author: TALBOT, J.

text:
    BLACKWELL-WIELANDY BOOK & STATIONERY CO. v. PERRY.
    (No. 7272.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 27, 1915.)
    1. Judgment <@=>460 — Equitable Relief — Petition.
    An injunction against the enforcement of a judgment cannot be rendered even by default if the petition does not show all the facts necessary to entitle plaintiff to the relief prayed for, though the proofs supply the facts not alleged.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dec. Dig. <@= 460.]
    2. Judgment <@=>429 — Equitable Relief — Grounds. '
    To authorize the granting of an injunction to restrain the enforcement of a judgment after the expiration of the time for appealing therefrom, it must clearly appear that the judgment was not the result of negligence, that there was a good defense to the action in which it was obtained, which the party was prevented from making by fraud, accident, or the acts of the opposite party, and that there is good cause to believe a different result would obtain on a new trial, and the pleadings and issues in the suit in which the judgment was rendered must be clearly set forth.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 808, 810-815; Dec. Dig. <@=>429.)
    3. Judgment <@=>460 — Equitable Relief-Petition — Conclusion.
    A petition, which alleges only generally the nature of an action in which the judgment sought to be enjoined was rendered, and states as a conclusion, without alleging facts, that there was a meritorious defense to that action, which the defendant therein used 'due diligence to present, but was prevented by the acts of the opposite party, is not sufficient.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dee. Dig. <@= 460.]
    4. Judgment <@=435 — Equitable Relief — Excuse.
    The fact that, after defendant had successfully pleaded his privilege to be sued in the county of his residence, plaintiff delayed five weeks in having the ease transferred, and defendant was thereby induced to believe that the action had been abandoned, does not excuse his failure to defend the action so as to, entitle him to enjoin the enforcement of the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 785, 821, 822; Dec. Dig. <@=>435.]
    5. Judgment <@=460 —Equitable Relief — Petition — Foreign Corporation.
    An allegation, in a petition to enjoin the enforcement of a judgment, that the judgment plaintiff was a corporation having an office in a qertain city and county in Texas, and that it had no permit to do business in Texas, is not sufficient to show that it was a foreign corporation so as to render the judgment void.
    ■ [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dee. Dig. <@= 460.]
    6. Corporations <@=672 — Foreign Corporations — Actions—Permit to do Business.
    Where a petition by a foreign corporation does not disclose that it was engaged in business in the state, or that the transaction took place within the state, or where it shows that it was an interstate transaction, it need not show, in the absence of a plea by defendant raising the question, a permit to do business within the state to entitle defendant to recover as would be necessary in other cases.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 2645-2649; Dec. Dig. <®=072.]
    Appeal from Ellis .County Court; J. C. Lumpkins, Judge.
    Suit by W. C. Perry against the Blackwell-Wielandy Book & Stationery Company and another. Judgment for the plaintiff, and the defendant corporation appeals.
    Reversed and remanded.
    Dedmon & Potter, of Ft. Worth, for appellant. J. T. Spencer, of Waxahachie, for appellee.
   TALBOT, J.

This suit was brought by the appellee, Perry, against A. W. Wilson and the appellant, Blackwell-Wielandy Book & Stationery Company, alleged to be a corporation having its principal office and place of business in St. Louis, Mo., on the 17th day of April, 1913, to restrain said company and the said A. W. Wilson, as sheriff of Ellis county, from levying an execution on property of the appellee. The execution in question had been issued on a judgment for $444.-53, recovered by the appellant against the appellee and E. S. Crocker on the 7th day of December, 1912. Upon the presentation ot appellee’s petition the county judge of Ellis county, by his fiat indorsed thereon, ordered the issuance of the injunction as prayed for upon appellee’s giving bond in the sum of $950. This bond was given, with W. H. Brown and H. P. Gilpin as sureties, and the injunction issued. Service of the writ was duly had upon A. W. Wilson, the sheriff, and the appellant voluntarily filed an answer on February 14, 1914, containing a general demurrer and various special exceptions to the petition. Appellant also filed a cross-action, the nature of which need not be stated. The appellee filed an amended and first supplemental petition and on March 16, 1914, during a regular term of the court, the appellant not appearing, judgment was rendered perpetuating the injunction which had theretofore been granted. Thereafter the appellant filed a lengthy motion to set aside the judgment and for a new trial, which was on May 5, 1914, overruled, and appellant perfected an appeal to this court.

Appellee objects to a consideration of the first and second assignments of error, because the first complains of the insufficiency of the allegations of appellee’s original petition to authorize the relief sought, when that petition was superseded by the amended petition filed and thereby eliminated from the case, and because said assignment is vague, indefinite and multifarious and not in compliance with the rules; the consideration of the second assignment is objected to simply because it is not in compliance with certain rules prescribed for-the government of the Courts of Civil Appeals. If it be conceded that the filing of the amended petition eliminated the original petition, and that the insufficiency of the allegations of the latter could not form the basis of an assignment of error in this court, yet we find that the allegations of the two petitions are practically the same in legal effect, except as to the location of the offices and places of business of appellant, and that the second assignment asserts the insufficiency of the allegations of the amended petition to warrant the relief prayed for and granted by the judgment of the court, and presents for our decision the same question of law raised by the first assignment. This being true, it is unimportant whether we do or do not consider the first assignment of error. In reference to the objection that the assignments are not in compliance with the rules, it is sufficient to say that we think they are at least in substantial compliance therewith, and that the objection should not be sustained. This brings us to a consideration of these assignments of error.

The first and second are, in substance, that both the appellee’s original and amended petitions are subject to a general demurrer for want of the necessary allegations to authorize the granting of the relief prayed for, namely, a permanent injunction restraining the enforcement of the judgment rendered in favor of appellant against appellee for the sum of $444.53, on the 7th day of December, 1913. The propositions contended for are: (1) That a petition that does not set forth a cause of action and does not state facts sufficient to entitle the petitioner to the relief or judgment prayed for will not support a judgment by default; (2) a court of equity cannot properly interfere by enjoining the execution of a judgment regularly secured after the time for appeal has passed, unless the complainant shows three things: (a) That he had a good cause of action or defense to the original suit; (b) that he was prevented from presenting to the court, at the time of the trial, such cause of action or defense by the fraud, accident, or act of the opposing party; (c) that he was guilty of no negligence or fault of his own; (3) under no circumstances can a judgment in an injunction proceeding be rendered perpetually enjoining the execution of a prior judgment, unless the prior judgment is void. These propositions embrace, substantially at least, correct principles of law, which being applied in this case require a reversal of the judgment of the trial court. The original petition, upon which the temporary injunction prayed for was granted, complained of the appellant, “Blackwell-Wielandy Book & Stationery Company, a corporation, having its principal office and place of business in the city of St. Louis, Mo.,” and in the amended petition upon which the judgment herein appealed from was rendered, said appellant is alleged to be “a corporation, having an office in the city of Dallas, Dallas county, Tex.” These are the only allegations tending to show the incorporation of the appellant or its places of business. The other pertinent allegations of the petitions are substantially that the judgment of December 7, 1912, in favor of the appellant, and which is sought by the present suit to be enjoined, was obtained by default; that said judgment is void because the affidavit made to the account, which formed the basis of said judgment and by which the same was proved, was untrue, false, and fraudulent, in that in the second paragraph of said affidavit it is stated “that said corporation is doing only an interstate business in the state of Texas by taking orders through its traveling salesmen, who send same to the company for acceptance or rejection, and that it has no agent, property, or office in Texas of any kind”; that said appellant did have an agent in Texas, and did have property in Texas, and did have an office and salesroom in the city of Dallas, Dallas county, Tex., rented by the year, and which it had occupied for the past six years; that said agent, namely, Dick Bond, was appellant’s agent at said office, and not a traveling salesman; that said agent made a sale of property situated in said city of Dallas to this appellee and his partner in business, E. S. Crocker, which was shipped from Dallas, .Tex., to said firm at Athens, Tex.; that said property was not ordered through said agent, but was bought direct from said agent, and was not shipped direct from St. Louis upon an acceptance order; that appellant had no lawful permit to do business in the state of Texas as a corporation, other than interstate business, and that any sale of property in this state by it would be illegal, void, and unenforceable under the laws of this state, and that a judgment based thereon would be void. Eurther allegations are to the effect that the treasurer and agent of appellant, who made the affidavit to the account which formed the basis of the judgment sought to be enjoined, could have had no personal knowledge of the matter to which lie swears, as he was located at St. Louis, Ho., and the goods were billed out by Dick Bond, agent, as aforesaid from its office in the city of Dallas, Tex.; that appellee had paid appellant all that he was due them long prior to the institution of the suit in which the judgment sought to be herein enjoined was rendered, and that he had a just and equitable defense to the subject-matter of said suit; that said suit was first instituted in Tarrant county, Tex., and later transferred to Ellis county, Tex., upon an order of the court sustaining appellee’s plea of privilege to be sued in Ellis county, the county of his residence, and that the institution of said suit in Tarrant county was for the purpose of taking advantage of and defrauding appellee; that after the order transferring said suit to Ellis county was made appellant failed to exercise diligence in having the case removed to said county, but suffered about five months to elapse be. fore said removal was effected; that by reason of the failure of the appellant to have said case removed to Ellis county for so long a time, he was led to believe that the same had been abandoned, otherwise he would have appeared and defended said suit; that the first intimation he had that said suit had been transferred to Ellis county, Tex., was when the sheriff of Ellis county informed him that he, said sheriff, had an execution against him in favor of appellant, arid would have to make a levy on his property; that appellee “had a meritorious defense to said cause of action, and has used diligence to present it, and was prevented by the acts and conduct of said Blackwell-Wie-landy Book & Stationery Company, and without any fault or negligence on the part of your petitioner”; that if appellant is not restrained from levying and selling the property of appellee under and by virtue of said execution, a great injustice and irreparable injury will be done him. The prayer of the petition is in the alternative, that the writ of injunction be made perpetual, or that the judgment sought to be enjoined be opened up, and the case in which it was rendered tried on its merits.

