas at the request of the purchaser to enter into a written contract covering the exchange and sale of property.
“(7) The court further finds that on the Sth day of December, 1913, the purchaser and the defendant, Adams, entered into a written contract covering the sale and exchange of property-in compliance with the trade that had been closed by the plaintiff, Boren, over the telephone, and that the contract and the purchaser and all of the terms and conditions of the trade were accepted by the defendant, Adams, who signed a contract with the purchaser, and to which contract plaintiff was not a party other than being present'when the contract was executed between the defendant, Adams, and the purchaser, Fleming.
“Conclusions of Law.
“(1) The court holds that the plaintiff, Boren, having found a purchaser who was willing to purchase the property upon the terms named by the defendant, Adams, and having brought the parties together, and the defendant, Adams, having accepted the purchaser and entered into a contract with him, it being such a contract as was desired by defendant, Adams, who was acquainted with all of its terms, that the plaintiff, Boren, was released from further duties in connection with the sale of the property, and was entitled to his commission.”

Aijpellant’s first, second, third, fourth, fifth, seventh, and eighth assignments of error, in substance, attack the judgment and conclusions of the court as being contrary to the evidence, in that the testimony shows that plaintiff was not to receive compensation unless he procured a purchaser for the land who was ready, willing, and able to buy at the stipulated price, and who would complete the contract by paying for same; that the contract covering the sale and exchange of property between appellant and proposed purchaser was not an enforceable contract, in that it affected the homestead of the proposed purchaser, and said contract was not signed by the wife; that the contract was unilateral and without consideration; and that the proposed purchaser breached the contract of sale, and for that reason the sale was never consummated.

We do not deem it necessary to consider in detail these various assignments of error, and the propositions made thereunder. The pivotal question in this case is to determine whether or not there is evidence in the record sustaining the finding of the trial court as to the nature of the contract between appellant and appellee. If the trial court’s finding to the effect that the contract was one by which appellant was to pay ap-pellee cash for bringing the appellant and proposed purchaser together, and was not dependent upon the actual consummation of the trade, that is, the execution of deed, etc., is sustained by the evidence, then, of course, the questions raised under the above assignment are immaterial.

The appellee Boren testified:
“I am the plaintiff in this case. I am acquainted with Mr. T. O. Adams. I had some dealings with him in the year 1913. I was handling his property known as the Adams plantation on the east side of the river as a land agent. Mr. Adams had turned over to me this sale for him, and I found a purchaser, and I finally consummated the sale, agreed upon the terms. That was in the fall of 1913. I had corresponded Some with Mr. Fred Fleming of Dallas in regard to the land, and made several different propositions to him under Mr. Adams’ agreement or direction, and -he would reject a proposition and I would then put up another proposition to him. We finally agreed upon the terms. During the progress of negotiations Mr. Adams visited Dallas. I think that was the second time, however, he had been out and looked at Mr. Fleming’s property. In the proposition to sell Mr. Adams’ plantation to Mr. Fleming Mr. Fleming wanted to put in his Dallas property as a cash payment. Mr. Adams went out and looked at the property, as I understood, and I put up a proposition to Mr. Fleming in which I priced Mr. Adams’ farm and I priced the gin separately and put in my commission then, $2,000; but before submitting the proposition I put it up to Mr. Adams and asked him if he didn’t think that was a fair commission, and he said it was, so I put the proposition up to Mr. Fleming. Mr. Fleming replied that he wouldn’t do that, that the gin must go in with the land under the proposition, and that he would not pay my commission at all, that that was Mr. Adams’ business. When Mr. Adams went to Dallas, I think the second time, and came by Oarthage, and I met up with him here near the First National Bank, he told me that he liked the property in Dallas and he believed that he could close the trade, and said, ‘Now what are you going to charge me for your services?’ I said, ‘Claude, in order to close the matter up, as I have been working on it for some little bit, I will charge you $1,000, and that is a low commission for a sale of that size.’ He said, ‘Hadn’t you rather have $500 in cash and not wait?’ I studied a minute or two and said that I would; that a bird in hand was worth two in the bush. When I said that, he said, ‘Let’s go up in the phone office upstairs and I will call Mr. Fleming up and close the trade.’ We went up there and called Mr. Fleming and we closed the trade. I closed this trade of Claude’s on terms proposed, and he asked me if I wouldn’t rather have $500 in cash than to wait, and I told him I would. Five per cent, commission on that transaction would have been $3,750, instead of $500. I did not -have any agreement with Mr. Adams as to what I was to get before I went into the phone office. Claude had suggested that I put the commission in on Mr. Fleming, the $2,000, and Mr. Fleming shut down on that proposition, and when Claude returned from Dallas the time I speak of he asked what I was going to charge him, and I told him $1,000. He had made up his mind to make the deal, and wanted to know how much I was going to charge him, and I told him I would let him off for $1,000, and -he asked me if I wouldn’t rather have $500 in cash than to wait, and I told him I would.”

Appellant, Adams, on the other hand, testified as follows:

“I had met Judge Boren in front of the bank, and asked Mm how much he was going to charge me for closing the deal, but I don’t believe it was in those exact words as you have asked it, and he told me that he would charge me about $1,000, and I says to him, T can’t pay that' much, because I am not getting a dollar in cash out of the deal; it is part trade and part vendor’s lien notes; therefore I can’t pay any $1,000;’ and he knows I said that; and I told him that I would pay him $500 cash as soon as the deeds were signed and delivered to each party.”

It is to be seen that the terms of the contract between appellant and appellee involved a sharply disputed issue. The trial court, however, in its third finding of fact, determined that the appellee’s version of the contract was the correct one. The trial court having so decided this issue, and his finding being amply supported by the evi-deuce, it 'is not within the province of this court to disturb such finding.

The contract as found by the court was a special one between the parties, and must determine their respective rights. The general rules relating to contracts for broker's commissions, as raised under these several assignments, and as exemplified in the authorities cited, have no application to this particular contract. Under the terms of the agreement as found by the trial court, the appellee was to receive the $500 commission in cash, and without the delay incident to the actual closing of the trade by the exchange of deed, etc.

These assignments of error are therefore overruled.

The sixth assignment of error is as follows:

“The judgment is contrary to the law and the evidence, because the testimony shows that the plaintiff [appellee] in his negotiations was to receive commissions from both purchaser and seller.”

This assignment is based upon a misconception of the testimony. We find no evidence in the record sustaining the assertion that appellee was to receive commissions from both the purchaser and the vendor in the sale of this particular land. On this question the appellee testified:

“Mr. Fleming was not to get from me any commissions on this sale. This was an individual sale to Mr. Fleming by me, and I was not to divide commissions with him nor the fidelity company. I did not represent Mr. Fleming, but represented Mr. Adams.”

The evidence clearly demonstrates that there was an understanding and agreement between the appellee, Boren, and Mr. Fleming, who was also in the real estate business in Dallas, that in the sale of other lands which might be made in Dallas by Mr. Fleming, and which had been previously listed with Mr. Fleming, that the commissions would be divided. This agreement did not include the individual sale of the Adams land to Mr. Fleming.

For the reason herein stated, this assignment is overruled.

Finding no error in the trial of this cause, the judgment of the lower court is affirmed.

BROOKE, J., not sitting.
      c&xoFor otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes