author: LANE, Justice.

text:
    SHAMBAUGH v. SMITHEY et al.

    No. 9824.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 8, 1933.
    Rehearing Denied April 13, 1933.
    W. H. Graham, of Houston, for plaintiff in error.
    Edgar H. Phelps, of Houston, for defendants in error.

       Writ of error granted.

   LANE, Justice.

This suit was brought by Scott Shambaugh against W. W. Smithey and wife, Prances M. Smithey, and C. W. Hurley, to recover upon a paving assessment certificate for the principal sum of $748.80, together with the sum of $250 as attorney’s fees, or such fees as may be found reasonable, and for a foreclosure of his statutory lien on the property described, against Crain Ready Cut House Company and W. W. Smithey and wife for a share of the costs of paving and otherwise improving Belle Court avenue in the city of West University Place, upon which lot 1 of block 2 of Belle Court addition abutted, which certificate recites as follows:

“This is to certify that by virtue of an ordinance of the City Commission of West University Place, Texas, passed on the 18th day of December, 1928, there was levied an assessment in the sum of Seven Hundred Forty Eight and 80/100 Dollars against property situated in said City, being Lot 1 of Block 2 of Belle Court Addition, fronting 128 feet on the north side of Belle Court, and against Crain Ready Cut House Co. and W. W. Smith-ey and wife, Prances M. Smithey, the owner of said property. That said assessment is payable to Scott Shambaugh or his assigns in ten equal installments, after May 17,1929, as follows: In one, two, three, four, five, six, seven, eight, nine, and ten years, respectively, together with interest thereon from said date at the rate of seven (7%) per centum per annum, payable annually. Said installments are evidenced by coupons attached, payable to said Scott Shambaugh, or bearer, signed with the facsimile signature of the proper officers of said City, and attested by its seal. Said owner has the right to pay any of said installments before, maturity, with accrued interest. That said assessment was levied by virtue of said ordinance and other proceedings of said City providing for payment by said owner of his pro rata of the cost of improving Belle Court under a contract between said City and Scott Shambaugh of date the 4th day of December, 1928. That by said ordinance, said assessment with costs of collection and reasonable attorney’s fees, if incurred, is declared to be a first paramount lien upon said premises (except as to lawful and ad valorem taxes) and a personal liability of the owner, payable to said Scott Shambaugh or assigns, in installments and with interest as above set forth. That in accordance with said ordinance, it is hereby declared that if default be made in the payment of any installment of principal or interest hereon when due, then, at the option of the said Scott Shambaugh or other legal holder hereof, this certificate shall at once mature without notice, and the full amount of principal hereof shall be collectible with accrued interest and reasonable attorney’s fees, and costs of collection if incurred. That all proceedings with reference to making such improvements have been regularly had in compliance with the law,'the Charter of said Oity, and terms of this certificate, and that all prerequisites to the fixing of the lien and claim of .personal liability evidenced by this certificate have been performed. That said improvement has been completed by said contractor in compliance with the terms of said contract, and was accepted by said City on the 17th day of May, 1929.”

Plaintiff alleged that the facts recited in the certificate are true, except that, as a fact, Crain Ready Out House Company was not the owner of the property at the time stated in the certificate, and therefore the assessment created no liability against said company.

Plaintiff further alleged as follows:

“Prior to the issuance of said certificate,, the governing body of said City duly and legally passed an ordinance by the terms of which said sum of money was assessed against said property, and said owners, and a lien was fixed against said property to secure the payment of said sum of money, which lien was made superior to all other liens, except as stated in said certificate.
“In making said improvement and in taking the steps said Oity did take with reference thereto, the governing body of said City and all other officers whose duty it was to have a part in the performance of any act relating thereto, took each and every step required by the constitution and laws of Texas to make said assessments valid and binding personal obligations against the real and true owners of said property aforesaid, and a valid, binding and enforcible superior lien on said property, to secure the payment of said sums of money.
“At the time the Oity ordered said improvement, levied said assessment and issued said certificate, Belle Court was a public street or highway within the corporate limits of said City; said property abutted said portion of said street, and the defendants, W. W. Smithey and wife, Frances M. Smith-ey, were the sole owners of said property, and are now the owners thereof.
“That the defendant, C. W. Hurley, is asserting a lien upon said property but said lien is inferior to the lien held by plaintiff, as aforesaid, and as against said defendant, plaintiff is entitled to a foreclosure.
“That two installments of principal and interest are now past due and unpaid; that demand has been mad^ upon said defendantsi for the payment of said sums .of money, which demand has not been complied with; that because of default in the payment of said past due principal and interest, plaintiff has placed said claim in the hands of W. H. Graham, an Attorney at Law, for collection and suit, and has promised to pay said attorney a reasonable fee for such services, which plaintiff says is $250.00.”

Defendants, W. W. Smithey and wife, Frances M. Smithey, and O. W. Hurley, answered by general demurrer, general denial, and by a special plea alleging that at the time such paving was done and the assessment made the real property described in plaintiff’s petition and upon which the paving lien is sought to be foreclosed was and is the homestead of W. W. Smithey and Frances M. Smithey, husband and wife, and that by reason thereof the purported paving lien and assessment described by .plaintiff is void, and constitutes no lien on such property; that C. W. Hurley owns and claims a first prior lien upon the property.

Becoming cross-plaintiffs, defendants repeated their allegations as to the ownership of the property by Smithey and wife and their homestead rights therein and their averment that the lien claimed by the plaintiff was and is void; they also repeated their allegation that Hurley held a first prior lien on the property. They prayed that the cloud cast upon the property by reason of the matters and things alleged by plaintiff be removed, and for judgment against the plaintiff decreeing void his purported lien.

The case was tried before the court without a jury.

Judgment was rendered wherein it is recited that, after having heard the pleadings, evidence, and argument of counsel, the court “doth find that plaintiff should take nothing by this suit and that judgment should be rendered for defendants. That defendants in open court dismissed their cross-action, and said cross-action is here now dismissed without prejudice.”

From such judgment Scott Shambaugh has appealed.

Appellant, for a reversal of the judgment, contends that it affirmatively appeared in the pleadings and evidence that W. W. Smithey and wife, Frances M. Smithey, were the real and true owners of the property involved at all times material to this suit, and that there is no showing that it was the separate property of either Smithey or his wife; that, in the absence of such last-meafcioned showing, and upon the showing that such property was owned by W. W. Smithey and wife, legal presumption must be indulged that it was community property of Smithey and wife, and that, as there was no proof that such property was a homestead, plaintiff in error was entitled to a Judgment against W. W. Smithey personally for the sums prayed for, and for a foreclosure of his alleged lien on the property involved, and the court erred in not so adjudging.

Appellant sued upon the certificate, which we have copied in our preliminary statement, issued by the city of West University Place. The certificate recites that it was issued by virtue of an ordinance of the city commission of said city; it recites that all proceedings with reference to making the improvements in question liad been regularly bad in compliance with tbe law, tbe charter of tbe city, and terms of said certificate, and that all prerequisites to tbe fixing of tbe lien and claim of personal liability evidenced by sucb certificate bad been performed; that said improvements bad been completed by tbe contractor in compliance with tbe terms of bis contract; and that tbe same bad been accepted by tbe city on tbe 17tb day of May, 1929.

Tbe Legislature of Texas, at its first called session of tbe Fortieth Legislature, passed and put in force on tbe IStb day of June, 1927, an act (Acts 1st Galled Session of 40tb Legislature, c. 108, p. 489 [Vemon’s Ann. Oiv. St. art. 1105b, §§ 1-14}), authorizing incorporated cities, towns, and villages to improve their streets, avenues, boulevards, etc., and to assess part of tbe costs thereof against abutting property and owners thereof.

Sucb act, among other things, provides that tbe governing body of sucb incorporations shall have power to cause to be issued in tbe name of tbe city assignable certificates in evidence of assessments levied declaring tbe lien upon tbe property and tbe liability of tbe true owner or owners thereof i&liettier coiTeetly named or not, and to fix the terms and conditions of such certificates. (Italics ours.)

Sucb act in section 6 thereof (Vemon’s Ann. Civ. St. art. 1105b, § 6) provides as follows:

“If any such certificate shall recite substantially that tbe proceedings with reference to making tbe improvements therein referred to have been regularly bad in compliance with tbe law and that all prerequisites to tbe fixing of tbe assessment lien against tbe property described in said certificate and tbe personal liability of the owner or owners thereof have been performed, same shall be prima facie evidence of all tbe matters recited in said certificate, and no further proof thereof shall be required. In any suit upon any assessment or reassessment in evidence of which a certificate may be issued under the terms of this Act it shall be sufficient to allege tbe substance of tbe recitals in sucb certificate and that sucb recitals are in fact true, and further allegations with reference to tbe proceedings relating to sucb assessment or reassessment shall not be necessary.
“Sucb assessments shall be collectible with interest, expense of collections, and reasonable attorney’s fee, if incurred, and shall be a first and prior lien on tbe property assessed, superior to all other liens and claims except state, county and city ad valorem taxes, and shall be a personal liability and charge against tbe said owners of tbe property assessed.”

It is apparent from tbe certificates that the governing body of tbe city created and fixed a lien on tbe whole of tbe real property and a joint and several personal liability upon and against each of tbe three persons named in tbe' certificate, to wit, Crain Ready Out House Company, W. W. Smitbey and wife, Frances M. Smitbey. There is, however, no recovery whatever sought by plaintiff against tbe Grain Ready Cut House Oompany. It is in effect conceded by all parties that sucb company owned no interest in tbe property, but that Smitbey and wife were tbe true owners thereof. So Smitbey and wife being such true owners, a valid paving lien could be fixed against tbe property as attempted, unless it was at sucb time tbe homestead of tbe true owners. In sucb last event no valid lien could be fixed against tbe property, nor any personal liability be established against Mrs. Smitbey, a married woman, but a personal liability to pay the certificate could be established against W. W. Smitbey, tbe husband.

Appellees, however, contend that, as tbe certificate declared upon shows upon its face to have been based upon one assessment against property owned jointly by three persons, such certificate is void, and therefore tbe plaintiff’s petition showing such fact was subject to the defendants’ general demurrer addressed thereto, and in support of sucb contention they cite Uvalde Rock Asphalt Co. v. Lyons (Tex. Civ. App.) 289 S. W. 202; Scanlan v. Bitulithic Co. (Tex. Com. App.) 44 S. W.(2d) 967, 80 A. L. R. 852, and other cases.

In tbe eases cited tbe provisions in the city charters for proportionate assessments of property owners did not authorize lump sum paving assessment against property owned jointly by several persons, and therefore tbe courts, in disposing of those cases, held that no sucb lump sum assessment was valid. But all those cases were eases predicated upon certificates issued prior to tbe passage of tbe act of tbe first called session of tbe Fortieth'Legislature of 1927 (Acts 1st Galled Session of 40th Legislature, c. 106, p. 489 [Vernon’s Ann. Civ. St. art. 1105b, §§ 1-14]), which, among other things, provides by its section 11 that incorporated cities, towns, and villages may for certain improvements, sucb as paving streets, make assessments against property owned jointly by one or more persons, firms, or corporations, and that sucb property may be assessed jointly.

We conclude that tbe joint assessment made in tbe present case was a valid assessment, and that, if there be no showing that tbe property was tbe homestead of W. W. Smitbey and wife at the time sucb assessment was made, the plaintiff (appellant here) is entitled to have judgment personally against W. W. Smitbey upon tbe certificate sued upon, and a foreclosure of bis statutory lien as against both Mr. and Mrs. Smitbey.

However, from the judgment it appears that the trial court rendered it upon the theory advanced by appellees; that is, the certificate was invalid and unenforceable because upon a joint assessment <?f the property owned by two or more persons, and thereby leaving appellees under the impression that it was not incumbent upon them to show that the property was their homestead to entitle them to a judgment in their favor. It seems that the issue as to whether or not the property was in fact such homestead was not fully developed; therefore we deem it advisable to reverse the judgment and remand the cause upon that issue, and it is accordingly so ordered.

Reversed and remanded.


source: Caselaw Access Project

author: SELLERS, Justice. '

license: Public Domain

text:
    CRAWFORD v. PERRY et al.
    No. 4308.
    Court of Civil Appeals of Texas. Texarkana.
    March 2, 1933.
    T. N. Jones and Lasseter, Simpson & Spruiell, all of Tyler, and Seay, Seay, Malone & Lipscomb, of Dallas, for appellant.
    Pollard, Beauchamp, Lawrence & Lux and Butler, Price & Maynor, all of Tyler, for ap-pellee.
   SELLERS, Justice. '

This suit was brought by Mrs. M. P. Perry against John H. Crawford to recover damages under the statute for injuries resulting in death to her daughter, Miss Jennie Mae Perry, which injuries were occasioned by a collision between the car of Miss Perry, deceased, and a Ford truck operated by John H. Crawford-on North Bois d’Arc avenue in the city of Tyler, on May 15, 1931. The trial was before a jury, and resulted in a verdict in favor of Mrs. Perry for $4,714. From a judgment in favor of Mrs. Perry in accordance with the jury’s verdict, Crawford has duly prosecuted this appeal.

Appellant’s eighth proposition complains of the jury’s verdict as being insufficient to support the judgment entered by the court, in that there was no issue submitted to the jury as to whether Miss Jennie Mae Perry’s death was the result of the injuries received in the collision. The deceased was injured on May 15, 1931. She died August 22, 1931, some three months after she received the injuries complained of. The evidence as to the cause of her death is conflicting. That an affirmative finding of the jury is necessary on this issue to support the judgment entered by the court in appellee’s favor is the holding of Chief Justice Phillips in the case of M., K. & T. Rwy. v. Norris (Tex. Com. App.) 222 S. W. 1097, 1099, wherein it is held: “There was no affirmative finding by the jury in this case that the injury received by Norris in the box car and for which the defendant was responsible was the proximate cause of his death. The defendant requested the submission of this issue. Nor was there any affirmative finding by the jury that the injury received by Norris in the box car and the fall from the wagon concurred as the efficient cause of his death. Under this condition there was no basis for a judgment against the defendant, and accordingly there should be another trial.”

Appellee contends that her cause of action in this case arises by reason of the negligent act of the appellant in bringing his car into collision with the car in which her deceased daughter was riding, and that the .resulting death as a consequence of that negligence is such an issue as on appeal will be deemed to have been found by the trial court in such a manner as to support the judgment. We do not concur in this view. Under the statute involved, in our opinion, two ultimate fact issues are necessary to support the judgment when the evidence is conflicting: First, the negligent injury; and, second, death as the result of such negligence. Each of these issues under the rule announced in Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, must be submitted to the jury, and, since the second issue was not submitted, the judgment in this case will not be permitted to stand.

There are a number of other assignments which we will not discuss, since they are either without merit, or, if they present error, they are such as will not likely occur upon another trial.

The judgment of the trial court is reversed, and the cause is remanded.


author: SELLERS, Justice.

text:
    SADLER et al. v. KIRSCH.
    No. 4312.
    Court of Civil Appeals of Texas. Texarkana.
    March 23, 1933.
    Ramey, Calhoun, Marsh & Higgins, of Tyler, for appellants.
    Norman & Norman, of Rusk, and Smith-deal, Shook, Spence & Bowyer, of Dallas, for appellee.
   SELLERS, Justice.

Harvey Kirsch brought this suit in the district court of Cherokee county against Millard Sadler and others in trespass to try title, and also alleged title under the ten years’ statute of limitation (Rev. St. 1925, art. 5510). The defendants answered by plea of not guilty, and also pleaded title to the land involved under the five and ten years’ statutes of limitation. The case was tried before the court without the aid of a jury, and at the conclusion of the evidence the court found in favor of the plaintiff, Harvey Kirsch, on his plea of ten years’ limitation, and accordingly entered judgment in his favor for the land involved." To this judgment the defendants excepted and have duly prosecuted this appeal.

Appellants’ first proposition is that the appellee cannot recover on his plea of limitation since the evidence does not show that his title to the land involved ever passed out of the state of .Texas. We cannot agree with appellants’ contention. The evidence shows very clearly that the appellee was in possession of the land involved for more than ten years before this suit was filed, having it fenced, using and enjoying and claiming it as his own during all this time. Such possession alone carries with it the presumption that the state had parted with the title to some one and that the appellee had acquired that title. House v. Reavis, 89 Tex. 626, 35 S. W. 1063. This presumption placed the burden on appellants to show that the state had not parted with its title in order to defeat the case made by appellee, and this they have failed to do. Harmon et al. v. Landers (Tex. Civ. App.) 41 S. W. 378.

Careful examination of the evidence convinces us that appellants’ second assignment of error must be overruled, the evidence, in our opinion, being sufficient to support the trial court’s finding of adverse possession of appellee to the land.

The judgment of the trial court will be affirmed.


author: JOHNSON, Chief Justice.

text:
    HILL et al. v. McINTYRE DRILLING CO. et al.
    No. 4298.
    Court of Civil Appeals of Texas. Texarkana.
    March 30, 1933.
    Rehearing Denied April 6, 1933.

      Pollard, Beauchamp, Dawrence & Dux, of Tyler, Cunningham, Moursund & Johnson, of San Antonio, and McCartney & McCartney, Of Tyler, for appellants.
    Mayfield & Grisham, J. W. Akin, and Fred Y. Hughes, all of Tyler, Patch & Weldon, of Henderson, and Weeks, Hankerson & Potter, of Tyler, for appellees.
   JOHNSON, Chief Justice.

April 4, 1927, M.. D. Thompson and wife, Inez Thompson, executed an oil and gas lease conveying seven-eighths of the minerals in and under 198 acres of land in Rusk county, Tex., to C. M. Joiner, trustee. Mrs. Inez Thompson died January 10, 1931. M. L. Thompson qualified as community administrator on March 18, 1931. This suit was filed by appellants Mrs. Newton 1-Iill and others, being all the heirs of Mrs. Inez Thompson, deceased, except two of her living children. The suit is to cancel the Joiner lease as to 50 acres of the land described, valued at $1,000,000. This 50 acres was community property, and constituted a part of the homestead of M. L. Thompson and wife, Inez Thompson, at the time of the execution of the lease, and so continued to the date of the death of Mrs. Thompson. Appellants seek to cancel the lease on the grounds (1) that the name of the lessee (O. M. Joiner, trustee) and the term (five years) for which the lease should run, were omitted from the instrument at the time it was executed; (2) that the notary public, G. P. Birdwell, who took the acknowledgments of Mr. and Mrs. Thompson, was interested in the lease, being one of the parties for whom C. M. Joiner was holding as trustee; (3) and the failure in the payment of some of the installments of rentals when due prior to October 4, 1930.

January 19, 1932, M. D. Thompson for himself and as community administrator of the community estate of himself and his deceased wife, Inez Thompson, filed his plea of intervention in the suit, and on January 28, 1932, filed his supplemental petition, in each of which he adopts the pleadings of the plaintiffs, but prays for judgment in his own right as such community administrator.

The appellees, defendants in the trial court, jointly claim title to the seven-eighths leasehold interest in the 50 acres under the lease by regular chain of assignments from O. M. Joiner, trustee. In answer to plaintiffs’ suit to cancel the lease, defendants pleaded (1) mutual mistake in omitting the name of the lessee (O. M. Joiner, trustee) and the term (five years) for which the lease should run; (2) that, after the name of the lessee, and the term for which the lease should run had been filled in according to the original intention of the parties, Mr. and Mrs. Thompson reacknowledged the execution of the instrument October 13, 1930, before R. A. Motley, a notary public not disqualified; (3) that the lease had been ratified by Mr. and Mrs. Thompson before her death, and by Mr. Thompson, individually and as community administrator, since her death; (4) estoppel by Mr. and Mrs. Thompson before her death, by Mr. Thompson individually and as community administrator since her death, because of their certain acts in regard to, and statements and affidavits of the validity of, the lease. Defendants also pleaded improvements in good faith in drilling six producing wells on the 50 acres at an expense by them of approximately $150,000.

Trial of the oause to a jury upon special issues resulted in the court’s entering judgment on February 24, 1932, that plaintiffs and intervener take nothing, denying their prayer to cancel the lease, from which they have perfected this appeal.

Appellants have a number of assignments of error, all of which we have carefully considered, but in this opinion will discuss only the points governing the disposition of the appeal.

The jury found that G. P. Birdwell, the notary public before whom Mr. and Mrs. Thompson acknowledged its execution on April 4, 1927, was interested in the lease. A notary public is disqualified to take the acknowledgment of a conveyance in which he is interested. The acknowledgment of the husband is unnecessary to a conveyance by him, except for the purpose of registration. Mondragon v. Mondragon, 113 Tex. 404, 257 S. W. 215. The acknowledgment of a married woman is made by statute a necessary part of her conveyance. The 50 acres were a part of the community homestead of'Mr. and Mrs. Thompson at the time of their invalid acknowledgments before G. P. Birdwell. The lease did not then convey an interest in the property, if a conveyance of the community homestead by the husband is void and of no effect without the joinder and the separate acknowledgment of the wife. Section 50 of article 16 of the Constitution of Texas, provides: “ * * * Nor shall the owner, if a married man, sell the homestead without the consent of the wife, given in such manner as may be prescribed by law.”

Article 1300, Revised Civil Statutes, provides: ‘‘Such consent shall be evidenced by the wife joining in the conveyance and signing her name thereto, and by her separate acknowledgment thereof taken and certified to before the proper officer, and in the mode pointed out in articles 6605 and 6608.”

It appears to the writer that the restraint above provided is thereby placed upon the husband; that he is prohibited from selling the homestead with one exception, that is, with the consent of the wife evidenced in the manner provided. However, the construction to be placed thereon is settled that the husband, if it be community or his separate property, may convey the homestead without the joinder of the wife evidenced in the manner provided by statute, when done in good faith and without fraud on the wife. The conveyance is inoperative and may be set aside so long as it remains the homestead. When the homestead character of the property ceases, either by abandonment and acquisition of a new homestead, or by death of the wife, the conveyance then becomes operative; the reasoning being that the husband . has the authority to convey the community property, subject to the impediment of its being a homestead. The purpose of the law is to protect the wife’s homestead rights in the land. When the homestead character of the property ceases, the reason for the law’s protection of it as such ceased. The deed of the husband, theretofore not effective, but having been executed in good faith and without fraud upon the wife, then becomes operative. Brewer v. Wall, 23 Tex. 585, 76 Am. Dec. 76; Bell v. Crabb (Tex. Com. App.) 244 S. W. 371: Ley v. Hahn, 36 Tex. Civ. App. 208, 81 S. W. 354; Kirby v. Blake, 53 Tex. Civ. App. 173, 115 S. W. 674; Marler v. Handy, 88 Tex. 421, 31 S. W. 636; Goff v. Jones, 70 Tex. 572, 8 S. W. 525, 8 Am. St. Rep. 619; Allison v. Shilling, 27 Tex. 450, 86 Am. Dec. 622; Pitts v. Kennedy (Tex. Civ. App.) 177 S. W. 1016; Eberling v. Deutscher Verein, 72 Tex. 339, 12 S. W. 205; Fisher v. Gulf Production Co. (Tex. Civ. App.) 231 S. W. 450; Southwestern Lbr. Co. v. Evans (Tex. Civ. App.) 275 S. W. 1078; Anderson v. Carter, 29 Tex. Civ. App. 240, 69 S. W. 78. In the case of Hudgins v. Thompson, 109 Tex. 433, 211 S. W. 586, a parol sale by the husband alone was upheld by the Supreme Court, it having been taken out of the statute of frauds by possession and improvements by the vendee.

The name of the lessee (C. M. Joiner, trustee) and the term (five years) for which the lease should run were not filled in the blank places provided therefor at the time of its execution. Mr. M. L. Thompson, though, testified that they were left out of the lease by mutual mistake, and.the jury so found. Judgment of the court was not error in denying appellants a cancellation of the lease because of these omissions by mutual mistake at the time it was signed by Mr. and Mrs. Thompson. De Flores v. Smith (Tex. Civ. App.) 236 S. W. 505; Henderson v. Odessa B. & F. Co. (Tex. Civ. App.) 15 S.W.(2d) 1095; Long Bell Lbr. Co. v. Lowry (Tex. Civ. App.) 31 S.W.(2d) 345; Durham v. Luce (Tex. Civ. App.) 140 S. W. 850.

On October 13, 1930, after the name of the lessee (C. M. Joiner, trustee) and the term (five years) were inserted in the lease, R. A. Motley, a legally appointed and qualified notary public, and whose qualification is not questioned, carried the lease to the Thompson home, and presented it to Mr. and Mrs. Thompson for the purpose of retaking their acknowledgments. Mr. Motley testified, in substance, that, after explaining to them the corrections and the necessity for their reac-knowledgments, they made no objections thereto, and that he then retook their acknowledgments to the original lease signed hy them so corrected; that from his explanations made to them at that time they knew they were reacknowledging an oil and gas lease; that he showed it to them, and explained to them what lease they were reae-knowledging. He further testified that they did not re-sign the lease on that occasion, that they just reacknowledged their signatures, and “that was as much as was done.” The certificate of Mr. Motley as a notary public taking the acknowledgments of Mr. and Mrs. Thompson on this occasion is regular in form, meeting all the requirements of the statutes as to the acknowledgments of husband and wife, This acknowledgment of Mrs. Thompson is attacked by plaintiffs because the notary did not in fact comply with the requirements of the law in taking it.

Mr. Thompson testified, in substance, that: “Bob (Mr. Motley) just presented the lease to him and his wife, asked him whether or not that was some of his ‘scratching’ referring to his signature, and he answered, ‘yes, that is it’; that was about all that was said, but he said that he wanted to save old man Joiner or something like that, and we passed it off laughing; that if he explained it any further to his wife it was something like this, as he went out the door he said, ‘That is your signature and you signed it;’ that he did not say anything about being a notary public at the time, and that he did not know whether he was or not.”

The jury found that Mr. Motley did not examine Mrs. Thompson privily and apart from her husband at the time, but they further found: Special issue No. 3: “Do you find from a preponderance of the evidence in this case that Mrs. N. I. (Inez) Thompson, on October 13, 1930, appeared before R. A. Motley, a Notary Public for Rusk County, Texas, and then and there acknowledged that she had executed the lease introduced in evidence in this case, dated April 14, 1927?” Answer: “Yea.”

Plaintiffs contend that the above finding is not sufficient, in that it does not include the specific finding that Mr. Motley apprised Mrs. Thompson of his capacity and purpose to take her acknowledgment at the time, citing Breitling v. Chester, 88 Tex. 586, 32 S. W. 527; Wheelock v. Cavitt, 91 Tex. 679, 45 S. W. 796, 66 Am. St. Rep. 920. In the Wheelock Case, Mrs. Wheelock did not in fact appear before the officer for the purpose of acknowledging the execution of the deed, and no acknowledgment in fact was made by her before the officer, and he did not in any way attempt to take her acknowledgment. It was held that, although the certificate of the notary was formal, Mrs. Wheelock was not estop-ped from asserting the invalidity of the certificate against an innocent purchaser without notice. In the Breitling Case, Mrs. Chester was summoned before a justice of the peace for the purpose of having her deposition taken. She objected to answering some of the questions, but was advised that she would have to do so. After questioning her, he requested her signature; she signed because she thought she was signing her deposition and that she had to; she then acknowledged it to be her signature. The jus^ tice of the peace executed'and attached to the deed his certificate of acknowledgment regular in form. It was held that this was not an appearance before the officer for purpose of acknowledging the execution of the deed, and that she had in no way invoked the exercise of the officers’ authority in that respect, and that she was not estopped to assert the falsity of the certificate of the officer.

We agree with appellants on the law, but the facts presented do not come within the rule announced in either of the opinions cited. In this case it is not shown that fraud or deceit was practiced by the notary upon Mrs. Thompson at the time. It does not appear that he acted in bad faith. There was no intimation of any other purpose of the meeting than for the purpose of taking the acknowledgment of the deed on the occasion. He was a duly and legally authorized officer for that purpose, and he appeared only for the purpose of the acknowledgment of the deed. The jury found that she appeared before him and acknowledged that she had executed the lease. It does not appear that she was or could have been under the impression that she was acknowledging the execution of the deed for any purpose whatever other than or disconnected from a purpose to give it due authenticity. We are of the opinion that the facts come within the rule that “The certificate of the officer taking the acknowledgment is conclusive of the facts therein stated as against an innocent purchaser without notice.” Wiley v. Prince, 21 Tex. 637; Ellington v. Bryant (Tex. Civ. App.) 293 S. W. 327; Haskins v. Henderson (Tex. Civ. App.) 2 S.W.(2d) 864; Adkins-Polk Co. v. Rhodes (Tex. Com. App.) 24 S.W.(2d) 351.

The Joiner lease provides that it shall terminate as to both parties unless the stipulated semiannual rentals are paid in advance or drilling begun. C. M. Joiner failed to pay some of the rentals prior to October 4, 1930. The rentals coming due since and including that date have been kept paid up or drilling done according to the provisions of the lease. The defendants contend that subsequent to October 4, 1930, Mr. and Mrs. Thompson before her death, and Mr. Thompson individually and as community administrator since her death, ratified the lease, and that, by reason of certain acts, statements, and affidavits of Mr. and Mrs. Thompson and of Mr. Thompson individually and as community administrator, appellants were estopped to assert a forfeiture of the lease for failure in the payment of said rentals. The facts on which defendants rely, in substance are:

(1) Payment and acceptance of the rentals due October 4, 1930, and subsequent thereto, under the lease by assignees of C. M. Joiner.

(2) Record of the reacknowledgment of the lease by Mr. and Mrs. Thompson before R. A. Motley, notary public, October 13, 1930.

(3) Execution and record of mineral deed executed by Mr. and Mrs. Thompson on November 27, 1930, conveying to E. Stokes one-eighth of their royalty retained under the' lease, which deeds provide: “Said land being now under an oil and gas lease executed in favor of C. M. Joiner, Trustee, it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes one-eighth of all the royalty, and gas rental or royalty due to be paid under the terms of said lease.”

(4) Affidavit of record, executed by M. L. Thompson, December 30, 1930, that each and every installment of rentals accruing according to the terms of the lease had been paid, and that the lease was in full force and effect.

(5) Affidavit of record, executed by M. L. Thompson and wife, Mrs. Inez Thompson, January 6, 1931, that all rentals were paid 'in advance, and that the lease was in full force: and effect.

(6) Execution and record of a mineral deed by M. L. Thompson January 24, 1931, conveying to Shaw Oil Company a one-eighth interest of the royalty retained under the lease, and containing a similar provision as quoted above from the E. Stokes deed.

(7) Execution and record of a mineral deed by M. L. Thompson February 10, 1931, conveying to S. P. Parish one-fourth interest of the royalty retained under the lease, and containing similar provision as quoted above from the E. Stokes deed.

(8) Written statement of record made by M. L. Thompson, February 11, 1931, witnessed by H. F. Weldon and E. L. Fulton, that the name of the lessee (C. M. Joiner) and the term (five years) were left out of the lease by mutual mistake, and that the lease was then in full force and effect.

(9) Affidavit of record by M. L. Thompson, June 2, 1931, that the lease was in full force and effect, and that he would sign the division orders when presented; the first well having been completed under defendants’ development about this time.

(10) Execution of the division orders by M. L. Thompson individually and as community administrator, for the oil produced under defendants’ development of the property.

(11) Mr.'Thompson testified that he understood at the time that the purpose of the affidavits was to set the question of title to rest under the lease “so they would go on and drill and get him some oil wells”; that he was present when defendants took possession of the lease and began drilling, and went out on the lease often during the development ; that he understood that they were drilling under the Joiner lease; that he did not try to put them off, but that he wanted them to drill; that some of them said something about that they were under McIntyre, and “I said I didn’t know anybody except Joiner and I never leased to anybody except Joiner, and that is exactly what I told them, but I said, ‘Go on and get the oil, it is here, that is what we have been wanting for years’; that they had drilled fifteen or sixteen .oil wells on the entire lease, six on the 50 acres; that he has collected a number of royalty cheeks; and that he was satisfied with the development.

The jury found that, in executing each of the several instruments, affidavits, and statements above enumerated, Mr. and Mrs. Thompson at the time did so with the intention to ratify the Joiner lease.

It is contended by appellants that, the property being a homestead, Mrs. Thompson could not ratify the forfeited lease, or be estopped to assert its forfeiture. The wife may not ratify the deed executed by the husband alone to the homestead except she does so by instrument in statutory form or grant and conveyance, Grissom v. Anderson (Tex. Civ. App.) 48 S.W.(2d) 809, cited by appellants; but such are not the facts here. Nor is it the point under consideration. Mrs. Thompson joined in the original execution of the conveyance by signing, but it was invalid as a conveyance by her for lack of her acknowledgment. Subsequent to the alleged forfeiture, she reacknowledged the conveyance, an act of execution and of ratification, and subsequent thereto, made affidavit “that the rentals had been paid in advance and that the lease was in full force and effect,” acts of ratification and estoppel. The jury found that she thereby so intended to ratify the lease. Humble Oil & Refining Co. v. Jeffrey (Tex. Civ. App.) 38 S.W.(2d) 374; C. J. pp. 760, 761, § 382. A married woman is not es-topped from asserting her rights to land not conveyed in conformity with law unless she has been guilty of positive fraud or some act of suppression which in law would be-equivalent thereto. Grissom v. Anderson, supra. But where she has joined in a conveyance terminating on condition subsequent, as: the lease in question, she may by her positive acts be estopped to assert that such condition has occurred when such acts are equivalent to fraud or fraudulent concealment.. Such fraud or fraudulent concealment, which is a necessary predicate upon which to base an estoppel of a married woman, does not necessarily mean actual and intentional fraud on her part, but an intentional affirmative act of hers which operates as a legal fraud, whether so intended or not, will estop her.. First Texas Joint Stock Land Bank v. Chapman (Tex. Civ. App.) 48 S.W.(2d) 651, 655; Guaranty Bond State Bank v. Kelley (Tex. Com. App.) 13 S.W.(2d) 69. It is further contended, since there were no community debts, that the qualification of Mr. M. L. Thompson as community administrator gave him no authority or power of disposition over the one-half interest in the community homestead, which descended to her heirs upon the death of Mrs. Thompson, and that as such he could not ratify the lease or he estopped to assert the forfeiture. Upon the death of Mrs. Thompson, one-half the community homestead immediately descended to her children free from the claims of general creditors. It was no part of the assets of her estate to be administered upon by the probate court, Greene v. Cass County State Bank (Tex. Civ. App.) 7 S.W.(2d) 620; Cline v. Niblo, 117 Tex. 474, 8 S.W.(2d) 633, 66 A. L. R. 916; Johnson v. Hampton, 117 Tex. 580, 8 S.W.(2d) 640; Ward v. Hinkle, 117 Tex. 566, 8 S.W.(2d) 641; but it is subject to the right of control, management, and disposition by the husband, R. S. art. 3663; and, when he has qualified as community administrator he has full and complete power of control, management, and disposition without the intervention of the probate court or the consent of the heirs, and regardless of the existence of debts, Brunson v. Yount-Lee Oil Co. (Tex. Sup.) 56 S.W.(2d) 1073. Such authority would include the power to ratify and to bind the estate by estoppel.

We are of the opinion that the above facts and findings by the jury are sufficient to constitute ratification and estoppel as to Mr. Thompson, Mrs. Thompson, and as to Mr. Thompson as community administrator.

Appellants have filed a motion to dismiss this cause in so far only as the judgment of the trial court affects the interest of appellants, who were plaintiffs and interveners in the trial court, in and to a part of the land involved, described in said motion, and in so far as it affects any money in the hands of Ed Berry, trustee, for the McIntyre Drilling Company, and as to any -funds for oil runs at the time of the bankruptcy court sale of the lease claims of McIntyre Drilling Company, in and to said property. The motion is agreed to by appellees, and is in all respects granted.

Appellants have also filed an agreed motion to dismiss the appeal of this cause in so far as the judgment of the trial court affects the interest of Mrs. Althia Thompson and husband, Hen Thompson, Mrs. Melissa Pool and husband, Ras Pool, Mrs. Newton Hill and husband, J. H. Hill, in so far as it affects their interest to any portion of this suit, and to dismiss the appeal in so far as it affects the interest of the following named parties to any portion of the north 10 acres described in the judgment of the trial court as being the property of H. Read, and in so far as said appeal affects the interest of H. Read, making final the judgment of the trial court as to said parties, to wit: Robert Bingham (R. H. Bingham), Euna Belle Bingham, for herself and as guardian of the estate of Thelma Silvey and as next friend for Thelma Silvey, Johnie Toole, Eddie Toole, Charlie Thompson, Melissa Pool and husband, Ras Pool, as next friend for Clarence Thompson, Ura Thompson Garrett and husband, E. T. Garrett, Barney Thompson Stone and husband, Elliott Stone, Mattie C. Thompson, individually and as guardian of John B. Thompson and Cater Thompson, Aubrey Thompson, Oscar Thompson, and M. B. Thompson, individually and as community survivor. This motion is in all respects granted.

Appellant M. B. Thompson, individually and as community administrator of the community estate of himself and deceased wife, Inez Thompson, has filed his motion to dismiss and abandon this appeal in so far as it affects his undivided one-half interest in and to the property described in the judgment of the trial court, praying that this appeal as to him and his interest in said property be dismissed, and that the judgment of the trial court remain in full force and effect, which motion in all respects is granted.

As to the remaining parties and property involved, the judgment of the trial court is in all respects affirmed.


author: PELPHREX, Chief Justice.

text:
    ULEN SECURITIES CO. v. CITY OF EL PASO.
    No. 2798.
    Court of Civil Appeals of Texas. El Paso.
    March 30, 1933.
    Rehearing Denied April 20, 1933.

      ■ Turney, Burges, Culwell & Pollard, R. F. Burges, and Walter S. Howe, all of El Paso, for appellant.
    J. H. McBroom, City Atty., and Frank B. Clayton, Asst. City Atty., both of El Paso, for appellee.
   PELPHREX, Chief Justice.

In September, 1931, the city of El Paso proposed to issue approximately $1,500,000 worth of funding bonds in accordance with the “Bond and Warrant Law of 1931” (Acts 1931, c. 163 [Vernon’s Ann. Civ. St. art. 2368a, §§ 1-11]), and on September 10, 1931, bids from prospective purchasers were open and a contract to .sell said bonds was entered into with the firm of Glaspell, Veith & Duncan, of San Antonio, Tex. As a part of the contract, Glaspell, Veith & Duncan posted a cashier’s check for $15,000 with the State National Bank of El Paso, Tex.

That part of the proposal relative to the depositing of the check, reads:' “As an evidence of our good faith in carrying out the terms of this agreement we deposit herewith a $15,000. cashier’s check on the State National Bank of El Paso, Texas, which is to be forfeited by us as full and agreed liquidated damages should we fail to comply with the terms of this agreement. This cheek is to be returned to us on demand should the legality of the bonds be disapproved by our attorney, and is to be applied and accepted as part payment as of this date for the foregoing legally issued bonds when delivered to us as herein provided.”

On September 18, 1931, Glaspell, Veith & Duncan assigned their interest in the contract to appellant, which assignment was accepted and acquiesced in by appellee on October 28, 1931.

On October 29, 1931, Mr. Sutherlin, a representative of appellant, came to El Paso and had a conference with certain of the officials' of appellee. Another conference was held on October 31, 1931, at which the mayor, a majority of the city council, and representatives of the banks were present.

Immediately after the latter conference, the mayor indorsed the check for $15,000 and ordered it deposited to the credit of ap-pellee, and on November 4, 1931, the city council passed a resolution declaring the $15,-000 forfeited.

Appellant after requesting the return of the cashier’s check filed this suit. The cause was submitted to a jury on the following special issue: “Do you find from a preponderance of the evidence that on or prior to the date that the defendant cashed and appropriated the $15,000.00 check in question herein that the plaintiff had notified the defend ant in substance that it would not perform the contract with reference to the purchase of the funding bonds described in the contract between the City and Glaspell, Veith & Duncan, which had been assumed by the plaintiff?”

Upon an affirmative finding by the jury on the above issue, the court rendered judgment that appellant take nothing, and it has appealed. .

Opinion.

In this case there is involved the question of anticipatory breach of a contract.

That a contract may be thus so breached as to authorize the recovery of damages therefor by the other party has been clearly recognized by our Supreme Court. Hardeman-King Lumber Co. v. Hampton Bros., 104 Tex. 585, 142 S. W. 867; Kilgore et al. v. Northwest Texas Baptist Educational Association, 90 Tex. 139, 37 S. W. 598.

It has, however, been held that in order to thus breach a contract, the intention to abandon the contract at some future date must be declared in positive terms and unconditionally, and that a declared intention to abandon at some future date, however positively made, will not operate to terminate the contract, if the promisor is at the time in good faith actively, engaged in its performance. Kilgore v. Northwest Texas Baptist Educational Ass’n, supra.

It therefore follows that in the present case it must appear, before appellee would have a right to declare the check forfeited, that appellant had, in positive terms, and unconditionally, declared its intention to not comply with its contract, and further, that it was not, at the time of making such declaration, in good faith engaged in the performance of its part of the contract.

Appellant contends that there was no positive repudiation of the contract shown and that the evidence shows that it was continuing to perform its contract.

In support of its contention that it was continuing in its performance of the contract, appellant quotes the following testimony of its witnesses O’Neil and Sutherlin and of Mayor Sherman:

“Q. Mr. O’Neil, where were you on about the 28th of October, 1931? A. In New York City.
“Q. Was anyone in El Paso representing you or the Ulen Securities Company on or shortly after the 28th of October, 1931? A. Yes, sir, I recall Mr. Sutherlin leaving Dallas on the 28th day of October and reaching here on the 29th of October.
“Q. Of October. Did you, while in New York, receive any communications by wire, letter or telegram from Mr. Sutherlin in regard to the negotiations with the Oity of El Paso concerning the purchase and delivery of the funding bonds ? A. Yes, sir. * ⅜ *
“A. I cannot say exactly when it was. There were several different kinds of telegrams, it was not material when we did not get it, but we had a good deal of trouble, if I may digress a little on this, getting all the attorney wanted, to satisfy them on this matter, and Mr. Austin went to New York, and in telegraphic communication there with Mr. Austin, we had word that practically all of the serious matters were out of the way and Thomson, Wood & Hoffman thought they could approve the first installment.”
“⅛. Where were you on the 22nd of October? A. You are getting right down to date now.
“Q. You were in New York on the 30th? A. I will try and tell you exactly where I was on that date. It was just about the time I was on the trip, or started back. I believe, however-, I was — I cannot say positively, but I was likely in Indiana somewhere.
“Q. You went to New York to persuade Thomson, Wood & Hoffman not to approve them, didn’t you? A. I did not.
“Q. Mr. O’Neil, what was the object of your interview with Thomson, Wood & Hoffman in New York on the 29th of October, 1931, with reference to the El Paso funding bonds? A. To find, out, if possible, what would be necessary to secure their formal .opinion on the first installment of the bonds and what their attitude was toward the possibility of their approval of the second installment.”

Sutherlin testified:

“Q. Before coming to the Monday meeting I will ask you whether during the conference of the 31st, and at the time of the conference, whether you acquainted the Oity authorities with the fact that the President of the Ulen Securities Company was in New York, and you were in communication with him about the sale of the bonds? A. Yes, sir.
“Q. Neither you nor your company have got a scratch of paper, by which you can-prove to this court, that Thomson, Wood & Hoffman disapproved any part of these bonds, have you? A. We may have in the office. We spent a lot of money going there talking it over with them, telegraphing and correspondence, as your own records will show.
“Q. You thought enough of them to submit the bonds to them and Mr. O’Neil went to New York to get their opinion? A. Yes, sir.
“Q. To consult them? A. Yes, sir.”

Mayor Sherman testified: “Q. You say this was a very extended discussion. Mr. Suther-lin explained, did he not, that Mr. O’Neil was in New York endeavoring to handle the matter at that time? A. I do not recall that he did, Major Burges. However, he may have.”

We cannot agree with the conclusion drawn, from the above quoted evidence, by appellant.

In the first place it is clear we think that Sutherlin was doing nothing toward performing any duty imposed by the contract upon appellant, but was engaged, at most, in an attempt to persuade the city authorities to enter into a more favorable contract with appellee.

According to O’Neill’s testimony he was in New York to secure, if possible, a formal opinion from Thomson, Wood & Hoffman, as to the validity of the first installment of bonds and to ascertain their attitude as to the validity of the second installment.

This was clearly not the performance of any contract duty to appellee but, at most, was in furtherance of an investigation of the legality of the two installments of bonds, a matter which was peculiarly important to appellant, but with which appellee was not concerned.

If appellant had decided to purchase the bonds without the approval of any attorneys, appellee could not have refused to consummate the sale by reason of that fact. It therefore follows that there was no evidence before the court to show that appellant, at the time the alleged declaration of intention to abandon the contract was made, was engaged in the performance of any of its contractual duties.

In view of the above conclusion, we are next confronted with the question of whether appellant’s intention to abandon the contract was declared in positive terms and was unconditional.

It appears from the evidence that Mr. Sutherlin, representing appellant, discussed with the city authorities on different occasions the matter of the making of a new agreement between the city and his company, relative to the purchasing of the bonds. He came to El Paso on October 29, 1931, and called upon the mayor, who called in the city attorney, Mr. McBroom, and the chairman of the finance committee, Mr. Rosenfield. The mayor’s testimony as to what transpired at that meeting is:

“Q. Now, what, if anything, did Mr. Suther-lin say with reference to those bonds, that $1,500,000.09 bond issue? A. He said, ‘Mr. Sherman, I presume you know the condition of the bond market, that it has gone to pieces,’ speaking of the general financial condition of the country, he said he was out here to see about the bonds. That the simplest thing for the Ulen Securities Company to do would be to kiss their $15,000.00 goodbye, and forget about the transaction, but he did not desire to do that and was here to discuss it.’ I then put to Mr. Sutherlin the direct question: ‘Do I understand that you are not willing to go through with the deal?’
“Q. What did he say to that? A. His reply was: ‘It is not so much a question of being unwilling but we are not able to go through, the loss will be too great.’ I then asked him the question, the direct question: ‘Are you going to reject your account?’ 1-Iis reply was: — I remember these words, he says: ‘We have a right under our contract to forfeit the $15,000.00 as liquidated damages.’
“Q. Did you have any other conference with him that day? A. At the same time, immediately I asked the City Clerk to call for the City Attorney, and Mr. Rosenfleld, chairman of the finance committee. When they arrived I stated to them: ‘Gentlemen, we have bad news, this man — ’
“Q. Who was present, was Mr. Sutherlin still there? A. Mr. Sutherlin, I meant Mr. Sutherlin when I specified, ‘this man.’ I said: ‘Gentlemen, we have bad news, Mr. Sutherlin is here to tell us the bond market has gone to pieces, and the company is not willing to buy the bonds under the contract.’
“Q. What did Mr. Sutherlin say to that? A. I do not recall that he made any reply to that statement; he repeated in substance to the City Attorney and Mr. Rosenfleld what he told me of the loss involved under his contract.”

Mr. Rosenfield’s version of what occurred there, is:

“Q. Did Mr. Sutherlin himself make any statement in reference to the fulfillment of that contract? A. He did.
“Q. What statement did he make? A. As I came into the office Mr. McBroom was sitting there, and Mr. Sherman and Mr. Sutherlin, and the Mayor said: ‘Well, I have got some bad news for you, the Ulen Securities Company are not going through with their contract on the bonds,” and I was very much surprised, and we started to talking about the financial condition of the country, and the condition of the bond market at the time. I asked him—
“Q. Asked whom? A. Mr. Sutherlin, whether he was going through with the contract, and he said they would like to go through with the contract, but ‘we cannot go through on the basis of the other contract.’ ”

As to this meeting Mr. McBroom said:

“Q. Did Mr. Sutherlin in that conference make any statement in reference to these bonds or this contract? A. Yes, sir.
“Q. What statement did he, make Mr. Mc-Broom? A. I believe I went in just a few minutes ahead of or just about the time Mr. Rosenfleld came in, and Mr. Sherman,' wheni Mr. Rosenfleld came in, said: ‘We have got. bad news for you,’ he says: ‘that the Ulem Securities Company is not going through withi their contract to purchase the bonds,’ he said! as well as I recall it, ‘Mr. Sutherlin can explain it to you.’ Then he discussed generally the condition in the bond market. I believe we all agreed we had never seen such a financial condition, and he said it was absolutely legal for them to take the loss, and they would' have to take it, it would be much better for them to give up their $15,000.00, that is the-limit of their liability, and I says: ‘Does the Ulen Securities Company back out of every agreement where they take, a loss?’ and he says: ‘these are not ordinary times you must remember, I am representing stockholders like you are representing the City of El Paso. It would be very unjustifiable for us to take a loss of a hundred thousand or hundred and fifty thousand dollars when our legal liability is only to the extent of $15,000.00.’ ¡
“Q. When the conference was over where did you go? A. I believe I left the court, house, and Mr. Sherman and Mr. Sutherlin were talking about this matter.
“Q. Left the Court house? A. I mean left the City Hall. I stated to Mr. Sutherlin: ‘It is sure hell on the city if you won’t go> through with this contract,’ he says: ‘We cart not—
“A. He said: ‘Well, it is impossible for us" to go through with the contract unless the-City makes a big concession, and the banks: kick in.’ ”

There appears to have been another conference about the matter in the director’s room of the State National Bank, on October 31, 1931, at which were present: Mayor Sherman, Mr. Rosenfleld, Mr. McBroom, Mr. Flory of the State National Bank, Mr. Young, of the El Paso National Bank, W. H. Burges, Aider-men Galbraith and Casteel, and Mr. Suther-lin. Mayor Sherman testified relative thereto:

“Q. Did you have any conversation at that time, any further conversation with Mr. Suth-erlin, with reference to the contract entered into between the City and Glaspell, Yeith & Duncan, in connection with the purchase of the $1,500,000.00 bonds, which contract was assigned to the Ulen Securities Company? A. We did.
“Q. What conversation took place at that time? A. Very extended. The substance of it was Mr. Sutherlin advised us, as he had; advised the entire gathering at the City Hall previously, that the loss was too great, that the company could not and would not go through with the purchase of the bonds under our contract.
“Q. Did lie make any statement with reference to what they meant by willing to do it? A. That if we could work out a higher rate of interest for the bonds they might be willing, or the company would be willing to go ahead and purchase them on a different basis.
“Q. After that conference — was there anything said at that conference, or at the termination of that conference, with reference to whether there would be a further conference with Mr. Sutherlin? A. No, sir.
“Q. Nothing at all? A. Nothing at all.”

The examination of Mr. Rosenfield was as follows:

“Q. Did Mr. Sutherlin at that conference make any statement in reference to that contract? A. He did.
“Q. What did he say? A. As I recall he said: ‘We might as well kiss our $15,000.00 good-bye rather than to go through with this contract.’
“Q. At the end of that conference was anything said about a future conference? A. None that I know of.”

Mr. McBroom testified:

“Q. Did Mr. Sutherlin make a statement at that conference with reference’ to this conference? A. Yes, sir.
“Q. What did he state? A. He stated that they could not go on with the contract, that was impossible, would be out of all proportion to their legal liability, which would be $15,000.00, and a little later on he used the words, when we were insisting he go through with his contract: ‘That the best thing for them to do was to kiss their $15,000.00 goodbye.’ ■ My recollection is Mr. Elory said: ‘Then you are not.going through with the contract?’
“A. Mr. Flory says: ‘Do you mean to say you are not going through with this contract?’ He says: ‘It is impossible on-the same contract,’ and Mr. Elory says: T guess that is all there is for us to do’, Mi*. Sutherlin says: ‘Hold on, let’s see if we can make some agreement on new terms to work this thing out satisfactorily, this was too quick a time.’
“Q. Was there any further conference? A. No.”

Mr. Young, of the El Paso National Bank, testified:

“Q. Will you state what statements were made by Mr. Sutherlin in reference to that contract there that afternoon? A. Mr. Suth-erlin announced that in view of the condition of the bond market at that time that the- bonds could not move at the price they were purchased at.”
“Q. Did he say anything else in reference to the contract? A. He said he would rather kiss the money good-bye than to attempt to take up the bonds and probably stand a hundred thousand dollar loss, words to that effect.”

While it is true that Mr. Sutherlin’s version of the conferences he had with the city authorities contradicts the above statements and is to the effect that no final decision was reached, yet, we are ofl the opinion that the above-quoted testimony was sufficient to support a finding that appellant had declared definitely and unconditionally its intention to abandon the then existing contract.

Prom the whole record it appears to be clear that Mr. Sutherlin came to El Paso for the purpose of securing from the city authorities a more favorable agreement and with the intention, if such an agreement could not be secured, to forfeit the $15,009.

If we be correct in the above conclusion, then, unless there was some error committed in the trial of the cause which calls for a reversal of the Judgment, it should be affirmed.

Appellant by several assignments further contends that the court erred in rendering judgment against it because the earnest money was forfeited by appellee at a time when it was without right, power, or authority to legally issue the bonds it had contracted to sell; at a time when no part of them had been approved by the attorneys for.appellant; at a time when all the issue had not been approved by the Attorney General of Texas; at a time when the holders of the scrip had not tendered to it agreements to repurchase in the event its attorneys should fail to approve the whole issue; and at a time when no election had been held authorizing the issuance of the bonds.

It further contends that the city was without power to issue the bonds because of the unconstitutionality of the Bond and Warrant Law under which they were attempted to be issued.

In the agreement entered into and especially in that portion relative to the earnest money cheek, which has been heretofore quoted, appellant’s right to a return of the check was, by their own proposal, made to depend upon the disapproval by its attorneys of the legality of the bonds. The matters complained of, if true, would certainly justify appellant’s attorneys in refusing to approve the bonds, but under the above agreement are not matters which would relieve appellant from the effect of its declared intention to abandon the contract.

The exhibits excluded and the argument of counsel, which the court instructed the jury to disregard, related to the above matters, and the court properly excluded the exhibits and properly instructed the jury to disregard the argument.

The judgment of the trial court is affirmed.


text:
    DASHKO v. FRIEDMAN.
    No. 4290.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 16, 1933.
    Saye, Smead & Saye, of Longview, for appellant.
    Troy Smith, of Tyler, for appellee.
   JOHNSON, Chief Justice.

From a judgment of the trial court sustaining defendant’s special exceptions to the plaintiff’s first amended original petition, the plaintiff has appealed to this court and assigns error.

Plaintiff’s said petition is as follows;

“That on or about the first day of June, 1931, Mayfield Company and Continental Royalty Company were the owners of all the oil, gas and other minerals in, on and under the following described land in Rusk County, Texas, to-wit: (Here follows description.)
“That on or about the first day of June, 1931, the plaintiff, through negotiations with the Continental Royalty Company, secured a verbal offer from the Continental Royalty Company to sell to him an oil and gas lease on said land, to be executed on the customary % Commercial Oil and Gas Lease form, for the sum of three thousand ($3,000.00) dollars per acre, payable out of one-fourth of seven eighths of the first oil and/or gas, if as and only when same should be produced, saved and marketed from said land; that said agreement with the Continental Royalty Company was made in Dallas, Texas, and with its representative Mr. Cornelison; that plaintiff immediately returned to Tvler, Texas, the Home Office of the Mayfield Company, the other owner of the oil, gas and other minerals in, on and under the lands above described, for the purpose of completing negotiations with them for the execution of an oil and gas lease on their interest in the oil, gas and minerals in, on and under said land.
“That the defendant, Loues Friedman began negotiations with the plaintiff upon his return to Tyler, Texas, at Tyler, Texas, to acquire plaintiff’s interest in said oil and gas lease, and it was agreed verbally between the plaintiff and the defendant that the plaintiff would give to the defendant the benefit of his agreement with the said Continental Royalty Company, and would assist him in his efforts to induce the Mayfield Company to join the Continental Royalty Company in said lease, and that in consideration of the services already performed and to be performed by the said plaintiff, the defendant agreed, bound and obligated himself to assign and to transfer to the plaintiff, as soon as said lease was secured, an undivided ¾6 of ⅛ of the oil and gas produced and to be produced from said leased premises, as, if and when produced, and in that event only, as an overriding, royalty, free of cost and all expense of development and operation of said property. .
“That later, because defendant was unable' to procure a lease with terms as favorable to him as originally contemplated, it was agreed between defendant and plaintiff, that plaintiff’s interest in the transaction should be ¾6 of ⅛ of the oil and gas produced and saved from said land, as, if and when produced and in that event only, — instead of ¾6 of ⅛ of such production, — and that such interest should be an overriding royalty.
“And defendant agreed to deliver said ¾8 of ⅛ of the oil produced and saved from said land to the credit of plaintiff, in the pipe line or tanks to which the wells on said land were connected.
“The agreements between plaintiff and defendant were verbal.
“That the defendant, Loues Friedman, with plaintiff’s assistance, completed negotiations with Mayfield Company and Continental Royalty Company for the execution of said oil and gas lease, on or about July 18, 1931, and the same was duly executed and acknowledged and placed with the Citizens National Bank of Tyler, Texas, to be held by it as escrow agent, pending the drilling of a well thereon, which said well has since been completed as a producer of oil in paying quantities ; and said oil and gas mining lease has since been delivered to the defendant.
“That the plaintiff has repeatedly demanded of the defendant that he transfer and assign to plaintiff his interest in said production from said lease, to-wit: ¾6 of ⅛ of the oil and/or gas produced from said premises, overriding royalty interest, but defendant has refused and still refuses to do so, and denies that plaintiff is entitled to the interest agreed on, or any interest.
“Plaintiff further alleges that the value ■of his interest in said production of oil and ■gas from said lease is twenty thousand ($20,-'000.00) dollars, and that the defendant by his •acts herein complained of has damaged the .plaintiff in said sum, which sum he refused to pay to plaintiff after proper demand therefor.
“Wherefore, premises considered, plaintiff ;prays that defendant be cited to appear herein and answer this petition, and that upon ¡final hearing of this cause that his interest .in and to ¾2s of the oil and gas produced from .the aforesaid oil and gas mining lease be established by decree of this court; that the defendant be declared to be a Trustee holding the title to an undivided ¾8 of ⅛ interest in and to the oil and gas produced and saved from the above described land for plaintiff and that he be required to assign and convey said interest in the production from said lease to plaintiff, and that he be required to account to the plaintiff for his .proportion of the oil and gas produced and saved from said tract of land; .and for his costs herein expended; and in the alternative, plaintiff prays that if for any reason the court should find it would be inequitable to declare and establish his rights, title and interest in and to the production from said lease, as herein set forth, that he have judgment against the defendant in the 'Sum of twenty thousand ($20,009.00') dollars, interest and cost.
“Plaintiff prays for such other, further and general relief as the facts in the law may ¡entitle him to, and which the court may deem meet and proper.”

The defendant’s exceptions which were sustained by the court,' specially excepted to plaintiff’s petition: “Because it appears that this action is brought for the purpose of recovering an interest in real estate based upon an oral contract and is therefore contrary to the statute of frauds of this state; and because it is an attempt to recover an interest in land on an alleged oral contract without showing that there was any writing •of any kind or any memorandum of any writing made and signed, and, therefore, such contract is contrary to the statute of frauds; and because the facts alleged by plaintiff regarding the agreement between plaintiff and the Continental Royalty Company are not sufficient to appraise defendant of the full nature and character of same, or whether or not it was in writing, or of its condition, nor with whom or what officer of said corporation said contract was made.”

The judgment of the court sustaining defendant’s exceptions recites that plaintiff’s attorney announced that: “Under the pleadings filed herein (referring to plaintiff’s said amended petition) if the overriding royalty sued for in this action involved real estate that the contract relating thereto was in contravention of the statute of frauds and that defendant’s exceptions raising said question should be sustained; and that the court after hearing the pleadings and plaintiff’s statement that said exceptions should be sustained if the overriding royalty sued for was an interest in real estate, (the court) being of the opinion that such overriding royalty constitutes and is an interest in real estate, is of the opinion that defendant’s special exceptions 1, 2 and 3 should be sustained.”

The question presented by this appeal for determination is whether or not the subject-matter of the contract, alleged in plaintiff’s petition as entered into between plaintiff and defendant, is personal property or real estate. If it was the intention of the plaintiff and defendant, as evidenced by the terms of the oral contract- between them, to provide for a conveyance by the defendant to plaintiff of an interest in the mineral in place, then the contract would be within the statute of frauds. If it was their intention to stipulate for an assignment thereof, and if terms of the contract so dealt with the minerals only, after they were produced, then the contract would not be prohibited by the statute of frauds. We are of the opinion that the oral contract as alleged in plaintiff’s petition whereby it is alleged that defendant agreed to transfer and assign to plaintiff “¾8 of the oil and gas produced and saved from said land, as, if, and when produced, and in that event only,” clearly evidences the intention of the parties to, and that they thereby did, contract, with relation to the oil and after it should be produced and saved, and in that event only, and not as a mineral interest in the land. The fact that the oil and gas to be received by appellant under the contract is designated as an “overriding royalty” does not make it real estate, or prohibit it from being personal property. It merely denotes its freedom from the burden of production expenses. The contract alleged between the plaintiff and defendant did not undertake to deal with the mineral in fee; but undertook to deal with it, as, if, and when (after) produced (taken out of and severed from the land),.and in that event only; that is, after it became personal property, and is not within the statute of frauds (Rev. St. 1925, art. 3995). The question here presented was decided by the Commission of Appeals in Jones v. O’Brien, 251 S. W. 208, and the holding again approved in deciding questions certified to by the Court of Civil Appeals of the Ninth Supreme Judicial District in the case of Hager v. Stakes, 116 Tex. 453, 294 S. W. 835, 838; Judge Greenwood speaking for the Supreme Court said: “Jones v. O’Brien (Tex. Com. App.) 251 S. W. 208, which was correctly followed in O’Brien v. Jones (Tex. Civ. App.) 274 S. W. 242, determined nothing except that parties may contract for the sale of oil as personalty, after its severance from the soil, and that such a contract is without the statute of frauds.”

We are of the opinion that the court erred in holding that the overriding royalty sued for by defendant constitutes an interest in real estate. We are also of the opin.ion that the facts alleged concerning the purported contract between plaintiff and the Continental Royalty Company, and which plaintiff alleges he gave up to defendant as a part of the consideration for the agreement sued upon in this case, is sufficiently alleged, and that the court erred in sustaining defendant’s special exception directed thereto.

The ease is reversed and remanded for a new trial.


author: MURRAY, Justice.

text:
    ALLALA v. A. N. TANDY & SONS.

    No. 9037.
    Court of Civil Appeals of Texas. San Antonio.
    April 5, 1933.
    Rehearing Denied April 19, 1933.
    Seabury, George & Taylor, of Brownsville, for appellant.
    Davenport, West & Ransome, of Brownsville, for appellees.

      writ of error granted.

   MURRAY, Justice.

Domingo Allala, appellant, sued the appel-lees, A. N. Tandy, Cleve Tandy, Clyde Tandy, and the firm of A. N. Tandy & Sons, a partnership composed of A. N., Cleve, and Clyde Tan-dy, for damages alleged to have been sustained by appellant by reason of the negligence on the part of appellees in discharging their duties under a contract by the terms of which appellant delivered certain tomatoes to appel-lees to be graded, packed, shipped, and sold by them as commission merchants. Appellant alleged that he brought the suit for himself and for various other growers named in his petition, for whom he sues as agent and trustee, to avoid a multiplicity of suits.

The trial was before a jury. The verdict of the jury was favorable to appellees, and the trial court entered judgment that plaintiff below, Domingo Allala, take nothing. The verdict of the jury and the judgment of the court were against appellees on their cross-action.

Appellant complains that he was not permitted to sufficiently cross-examine Cleve Tandy, one of the appellees. The statement of facts discloses that Cleve Tandy was called to the witness stand by the attorney for appellant. Cleve Tandy being an adverse party, cross-examination was permitted by the court. There are approximately 180 pages of this cross-examination.

Just before this examination was brought to a close by tbe court, we find tbe following objections and rulings of tbe court:

“Court: You went over all that yesterday.
“Mr. Davenport (attorney for appellees): I object to that it is just a repetition.
“Court: Tbe objection is sustained.
“Court: I am going to admonish you not to ask him about St. Louis again.
“Court: He has already said there was no reason for it. You want to ask him again.'
“Mr. Taylor (attorney for appellant): I never have asked him, but every time I start the court looks like he wants to put me in jail.
“Court: We may have to do that. You have already asked him once and he has already stated how he made up that analysis.
“Mr. Taylor: I desire to ask him why he didn’t put in these other places.
“Court: It is just an argument.”

It is upon the above rulings of the court that appellant bases his contention that he was not permitted to sufficiently cross-examine this witness. In the light of the explanations and reasons given by the court for his rulings, it is not shown that the trial court abused his discretion.' Jones on Evidence (2d Ed.) §§ 818 and 900.

Appellant next complains that Rev. E. P. Day, a Presbyterian minister, and friend of appellees, was present in the courtroom throughout the trial, that he and Cleve Tandy were seen talking with jurors at every recess of the court, and, when counsel for appellant was ready to begin his closing argument, one juror was three minutes late in taking his seat in the jury box, and it was afterward found out that this juror had fieen engaged in a private conversation with Rev. Day in the hall during this period of delay. Rev. Day was also heard' to tell some of the jury that Cleve Tandy was a deacon in his church. Appellant and those for whom he sued were members of the Catholic Church. This complaint was set out in appellant’s motion for a new trial. The trial judge refused to hear evidence on this complaint.

It will be noted that appellant did not charge that the minister conversed with jurors concerning the case, or expressed an opinion to such jurors as to its merits. Neither is it alleged that appellant did not know of all of these acts before the jury rendered its verdict, but, on the other hand, it affirmatively appears that a great part at least of the activities of Rev. Day were known to appellant and observed by him as they transpired.

It is the duty of a party to a suit, when he observes that the jury is being improperly tampered with, to call the matter to the court’s attention so that the court may take steps to prevent any further such tampering. It is also the duty of such a party, if he has knowledge that the jury has been subjected to improper influences, to ask permission to withdraw his announcement of ready, that the jury be discharged and either a new jury impaneled or the case continued. I-Ie cannot sit silently by, observe improper conduct with reference to the jury, take his chances upon securing a favorable verdict from the jury, and, when the verdict is adverse, set up for the first time the misconduct that he had full knowledge of before the verdict was ever received by the court. Where, as in this case, the appellant observed the alleged misconduct throughout the trial, without making complaint to the trial judge, and where the alleged misconduct was the undue familiarity of appellees’ minister friend with the jury, the trial judge did not abuse his discretion in refusing to hear evidence on same. Clark v. Elmendorf (Tex. Civ. App.) 78 S. W. 538; Olivares v. S. A. & A. P. Ry. Co., 37 Tex. Civ. App. 278, 84 S. W. 248; Gulf, C. & S. P. Ry. Co. v. Gibson, 42 Tex. Civ. App. 306, 93 S. W. 469; Campbell v. Struve (Tex. Civ. App.) 30 S.W.(2d) 344; Anderson v. Construction Co. (Tex. Civ. App.) 254 S. W. 642.

Appellant next complains of the trial court’s refusal to permit him to introduce evidence on the twentieth paragraph of his motion for a new trial which set up alleged misconduct of the jury during their deliberations.

The motion is not sworn to, and neither is this allegation supported by affidavit. AVhere a motion for a new trial is not verified and no supporting affidavits accompany it, and where no good reason is shown for failure to furnish such affidavits, it is discretionary with the trial court whether or not he permits the members of the jury to be called as witnesses and examined as to such alleged misconduct. Stubblefield v. Stubblefield (Tex. Civ. App.) 45 S. W. 985; Houston, E. & W. T. Ry. Co. v. Eddings, (Tex. Civ. App.) 139 S. W. 902.

Article 2234, R. C. S., reads as follows: ‘Where the ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material.”

This provision of the statute should not be construed to deprive the trial judge of all discretion, but, on the contrary, he may refuse to hear oral testimony on such allegations of misconduct unless same are supported by affidavit, or good excuse shown why supporting affidavits are not furnished.

If this was not the rule, the question of the misconduct of the jury could be gone into and. all the members of the jury placed upon the witness stand and examined in every case, merely upon a general unsworn allegation of misconduct. The trial court properly refused to hear evidence on the alleged misconduct.

The other assignments of error refer to admissibility of evidence. The matter inquired about was the best market for tomatoes in the United States from May 6 to June 4, 1931. This, by its very nature, was a very broad and general proposition. Hearsay evidence as to markets had to he relied upon to a great extent; and we find no error in the court’s rulings on the admissibility of evidence in any of the manners complained of by appellant.

The judgment is affirmed.


text:
    DAVENPORT et ux. v. SAN ANTONIO MACHINE & SUPPLY CO.
    No. 9031.
    Court of Civil Appeals of Texas. San Antonio.
    March 29, 1933.
    Rehearing Denied April 19, 1933.
    M. L. Harkey, of Crystal City, and Atlas Jones, of Uvalde, for appellants.
    Gocth, Webb & Goeth, of San Antonio, for appellee.
   MURRAY, Justice.

L. M. Davenport, one of the appellants herein, instituted this suit in the district court of Zavalla county against the San Antonio Machine & Supply Company, appellee herein, to recover the title and possession of one 25-horse power Fairbanks-Morse"Oil engine and certain other property, together with damages.

Davenport based his right to recover on the ground that appellee had sold this property at a public sale under the power of sale ' in a certain chattel mortgage; that the sale was illegal and void for the following reasons: (a) Because the cháttel mortgage was void, the engine not being as represented at the time of its delivery; (b) because appellee accepted his check for $350, with a promise of an extension of time, and afterward required a new note for the sum of $1,458.72 and a deed of trust; (c) because the notice of sale con-tamed a mistake in the description of the land on which the property was located, in that the wrong section number was given; (d) because the sale price was grossly inadequate; (e) because Meusebach, the person who made the sale, was an officer and stockholder of appellee; (f) because Meusebach made no attempt to produce bidders; (g) because Meusebach arranged with an attorney to bid in said "property; (h) because ap-pellee improperly applied the check for the sum of $350; (i) because the sale was made to satisfy the note for the sum of $1,458.72, while the unpaid balance due on the note was in reality only $1,100.

The trial court sustained a general demurrer to Davenport’s petition, and, upon his refusal to amend, his cause of action was dismissed.

We find no error in this action of the trial court. The grounds upon which appellant Davenport undertook to have this sale set aside and declared illegal were not sufficient as a matter of law to invalidate the sale.

Appellant’s contention that the engine was not as represented was waived by the execution of the new note. The complaint that the check for $350 was not properly applied was also waived by the signing of the extension or renewal note. The renewal of the indebtedness by the execution of the new note was sufficient to carry forward and renew the chattel mortgage, and the giving of a deed of trust did not affect the chattel mortgage.

The fact that the notice of sale did not give the correct section number of the land on which the property was located does not negative the proposition that the place where the property was located was not otherwise sufficiently described.

The trustee is not required, as a matter of law, to see that the property brings an adequate price, nor is he required to have bidders present. The fact that Meusebach was a stockholder in appellee’s company or that he had made arrangements to have an attorney bid on the property will not render the sale illegal. The fact that the sale was to satisfy a note for the sum of $1,458.72, when the proper unpaid balance was $1,100, is of no consequence, when such contention was in no way brought to appellee’s attention prior to the sale. The sale being legal, ap-pellee had a right to take charge of the property, and could not properly be charged with the conversion of it.

Appellant complains that property was taken which was not covered 'by the chattel mortgage, but this property is alleged to be of the value of $428, which is beneath the jurisdiction of the district court.

Appellant contends that in any event he is entitled to maintain his cause of action to remove the cloud from his title cast thereon by the deed of trust executed by him. In this connection he alleges that the land described in the deed of trust is his homestead and the deed of trust is void and never created a lien on his property. This being true, there is no cloud to be removed.

The judgment of the trial court is affirmed.


author: GRAVES, Justice.

text:
    GILES, City Controller, v. CITY OF HOUSTON et al.
    No. 9818.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 22, 1933.
    Rehearing Denied March 23, 1933.
    Painter, Alpha & Painter, of Houston, for appellant.
    Sam Neathery, Wm. D. Orem, L. W. Cutrer, and Geo. D. Neal, all of Houston, for appel-lees.
   GRAVES, Justice.

This appeal is from a judgment in mandamus, on an application of the appellees as mayor and commissioners of the city of Houston, requiring the appellant as controller of the city- — as in compliance with article II, section 19, of the charter of that city — to countersign a contract otherwise duly made between the city and the Municipal Street Sign Company, Inc., for the furnishing and delivering by the latter to the former of 1250 Type 4-X street name plates or signs; all matters of fact as well as of law had been submitted to the court for determination without a jury, and, on rendering its decree, the court incorporated these findings of fact and law:

“The Court being of the opinion that the facts and the law are with the Relators, finds as follows:
“(1) The Court finds that the Controller’s duties with reference to the countersigning of contracts proffered to him for his signature after being first entered into by the City Council are discretionary and not merely ministerial.
“(2) The Court finds that in the instant case the contract tendered to the Controller was tendered after all the preliminary requirements of the City Charter with reference to the making of the contract were complied with, either literally or substantially; that the contract tendered was to be paid for out of funds 'derived from the sale of bonds voted for permanent street improvements, and that the street signs in question were, according to the undisputed evidence, of a permanent character, both in composition and in the proposed manner of construction at street intersections.
“(3) The Court further finds that the contract was legal, and having been duly tendered to the Controller after all the necessary legal steps had been taken, the action of the Controller in failing and refusing to countersign the same is unwarranted by law.
“(4) In view of the above enumerated facts and conclusions, the Court therefore concludes that the mandamus sought should be granted.”

In this court appellant, as he did below in his capacity as respondent, assails this determination upon the contention that under the provisions of the city charter his duties were discretionary rather than ministerial to the extent that, when he had first, in good faith and prompted by his best judgment, exercised his authority by refusing to sign this contract in the bona fide belief that it was not a legal one, because the requirements of the city charter had not been complied with in its making, and because there was no authority under its provisions for appropriating street improvement bond funds in payment for metal street signs, as this contract undertook to do, that the court was without power to thus in this order compel him to officially exercise the court’s discretion instead of his own; that in this instance he had previously refused, and still did refuse, to sign the contract involved in such honest exercise of what he so determined to be his mandatory duty under judicial and discretionary authority invested in him by the city charter.

This court approves the holding of the trial court, and affirms its judgment; in so doing, it seems to us that no more clearly concise statement of the extent to which the official discretion of an officer may be con-trolled by the courts has been made than this one by our Supreme Court in Houston & G. N. Railway Company v. Kuechler, Commissioner, 36 Tex. 382: “It is said that an officer cannot be compelled by a mandamus to do any act involving an exercise of official discretion. This is very true, when properly understood. It means that an officer cannot be compelled by mandamus to do anything which the law gives him a discretion not to do. It does not mean that the writ will not issue to compel an officer to do any act the performance of which requires an exercise of mind or judgment.”

Another brief and equally applicable pronouncement as to how the question of legality in such a situation is to be determined — that is, whether by the opinion of the officer himself or by the courts of the jurisdiction — is thus made by the Supreme Court of Kansas in State of Kansas v. Board of Commissioners, 113 Kan. 203, 213 P. 1062:

“Under a statute requiring a county attorney to indorse his approval upon a contract entered into by the county commissioners if he finds it to be valid, the question of its validity being one of law, he may be required by mandamus to make such indorsement if the court determines it to be his duty, notwithstanding his own judgment to the contrary.”

In this instance none of the quoted findings —in so far as susceptible of being stated as facts — are shown to be without ample basis in the evidence, which indeed is full and satisfactory in support of them all; the claim in that respect therefore amounts, simply, to appellant’s conclusion — concededly and indisputably acted upon conscientiously as if in public duty bound — that the charter and contract involved had been violated and were illegal, mainly, because:

(1) The strict and literal requirements of its provisions — such as that no specifications for the improvement had been approved by the council; that lump sum bids are called for without specifications of quantities; that specifications had been filed in the business manager’s office rather than that of the may- or; and that the supporting appropriation ordinance passed did not specify “that the money required for such contract is in the treasury” etc.;

(2) That the charter definition of “street improvements” as contained in article IVa, section 1, is exclusive and mandatorily binding upon the city council and does not include metal street signs such as this contract calls for, hence its attempt to appropriate street improvement bond funds in payment therefor is illegal and void;

(3) That article 8, section 3, of the charter respecting the duty of the controller, reading: “He shall not sign any contract nor make or execute any warrant or order for the payment of any sum of money unless the same be legal, and all prerequisites and requirements shall have been complied with, nor until after an appropriation has been duly and legally made therefor”—

vested him with a.discretion not to sign a contract that in his opinion was illegal because not in compliance with these specified requirements.

The trial court was not in error, we conclude, in overruling all of these contentions. In addition to the two well-established legal principles already quoted from the authorities cited supra, it seems equally as well settled that such a substantial compliance with the provisions of the charter found on the facts to have been had in this instance was all that is necessary to the making of a legal and binding contract on the part of the city of Houston. Texas Transportation Co. v. Boyd, 67 Tex. at page 158, 2 S. W. 364; Scanlan v. Gulf Co. (Tex. Com. App.) 44 S.W.(2d) 967, 80 A. L. R. 852.

Not only so, but further, the trial court having likewise found on the facts that these metal street signs called for would in every respect constitute permanent street improvements, they seem to be as such clearly authorized by these broad and comprehensive provisions contained in articles 2, section 2, subsection (b), and IVa, section 1:

Article 2, section 2, subsection (b): “The City shall have all powers that are or hereafter may be granted to municipalities by the Constitution or laws of Texas; and all such powers, whether expressed or implied, shall be exercised and enforced in the manner prescribed by this Charter, or when not prescribed herein, in such manner as shall be provided by ordinance or resolution of the Council.

“In addition to all the powers enumerated in this Charter, implied thereby or appropriate to the exercise thereof, the city shall have and may exercise, in the manner hereinbefore provided, all other powers which, under the Constitution and laws of this State, it would have been competent for this Charter specifically to enumerate.”

Article IVa, section 1: “The term ‘Improvements’ as embraced in this article shall include the improvement of any street, avenue, alley, highway, public place or square or boulevard, or any portion thereof, within the city, by filling, grading, raising or paving or repaving the same with any permanent and durable materials, or by the construction, reconstruction or repair of curbs and gutters, and shall also include the laying out, opening, widening, narrowing, straightening or otherwise establishing, defining or locating any street, avenue, alley, square, public place or sidewalk.”

If, however, there could be any doubt about the sufficiency of the quoted charter provisions, then it seems plain, not only that the city—being a Home Rule one—was entitled to rely upon the grant of authority contained in Vernon’s Ann. Civ. St. art. 1105b, by virtue of having thus in advance in article 2, section 2, subsection (b), of its charter, adopted and brought itself under the provisions of this general state statute, but also that the power vouchsafed to it as. such by that general state statute clearly authorized it to both make this contract and to pay the bilí, thereby incurred for such street signs out of its street improvement bond funds. Denton v. Ice Co., 119 Tex. 193, 27 S.W.(2d) 119, 68 A. L. R. 866.

In Smith Bros. v. Lucas (Tex. Civ. App.) 15 S.W.(2d) 27, cited and relied upon by appellant, a decidedly different legislative act was construed, so that holding is inapplicable and does not militate against the authoritative determination of the question here presented in the City of Denton Case, supra, upon the legal equivalent of the same state of fact as obtains in this.

Further discussion is deemed unnecessary, since these conclusions require the affirmance indicated; it has been so ordered.

Affirmed.