We think it is quite clear, in cases of this character, that unless the complainants’ petition shows upon its face sufficient grounds for granting the relief sought, the court is not warranted in rendering judgment in accordance with the prayer. either by default or otherwise. “Every bill must contain in itself sufficient matter of fact, per se, to maintain the case of the plaintiff;” and “the proofs must be according to the allegations, * * ⅜ and if they go to matters not within the allegations, the court cannot judicially act upon them, as a ground of decision.” Harrison v. Nixon, 9 Pet. 483, 9 L. Ed. 201. In the early ease of Hall & Jones v. Jackson, 3 Tex. 305, it is held that to maintain a judgment by default, the petition must set forth a cause of action with substantial accuracy and -with sufficient certainty to inform the court what judgment to render, without looking for information to proofs not within the allegations, and the rule1 which should govern the action of the court in cases where a judgment is sought to be set aside- or annulled after the expiration of the term at which it was rendered’is plainly and forcibly announced in Johnson v. Templeton, 60 Tex. 238. In that case, after stating that where the final judgment of a court of competent jurisdiction has been once solemnly pronounced, it ought not to be lightly disturbed, and that, though the power of courts' of equity to restrain final judgments and to entertain bills for new trial in such cases is well established, it has never, at any time, been regarded as a favorite one with chancellors, the court holds, in effect, that toj obtain a new trial after the expiration of the term, or to restrain the enforcement of such a judgment, something more than that injustice has been done by the judgment must be shown; that it must further clearly appear: (1) That the former judgment was not caused by any inattention or negligence on the part of him who seeks to have it set aside, but that diligence was exercised to prevent it; (2) that he had a good defense to the action, which he was prevented from making by fraud, accident, or the acts of the opposing party, wholly unmixed with any fault or negligence on his part; (3) that there is good cause to believe that a different result will be obtained by a new trial; and (4) the pleadingsi and issues of the former suit, and its results must be set forth distinctly and clearly.

Tested by these rules appellee’s petition for the relief granted him was insufficient. The nature and character of the original proceedings in which the judgment sought to be enjoined was obtained are not set out with sufficient fullness, and all the facts alleged as grounds- for the relief sought were matters of defense which could and should, have been presented and urged in the original suit of the appellant, and no sufficient excuse is given why they were not so presented -and urged. The petition abounds in conclusions of the pleader, but the essential facts to justify such conclusions, or.to enable the court to determine whether or not they are correct, are in many material respects wanting. There are very general allegations that ap-pellee had a meritorious defense to the action of appellant in which the judgment he seeks to enjoin was rendered; that he used due diligence to present it, and that he was prevented from doing so by the acts and conduct of appellant, but the facts constituting such defenses, save the insufficiently pleaded.fact that appellee “had paid appellant all that he was due him,” are not alleged, nor are the “acts and conduct” of appellant which are claimed to have prevented him from presenting his defenses in any manner set forth.

There is, as heretofore stated, an allegation charging that appellant failed to use diligence, after appellee’s plea of privilege to be sued in the county of his residence was sustained, to have the original suit transferred from Tarrant cotmty to Ellis county, and that by such failure appellee was induced to believe that the suit had been abandoned, but this did not justify and excuse his failure to appear and plead such defenses as he had to the suit. It does not sufficiently appear that appellant was chargeable with the delay in removing the case to Ellis county, but if it was, such delay did not relieve appellee of the duty to look after' the case and present his defenses. In Slayden-Kirksey Woolen Mill v. Robinson, 143 S. W. 294, a similar question arose. There a plea of privilege had been sustained and the case ordered transferred from McLennan county to Tarrant county, where judgment was rendered by default, or in the absence of the defendant, in favor of the plaintiff. A temporary injunction was later granted in favor of Robinson, restraining the collection of said judgment, and from the order granting this injunction, the judgment creditor appealed. The petition for the injunction alleged facts sufficient to show a good defense to the suit in which the judgment complained of was rendered, and, further, as an excuse for defending the original suit, that the complainant had been informed by his attorney that in his (the attorney’s) opinion, the action of the court in sustaining the plea of privilege practically settled the case; that he relied upon the opinion given by his attorney and was thereby led to believe that the suit against him would be abandoned. For this reason he took no further steps to defend the suit, and did not learn of the judgment against him until execution had been issued upon it. In commenting upon these reasons given for not defending the suit the court said:

“Accepting all these allegations as true, they failed to show a valid excuse for the failure of J. D. Robinson to follow the case to the court in which it was tried and there present his defenses to the claim asserted against him.”

We approve this holding of the court,, and think the remarks quoted clearly applicable to the present case. Aside from the foregoing, no act of the appellant that could be construed as having tended to' mislead and prevent appellee from asserting his defenses to the claim upon which the judgment sought to be enjoined was based is alleged, and said alleged excuse, instead of furnishing a good reason for appellee’s inaction and failure to plead, shows that such failure and default was not without negligence on his part. Ap-pellee then having failed to allege in his petition for the injunction perpetuated in this case - facts sufficient to show a valid defense to the suit in which the judgment complained of was rendered, or, if such defense was alleged, having clearly failed to show that he was prevented by fraud, accident, or act of the appellant, wholly unmixed with any fault or negligence on his part, from presenting such defense to the claim asserted by appellant in the suit in which the said judgment was rendered, his petition was defective and insufficient to warrant the judgment from which this appeal is prosecuted.

The allegations charging that appellant had no permit to do business in Texas, and that the affidavit to the account which formed the basis of the judgment sought to be enjoined was false and fraudulent in stating that appellant was doing only an interstate business in the state of Texas, etc., are insufficient to justify the holding in this proceeding that said judgment is void. In the first place there is no direct allegation that appellant is a foreign corporation. Indeed neither the original nor amended petition for the injunction granted alleges in what state the appellant was organized and created. The original petition, as heretofore shown, simply avers that appellant was “a corporation, having its principal office and place of business in the city of St. Louis, Mo.,” and the amended petition, which .eliminated from the case the original petition, charges simply that appellant is “a corporation, having an office in the city of Dallas, Dallas county, Tex.” It seems, however, that appellant has been treated throughout in this proceeding by the parties at interest as a foreign corporation, but as appellant challenges the sufficiency of appellee’s petition to show that the judgment enjoined is void, and such contention is met with the reply that it is sufficient, and when the restraining judgment can only be upheld upon the ground that the judgment enjoined was void, it should be held that all the essential allegations showing its nullity should be clearly and positively averred.

But, however this may be, the lower court was not authorized, in our opinion, to hold in this ’ proceeding that because appellant was a foreign corporation and had no permit to do business in this state, the judgment sought to be enjoined was void. The petition for the injunction granted and perpetuated in this case does not show that the allegations of the appellant’s petition upon which the judgment enjoined was rendered disclosed that it was engaged in business-in this state, or that the transaction out of which the cause of action arose took place in this state, and unless it appeared from its petition that it was so engaged, it was not essential to its right of recovery to show that it had a permit to do business in this state. Brin v. Wachusetts Shirt Co., 43 S. W. 295; King v. Monitor Drill Co., 42 Tex. Civ. App. 288, 92 S. W. 1047; Brown v. Guaranty Savings Loan & Investment Co., 46 Tex. Civ. App. 295, 102 S. W. 138; New State Land Co. v. Wilson, 150 S. W. 253. So, too, if the petition of a foreign corporation, suing in the state, shows that the transaction out of which its cause of action arose involved interstate commerce, it is not necessary for such corporation to allege and prove that it has complied with the article requiring foreign corporations to obtain a permit to do business in this state. Miller v. Goodman, 91 Tex. 41, 40 S. W. 718. Other than as above stated, such corporation must allege and prove that it had obtained a permit to do business here. Taber v. Interstate B. & L. Ass’n, 91 Tex. 92, 40 S. W. 954. The inference to be drawn from the allegations of the appellee’s petition for the injunction granted herein, if it does not clearly so appear, is that appellant’s petition, upon which the judgment enjoined was rendered, showed. that the transaction out of which its cause of action arose was an interstate transaction. But whether such is or is not the fair inference from said petition, it is a fact that said petition does not, as before stated, disclose that appellant’s petition upon which judgment enjoined was rendered showed that appellant was engaged in business in this state, or that the transaction out of which its cause of action arose occurred in this state. This being true, the question as to whether appellant had obtained a permit to do business in Texas, so as to entitle it to sue, could only be raised by plea in behalf of the appellee, filed in the suit in which the judgment enjoined was rendered, and, no such plea having been filed, the question of appellant’s right to maintain its suit was not involved, and the absence of such right could not be set up in this proceeding and form the basis of a judgment declaring, for that reason, the judgment for the debt sued on, void. Huff v. Kinloch Paint Co., 110 S. W. 467; Geiser Mfg. Co. v. Gray, 126 S. W. 610; Panhandle Tel. & Tel. Co. vi Kellogg Switchboard & S. Co., 132 S. W. 963. It follows from what we have said that the judgment appealed from is not supported by the pleadings and cannot be allowed to stand. It will therefore be reversed and the cause remanded.

Reversed and remanded.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    AMERICAN NAT. INS. CO. v. BIRD.
    (No. 7333.)
    (Court of Civil Appeals of Texas. Dallas.
    March 20, 1915.)
    1. Insurance <§=559 — Proof of Death — Waiver.
    A life insurance company which denied liability and refused to furnish blanks .for making proof of death cannot defend an action on the policy on the ground of failure to furnish proof of death.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1391, 1392; Dec. Dig. <§=559.]
    2. Appeal and Error <§=1051 — Harmless Error — Admission of Evidence.
    Where a life insurance policy introduced in evidence showed its date, error in permitting plaintiff to testify as to the date was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <§= 1051.]
    3. Appeal and Error ¡§=51039 — Harmless Error — Pleadin gs — Stile.
    The fact that plaintiff styled his amendment filed in the county court on appeal froin the justice court a “first supplemental petition,’ instead of an amendment, was immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. <@=^ 1039.]
    4. Insurance <§=5645 — Actions on Policy— Admission of Evidence — Other Policy.
    Where the life insurance policy introduced by plaintiff was the one sued on, and defendant did not plead the issuance of another policy, there was no error in excluding evidence offered by defendant to show that there were two policies issued.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1554, 1632-1644; Dec. Dig. <§= 645.]
    5. Appeal and Error <§=544 — Questions Presented — Necessity of Bill of Exceptions — Rule on Application for Continuance.
    Error in overruling an application for continuance cannot be considered in the absence of a bill of exceptions showing what the court’s ruling on the application was.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. ¾ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. <§=• 544.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by Birches Bird against the American National Insurance Company. From a judgment for plaintiff in the county court and appeal from the justice court, the defendant appeals.
    Affirmed.
    M. D. Robertson, of Dallas, for appellant. Joe Utay and C. T. Williamson, both of Dallas, for appellee.
   RAINEY, C. J.

Appellee instituted this suit in the justice court against appellant to recover on an- insurance policy insuring the life of Helen Bird for $150 for the benefit of appellee, her father; also prayed for interest, penalty, $25 attorney’s fee, and cost. Appellant answered by general demurrer and general denial. A trial resulted in favor of the appellee. An appeal was taken to the county court, and a like result was had, and the cause was appealed to this court.

The evidence shows that appellant issued the policy sued on; that the insured, Helen Bird, died; that the beneficiary, the appel-lee, was her father; that the premiums had been paid; that by its acts the appellant waived proof of death, and the policy was in full force at the time of Helen Bird’s death.

1. The court did not err in refusing to dismiss the suit in the county court on the ground that a new cause of action was set up; for the same cause of action was relied on ancj tried in the justice court, and not upon another and different one.

2. It was not error to refuse to instruct the jury to find for plaintiff for the failure to furnish appellant proof of the death, for. the reason that the appellant denied liability on the policy, and refused to furnish blanks for the making of such proof as required by the policy.

3. There was no error in allowing plaintiff to testify as to the date of the policy; it being harmless, as the date was shown by the policy itself.

4. It was immaterial that plaintiff in the county court styled his amendment “first supplemental petition,” instead of an amendment.

5. There was no error in overruling defendant’s offer to show that there were two policies, as the policy introduced was the one sued on, and shows liability, and there was no plea by defendant' of any other having been issued.

6. The complaint that the court erred in overruling defendant’s application for a continuance cannot be considered, for there is nothing in the record showing what action the court took on said application; there being no bill of exceptions reserved in the record as to what the ruling of the court was.

7. The evidence showing liability on the part of the appellant, there was no error in refusing defendant’s requested charges, and the judgment is affirmed.

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


author: FLY, C. J.

text:
    WINTERS v. COWARD et al.
    (No. 5432.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 17, 1915.)

    1. Vendor and Purchaser ⅞=5>108 — Remedies of Purchaser — Rescission.
    One led into the purchase of land through the fraud and misrepresentation of the seller has a right to rescind the purchase, unless lost by laches or waiver on his part.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. <S=108.J
    2. Vendor and Purchaser <©=114 — Remedies of Purchaser^ — Rescission—Waiver.
    The purchaser of land in October, 1911, who gave his indorsed lien notes for the price, and who after he discovered that representations that the land was tillable, except a few acres, and that a well thereon furnished an inexhaustible supply of water, were false, grubbed a part of the land, repaired the house, and made improvements and paid interest on the notes in October, 1912, and made efforts to sell it, and for about three years treated the land as his own, waived his right to rescind, as a matter of law.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 202-204; Dec. Dig. <©==>114.]
    3. Fraud <©=>31 — Remedies oe Purchaser — Action for Damages.
    Where a vendee affirmed the contract of sale waiving.'the right to rescind, he did not lose his right to recover any damages arising from the vendor’s misrepresentation and fraud.
    [Ed. Note. — B’or other cases, see Fraud, Cent. Dig. § 27; Dec. Dig. <S=31.]
    Appeal from District Court, Frio County; J. F. Mullally, Judge.
    Action by D. T. Winters against John R. Coward and others, in which C. A. Crouch intervened. Judgment in part for plaintiff and in part for defendants, and judgment for intervener against plaintiff and defendants, and defendants appeal.
    Reversed and remanded.
    Mason Maney, of Pearsall, John T. Bris-coe and ICercheville & Dewald, all of Devine, and Hertzberg, Barrett & Kercheville, of San Antonio, for appellants. John T. Bivens, of Pearsall, Jas. D. Crenshaw, of San Antonio, and Magus Smith, of Jourdanton, for appel-lee.
   FLY, C. J.

This is a suit instituted by appellant against John R. Coward and E. Howard, appellees, to recover the amount of six promissory notes, and to foreclose a lien on 600 acres of land in Frio county. C. A. Crouch intervened in the suit, claiming to own one of the promissory notes for $2,227, for which he prayed judgment and for foreclosure of the vendor’s lien. Appellees set up fraud upon the part of appellant in his representations as to the quality of the land and as to the capacity of a certain well thereon, and prayed for a rescission of the sale of the land and in the alternative for $5,000 damages arising from the false and fraudulent representations of appellant. The court submitted the cause to the jury on the issue of rescission alone. The jury returned a verdict in favor of appellees, rescinding the sale and canceling the notes and for $150 for improvements, for $4,000 principal and $925 interest paid by them to appellant, in favor of the intervener against appellant and appellees for $2,227, and in favor of appellant against appellees for $900 for rents and $810 for personal property acquired by appellees. The judgment followed the verdict, and in addition foreclosed a lien on the land in favor of intervener. The appeal is perfected only in so far as appellees are concerned; all parties seemingly being satisfied with the judgment in favor of in-tervener.

The equitable remedy of rescission or cancellation is sought in this case to set aside a sale of land made by appellant to appel-lees and to cancel certain promissory notes given for part of the purchase money of the land. The remedy is sought on the ground of fraud and misrepresentation on the part of appellant as to the quality of the land and'the capacity of a certain well thereon.

If appellees were led into the purchase of the land through the fraud and misrepresentation of appellant, they could undoubtedly obtain relief through the remedy of rescission, unless they lost their right through laches or waiver on their part.

The remedy of rescission and cancellation is no prime favorite of courts, and slight circumstances, tending to show a purpose or intent upon the part of the person seeking a rescission to waive such right, will prevent the granting of the relief. The right of rescission is one that can be waived, and, when waived, the rights of the parties are placed upon a new basis. Scarborough v. Arrant, 25 Tex. 129; Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290; Kallison v. Poland, 167 S. W. 1104; Kempner v. Thresher Co., 118 S. W. 714; Trauzettel v. Kiellman, 163 S. W. 689.

The mere lapse of time goes far to establish a waiver of the right of rescission, and when taken with other circumstances, tending to show that the purchaser had, after the fraud was discovered, treated the property as his own, and' had negotiations with the vendor in connection with other circumstances, would be conclusive. Crutchfield v. Stanfield, 2 Tex. Unrep. Cas. 480.

In the ease of Shappirio v. Goldberg, 192 U. S. 232, 24 Sup. Ct. 259, 48 L. Ed. 419, a rescission was sought by the appellant on the ground of fraud and' misrepresentation in regard to the quantity of land, and the Supreme Court of the United States held:

“It is well settled by repeated -decisions of this court that, where a party desires to rescind upon the ground of misrepresentation or fraud, he must, upon the discovery of the fraud, announce his purpose and adhere to it. If he continues to treat the property as his own, the right of rescission is gone, and the party will be held bound by the contract. * ⅜ ■* In other words, when a party discovers that he has been deceived in a transaction of this character, he may resort to an action at law to recover damages, or he may have the transaction set aside in which he has been wronged by the rescission of the contract. If he choose the latter remedy, he must act promptly, ‘announce his purpose and adhere to it,’ and not by acts of ownership continue to assert right and title over the property as though it belonged to him.”

See, to the same effect, Wells v. Houston, 23 Tex. Civ. App. 653, 57 S. W. 584; Hallwood Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857; Luckenbach v. James, 166 S. W. 99.

This court, in Register Co. v. Berry,, cited case, held:

“The rule is that a defrauded party must dis-affirm the contract at the earliest practical time after the fraud is discovered, and that he must return or offer to return whatever he has received from the other party; and if he retains the article purchased, and continues to use it after discovery of the fraud that induced the purchase, he will be held to have waived the right to rescind the contract and to have acquiesced in it.”

The right of rescission can be lost merely by unreasonable delay in instituting suit, after the discovery of the fraud, or it can be lost by exercising acts of ownership over the property, contracting with the vendor in regard to it, or in the use and occupation of it, after the fraud is known to exist. The lapse of time which might destroy the right of rescission may be less than that fixed by statutes of limitation. Mere delay, however, without any accompanying circumstances tending to show a waiver, would be a question of fact to be submitted to a jury. Railway v. Cade, 100 Tex. 37, 94 S. W. 219; Railway v. Jowers, 110 S. W. 946. But where all the facts tend to show that a ven-dee has continued to use the property for a long while after discovery of the fraud, has made payments on the purchase money, and has made another contract with the vendor in connection with the property, a court has the authority to declare, as a matter of law, that the right of rescission has been waived. As said by this court, through Associate Justice Neill, in the case of Wells v. Houston, herein cited:

“It is well settled that a party having recognized a contract as existing, and having done something t.o carry it into effect, and to obtain or claim its benefits, and having thus taken his chances, cannot be suffered to repudiate the transaction, and allege its voidable nature.”

That was said in approval of a charge to find against the party seeking a rescission if he had, after discovering the fraud, treated the property as his own. Speaking on this subject, in Luekenbach v. James, after a review of the facts, which are quite similar and in no respect stronger than in this case, Associate Justice Moursund, for this court, held:

“This appears to be a clear case of the defendant making an election not to repudiate the sale, as he dealt with the property as his own, after discovery of the fraud, if any fraud existed, and failed to promptly tender reconveyance and demand a rescission.”

The answer in this case alleges the sale of the land and the execution by appellees of the notes on October 26, 1911; that all of the land was represented to be tillable, except about 20 acres; that a well on tie land would furnish an inexhaustible supply of water; that these representations were -false and were relied on by appellees. It further appears from the answer that appellees knew of the falsity of the statements in October, 1912, but- paid the interest on account of some promise made to them by appellant, and further that the interest was not paid in October, 1913, because appellant had not fulfilled his verbal promises. The allegations were supported by the testimony of ap-pellees. After discovery of the alleged fraud, appellees grubbed a portion of the land, repaired the house, and kept on with improvements until 1914, at least two years after the discovery of the fraud, and in 1914 ap-pellee Coward told appellant that they intended to keep the land “until I got matters straightened out.” He stated further:

“I claimed the land. I claim the land until he makes his contracts. If you had come and offered and said you have a valuable place here, I have got a man that will give you $40 an acre, I would have felt justified in selling and keeping the profit and paying Mr. Winters the balance. As to whether or not we tried to get a buyer for it so we could pay Mr. Winters off and have, a balance coming to us, I would say we had conditionally sold 130 acres when this shortage trouble came up. * * * We was trying to sell off the east part of the unimproved part. That was in 1912. We got up the trade in 1912, but it was in 1913 before we agreed on the price.”

Howard, the other appellee, testified that he knew the defects in the well before they went on the place, ’ and his testimony, as well as that of Coward, conclusively shows that there was never any intention evinced to rescind the land contract until this suit was instituted. For three years they treated the land as theirs, improving, using, and enjoying it. The whole trouble between the parties seemed to originate in regard to an alleged shortage of about 36 acres. The evidence of appellees totally fails to make out a case of rescission, but all of it tends to show that there was. no intention or desire on the part of appellees to rescind. The evidence of appellant shows that appellees did not propose or intend a rescission. On the issue of rescission a verdict should have been instructed for appellant.

By their acts, affirming the contract of sale and waiving a rescission, appellees did not lose the right to recover any damages that may have arisen from the fraud of appellant, if there was any fraud. As said by Bigelow in his work on Fraud, and approved in Grabenheimer v. Blum, 63 Tex. 369:

“The injured party may retain the benefits of the contract, confirm its validity, and still recover damages for the fraud by which he was induced to make it; or he may recoup any damages which he has sustained, if the opposite party sue him for money due on the contract, or for ⅜ ⅜ * failure to perform it.”

Appellant has the right to recover his debt and have his lien foreclosed, but the amount of his judgment may be reduced by any damages that may be proved.

■ There is no complaint as to that part of the judgment as to the intervener, and it' will not be disturbed; but the judgment as between appellant and appellees is reversed, and the cause remanded, with instructions that appellant be given judgment as prayed for by him, and that the case be tried on the question of damages alone, which, if any be shown, will be deducted from appellant’s judgment.

Reversed and remanded.
      <©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURX, J.

text:
    SHAW v. GARRISON.
    (No. 7241.)
    (Court of Civil Appeals of Texas. Dallas.
    March 6, 1915.
    Rehearing Denied April 3, 1915.)
    1. Appeal and Error <©=3999 — Review—Verdict.
    Unless the verdict of a jury is manifestly unjust, inadequate, or contrary to, the evidence, it cannot be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. <¿=>999.]
    2. Trial <©=349 — Submission op Special Issues.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a, providing that in all jury cases the court, upon request of either party, shall submit the cause upon special issues, the refusal of the court so to submit is error, since the statute is mandatory in view of its language.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ S23-827; Dec. Dig. <¿=>349.]
    3. Exceptions, Bill op <©=>8 — Sufficiency— Refusal to Submit Special Issues.
    Under Rev. St. 1911, arts. 2058-2060, 2062-2067, relating to the manner of taking bills of exceptions to any ruling of the court, and providing that the bill need not necessarily be couched in formal words, but only that the ruling of the court complained of shall be shown with certainty, and that in case of exception to the refusal of the court to submit special issues, it shall appear that the request for submission was made before t'he submission of the cause to the jury¿ where a bill of exceptions to a refusal to submit special issues contained all necessary formalities, and recited that the request was made upon completion of the evidence and before the argument of counsel and in due time, the bill was sufficient.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 10; Dec. Dig. <®=3S.]
    4. Trial <©=>349 — Submission op Special Issues.
    The only exception to Vernon’s Sayles’ Ann, Giv. St. 1914, art. 1984a, providing that in all jury cases the court, upon request of either party, shall submit the cause upon special issues which is a mandatory act, is where the nature of the suit is such that it cannot be so submitted.
    ■ [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. <©¿>349.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by J. C. Garrison against W. A. Shaw, Jr. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    George, Hancock & Hardwicke, of Dallas, for appellant. Morris & Pope, of Dallas, for appellee.
   RASBURX, J.

Appellee recovered judgment in the justice court in precinct No. 7 of Dallas county against appellant for $175, as brokers’ commissions for services rendered in the sale of real estate for appellant. On appeal to the county court of Dallas county, at Jaw, and on jury trial, verdict in same amount was returned for appellee, followed by judgment, from which this appeal is taken.

The first assignment of error complains of the refusal of the trial court to sustain appellant’s motion for a new trial on the ground that the verdict of the jury was contrary to and not supported by the evidence, and the inference deducible therefrom. The issue before the jury at trial was whether appellee was the procuring or efficient cause of the sale. With that issue in mind we have carefully read and considered the testimony incorporated in the briefs of both parties. We might, in deference to counsel, set out and analyze and compare the evidence in order to illustrate and present the reasons for our conclusions; but, since the sufficiency of the evidence to sustain the verdict is an issue for final determination by this court, we do not believe we are expected to do more than carefully read and weigh the evidence, which we have done, and state our conclusions, which are that it cannot be said that the verdict of the jury is manifestly against, inadequate with, or contrary thereto. Until such a case is presented we are without authority to disturb the verdict. The testimony on the trial of this case was of such character that had the verdict been for appellee it could have been sustained with equal consistency.

The next assignment necessary to consider is that which attacks the action of the trial court in refusing to submit the case to the jury upon special issues of fact. In connection with the issue thus raised appellee did request the court in writing to so submit the issues of fact, which the court refused to do, indorsing such refusal upon the request. Within the time for preparing and filing bills of exception, etc. (Vernon’s Sayles’ Stats. 1914, art. 2073), appellant saved his objection to the action of the court in the particular mentioned which was by the trial judge approved and ordered filed. The action of the trial court in the respect stated was clearly erroneous. The statutory rule relating to the submission of special issues of fact to the jul'y was radically amended by the Thirty-Third Legislature. Gen. Laws 1913, Reg. Sess. 113; Vernon’s Sayles’ Stats. 3914, art. 1984a. The amendment referred to provides that “in all jury cases the court, upon request of either party, shall submit the cause upen special issues,” etc. By the former statutes the submission of the case upon special issues of fact was optional with the court. Article 1985, R. S. 1911. The amended statute is scarcely susceptible of any construction other than that its plain and unambiguous provisions make it mandatory upon the court to submit the issues of fact specially when requested thereunto by either party, and it has been construed accordingly. Gordon Jones Cons. Co. v. Lopez, 172 S. W. 987; J. M. Guffey Petroleum Co. v. Dinwiddie, 168 S. W. 439. The conclusions we have reached, as well as those reached in the cases cited, are sustained in G., H. & S. A. Ry. Co. v. Jackson, 92 Tex. 638, 50 S. W. 1012, 51 S. W. 330, Id., 93 Tex. 266, 54 S. W. 1023, in construing former similar statutes upon the same subject.

Appellee, however, objects in limine to a consideration of the issue thus raised, on the ground that it does not appear from the refused request to submit on special issues that the same was presented to and refused by the court before the court had read his charge to the jury submitting the case for a general verdict, and urges, in support of his proposition, the various cases by this and the other Courts of Civil Appeals construing the recent amendments to the Practice Acts, all of which relate to the method and manner of objecting to the court’s general charge or to the action of the court in giving or refusing special charges. Submitting special issues of fact raised by the evidence to the jury for their determination, or refusing such submission, is, however, in no sense the giving or refusing to give a special charge, and

hence in no respect controlled by the technical and particular provisions of the amendments and their construction referred to. “Such a request is neither a charge given nor a requested charge refused, and it stands upon a very different footing.” G., H. & S. A. Ry. Co. v. Cody, 92 Tex, 632, 51 S. W. 329; Texarkana & Ft. Smith Ry. Co. v. Casey, 172 S. W. 729. The objection in the one case is to the law as applied by the trial judge arising upon the facts, while in the other case the objection is to the method and manner of directing the jury what facts they shall determine from the evidence. It is, however, also true “that a request for a submission upon special issues should be made before main charge is given to the jury.” G., H. & S. A. Ry. Co. v. Cody, supra. The question for determination then is, Does the bill of exception show that the request to submit the case upon special issues of fact was made before the charge submitting the case generally was read to the jury? The manner and form of taking bills of exception to any ruling or action of the court are controlled by articles 2058-2060, 2062-2067, R. S. 1911, the provisions of which are unchanged by the recent amendments of the Practice Acts, save in reference to giving and refusing charges upon the law of the ease. The substance of these provisions is that the bill, when taken, shall not necessarily be couched in particular or formal words, but only that the ruling of the court which is complained of shall be shown with certainty and definiteness, and that in cases like the instant one, as ruled by the Supreme Court, it shall appear that the request for submission upon special issues was made before the case was submitted to the jury upon a general charge. The bill in this case contains all the necessary formalities, and recites that the request to submit the case upon special issues was made “upon the completion of the evidence, and before the argument of counsel was begun, and in due time,” which was refused by the court, and which “in each instance” was excepted to by appellant. We may, in inverse order, discard the recitation in the bill that the exception was taken in due time as a conclusion of its author and as not showing what actually occurred, and in like manner discard the recitation in the bill that the request was made “before the argument of counsel was begun,” as insufficient for the reason that when this case was tried argument followed the charge (article 1954, Vernon’s Sayles’ Stats. 1914), and yet and nevertheless the bill is, in our opinion, sufficient, since it affirmatively shows that the request was made “upon the completion of the evidence,” which is the exact time to make such request; in fact a request before the conclusion of the evidence would be before either party could determine either the necessity of such submission or whether the issues were determinable by that method. Any other construction would be strained and technical and at variance witli the plain import of the unambiguous statement in the hill that the request was made on “completion” of the evidence. Statutory rules, such as the Practice Rules, invoked by appellee, where mandatory, and where the exact and * precise things to be done are prescribed, must be exactly complied with, since such was the obvious intention, or rather plain direction, of the Legislature. On the point at issue here, however, there are no such provisions, in fact none even that the charge shall be presented before the reading of the general charge, but as ruled in G., H. & S. A. Ry. Oo. v. Cody, supra, that fact, for palpable reasons, must appear in order to constitute reversible error. In the absence, then, of mandatory directions, reasonable certainty and definiteness is the rule, and that rule, in our opinion, has been met in this case by making the request upon completion of the evidence.

But it is further urged by appellee that if it be conceded that substantially the bill is sufficient, yet the error is immaterial or harmless, since the sole issue in the case was, Was appellee the “efficient procuring” cause of the sale of the property of appellant, and that the court in substance submitted that issue? The proposition asserted may or may not be correct, depending upon the point of view, but the rule of harmless or immaterial error is not the rule adopted in this jurisdiction in such cases. G., H. & S. A. Ry. Co. v. Jackson, 92 Tex. 638, 50 S. W. 1012, 51 S. W. 330; Gordon Jones Cons. Co. v. Lopez, 172 S. W. 987.

The cases cited cover the point and discuss the reason for the rule, to which we can add nothing by way of emphasis other than to repeat that the statute is mandatory, the only exception being where the nature of the suit is such that it cannot be submitted on special issues of fact, and that the instant case does not come within the exception is patent.

For the reasons indicated the judgment of the court below is reversed and the cause remanded for another trial not inconsistent with the views here expressed.

Reversed and remanded.
      <&^>For other eases see same topic and KEY-NUMBER in all Kéy-Numbered Digest's and Indexes


text:
    THOMPSON v. PENNINGTON.
    (No. 7281.)
    (Court of Civil Appeals of Texas. Dallas.
    March 6, 1915.)
    1. Appeal and Error <©=51002 — Review — Verdict.
    A verdict based on conflicting evidence cannot be reviewed on appeal.
    • [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <©=> 1002.]
    2. Marshaling- Assets and Securities <S=>9 —Notes Secured by Mortgage — Rights op Indorser.
    In a suit by payee of a note against its indorser, where such note had been secured by mortgage of the maker’s crop, subject to the lien of the maker’s landlord, if t'he indorser desired a foreclosure of the mortgage, he should pay the note, thus subrogating himself to the payee’s rights, taking a chance, on bringing suit to foreclose, on the point of whether there would be any surplus after the landlord’s lien was satisfied.
    [Ed. Note.- — For other cases, see Marshaling Assets and Securities, Cent. Dig. § 6; Dee. Dig. <§=9.]
    Appeal from Rockwall County Court; J. W. Reese, Judge.
    Action by W. C. Pennington against C. A. Thompson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    T. B. Ridgell, of Rockwall, for appellant. A. H. Mount, of Royse City, for appellee.
   RAINEY, C. J.

This suit was instituted in the justice court and judgment rendered for appellant. On appeal to the county court judgment was then rendered for appellee for $145.75, from which judgment Thompson appealed to this court. Thompson was in-dorser of the note sued on, and his defense was that the suit was not brought within the time prescribed by the statute for fixing the liability of an indorser in such cases. Plaintiff replied that during the time elapsing the makers of the note were insolvent.

The evidence was conflicting on the issue of insolvency of the makers of the note during the period stated, and, the jury having found against Thompson, the verdict will not be disturbed. Rev. St. art. 580; Burrow v. Zapp, 69 Tex. 479, 6 S. W. 783.

The evidence further shows that a mortgage was taken on a crop to secure the payment of said note, subject to the landlord’s lien and all of said crop was necessary to pay said landlord’s lien. If Thompson desired the mortgage foreclosed, he should have paid the note and taken chances on bringing suit to foreclose.

Appellee was not negligent in trying to collect

The judgment is affirmed.


author: HUFF, C. J.

text:
    STAMPS v. EZELL.
    (No. 730.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1915.
    On Motion for Rehearing, March 13, 1915.)
    Mortgages <©=>372 — Auction Sale — Property Passing — Crops—Severance.
    The purchaser of land at auction sale by the trustee under a deed of trust cannot claim that thereby he became the purchaser of the growing crop, he being informed, and at Ms request the trustee announcing, at the sale, that the crop had been sold, and would not pass to the purchaser of the land, and that bids should be made accordingly, the purchaser thus then agreeing to the severance, though at the same time he stated that if he bought the land he would claim the crop.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1102, 1103, 1105-1117; Dec. Dig. <©=>372.]

      Appeal from Scurry County Court; C. R. Buchanan, Judge.
    Action by C. L. Ezell against TV. H. Stamps. Payment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Higgins & Hamilton, of Snyder, for appellant. Rosser & Boyd, of Snyder, for appellee.
   HUFF, C. J.

This is a controversy over the rents of a certain tract of land for the year 1913, situated in Mitchell county. The tenants having paid the rents into the court, the sum of which is $193.40, the controversy, therefore, on this appeal, is between appellant TV. H. Stamps and appellee C. L. Ezell, as to whom it should be paid. Appellee instituted suit therefor in the justice court, and, from a judgment in his favor, the case was brought to the county court. A judgment was there rendered again for appellee, decreeing the money to him and the appellant appeals therefrom to this court.

The facts are sufficient to show, when ap-pellee purchased the land in question at trustee’s sale, the crop out of which the rents were paid was standing in the field and un-gathered. The appellee contends that this crop was part of the land, and that the deed to him passed the title and vested in him the crop then standing. The appellant claims he bought the growing crop before the sale under the trust deed and paid for it. On the 20th day of February, 1912, the McCullough Hard-ware Company, a corporation, through its president, TV. A. McCullough, executed the deed of trust on the land in question, together with some other land, to TV. M. Robinson, as trustee, to secure the indebtedness due certain creditors of the corporation, amounting to $28,691.45. The deed of trust gave power of sale to Robinson, and also provided for the appointment of a substitute trustee under certain conditions to the creditors. The power of substitution appears to have been properly exercised, and George W. Sanford was appointed substitute trustee, and he, as such, on the 4th day of November, 1913, sold the land to appellee at public sale; he being the highest and best bidder therefor.

It is an undisputed fact that the substitute trustee expressly announced at the sale that the standing crop had theretofore been sold, and that the purchaser of the land would not get it, and that the bids should be made with a view to that fact. The appellee was personally informed before the sale of such fact, and he himself requested that the trustee announce such fact be so made at the sale, but at the same time stated if he bought the land he would claim the crop rent. George TV. Sanford, the substitute trustee, sold the standing crop to appellant for $100 before the land was sold to appellee. This $100 was turned over to W. M. Robinson, the trustee of all the McCullough Hardware Company’s prop- ’ erty, both personal and real, and by him applied on the company’s debts. W. A. McCullough testified, and his testimony is not controverted, that he purchased all the stock of the corporation and owned all the stock when he executed the deed of trust to Robinson, and turned over the company’s property to him. lie stated it was his desire that the crops be sold and the proceeds applied to the debts of the corporation. At the time he executed the deed of trust on the land to Robinson, he also delivered all the personal property of the corporation to him. He says he understood that Robinson, as such, had possession of the land, and that he (McCullough) rented it in 1912 as the agent of Robinson; that he had not collected or claimed the rents as his own for the reason that there was some question about his right thereto and his attorney having advised him that he was not entitled to them. The substitute trustee, Sanford, claimed to be acting for Robinson with all the power and authority held by Robinson, which acts he says were approved and ratified by the creditors of the McCullough Hardware Company.

There is some evidence in the record that the creditors, or a part of them, met at Dallas and agreed to accept the trust under Robinson and to release the corporation, if as much as 50 per cent, of the indebtedness was realized from its properties. The evidence is sufficient to show that McCullough ratified the sale of the growing crop to appellant by Sanford, and, after it was made, the money so received was placed to the credit of TV. M. Robinson, who distributed it and paid it on the debts of the corporation. The jury found that TV. A. McCullough bought up all the stock of the McCullough Hardware Company and was sole owner thereof on the 20th day of February, 1912, and at that time McCullough was the only stockholder and director in the hardware company; that the appellant Stamps did not make the rental contract with Ditto, the tenant for 1913, for TV. A. McCullough; that he (Stamps) did collect part of the rent before the trustee’s sale of the land to Ezell, and held the same subject to the order of W. M. Robinson, trustee, and afterwards paid the same to the trustee for the creditors; that he paid $100 for the unsold rents to the trustee for the benefit of the creditors. They found that the substitute trustee informed the bidders at the public sale that he was only selling the land, and that the rents had been previously sold; that Ezell was informed before he bought that the rents had been sold to Stamps, and that the crop, the rents of which are in controversy, was on the land and in the field where grown at the time Ezell purchased the land. The facts in this case further show that on the 20th day of February, 1912, and up until September 2, 1913, Stamps, the appellant, was in the employment of W. M. Robinson, as trustee, and assisted in making rental contracts, collecting rents, debts, etc., of the McCullough Hardware Company, and that up to November 3, 1913, he turned over all rents to Robinson, the trustee. We think the evidence amply supports the jury’s finding that Stamps did not make a rental contract for McCullough, but that he was acting for the trustee.

The appellee contends that the sale by the substitute trustee, under the deed of trust of the standing crop, was void, and therefore Stamps got no title thereto. As we gather from the facts and the findings of the jury, he did not purport to sell the crop by virtue of the power expressed in the deed, but he sold the same as personal property and as tlie representative of Robinson, the trustee of the entire estate, real and personal, of the McCullough Hardware Company, for the benefit of its creditors. If he sold the crop, it was not a void sale. The land had been rented for the year 1913 by the trustee Robinson, or by his direction. The rents of the land was under his control and Sanford was acting for the trustee in the sale of the crops. It is uot shown by the evidence that he exceeded his authority in such sale, but, on the contrary, there is every evidence that his acts were ratified by the trustee Robinson, who got the money therefor and distributed it to the creditors, who accepted it without objection, in so far as this record shows. McCullough, as president of the corporation, the original mortgagor, ratified it and approved the sale. There is not an interested party in the rents who objected. Ezell now claims the sale was not properly made. He bought the land ■, with the understanding that the crops had been previously sold' with the express notice, publicly made, and made to him individually, that the crops would not pass by the sale, and that they had been previously sold to Stamps. True, he claimed, as a question of law, it would be sold, but at tlie sale he requested that the substitute trustee inform the public that the crop had theretofore been sold. We do not think he is in a position to now-say he bought the crop. The trustee, through his substitute, in law, constructively severed the crops from the land, and having done so, and Ezell having purchased the land after such severance, with full notice thereof, he should not now be heard to say it was not so severed.

It is not' disputed that McCullough, as president of the company, gave to Robinson, the trustee, the right to sell the crop, and that he gave him the right to rent and apply the rents on the debts of the company. If his acts were ultra vires, as claimed by ap-pellee, which they were not, Ezell could not set them up in order to get what he did not purchase and had no right to or defeat a bona fide purchaser out of what he bought and paid for. If the rents are not appellant’s, and they could be recovered by the corporation, or the creditors, certainly they are not Ezell’s, and he has shown no right thereto. Crops growing upon land are held to be personal property, so far as not to be considered an interest in land under the statute of frauds. Cook v. Steel, 42 Tex. 53; Hardeman v. State, 16 Tex. App. 1, 49 Am. Rep. 821. Crops, whether growing or standing in the field ready to be harvested, are, when produced by annual cultivation, no part of the realty; — they are liable to voluntary transfer as chattels and may be seized and sold under execution. Willis v. Moore, 59 Tex. 628, on pages 637, 638, 46 Am. Rep. 284. The trustee came into actual possession of the land to rent and apply the proceeds thereon on the debts of the corporation by the authority of McCullough is an undisputed fact in this record. McCullough was president of the corporation. In the absence of evidence to the contrary, it will be presumed he had authority to turn over the land to the trustee. Certainly there is as much authority shown for Bis doing so as there was shown to execute the deed of trust under which ap-pellee claims; but it is not necessary to resort to the holding above to sustain appellant’s rights. It is an uncontroverted fact, and so found by the jury, that McCullough was the sole and only stockholder at the time the trustee took charge of the properties. This being so, he was the sole owner of the land in equity and could deal with it as his oym, having proper regard for the rights of the creditors of the corporation. Aransas Pass, etc., v. Manning, 94 Tex. 558, 63 S. W. 627. In order to make the transfer, there was no order of the board of directors necessary, and certainly it was his duty to pay the corporate debts. Ezell cannot complain that he appropriated the rents from the land to that end before he purchased the land at the sale. He, we think, is in no position to complain at the act of the trustee or McCullough in this particular.

We believe the court was in error in rendering judgment for appellee. The judgment will be here reversed and rendered for appellant, and that the money paid into tlie coui-t by the tenants, as rent on the land, will be ordered to be paid to the appellant, and that appellee take nothing by this suit and pay all costs of the proceedings, etc*

Reversed and rendered.

On Motion for Rehearing.

The appellee in the ease earnestly insists that we were in error in the original opinion. He says the trial court did not believe McCullough. The trial court was not selected to pass on the credibility of the witness. A jury was chosen for that purpose, and they found in accordance with McCullough’s testimony. The trial court disregarded their findings and, notwithstanding their verdict, rendered judgment according to his views. The only power he had was to set aside the verdict and grant a neW trial. We repeat that there is no contradiction of McCullough’s evidence that all the property of the corporation was turned over to the trustee. His letters to Ditto, if in fact admissible against the trustee, and his mortgage to Stamps of the crop, do not necessarily contradict him. The facts and the letters themselves show that he was making the claim on the advice of some attorney. We take it that this was given on the ground that he could not dispose of the corporation property. Stamps swears that he worked for Robinson, the trustee, from February 20, 1912, to September 3, 1913, and that he was not working for McCullough or the hardware company, except in working for the trustee. He swears that he rented the land for the years 1912 and 1913, and that he turned over the crop to McCullough for 1912 and to the trustee for the year 1913. He says he was working for the trustee during this time, who was paying him for his services. Whether McCullough took, claimed, or demanded the rent, it was not his to handle. He says that Robinson, as trustee, had possession of all this land and the personal property of the corporation. After he turned it over to the trustee, the agent for the trustee rented it, and the rent was a trust fund, and it makes no difference what McCullough did after-wards in regard to it. His acts will not defeat the beneficiaries.

Again, it makes no difference to Ezell whether the personal property was turned over to the trustee under a written instrument or verbal. The crops growing on the land purchased were the trustee’s for the benefit of the creditors. Our Supreme Court has expressly held, in the authority cited by appellee, that growing or standing crops produced by annual cultivation are no part of the realty and are liable to voluntary transfer as chattels and may be seized and sold under execution. Ezell, under his theory, would be as much entitled to Ditto’s (the tenant’s) portion of the crop growing on the place as he was to the interest belonging to the trustee. Whether the substitute trustee, at the time he made the sale, was acting properly, is a matter Ezell had nothing to do with. The creditors are not complaining; the trustee is not objecting; and McCullough is not protesting either for himself or his corporation. Everybody appears to be satisfied, except Ezell, who paid nothing for the crop, and, lest he might have to do so, he had the substitute trustee at the sale to announce that the crops would not be sold. He himself severed or agreed to the severance of the crop from the land at the time of the sale; but now, simply because he said if he bought the land he would claim the crop, he claims he purchased it. This did not make a purchase of the crop. He cannot blow both hot and cold. When he agreed to a severance at the sale of the land, he will not be heard to contend there was no severance made for the first time after he bought only the land.

The motion for rehearing will be overruled.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALE, J.

text:
    ENNIS & DALE v. CATOR et al.
    (No. 741.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 13, 1915.)
    1. Appeal and Error <@=>759 — Questions Reviewable — Assignments of Error — Nonconformity to Rules of Court.
    An assignment of error, not presented in conformity to Court of Civil Appeals rule 29 (142 S. W. xii), providing that assignments as presented in the brief shall be numbered from the first to the last in their consecutive order, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <@=>759.]
    2. Brokers <@=>64 — Commissions — When Earned.
    A broker, employed by an administrator to procure a purchaser of real estate, who procures a purchaser who refuses to accept the administrator’s deed, cannot recover commissions, because the purchaser is not ready and willing to purchase on the terms specified.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 07, 97; Dec. Dig. <@=>64.]
    3. Executors and Administrators <@=384— Sales — Jurisdiotion of Probate Court.
    A sale ordered by the probate court is not completed until the purchaser accepts the deed and the consideration is paid or the terms are complied with by the purchaser, and a failure of the purchaser to comply avoids the whole proceeding.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1569; Dee. Dig. <@=>384.]
    4. Executors and Administrators <@=>379— Sale of Real Estate — Order Confirming Sale — Order to Vacate.
    An order, confirming a sale by an administrator and allowing a broker procuring a purchaser a commission, may, at a subsequent term, be vacated by direct proceeding in the nature of a bill of review, on the purchaser refusing to complete the purchase.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1545-1564, 1567; Dec. Dig. <@=>379.]
    5. Executors and Administrators <@=>379— Sale of Real Estate — Order Confirming Sale — Order to Vacate.
    An application by an administrator to vacate an order confirming a sale of real estate and allowing a broker a commission for procuring a purchaser because of the refusal of the purchaser to complete the purchase is a direct proceeding in the nature of a bill of review to vacate the order, and is maintainable as against the broker.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1545-156-4, 1567; Dec. Dig. <@=>379.]
    Appeal from District Court, Hemphill County; J. W. Cruclgington, Special Judge.
    Action by Ennis & Dale against Bert 0. Cator, administrator of George Aitken, deceased, and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    R. E. Taylor, of Henrietta, and A. S. Moss, of Memphis, for appellants. Frank Willis, of Canadian, for appellees.
   HALE, J.

This is an appeal from the District Court of Hemphill county where the case had been transferred by agreement from Hansford county. George Aitken was killed, and left surviving him a wife and one minor child. Appellee Cator was legally appointed administrator of the estate of deceased. The estate consisted largely of realty, and, being indebted, thei probate court ordered the sale of the realty for; the purpose of paying the debts against it. Appellants, being real estate brokers, were employed by the administrator to assist in effecting a sale of the lands described in the petition. They found a prospective purchaser in the person of one Isaac Covalt, who it is alleged agreed to purchase the land upon the terms offered by the administrator. The probate court approved this sale, and the order approving the report closes with this paragraph:

“It is further ordered by the court that the said report be recorded by the clerk of this court, and that the proper conveyance of the property described therein be made to Isaac Covalt, the purchaser named in said report upon his compliance with the terms of said sale, and the agreement of the administrator for the payment of one thousand and no/100 dollars commission upon said sale to Ennis & Dale is hereby allowed and confirmed as proper expense of said sale, and ordered paid out of the first proceeds of said sale.”

In the meantime the widow, being a native of Scotland, returned to her home, leaving the entire management and control of the estate in the hands of the administrator. In pursuance of said sale Cator tendered to Covalt his deed conveying the property. Co-valt refused to accept the deed, acting upon the advice of counsel to the effect that the widow of Aitken should join in the conveyance. Thereupon Cator requested Mrs. Ait-ken to join him in the conveyance, and upon her refusal so to do, and the final refusal of Covalt to consummate the sale, Cator applied to the probate court of Hansford county, stating the facts, whereupon the former order, confirming the sale to Covalt, was rescinded and Cator ordered to again place the land upon the market. The land was subsequently sold to another purchaser, who is in no way connected with this controversy. Upon the application of Cator to have the order confirming the sale to Covalt rescinded being filed, appellants herein came into the probate court of Hansford county, praying that the order be not rescinded in so far as it allowed them their commissions. This relief was denied by the court, whereupon Ennis & Dale gave notice of appeal to the district court of Hansford county, and upon a hearing in the latter court their appeal was dismissed on account of defects in the bond. They then filed this suit against Cator as administrator and against his bondsmen. In their petition they allege the appointment and qualification of Cator as administrator, the execution of his bond, the probate proceedings as herein-before set out; that on the 30th day of June, 1910, such administrator entered into a contract with them, whereby he employed appellants as brokers to sell said land, agreeing to pay them $1,000 as commissions for their services; that they made the sale for the sum of money, upon the terms and conditions prescribed by the administrator in the contract; that the proposed purchaser, Covalt, was ready and willing to accept a deed to the property so sold him, and able to comply with all the terms and conditions specified in the contract between plaintiff and the administrator. Defendants answered and by way of plea in abatement insisted that the appellants’ suit was a collateral attack upon the judgment of the county court of Hansford county, wherein said court, by its order, had rescinded the sale of the lands to Isaac Co-valt, and also rescinded the order allowing them the commission of $1,000 due for their services. It is further alleged that the county court of Hansford county alone had jurisdiction to determine the questions involved, and that no appeal had been prosecuted from its judgment. Plaintiffs filed their first supplemental petition, charging that the order passed and entered by the probate court, in which their claim of $1,000 was allowed as commissions, was still in full force and effect; that no appeal by the administrator had ever been prosecuted from said order, and that the effort on the part of their attorneys to prevent the rescission of the order allowing their commission was a mistake of fact, and, being made at a time when the court could pot set its former judgment aside, did not cancel the order in allowing said claim, and did not relieve the administrator from the payment thereof. The ease was tried without a jury, resulting in a judgment for ap-pellees, from which judgment this anneal is prosecuted.

Appellants’ brief contains three assignments of error, numbered 1, 2, and 8. Rule 29 for the Courts of Civil Appeals (142 S. W. xii) provides that assignments as presented in the brief shall be numbered from the first to the last in their consecutive order, but it is not required that they shall be presented in the order in which they appear in the original assignments of error filed with the clerk of the trial court. Because assignment No. 8 is not properly presented, as required by this rule, it will not be considered. Barron & Clarke v. White, 155 S. W. 590; Grisham v. Connell Lumber Co., 164 S. W. 1107; Taylor v. Butler, 168 S. W. 1004.

The first assignment of error is:

“The court below erred in overruling and in not sustaining the objection of the plaintiffs to the application of Bert O. Cator, administrator, offered in evidence by the defendants, praying the court to enter an order canceling and holding for naught the order of the probate court of Hansford county, Tex., confirming the sale of the land belonging to the estate of George Ait-ken, deceased.”

And the second assignment, which is submitted with it, is as follows:

“Because the court erred in overruling and not sustaining the objections of plaintiffs to the order of the court canceling the sale of the land belonging to the estate of George Aitken, deceased, to Isaac Covalt, and ordering a resale of the land, said order being- offered in evidence by the defendants.”

The following propositions are submitted under these assignments:

“(1) A probate court cannot, at a subsequent term, revise its own final judgment rendered at a previous term.
“(2) The decree of the county court of Hans-ford county in canceling and holding for naught the order of the probate court of Hansford county, confirming the sale of the land to Isaac Co-valt, was void, and as such became immaterial when offered in evidence on the trial of this cause.
“(3) The control of courts over their judgments, orders, and decrees ends with the term at which the same was rendered. When the term is closed the court has no further power over such judgments or decrees for the purpose of revision or modification upon its merits. The rights embraced in said decrees are by such irrevocably concluded and established.
“(4) If an order be entered by a court, setting aside a commission allowed for the sale of real estate at a former term of the court, where the order shows upon its face that the same is not set aside by the court upon its own motion, and where no application is made to have the same set aside, such order so setting aside the allowance is absolutely void and is not binding upon the claimant.”

The order allowing the commission was entered before Govalt refused to accept the deed. Upon Govalt’s refusal to consummate the sale upon the original terms it seems to us that appellants’ right to a commission is defeated because their purchaser was not ready and willing to buy upon the terms offered at the time the contract was made and the deed was tendered to him. In our opinion, they could not, by an original action^ recover their commissions, for this reason: No fault on the part of the administrator is shown, and the joinder by the widow was not a term of the original contract of sale, but was subsequently injected into the transac- . tion by Covalt upon the advice of his counsel. We have no doubt that a proper judgment has been rendered, but in deference to appellants’ contention will consider the propositions urged by them.

The administrator might have sued Govalt for specific performance of the contract of sale; but, it appearing from the petition that the price of the land had advanced materially between the date of the sale and the revocation of the confirmation order, we think the probate judge acted for the best interest of the estate in vacating and setting aside his former order and ordering a resale. Covalt was a resident of Kansas, and a suit in specific performance would have been a tedious, expensive, and an inconvenient undertaking. According to the statutory order of proceedings, the order confirming the sale precedes in point of time the execution and delivery of the deed. Vernon’s Sayles’ Civil Statutes, arts. 3511-3513. The term of the court may, and frequently does, end before the deed is executed or tendered.

A sale is never really completed until the deed is accepted and the consideration paid or the terms complied with by the purchaser.. A failure on the part of the purchaser to comply with all the conditions of course avoids the whole proceeding. If we should admit that the order allowing appellants’ claim was a final judgment, still the administrator could, at a subsequent term, by a direct proceeding in the nature of a bill of review, vacate an order made at a former term by showing sufficient grounds. Arthur v. Keed, 26 Tex. Civ. App. 574, 64 S. W. 831; Ruenbuhl v. Heffron, 38 S. W. 1030.

In our opinion the application filed by the administrator was such a proceeding. The confirmation order had been obtained upon representations that Covalt had bought the land upon the prescribed terms. A proper showing that the fact was otherwise is clearly sufficient ground for setting the order aside. It would be a strange doctrine indeed which would deny the administrator the right to have the order of confirmation revoked at a subsequent term of the court upon a showing that the proposed purchaser had failed from any cause in vacation to accept the deed and consummate the deal. This would cloud the title to realty belonging to the estate of decedents, resulting in confusion and uncertainty, and be a prolific source of litigation. In Wall v. Clark, 19 Tex. 326, Roberts, Justice, held that the probate court was empowered to revoke, at a subsequent term, an order for the sale of property which it was shown the estate did not own. Where an order was made at one term authorizing the sale of the whole of a town lot, and another order was made at a subsequent term, authorizing the sale of only one-half of the lot, Williams, Justice, held that the effect of the second order was to revoke the first. Pace v. Fishback, 10 Tex. Civ. App. 450, 31 S. W. 424.

In our opinion the probate court had the right to set aside the entire order, including the allowance for commissions at its subsequent term, and the trial judge did not err in the ruling complained of. Taylor v. Hos-ick, 13 Kan. 518.

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


author: HENDRICKS, J.

text:
    VICARS v. THARP.
    (No. 750.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 20, 1915.)
    1. Appeal and Eeeob <§=>20 — Justices op the "Peace <§=3141 — Amount in Contbo-veest — Appeal eeom Justice — Dismissal.
    Where the amount demanded by plaintiff in justice’s court exceeds the jurisdictional amount, the county court on appeal is without jurisdiction, and a judgment of the county court must be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 81-87; Dec. Dig. <§=320; Justices of the Peace, Cent. Dig. §§ 467-476; Dee. Dig. <§=>141.]

      2. Justices of the Peace <§=141 — Jurisdictional Amount — Appeal from Justice-Dismissal.
    Where the amount demanded by plaintiff in justice’s court is within the jurisdictional amount, but on appeal to the county court the demand is by amendment increased beyond, that amount, the county court is without jurisdiction, and an appeal from its judgment must be dismissed.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 467-476; Dec. Dig. <§=141.]
    Appeal from Gray County Court; Siler Faulkner, Judge.
    Action by J. F. Vicars against J. B. Tharp. From a judgment for defendant, plaintiff appeals.
    Dismissed.
    Chas. C. Cook, of Pampa, and Newton P. Willis, of Canadian, for appellant. Synnott & Underwood, of Amarillo, for appellee.
   HENDRICKS, J.

This is an appeal from the county court of Gray county, Texas. The appellant, Vicars, sued the appellee, Tharp, in the justice court; but the transcript of the proceedings on appeal from, the justice to the county court are not exhibited in this record.’ The transcript in this court! shows the filing of appellant’s original petition in the county court, with no indorsement by the clerk of the county court that the same had been filed, or was a part of the proceeding, in the justice court. The third paragraph of said petition alleges that:

“Because of said several items of indebtedness hereinbefore alleged, defendant has damaged plaintiff, after deducting the amount due defendant by plaintiff, in at least the sum of $200,” etc.

The aggregate of the items demanded by plaintiff, appellant herein, against appellee, with the aggregate demand of the items alleged as a credit upon the whole demand sued for, leaves a balance, as a cause of action set up by appellant against appellee, of over $240.

There appears in the transcript a pleading of appellee, labeled “Defendant’s Original Answer,” in the nature of a cross-action, with an aggregate demand of $249.10, constituting different items credited by an alleged indebtedness against appellee in favor of appellant in the sum of $76.75, leaving a balance due of $172.35, for which appellee sues appellant. This pleading is indorsed by the county clerk of Gray county as having been filed in the justice court, as well as in his court. The verdict of the jury was for “the sum of $75.-40, in favor of defendant [appellee] and nothing in favor of plaintiff [appellant].” The judgment of the county court, as it' appears in the transcript, decrees all costs against appellant expended in the justice court as well as in the county court.

The record exhibiting that this must have been an appeal from the justice to the county court, and that the amount alleged by appellant against appellee in the petition in the county court, upon which the trial was based, was an amount not within the jurisdiction of the justice court, and hence not within the jurisdiction of the county court on appeal, this cause must be dismissed in this court for want of jurisdiction. Texas & Pacific Railway Co. v. Hood, 125 S. W. 9S2; Mo., Kan. & Tex. Ry. Co. v. Hughes, 44 Tex. Civ. App. 436, 98 S. W. 415; Missouri, K. & T. Ry. Co. v. Simmons, 98 S. W. 416.

If this petition were filed in the justice court, of course that court would not have had jurisdiction; neither would the county court on appeal. If the appellant’s demand in the justice court was within the jurisdiction of that court, and this petition is an amendment increasing the demand to the amount stated, the county court, under the decisions cited, likewise would not have had jurisdiction, and in either event this court would not have jurisdiction. The ap-pellee having recovered a verdict and judgment, and the appellant, as plaintiff below, having recovered nothing, and the transcript no doubt correctly disclosing the amount in the petition, upon which the trial proceeded in the county court, we would be unable to assist the appellant, as suggested by Justice Dibrell in the cause of Wells v. Driskell, 145 S. W. 333, by according him any opportunity of an attempted amendment of the transcript. There is likely nothing to amend, so that appellant could show his cause within the jurisdiction of this court.

The appeal is accordingly ordered dismissed.
      <£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes