author: LOONEY, J.

text:
    CENTURY INDEMNITY CO. v. CARROLL.
    No. 11068.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 5, 1932.
    Rehearing Denied Dec. 17, 1932.
    Robertson, Robertson & Payne, of Dallas, for appellant.
    Sullivan & Wilson and J. Lee Zumwalt, all of Dallas, for appellee.
   LOONEY, J.

C. S. Carroll, appellee, sued Century Indemnity Company, appellant, to recover the death benefit and amount provided for surgical treatment, under an accident policy issued by appellant to Mrs. Connie Carroll, ap-pellee’s wife.

The provisions of the policy relied upon for recovery by appellee and defensively by appellant are these: The policy insured Mrs. Carroll against bodily injury or death from accidental cause, or from medical or surgical treatment (resulting in death), made necessary by reason of injuries covered by said policy; the contention of appellee being that the death of Mrs. Carroll was accidental within the terms of the policy. Appellant denies this, contending that death resulted either directly or indirectly from medical or surgical treatment not rendered necessary solely by injuries covered by the policy, and in this connection specially pleaded a proviso of the policy, reading: “This insurance shall not cover accident, injury, death or other loss caused directly or indirectly by medical or surgical treatment, except such as may result directly from surgical operations made necessary solely by injuries covered by this policy, and performed within ninety days after date of accident.” At the conclusion of the evidence, each party made request for- an instructed verdict, that of appellant was denied, the request of -appellee being granted, verdict and judgment followed accordingly.

The facts are undisputed and show, that appellee was entitled to the judgment rendered, if in view of the proviso of the contract quoted above he was entitled to recover at all, under the following undisputed facts: Dr. E. M. Schultz, dentist, testified in substance that, on January 6, 1930, he extracted a tooth for Mrs. Carroll; that the tooth was not infected, she was not suffering pain, but its extraction was necessary because it was crowded and had not entirely erupted, had an overhanging gum flap, affording a situs for infection, etc.; that after the extraction the usual antiseptic treatment was given and the patient discharged; that about two days later (January Sth) Mrs. Carroll complained of pain, and on examination witness found slight swelling surrounding the wound; thereupon administered the usual antiseptic treatment, saw her the next day (January 9th), the swelling and pain had increased, and same treatment as before was administered. The patient suffered continuously that day; Dr..A. Wilkinson, a practicing physician, being called in, .they concluded that the patient was suffering from acute cellulitis; saw the patient again January 11th; her condition was much worse; Dr. H. K. Crutch-er, also a practicing physician, was called in; the patient’s condition at the time was so critical that she was carried to the Methodist Hospital. The witness said: “I did not foresee or expect the condition to develop that afterwards developed to Mrs. Carroll when I extracted this tooth on the 6th day lof January.”

Dr. Wilkinson, one of the attending physicians testified that, when he first saw Mrs. Carroll (January 10th), she was suffering from cellulitis in throat and neck, neck badly swollen, temperature 102, sa.w her next day (January 11th), condition much worse, sent her to the hospital; next day Dr. Sistrunk performed a tracheotomy, rendered necessary by the condition of the patient. The witness also said: “I diagnosed her condition * * * to be cellulitis. ⅜ ⅜ ⅜ My opinion * * * was that it was an infection following the extraction of a tooth — I do not say the extraction of the tooth caused it, but the infection followlng"the extraction of the tooth. * ⅜ ⅜ >>

Dr. Crutcher, one of the attending physicians, testified that on January 11, 1930, he was called in consultation with Drs. Wilkinson and Schultz, found Mrs. Carroll suffering from acute infection (cellulitis), a very dangerous infection of the cellular tissues, she had fever, rapid pulse, was restless and swollen extensively, her condition became progressively worse, was removed to the hospital and given supportive measures, sedatives and local applications; on January 12th a tracheotomy was performed, to relieve respiratory failure, serum was given to combat infection, but the patient died. The witness •said: “As I understand, the tooth was not infected but was an imbedded wisdom tooth. The patient did not have need for it and there was no room for it, and through some way we figured that this bacteria gained entrance into that clot, and the patient seemed to have lowered resistance and the infection followed. The death of the woman was caused by infection. I consider her death directly due to infection, which was brought about by the extraction of the tooth. At the time this tooth was extracted it absolutely could not have been foreseen that this condition that afterwards developed could have developed at that time, and all these things were unforeseen at the time. * * * ” It was shown that serum was given in an effort to combat the infection, and as to this the witness said: “The giving of the serum did 'not cause the death. The operation that W. E. Sistrunk performed (tracheotomy) was a proper operation. The throat and neck were badly swollen on account of the cellulitis, so that she could not breathe and the operation was performed on her. ⅜ ⅜ ⅜ The tracheotomy did not cause her death. * * * ”

In view of these undisputed facts, we readily agree with appellant that neither the surgical operation (extraction of the tooth) nor the treatment that followed resulted from, nor were they rendered necessary .solely by, injuries covered by the policy, but it is also just as -obvious that the death of Mrs. Carroll resulted neither directly nor indirectly from the surgical operation (extraction of the tooth), but did in fact result from, and was directly caused by, infection that entered the tooth socket following its extraction. The evidence is conclusive that such was a rare, unrelated, and unlooked for result, in other words, that the death was accidental, and therefore covered by - the poli-, cy.

Under facts and circumstances substantially identical with the facts involved here, we held, in the case of Francis v. International Travelers’ Ass’n, 260 S. W. 938, 940 [on writ of error the Supreme Court affirmed the decision, see 119 Tex. 1, 23 S.W.(2d) 282], that death occurring under such circumstances must be regarded as accidental, so, without further discussion, we hold that. the case at bar is ruled by the doctrine announced by both this court and the Supreme Court in the Francis Case, supra.

However, appellant contends that language employed by the Supreme Court in the Francis Case supports its position, the insistence being that the exemption pleaded in the Francis Case, is in effect the same as the defense pleaded here, but, as the exemptive provision appeared only in the by-laws of the association (and not in the policy as required by statute),- the same could not be given effect, or regarded as a part of the policy, but said the Supreme Court: “The by-laws of the association, however, at the time the policy was issued, and at all times subsequent thereto, contained exceptions and provisions which, if given effect, would prevent recovery.’’ Appellant seizes upon this language as decisive in its favor, on the theory that the exception pleaded here, being a part of the policy, and in substance the same as the exception pleaded in the Francis Case, was characterized by the Supreme Court as a complete defense, “if given effect.”

The cases are radically different, in this respect ; the exemption pleaded in the Francis Case was not, in effect, the same as the exemption pleaded in the case at bar. The contract proviso pleaded by appellant contains no exemption from liability for death resulting from either local or general infection, whereas, in the Francis Case, the by-law provision, to which the Supreme Court addressed the remarks above quoted, exempted the association from liability for a death resulting from “local or general infections unless the infection is introduced into, by or through an open wound which * * must have been caused by external, violent, and accidental means, and be visible to the unaided eye.” The exemption relied upon in the instant case, and the one involved in the Francis Case, are so dissimilar that it cannot be reasonably said they are to the same effect; therefore the language quoted from the Supreme Court opinion is not in point.

We overrule all assignments and propositions'urged for reversal, and affirm the judgment of the trial court.

Affirmed.

On Motion for Rehearing.

We are satisfied as to the correctness of our decision, based, as it necessarily was, upon the case as pleaded and tried and as presented on appeal; however, after contending at length that the court erred in affirming the judgment, for reasons stated in the opinion, appellant introduces, by its motion for rehearing, an entirely new issue, saying: “But should the court see fit to hold to its finding that the death resulted from an infection, we wish to direct the court’s attention to the fact that such infection is within the policy exemption, and appellant is not entitled to recover herein under any theory.” Again appellant says infection cannot form the basis of a recovery under the policy, as suggested by tbe court, because it is expressly exempt under the terms of the policy sued upon.

This defense was neither urged in the court below nor on appeal, until presented in the motion for rehearing, as above stated. The belated defense cannot be considered, hs a litigant is forbidden to assume an attitude on appeal not taken at the trial. See Boatner v. Providence, etc., Co. (Tex. Com. App.) 241 S. W. 136, 140, and authorities cited.

Appellant’s motion for rehearing is in all things overruled.


source: Caselaw Access Project

author: LANE, J. Chief Justice PLEASANTS PLEASANTS, C. J.

license: Public Domain

text:
    NEBLETT v. VALENTINO et al.
    No. 9770.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 17, 1932.
    Dissenting Opinion Dec. 8, 1932.
    Rehearing Denied Jan. 5, 1933.
    W. P. Neblett and Walter P. Brown', both of Houston, for appellant.
    Fred W. Moore, of Houston, for appellees.
   LANE, J.

The plaintiffs substantially allege in their petition and the undisputed facts show that: Mrs. Lillian Gordon Morse died, leaving a will which was duly probated, by which she bequeathed to Annie Lee Johnson, a minor, lots Nos. 5, 6, and one-half of 4, in block 2, in the Allen addition to the city of Houston, together with all improvements thereon.

Such bequest was made subject to the payment of all indebtedness resting against such property. By the terms of said will Mrs. Valentino was designated as testamentary guardian without 'bond of Annie Lee Johnson. Later, on November 28, 1924, Mrs. Valentino legally qualified as guardian of the estate of Annie Lee Johnson, who was her daughter.

At the time of the death of Mrs. Morse, Mrs. Betty Miller held an unsatisfied deed of trust lien against the property bequeathed to Annie Lee Johnson. In such deed of trust W. P. Neblett was named as trustee.

On the 16th day of September, 1924, Mrs. Miller by her trustee and attorney, W. P. Neblett, brought suit No. 113249 upon the indebtedness secured by such deed of trust against K. C. Barkley, independent executor of the will of Mrs. Morse, deceased, ánd against Mrs. Valentino, individually and as guardian of Annie Lee Johnson, J. A. Valentino, husband of Mrs. Valentino, was made a party defendant pro forma, and Cicero A. Marmon, Annie Lee Johnson, and W. P. Neb-lett, trustee, were also made parties.

While such suit was pending to wit, on the 1st day of October, 1924, an instrument was prepared with the understanding that it was to be executed by Mrs. Lillian Valentino, guardian of the estate of Annie Lee Johnson, minor, joined by her husband, J. A. Valentino, on the one side, and by W. P. Neblett* on the other. The agreement as contemplated was drawn as follows:

“This agreement made and entered into this the 1st day of October, A. D. 1924, by and between Mrs. Lillian Valentino, Guardian of the Estate of Annie Lee Johnson, Minor, and Mrs. Lillian Valentino, joined by her husband, J. A. Valentino, and W. P. Neblett: Witnesseth:
“W. P. Neblett agrees to pay the sum of Two Thousand Seven Hundred ($2,700.00) Dollars for lots Five (5), Six (6) and one-half (1/2) ■ of lot Four (4) in block Two (2.) in Outlot No. Sixteen (16) of the Allen Addition to the City of Houston, Harris County, Texas, at such time as the title to said property shall be perfected, that is to say:
“Mr. and Mrs. Valentino will execute their deed to said property in addition to a contemplated deed from the sheriff of Harris County, Texas, in' cause No. 113,249 now pending in the 61st District Court of Harris County, Texas, wherein Mrs. Betty W. Miller is the plaintiff and Mrs. Valentino, et al. are the defendants, it being intended that that property shall bring the sum of Two Thousand Seven Hundred ($2,700.00) Dollars so that after Mrs. Miller is paid for said note and the costs of suit and. sale are taken out, and all taxes now due on or against said property, except the 1924 taxes which shall be prorated, and all water bills now against the property, which now amount to One Hundred and Five & 45/100 ($105.45) Dollars, have been paid, the total amount of all of said indebtedness against the said property now being as follows:
Mrs. Miller’s note and interest amounting to about.$ 960.16
Costs of court approximately. 12.00
Water bill. 105.45
State and County taxes. 96.17
City taxes. 225.37
Making a total of. $1398.99
“But this sum is approximate, as there may he some variation, but whatever the indebtedness against the- said property is on the day of sale under execution Mrs. Valentino, Guardian, is to and shall have the remainder deducted from Two Thousand Six Hundred ($2,600.00) Dollars, the Two Thousand Seven Hundred ($2,700.00) Dollars including One Hundred ($100.00) Dollars for W. P. Neblett, as commission.
“Witness our hands at Houston, Texas, this the 1st day of October, A. D. 1924.”

The instrument was signed by Mrs. Valentino individually, and by W. P. Neblett only, and not by J. A. Valentino.

The deed mentioned in the instrument, above set out was never executed by Mr, and Mrs. Valentino.

After the failure of the parties to execute the deed as contemplated, Mrs. Miller, on the 15th day of November, 1924, took judgment in suit No. 113249 for the sum of $952.-78 against Mrs. Lillian Valentino, guardian of Annie Lee Johnson, a minor, and Annie Lee Johnson, and also for the further sum of $95.27 attorney’s fees, a total sum of $1,048.-05, and the lien securing such indebtedness was foreclosed on the lots hereinbefore described. The property was seized and sold by the sheriff of Harris county, under an execution and order of sale issued upon said judgment in manner and form as required by law, tQ Mrs. Betty Miller for the sum of $1,169.49, said sum being the amount due on the judgment and costs of sale. The sheriff by his deed conveyed the property to Mrs. Miller on the 5th day of March, 1925.

After the sale of the property to Mrs. Miller by the sheriff on March 3,1925, and on the same day after such sale was made, one W. B. Washam, acting for Mrs. Miller, intending to carry out the terms of the agreement signed by Mrs. Valentino and Neblett, placed in the hands of W. P. Neblett $1,580.91 for the benefit of Annie Lee' Johnson, less certain sums to be paid out of the same, which reduced the same to $971.13. At the time Washam delivered the $1,580.91 to Neblett, he instructed Neblett that, the balance thereof, after paying charges against the property sold, was to be handled by him for the benefit of the minor, Annie Lee Johnson, and was to be paid to her guardian when said guardian made bond.

Notwithstanding the contemplated deed was not executed by Mrs. Valentino and husband, Washam for Mrs. Miller placed in the hands of Neblett the sum of money above mentioned to be used by him in trust for Annie Lee Johnson, as evidenced by the fact that Wash-am consented to, and acquiesced in, the act of Neblett in purchasing a certain lot in the city .of Houston for Annie Lee Johnson six months after the money was placed in Neblett’s hands, for which he paid about two-thirds of the money intrusted to him by Washam for said Annie Lee Johnson, Neblett having the deed made to himself as trustee for Annie Lee Johnson. The balance, or about one-third, of said money, was deposited by Neblett with his own funds in the Union National Bank of Houston, where all of it has been so kept since so deposited, except a small sum paid for taxes due on the lot .purchased by him.

Mrs. Lillian Valentino, as guardian of the estate of Annie Lee Johnson, joined pro forma by her husband, J. A. Valentino, brought this suit against W. P. Neblett to recover the sum of $1,250, with interest thereon, for Annie Lee Johnson, or in the alternative for the sum of $971.76.

Plaintiffs substantially allege that, while the suit of Mrs. Miller was pending, Mrs. Valentino saw W. P. Neblett, attorney for Mrs. Miller and the trustee named in the deed of trust above mentioned, and told him that a party had offered to pay all the debts resting against the property and pay to Annie Lee Johnson $1,200, for said property; that thereupon said Neblett asked Mrs. Valentino to let the Miller suit proceed to judgment and let the property be sold under such judgment so title to the property could pass to Mrs. Miller under the sheriff’s deed; that he promised her that, if she would agree to the request made, he would furnish a purchaser who would bid at the sheriff’s' sale a sufficient amount to pay off the Miller judgment, costs, taxes, etc., and the further sum of $1,250 for the benefit of Annie Lee Johnson; that to evidence such agreement said Neblett, on the 1st day of October, 1924, prepared the written contract signed by Mrs. Valentino and Neblett above set out; that by virtue of said contract there was due Annie Lee Johnson $971.76. They allege the due appointment and qualification of Mrs. Valentino as guardian of the estate of Annie Lee Johnson.

Pleading further plaintiffs alleged: “That plaintiff was induced to agree to said judgment foreclosing said lien on the property, hereinbefore described, and the sale of same, and refrained from bidding'at said sale, and refrained from procuring a purchaser to bid in said property at said sale because of the false and fraudulent representation and promise of defendant that he would pay $1,250.00 to said minor upon the consummation of said sale; that at the time of making said representation and promise the said William P. Neblett had no intention of fulfilling same but made such representation and promise with the intent to deceive plaintiff and said minor and did so deceive and defraud them failing and refusing to pay said sum, or any part thereof; that plaintiff could have sold said property (as defendant well knew) for $3,000.-00 as hereinbefore set out, less taxes and water bills due in the sum of $558.75, and the amount of said judgment and costs, to-wit: $1,169.49, leaving a balance due unto said minor of $1,-271.76, and consequently said minor has been damaged by reason of defendant’s said fraud and deceit in the sum of $1,271.76.”

Their prayer was for $971.76 by virtue of the contract signed by Neblett and Mrs. Valentino, with interest thereon, or in the alternative for judgment against Neblett for the money paid at the foreclosure sale, over and above the amount of the judgment of Mrs. Miller and the costs in said suit, or in the alternative for judgment against Neblett by reason of the fraud practiced by him as above alleged in the sum of $1,271.76, and for general relief.

Defendant answered by a general demurrer and numerous exceptions to the plaintiffs’ petition, all of which were properly overruled. He also pleaded a general denial, the two and four-year statutes of limitation, and averred that, if there ever existed a contract between defendant and Mrs. Valentino, the same was breached by plaintiffs by their refusal to perform sainé; that is, J. A. Valentino refused to sign same and it was abandoned by all parties.

By supplemental petition plaintiffs allege that they have at all times been ready and willing to execute the deed referred to in the contract by and between Mrs. Valentino and W. P. Neblett, of date October 1,1924.

The case was tried before a jury upon special issues, in answer to which they found that Mrs. Lillian Valentino and W. P. Neblett did not agree at the time the contract of date October 1, 1924, was signed, that Neblett signed the contract only on condition that same would not become binding upon Neblett unless and until it had been signed by J. A. Valentino and returned to Neblett; that, when Washam gave Neblett his check for $1,580.91, he did not instruct Neblett that the balance of such sum, after paying charges against the property, was to be handled by Neblett for the benefit of Annie Lee Johnson only as he, Neblett, thought it should be handled or invested; that at such time Washam did instruct Neblett that the balance of such funds, after paying charges against the property, was to go to Annie Lee Johnson and to be paid to her guardian when said guardian made bond; that W. P. Neblett promised Mrs. Valentino about October 1,1924, to pay to her $1,250 for the benefit of Annie Lee Johnson upon the consummation of the sheriff's sale of the property; that W. P. Neblett never applied any part of the $1,580.91 to his own use and benefit.

Upon such findings and the evidence, the court rendered judgment in favor of Mrs. Lillian Valentino, guardian for Annie Lee Johnson, against W. P. Neblett for the sum of $971.-13, with interest thereon at the rate of 6 per cent, per annum' from the 3d day of March, 1925, and for costs of suit.

The effect of appellant’s complaints of the judgment entered are: That the court erred in rendering a judgment against defendant, because there was neither pleading nor evL dence to support a finding that the instrument signed by Mrs. Valentino and defendant of date October 1, 1924, became a valid contract binding defendant, and there was no finding of the jury that it did so become; that there was no evidence to support the finding of the jury which we have stated above, and no finding by the trial judge by which the judgment rendered was authorized; that there was no evidence showing that defendant received any money from Washam as trustee for Annie Lee Johnson; that the undisputed evidence shows that, if plaintiffs ever had a cause of action on the alleged contract, it was barred by the four-year statute of limitation (Vernon’s Ann. Civ. St. art. 5527).

The majority of this court thinks that all of the contentions so made by appellant should be overruled.

It is shown that, pending the suit of Mrs. Miller mentioned in our preliminary statement, Mrs. Valentino was trying to secure a purchaser for the property on which' Mrs. Miller had a deed of trust lien so as to prevent a sale thereof by virtue of any execution and order of sale which might be issued upon any judgment that Mrs. Miller might recover subjecting such property to sale. Mrs. Valentino, guardian for Annie Lee Johnson, testified that on or about the 1st of October, 1924, she called on appellant, who was the attorney for Mrs. Miller, and the trustee named in the deed of trust mentioned, for the purpose of procuring a refinance of the debt owing to Mrs. Miller; that she told appellant that she had a party who desired to purchase the property and who would pay therefor a sum largely in excess of Mrs. Miller’s claim, and that appellant told her that he would pay her $2,700 for the property and that, by the time «he furnished her proposed purchaser an abstract of title, hisi appellant’s, offer would be the best for her; that appellant got the amount of the taxes due on the property and other things, figured them up, and said: “I will give you $1,250.00 after the sheriff’s sale, if I get it”; that she agreed to accept appellant’s offer and the contract mentioned was prepared and signed by her and appellant; that by reason of such contract she was prevented from selling the property to another person who offered her $3,000 therefor; that she told appellant of such offer and asked him to release her from the contract signed by her and him, and he refused to release her; that, after the property was sold by the sheriff, she called upon appellant three or four times for the money he had promised to pay her and he refused to give her the money, saying that he had taken the money in trust and that as she did not qualify according to his agreement he would not give it to herthat 'She told him that she had been appointed and qualified as guardian of the estate of Annie Lee Johnson, but he still refused to give her the money; that she had given bond as such guardian at the time she asked appellant for the money; that appellant told her that it was not necessary for her husband to sign the contract of October 1, 1924.

Appellant, Neblett, testified that Mrs. Valentino had asked him many times for the money placed in his hands by Mr. Washam, and that he had refused to give it to her, that he to Id her that he could not give it to her as it was not his money. He testified that Washam gave the money to him'for Annie Lee Johnson and he could not give it to Mrs. Valentino, because he was holding it as a trust fund to protect Annie Lee Johnson’s interest in the property sold by the sheriff; that Washam instructed him to buy the lot he purchased for the minor. He further testified that in handling the money placed in his hands by Washam he was acting as a trustee; that Washam told him to invest it for the child; that he offered to return the money to Wash-am,-and he said: “Neblett, you find a way for that child to have that money and be protected ; you keep it.”

W. B. Washam, among other things, testified that it was understood that he was to give a certain sum for the property and that he gave Neblett the sum agreed upon with the understanding that the excess over and above 'the sum due Mrs. Miller was to go to the child (Annie Lee Johnson); that he directed Nebr lett to put the title to the property in good shape and pay such excess to the child; that is to pay off everything in good shape and give the balance to the child, to handle the balance for the child as he thought best until Mrs. Valentino gave bond; that he thought that ordinarily she would make bond.

The majority have reached the conclusion that the evidence conclusively .shows that the funds sued ,for were placed in the hands of Neblett to be held as trustee for Annie Lee Johnson and that such trust was not to end until the money might be paid to Mrs. Valentino, after she had qualified as guardian by executing the required bond; that at the time this suit was filed Neblett still held said money as trustee for the benefit of the child, who at all times was laboring under the disabilities of a minor against whom limitation did not run. Article 5535, Vernon’s Annotated Civil Statutes 1925.

In section 118, p. 389, vol. 21, Texas Jurisprudence, it is said that “it has been said, referring to guardian and ward, that when the right of aotion of a trustee, vested with legal title and competent to sue, becomes barred, the right of the cestui que trust is also barred. But this rule has no application when the legal title is vested in the cestui who labors under the disability of minority. In such case the statute of limitations does not run against him although it may have run against the trustee. The rule that limitation will not-run in favor of a trustee as against the cestui que trust until the trustee disavows the trust and the beneficiary has notice thereof, or until the trust is legally terminated, applies to the relationship of guardian and ward.”

For the reasons pointed out, the majority of this court have reached the conclusion that the judgment of the trial court should in all things be affirmed, and it is accordingly so ordered. >

Chief Justice PLEASANTS

dissents, he having reached the conclusion that the claim sued for was barred by the four-year statute of limitation at the time this suit was filed.

Affirmed.

PLEASANTS, C. J.

(dissenting).

Being unable to agree with my associates in the conclusion that thq judgment of the trial court should be affirmed, I entered my dissent when the decision was announced. The ground of the dissent, as stated in the majority opinion, is that appellee’s cause of action, if any she has, was barred by the four-year statute of limitation (Vernon’s Ann. Civ. St. art. 5527) pleaded by appellant.

It seems clear to me that the suit as shown 'by the allegations of the petition and the entire record in the case is based upon the written contract which was executed on October 1, 1924, and as between the parties to this suit must be regarded as a valid and binding contract, both parties having so treated it and acted under it.

In pursuance of His obligations under this contract, appellant procured a purchaser for the property of the minor at the sum named in the contract, and Mrs. Valentino, in compliance with her obligations under the contract, refrained from bidding at the sale of the property and it was sold to the purchaser for the sum named in the contract, and the balance of the purchase money, after satisfying the amount due on the judgment under which the property was sold, and other charges set out in the contract, was paid by the brother and agent of the purchaser to appellant as the representative of the appellee guardian. The amount so left in appellant’s hands by-Mr. Washam was $971.13. This money was received by appellant, under his contract with the guardian upon which her suit is based, on March 4, 1925. Appellee knew at the time or a few days thereafter that' appellant, under his contract with her, had received this money, and demanded that he pay her as guardian the sum of $1,250, which she claimed was due her under her contract with appellant.

This suit was not filed until 1931. Appellant by exception and by special plea invoked the four-year statute of limitation in bar of pláintiff’s cause of action.

I am unable to find in the record any ground for the holding that appellant can be denied the right to invoke this defensive plea. In its last analysis, the case is the same, in so far as the question of limitation is concerned, as any suit brought by a guardian upon a contract made by the guardian as such with a third party for the benefit of a minor. It goes without saying that, in the absence of fraud, the statutes of limitation are just as -available in a suit by a guardian on a contract made by him as such as in the ease of any other plaintiff. If a guardian contracts with an agent to sell property of his minor ward and such agent sells the property and fails to account to the guardian in accordance with the terms of his contract, a suit by'the guardian against the agent, on the contract, would, in the absence of fraud, become barred by limitation just as any other suit to enforce -a contract.

The jury in this case, as set out in the majority opinion, expressly found that appellant bad not appropriated any part of the money received by him from Washam in the purchase of the property to his own use and benefit. They further expressly found that appellant had no intention at the time he made the contract sued on of not complying therewith. These findings acquit appellant of any charge of fraud in his transactions with ap-pellee.

The labored effort to show by disconnected ■quotations from the statements of witnesses that the money paid to appellant by Washam was given him in trust for the appellee’s minor ward, independent of the contract .upon which appellee sued, and appellant thereby became an independent trustee of money received by him for the benefit of the ward, reminds one of the story of the old country ■doctor who was a specialist, or thought he was, in the cure of fits, and who nót knowing how to cure a malady from which he found one of his patients suffering proceeded to throw the patient into fits so that the doctor could effect a cure. This method of treatment cannot, in my opinion, be successful in this case. The suit was brought on the contract, tried and substituted to the jury on'the contract, and judgment rendered for the sum found due under the contract. There is no pleading, finding of the jury, or evidence to sustain any judgment other than a judgment based on appellant’s breach of the contract on which the suit is brought. If the suit is not barred by limitation, the judgment cannot be affirmed on a theory not raised by the pleadings and the evidence.

From what is above written it is clear that in my opinion the plea of limitation should be sustained and the judgment reversed and judgment here rendered in favor of appellant.


author: HICKMAN, C. J.

text:
    WILEY et al. v. SMITH.
    No. 991.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 2, 1932.
    Rehearing Denied Jan. 13, 1933.

      J. C. Patterson and Jas. A. Stephens, both of Benjamin, and Cunningham & Oliver, of Abilene, for appellants.
    J. S. Kendall, of Munday, for appellee.
   HICKMAN, C. J.

This suit was instituted by appellants J. W. Wiley and W. R. Tandy, real estate brokers, against appellee, Dr. A. A. Smith, for the recovery of an alleged commission due them for procuring a purchaser for a ranch owned by appellee and situated in Knox County. The lands were listed by appellee with each of the appellants separately, but by agreement between themselves, acquiesced in by appellee, tlaey acted together in procuring a purchaser on terms acceptable to appellee. The facts disclose without dispute that, through the efforts of appellants, a contract in writing was executed by appellee and one M. L. Watson from Mitchell county, by the terms of which appellee was to convey ■ his ranch in Knox county to Watson, who in turn was to convey certain Mitchell county property to appellee and execute his notes representing the agreed difference in value between the properties involved in the exchange. Appellee’s answer to the suit consisted of a general demurrer, certain special exceptions, a general denial, and a special plea to the effect that appellants ought not to recover because they acted in bad faith towards him, in that, without his knowledge and consent, they also represented Watson in the negotiations and were to be paid a commission for their services in so representing him. At the conclusion of the testimony, appellants requested the trial court to peremptorily instruct the jury to return a verdict in their favor for $2,485'. This 'request was refused, and the case submitted to a jury upon one special issue, as follows: “Do you find, from a preponderance of the evidence, that the plaintiffs J, W. Wiley and W. ⅜ Tandy were acting jointly with A. R. Wood as agents of the defendant A. A. Smith in the procurement of the execution of the contract alleged in plaintiffs’ petition?”

To which issue the jury answered “Tes.”

Judgment was rendered for appellee, and appellants have appealed.

By proper assignments appellants present that the. issue submitted was an immaterial one, and that the answer of the jury thereto was not supported by the evidence. These assignments are sustained. This special issue presents no defense pleaded by ap-pellee. A. R. Wood, whose name appears in the issue, was the broker representing Watson in the transaction, and a finding by the jury that appellants acted jointly with him would constitute no defense to appellee’s liability. If the answer be construed as a finding that A. R. Wood was also acting as the agent of appellee, the finding is wholly unsupported by the evidence, and, if supported, would constitute no defense to appellants’ suit.

The contention of appellee that the issue was an imperfect submission of the defense pleaded cannot be sustained. The real defense pleaded was bad faith on the part of appellants in representing both parties without the consent of appellee. The issue does not submit that defense at all, and there was no evidence authorizing the submission of an issue which would embody such defense.

Assignments are directed to the alleged error of the court in admitting certain testimony. We do not find it necessary to discuss these assignments. Our holding that the verdict was unsupported by the evidence renders it immaterial as to whether some of the evidence should have been excluded. If considered, it did not support the verdict.

The principal question presented relates to the refusal of the tidal court to grant appellants’ request for a peremptory instruction. A consideration of the assignments raising this question has necessitated an examination of the statement of facts, which has led to the conclusion that the court was required by the evidence to refuse the request. Appellants failed to make out a case.

In their pleadings appellants declared upon contracts made by them severally with appellee. It was alleged that, when appellee listed his land with appellant Wiley, he “agreed to pay said plaintiff J. W. Wiley the ordinary and customary commission for sale or exchange of similar land under similar circumstances.” The contract which it was alleged appellee made with appellant Tandy was that he “agreed to pay the plaintiff W. R. Tandy the ordinary and customary commission for similar sales or exchanges under similar circumstances.” Later in the petition it was alleged that, after appellee and Watson had agreed verbally on the details of .their exchange, and bef ore the written agreement was executed ‘by tbem, tbe appellants and appellee had a mutual agreement with reference to their commissions. This agreement was alleged in this language: “ * * * And the defendant then and there agreed with the plaintiffs to pay them the usual and customary commissions for land agents for like and similar transactions.” It is then alleged: (1) That the usual and customary commission for sales and exchanges of lands under like and similar circumstances as the trade entered into by the appellee and Watson was then and is now 5 per cent, of the reasonable market value of appellee’s ranch; (2) that the net value of said ranch, as fixed by the terms of said contract, was $49,900; and (3) that said stipulated value in said contract was in fact the reasonable market value of said ranch property. Follows then this allegation: “Wherefore, plaintiffs show to the court that the commission agreed to be paid by the defendant to the plaintiffs amounts to the full sum of $2,495.00.”

Under this pleading, the appellants, in order to make out a case of liability against ap-pellee, were required to prove at least the following facts: (1) A contract to pay the ordinary and customary commission; (2) what was the ordinary and customary commission for sales and exchanges of land; and (3) what was the reasonable market value of appellee’s ranch.

The evidence offered by them was as follows: Appellant Wiley testified that he had no agreement with reference to the payment of commission, his testimony being in this language: “At the time Dr. Smith listed his property with me he did not make any stipulations as to the payment of commissions ; he knew that I was a real estate agent, and he further knew of my efforts in trying to sell his property for him.” That is all of the testimony of this witness on the subject. Appellant Tandy testified that, at the time the property was listed with him, he undertook to sell a mineral lease on it for which he was to get 10 per cent, commission. With reference to his commission for selling or exchanging the land, the witness testified: “He just talked about selling the land in case he could not lease it; that was about the conversation.” With reference to the conversation between appellee and this appellant after the terms of the exchange had been verbally agreed upon by appellee and Watson and before the written contract was executed, Tandy testified: “However, we did have a talk about the commission on a 5% and 2½9⅛ basis, out in the ear that day before the deal was closed — just a few minutes before we went up in the lawyer’s office to close the deal and make this contract. He just wanted to know who to pay the commission to and it was 5% for cash and 2½% on the trade.” The witness then testified to facts disclosing that he was qualified to give testimony as to the usual and customary commission prevailing, and stated that the universal custom was 5 per cent, on cash sales and 2½ per cent, on trade-in sales. Further on in his testimony the witness stated: “He (Dr. iSmith) knew that he was going to have to pay us this 2½% and 5%, all in one commission, of course. I did not get any commission at all other than this $10.00 check.”

In so far as this evidence would support a recovery on a quantum meruit, it must be disregarded, for it is well settled that a pleading for a commission for the performance of a contract will not support' a judgment on quantum meruit. Vletas v. Stagner (Tex. Civ. App.) 45 S.W.(2d) 1009, and authorities there cited; 7 Tex. Jur. p. 526, § 125. But, brushing aside and disregarding the question of the lack of correspondence between the allegations and proof in this particular, and assuming that the testimony is susceptible of the construction that there was a contract to pay a commission, there is- still lacking sufficient evidence to support a recovery by appellants, in that there is no proof whatever of the reasonable market value of appellee’s ranch. Had the alleged contract fixed the rate of commission on the price at which the property was listed, there was sufficient evidence afforded by the contract itself to form the basis upon which judgment could be rendered. The petition alleged that commissions were to be based on the reasonable market value of appellee’s ranch, and that the reasonable market value was the same as the value placed on the property in the exchange agreement, but there is no testimony to this effect. Had the alleged contract not provided otherwise, the commission on the .exchange would be based upon the actual or market value of the property- received. 7 Tex. Jur. p. 511, § 110. But this cannot be made the basis here, for two reasons: (1) The alleged' contract provided otherwise; and (2) there is no evidence of its value. Appellants failed to make out a case which authorized the trial court to peremptorily instruct the jury to return a verdict in their favor, and all assignments relating to this question are overruled.

This brings us to a consideration of the question of what disposition to make of this appeal. A peremptory instruction should have been given for appellee at the close of the testimony. Appellants relied alone upon their request for a peremptory instruction. The burden was upon them to establish their right of recovery. This they failed to do, and the judgment against them was correct. Appellants have shown no error in the judgment as rendered, and In this situation the authorities make it our duty to affirm the judgment of the trial court. Pant v. Sullivan (Tex. Civ. App.) 152 S. W. 515; Phillips Petroleum Co. v. Booles (Tex. Com. App.) 276 S. W. 667; Comer v. Brown (Tex. Com. App.) 285 S. W. 307; Moroney v. Moroney (Tex. Com. App.) 286 S. W. 167; Saunders v. Guinn (Tex. Civ. App.) 1 S.W.(2d) 363, and authorities there cited.

Affirmed.


author: GRAVES, J.

text:
    O’CONNOR v. DEW.
    No. 9776.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 18, 1932.
    Robt. L. Sonfield, of Houston, for plaintiff in error.
    P. Harvey, of Houston, for defendant in error.
   GRAVES, J.

Under the disposition of the appeal determined upon, no, opinion is required of this court in this- cause, but, in deference to the aid both parties through their able counsel have given the court in deciding it, the general groúnd for the holding affirming the judgment of the court below is thus stated:

Under the unattacked findings made below it undisputedly appears that plaintiff in error borrowed $300 from defendant in error to be repaid one year thereafter, and to secure such payment contemporaneously further agreed to give the defendant in error a first mortgage lien on certain property in Cottage Grove addition in the city of Houston; that the defendant in error advanced him the money before getting such mortgage, and that thereafter plaintiff in error failed and refused to give such a mortgage, it further appearing that he had, at the time of making the agreement to do it, been in no position, to deliver a first lien upon the property because of its having' been affected with a homestead character.

In these circumstances the learned trial court was right in giving the defendant in error a judgment against him for the immediate return of the money. 41 Corpus Juris, page 4; Binion v. Browning, 26 Mo. 270; Merryfield v. Willson, 14 Tex. 224, 65 Am. Dec. 117.

An affirmance will accordingly be ordered.

Affirmed.


text:
    STATZ v. ADAMS.
    No. 9796.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 8, 1932.
    Rehearing Denied Jan. 5, 1933.
    Bryan, Cosby, Suhr & Bering, of Houston, for appellant.
    W. Owen Dailey, of Houston, for appellee.
   GRAVES, J.

While under the disposition to be made of .this appeal no opinion is required of this court, in deference to the able counsel of both sides who have so painstakingly briefed and argued it, a statement of the ground at least upon which the trial court’s action is upheld will be made.

The appellee was given the recovery of $365 and interest from February 1st of 1930 against appellant, as for money had and received, upon substantially this transaction between them as found by the court and jury.

Appellant owned a building in the city of Houston occupied for business purposes by the firm of Thomas & Warner, against whom he held a rent claim for some $550; the ap-pellee claimed that the firm occupying the building had taken into it a considerable amount of his property for which he had not been paid, whereupon, upon the date stated, February 1, 1930, appellant and appellee first entered into an agreement whereby, for the sum of $200, appellant would assign so much of his landlord’s lien on the premises to the appellee as applied to the latter’s property then in the building so that he could reclaim and move the same therefrom; later, however, and apparently on the same day this agreement was enlarged whereby it was finally arranged between them that, in consideration of some $365 additional, appellant was to transfer and assign to appellee his landlord’s lien on all the property within the building'and the full $565 was paid under that final arrangement that same day by the appellee, and a writing between them, which was offered at the trial by the appellant as constituting the whole of the contract, was duly executed by the parties.

The appellee only removed his own property from the building, and never either obtained any of the other property therein nor any consideration for the $365 for the enlarged lien he had so paid for.

When the writing executed between them at the date of the transaction was produced, it only described the property the appellee owned in the building, and only undertook to assign the landlord’s lien as to it.

The parties thus differed on whether or not the $565 paid by the appellee had been intended between them to cover the whole of the lien of the appellant on all of the property in the building, or whether both were confined to so much thereof as appellee owned.

The trial court submitted these fact controversies between them to a jury upon special issues, which, together with the several answers thereto returned, were as follows:

“No. 1: Did the plaintiff and the defendant enter into a verbal agreement on or before February 1,1930, that the defendant was to assign to the plaintiff his landlord’s lien on all property in the building at 3805-9 McKinney Avenue for Five Hundred and Sixty Five Dollars ($565.00) to be paid to him by plaintiff? Xes.
“No. 2: Was such' agreement continuing and concurrent down to the time of signing the contract bf February 1,1930? Yes.
“No. 3: Did the defendant at the time the contract was signed represent to plaintiff that the contract that was signed transferred to plaintiff the entire landlord’s lien upon all of the property in the building in question? Xes.
“No. 4: Did the plaintiff sign such contract relying upon such representation, if any? Xes.
“No. 5: Was plaintiff’s failure, if any, to read the contract in question caused by the defendant hurrying him at the time of Signing the same? Xes.
“No. 6: Did the plaintiff read the contract in question before signing it? No.
“No. 7: Was the failure of the plaintiff to read such contract, if any, negligence, as that term has been hereinbefore defined? No.
“No. 8: Was the contract read over to the plaintiff before he signed the same? No.”

Upon the verdict so rendered the money judgment referred to was entered, the court adding later findings and conclusions of his own to the effect that the true intention of the parties at the time of executing the written contract was to have transferred to the appellee the appellant’s entire landlord’s lien, and that since that time the condition of the property had materially changed, in that it had passed under the jurisdiction of the bankruptcy court in proceedings against’ the renters in the building, and that the time for filing preferred claims in that court had now passed, and that the appellant here, not having complied with his agreement to originally transfer all of his landlord’s lien to the appellee, had brought about a failure of consideration to the latter for the payment of the $365 extra, and had therefore damaged him in that sum.

This conclusion of law was finally appended: “The Court concludes as a matter of law that the contract should be changed as herein decreed, and that the plaintiff should recover his damages with interest from the date of payment, and that the mutual mistake as made, if not a mutual mistake, amounts to a legal fraud entitling the plaintiff to recover back the money he paid for which the consideration failed.”

The sufficiency of the evidence to sustain the verdict of the jury is not challenged by any proposition presented by appellant, nor is it even seriously questioned in argument, except upon the single detail as to whether or not the contract was read over to the appel-lee before he signed the same, as submitted in the quoted eighth Special issue. Upon that, as upon all the other issues, however, the supporting testimony is found sufficient, even if there had been an attack.

We think the learned trial court was correct in holding that, in the circumstances, the appellee was both entitled to sue for and receive his money back, and that the principle applied to a similar situation by this court in a recent case, Jack O’Connor v. H. S. Dew, 55 S.W.(2d) 882, opinion filed November 11, 1932, as well as these supporting authorities therein cited are also applicable in this instance: 41 Corpus Juris, page, 4,; Binion v. Browning, 26 Mo. 276; Merryfield v. Willson, 14 Tex. 224, 65 Am. Dec. 117. .

An affirmance will accordingly be ordered.

Affirmed.


author: HALL, C. J.

text:
    PARDUE v. NATIONAL MUT. ACC. INS. CO.
    No. 3932.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1932.
    Rehearing Denied Jan. 4, 1933.
    Smith & Smith, of Anson, for appellant.
    Thomas & Thoma's, of" Anson, and Simmons & Arnold, of Houston, for appellee.
   HALL, C. J.

The appellant, Pardue, filed this suit to recover upon an insurance policy issued to him by appellee.

The policy provided for weekly sick benefits in the sum of $50, but not to exceed fifty-two weeks, and contained a further provision for the payment of hospital expenses to the extent of $150. The appellant, who is a physician, alleged that on the 2d day of July, 1930, he became totally disabled, on account of sinus trouble, from further engaging in the practice of his profession, and as a result of his disease had been continuously disabled since said date. He sued for compensation for d period of fifty-two weeks.

The policy provided that “affirmative proof of loss must be furnished to the Association at its said office within ninety days -after the termination of the period for which the Association is liable,” and further provided that compliance with such provision is a condition precedent to recovery. There is a further stipulation that, if any limitation relative to notice and proofs of loss is less than that permitted by law, then 'such limitation is extended to the minimum period permitted by law. The policy also contains a provision that the association, upon the receipt of written notice of sickness of the assured within ten days after the commencement of disability from such sickness, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss, and that, if such forms are not furnished within fifteen days after receipt of such notice, the claimant shall be deemed to have complied with the requirements of the policy as to proof of loss.

The appellant’s pleadings sufficiently alleged the giving of the notices required by the policy, but made no specific allegation with reference to furnishing proofs of loss. It is alleged that: “Since taking out said insurance plaintiff has in all respects carried out and performed all of its stipulations and obligations and has fully complied with all of its requirements in every respect, but that the defendant has failed and refused to carry out and perform any of the stipulations and agreements contained in said policy.”

In view of the well-established rule in this state which requires the plaintiff, suing upon an insurance policy which makes the furnishing of proofs of loss a condition precedent to the right to recover, to -not only plead that proofs of loss were furnished in accordance with the terms of the policy, but also to prove that fact or facts showing that the insurer has waived proofs of loss, we doubt the sufficiency of the above general allegation to admit evidence tending to show that proofs of loss had ever been furnished.

In Federal Surety Co. v. Smith, 41 S.W.(2d) 210, the Supreme Court said that it wa's a well-recognized rule that an insurance company had the right to stipulate that proofs of loss be furnished within a reasonable time and upon reasonable terms and to provide certain conditions to enforce the compliance with such provisions; that there was nothing illegal in such a contract, and, if proofs had ¡not been furnished'in accordance with its terms, it was the duty of the insured, if he desired to avoid the provisions of the policy, to show either substantial compliance therewith or a waiver. The court further held that the law places the burden of proving all the essential elements of a waiver on the plaintiff.

The failure of the plaintiff to allege specifically that proofs of loss had heen furnished in accordance with the terms of the policy is not a fatal defect, because the appel-lee alleged that the proofs of loss had not been furnished as required by the policy, and it is settled that defects and omissions in the pleadings of one party may be corrrected or supplied by allegations in the pleadings of the other. Business Men’s Assurance Association v. Read (Tex. Civ. App.) 48 S.W.(2d) 678; Ormsby v. Ratcliffe (Tex. Com. App.) 36 S.W.(2d) 1065; Bay v. Barrington (Tex. Civ. App.) 297 S. W. 781.

The appellant filed no supplemental petition nor other pleading in which he attempted to show a waiver of the proof of loss requirements. There are no allegations in ap-pellee’s answer which supply this omission. This is a fatal defect and the appellee’s general demurrer to the petition should have been sustained.

Federal Surety Company'v. Smith, supra, and authorities therein cited, hold that the burden is upon plaintiff to plead and prove a waiver of such clause. The court overruled the exceptions urged to the petition, and, acting upon such ruling, the plaintiff did not amend. If the demurrers had been sustained, it is a reasonable presumption that plaintiff would have cured the defects, and, since he has been deprived of that right, exact justice requires that the judgment should be reversed and the cause remanded to give him an opportunity to perfect his pleading.

There is a conflict of evidence upon the issue of furnishing proofs of loss which appellant calls his claim, and the issue is also raised as to the sufficiency of the proofs furnished and the dates when they were received. 'This being the state of the record, the court erred in directing a verdict for the appellee.

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


author: BAUGH, J.

text:
    KYLE v. KYLE.
    No. 7780.
    Court of Civil Appeals of Texas. Austin.
    Dec. 21, 1932.
    T. C. Johnson, Jr., of San Marcos, for appellant.
    R. E. McKie, of San Marcos, for appellee.
   BAUGH, J.

Appeal is from a judgment awarding ap-pellee a divorce from appellant on grounds of cruel treatment, adjusting their respective property rights, and for attorney’s fees. Pertinent facts will be given in the discussion of the issues presented.

Appellant’s first two propositions are predicated upon exceptions to plaintiff’s allegations of cruel treatment on the ground that such allegations are insufficient. While designated as special exceptions, they in effect amount only to general demurrers, attacking such allegations on the ground that the acts of cruelty relied upon are not sufficiently specific as to time and place of occurrence, but were mere generalities and conclusions of the pleader. Appellant cites and relies particularly upon the cases of Bloch, v. Bloch (Tex. Civ. App.) 190 S. W. 528, and Claunch v. Claunch (Tex. Civ. App.) 203 S. W. 930, and eases there, discussed. Those decisions, however, are based in large measure, if not altogether, upon' the'court’s conclusions that cruel treatment/ abuses, and excesses enumerated in subdivision 1, art. 4629, R. S. 1925, are not sufficient to sustain a decree of divorce unless it is alleged that they impaired the health of the complaining party. That line of decisions, however, was definitely overruled by the Supreme Court in McCullough v. McCullough, 120 Tex. 209, 36 S.W.(2d) 459, wherein a much broader rule as to sufficiency. of such pleadings is laid down. In volume 15, p. 460, of Tex. Jur., cited by appellant, it is stated: “The petition may, however, properly include general charges of cruelty, followed by allegations of one or more specific acts which may or may riot be included in the general charge.”

In the instant case the plaintiff alleged a general course of drunkenness, abuse, threats, and physical violence, continuing oyer a number of years, and culminating in specific acts on November 23,1930, at their home, at which time she left him, and had not lived with him since. And, in submitting to the jury the issue of cruelty as a ground for the divorce, it was confined to the acts of the defendant, appellant here, which transpired on that date.

Since, however, we have concluded that the case must be reversed upon other grounds, this issue becomes immaterial, as the pleadings in this respect can be amended rtpon another trial.

The next contention of appellant relates to the one special issue submitted to the jury. This issue, together with the court’s instruction in connection with same, was as follows:

“Do you find from the preponderance of evidence that on November 23rd, 1930 (the day on which plaintiff and defendant separated) that the defendant Columbus Kyle was guilty of cruel treatment, if any, toward plaintiff Anna Kyle to such an extent as to render their further living together as husband and wife insupportable? Answer yes or no.

“In connection with the foregoing issue, you are instructed that you may take into consideration the previous conduct of defendant Columbus Kyle toward plaintiff Anna Kyle in arriving at your answer to such question.”

Appellant objected to the submission of this issue in the form presented on the ground that it presented a mixed question of law and fact; and that it did not require a finding of fact as to the specific acts of cruelty alleged.

We do not sustain this contention. The rule that the trial court should not submit to the jury a mixed question of law and fact is well established. Whether or not the facts of cruelty alleged, if taken as true, constituted sufficient grounds for' divorce within the meaning of the statute, was a question of law for the court. The trial court, however, passed upon that question adversely to appellant when he overruled appellant’s demurrer to the petition. And, if it be admitted that the issue as submitted was duplicitous and required the jury to find (a) that the acts of cruelty alleged were in fact committed, and (b) that they constituted such cruelty as rendered their further living together insupportable, appellant could not have been injured, since the issue as submitted merely imposed upon the petitioner a heavier burden of proof than the law required;. that is, that they must find affirmatively on both issues in order to answer the question “yes.” The question of whether the acts of cruelty, if proven, rendered their further living together insupportable, was also, one of fact and not one of law. Caywood v. Caywood (Tex. Civ. App.) 290 S. W. 889; Arendale v. Arendale (Tex. Civ. App.) 22. S. W.(2d) 1080. The form and manner of its submission could not therefore in our opinion have injured the appellant. If it had related to defenses made involving separate issues oh which defendant was entitled to separate findings, a different question would be presented. See Speer’s Law of Special Issues, p. 241.

We sustain appellant’s contention that it was error for the trial court to refuse to define to the' jury the meaning of the term “insupportable.” Nor was there any definition of the term “cruel treatment” as that is used in the statute. No objection to that, however, is presented. What is meant by the term “insupportable” as used in the statute was declared as early as Byrne v. Byrne, 3 Tex. 340, to be a question of law. See, also, Bobbitt v. Bobbitt (Tex. Civ. App.) 291. S. W. 964; Arendale v. Arendale, supra; 15 Tex. Jur., 451, 457, 478.

It was not error, however, for the trial court to instruct the jury that they might, in answering the question submitted, take into consideration the previous conduct of appellant toward appellee. While it would have been better to have limited the jury to the acts of cruelty alleged in the petition, we find no contention that any evidence was admitted relative to acts of cruelty which were not pleaded, so the jury must have confined themselves to the evidence on the acts pleaded. In passing upon the sufficiency of the particular acts alleged as authorizing a dissolution of the bonds of matrimony, the decisions are uniform in holding that previous acts of cruelty may he considered in conjunction with the specific acts alleged and their effect upon the complaining party. Nogees v. Nogees, 7 Tex. 538, 58 Am. Dec. 78; Arendale v. Arendale, supra; and cases there cited.

Appellant’s ninth assignment of error presented as a proposition reads as follows: “It was error for the trial court to decree the house built on appellee’s lot as community property and award appellant a half interest therein, rather than to decree same appellee’s separate property and allow appellant recovery by way of reimbursement for one-half of the community funds used in the purchase and improvement of such lot.”

Appellee inherited a part interest in the property, being one-half of a lot" in the town of San Marcos, the remaining interest being conveyed to her by her brothers and sisters about four years after her marriage to appellant, in consideration of love and affection, payment of taxes on said property, and the discharge of a note and lien against it. Subsequently, a house was built upon the premises out of what the court found to be community funds. The court adjudged appellant to be the owner of a one-half interest in the house; that its value was $225; awarded all of the property to the appellee, subject to a lien in favor of appellant for $112.50. The evidence shows that much more than $225 of community funds was spent in placing the improvements on the property. The question presented, therefore, - is whether appellant was entitled only to a one-half interest in the present value of the improvements, or to recover one-half of the community funds put into such improvements.

We have concluded that the trial court’s judgment in this respect is erroneous. Some of the courts have, in discussing the relative interests of the community estate and the separate estate of one of the spouses in such cases, used language to the effect that the community estate becomes an owner of the property to the extent of the community funds invested. These eases, however, when carefully analyzed, present no conflict with what we think is now the well-established general rule of decision; that is, that the community does not, by expending community funds in placing improvements on lands belonging to one of the spouses which become permanent fixtures, thereby become the owner of any part of the title to the realty; but that the spouse, whose separate estate it is, upon a dissolution of the marriage by divorce, is merely a debtor to the community to the extent of one-half of the community funds so expended. The ownership and title to the realty remains vested wholly in such spouse, subject to reimbursement to the community for one-half of the amount of community funds spent in improving it. This seems to be the uniform rule of decision. Rice v. Rice, 21 Tex. 58; Furrh v. Winston, 66 Tex. 527, 1 S. W. 527; Schmidt v. Huppmann, 73 Tex. 116, 11 S. W. 175; Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567; Stoppelberg v. Stoppelberg (Tex. Civ. App.) 222 S. W. 587; Barber v. Barber (Tex. Civ. App.) 223 S. W. 866, 867; Jackson v. Jackson (Tex. Civ. App.) 283 S. W. 923. The relationship, therefore, being merely that of creditor and debtor, the value of the property at the time of the dissolution would be immaterial. The property was only security for such debt, and, so long as it is used as a homestead by ap-pellee, no lien can be foreclosed against it. See Barber v. Barber, supra.

The same rule would likewise apply to whatever balance of the purchase price recited in the deed that was paid on said property out of community funds. Cervantes v. Cervantes (Tex. Civ. App.) 76 S. W. 790. Neither the court nor the jury made any findings as to the amount of such Community funds expended upon appellee’s separate property, and there is sufficient conflict, we think, in the evidence to make that an issuable fact.

The judgment of the trial court, for the errors pointed out, must be reversed and the cause remanded.

Beversed and remanded.


text:
    CLOSNER v. GANNAWAY et ux.
    No. 9778.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 10, 1932.
    Rehearing Denied Dec. 15, 1932.
    Bryan, Cosby, Suhr & Bering and O. W. Bell, all of Houston, for appellant.
    E. A. McDaniel, of McAllen, and Montgomery, Hall & Taylor, of Edinburg, for ap-pellees.
   GRAVES, J.

This is the second appeal in this litigation, the first one having gone to the San Antonio Court of Civil Appeals from the district court of Hidalgo county, the present one having come here from the district court of Harris county» where a change of venue had taken it from Hidalgo county subsequent to a reversal on that first appeal; as an examination of its opinion, reported in 32 S.W.(2d) at page 523, will disclose, the sole question determined by the San Antonio court was whether or not the trial court had erred in sustaining a general demurrer to a petition then presented by the appellant here, which, in legal effect, presented this single proposition of law: “Can a principal refuse to pay his broker a commission for procuring a lease when an agreement to execute the lease had been entered into ahd is not carried out because of the wrongful acts of the principal?” The appellate court held that in such an instance the principal could not escape liability to pay the commission by reason of his own wrongful acts, and that consequently the petition so presented had stated a good cause of action.

Following that reversal, however, the appellant filed what is termed “a supplemental amended petition,” wherein he materially changed -the legal effect of the cause of action declared upon, in that: Whereas, he formerly averred that the $10,000 surety company bond specified to be executed by the. lessee he procured as appellees’ broker had already been furnished and in all things accepted by them, this time he charged that the appellees had waived the requirement of the surety company bond and had accepted a personal one in lieu thereof. The case now, therefore, is decidedly different from what it was when passed upon -by the San Antonio court; under the general demurrer, that court was required to take as true the former allegation that the specified surety company bond had in fact not only been given by the lessee but accepted by the appellees, whereas, the trial court in the present instance necessarily had to give the appellant an opportunity on the facts to prove his averment this time that, the requirement of the surety company bond of the lessee to guarantee performance of his undertaking had been abrogated, and in lieu thereof that the parties had agreed upon a personal bond instead; accordingly, the trial ■court this time overruled the general demurrer to the present pleadings of the appellant, and on a holding that he had failed to prove this abrogation in a legally binding way upon the appellees, peremptorily instructed the jury in their favor. So that, the case now comes here upon a challenge of that action below.

Obviously, we think, under all the authorities, appellant’s major insistence that the cited holding of the San Antonio court before constitutes the law of this case upon the present appeal and as such is binding upon this court cannot be sustained, since the legal issues presented in the two different trials were by no means identical. White, Smith & Baldwin v. Downs, 40 Tex. 225, 226; Frankland v. Cassaday, 62 Tex. 418; Cole v. Estell (Tex. Sup.) 6 S. W. 175; M., K. & T. Ry. Co. of Texas v. Redus, 55 Tex. Civ. App. 205, 118 S. W. 208; Barcus et al. v. J. I. Case Threshing Machine Co. (Tex. Civ. App.) 209 S. W. 205; Roberts v. Armstrong (Tex. Com. App.) 231 S. W. 371.

This calls for a determination of the further inquiry: Was the peremptory instruction — with consequent judgment for the ap-pellees — error?

We conclude not, mainly upon these considerations: The two written contracts declared upon and introduced by the appellant himself, together with' the uneontrovert-ed evidence, seem- to us to class the case, not as that of “a broker who has produced a lessee ready, able, and willing to lease, and with whom the principal contracts on terms satisfactory to himself, hence is entitled to his commission, though the lease is never actually made, due to the fault of the principal,” but an instance of “where the commission is páyable only in the event the contract of sale is completed, and the broker will be denied recovery, because he failed to show a performance, and that the failure was due solely to the'fault of the principal.” There is no trouble about the law, nor need for citations applying it, since the parties here mutually agree that each of these quoted rules is uniformly sustained.

The material portions of the written agreement to pay a commission, upon which appellant sued, are these:

“Whereas, J. J. Olosner has acted as agent for Julia S. Gannaway and L. A. Gannaway in procuring for them a lease with Edinburg Amusement Company on Lots Seven (7), Eight (8), and Nine (9) in Block Number Two Hundred and Ninety-eight (298), of the town of Edinburg, Hidalgo County, Texas, a copy of an agreement for the execution of said lease being attached hereto and made a part hereof.
“And whereas, the said Julia 8. Gannaway and It. A. Gannaway have agreed to pay J. J,. Olosner a commission for procuring said lease.
“Now, therefore, we, the said Julia S. Gan-naway and L. A. Ganaway agree and obligate ourselves to pay to the said J. J. Olosner for procuring sa&d lease the sum of (amount fixed at a per cent, of the expected rentals), said commission to he due and payable at the time of the execution of the lease between the said Julia 8. Gannaioay and L. A. Gannaway and the Edinburg Amusement Company.
“[Signed] Julia S. Gannaway “L. A. Gannaway,
“Pro Forma.”

(Italics ours.)

The appellees, as lessors, were to build a theater on the property for the lessee at a cost of from forty-five thousand to fifty-five thousand dollars; the further pertinent part of the agreement to enter into the lease being as follows, italics also ours:

“Second Party further agrees to equip said theater, and install therein furniture, fixtures and equipment necessary for the operation of a first-class theater, which shall cost not less than the' sum of Eighteen Thousand ($18,000.00) Dollars, and to execute a chattel mortgage on same to First Parties, which shall be a first lien on sáid furniture, fixtures and equipment for the purpose of securing the payment of rents, taxes, insurance, and other items, which Second Party agrees to pay, according to the terms of said lease and this contract.
"It is further agreed that said lease shall provide for an option for the renewal of same for an additional ten (10) years at the highest rate of rental which First Parties may be offered.
“It is further agreed that said lease shall contain all other terms and provisions of the usual and customary form of lease of city property, not in conflict with the above and foregoing, which general form of lease is attached hereto, marked ‘Exhibit A,’ and made a part hereof.
“Second Party agrees to furnish at the time of the execution of this agreement a bond in the amount of Ten Thousand ($10,-000.001) Dollars, signed by a reliable surety company in favor of First Parties, guaranteeing the performance of the terms and conditions hereof, which bond shall continue in full operation and effect after the permanent lease is signed and until a- valid first lien shall have been given to First Parties on the furniture, fixtures and equipment in place in said theater at a cost price and value of not less than Eighteen Thousand ($18,000.-00) Dollars;' and it is agreed by the parties hereto that said sum of Ten Thousand ($10,000.00) Dollars shall' be, and is agreed upon as the amount of damages sustained by First Parties in the event Second Party shall fail to execute said lease and said chattel mortgage, and that said sum of Ten Thousand ($10,000.00) Dollars shall he forfeited to First Parties, as liquidated damages herein, in such event.”

Thus, by its plainly expressed terms, the appellees’ contract to pay the commission was only for “procuring for them a lease,” and then only “at the time of the execution of the lease” between themselves and the amusement company; further, by equally explicit condition precedent, the attached copy of the lease, made a part of it, required as an indispensable ingredient of the transaction as a whole, contemporaneously with both the' foregoing documents as its component parts, the furnishing by such lessee of a $10,-000 surety company bond, guaranteeing the performance of the terms of the lease.

By the undisputed evidence, no such bond was ever given, no lease was ever executed by the amusement company, no building was ever erected by the appellees, no change was ever made in the writing governing the payment of a commission to the appellant, nor, in our opinion, is there sufficient evidence in the record to bring about any change or modification with reference to the surety bond in the contract to execute the contemplated lease.

It is true there was testimony in appellant’s behalf, not only that he had never as a part of his broker’s agency in this matter for them agreed with appellees to furnish them a surety company’s bond, but that he had — merely as lagnappe on the deal— secured a personal bond instead, which they had accepted, with direction thereafter for the architects to go ahead with plans for the building; but this does not, in the circumstances otherwise obtaining, go to the root of the matter. The written instruments, taken and construed together as they must be, specifically fixed his obligation to obtain a lease, accompanied at the time by the lessee’s bond in the amount of $10,000, signed by a reliable surety company.

The pleading and proof in behalf of the appellees was to the effect that they had never by word or deed waived or changed the stipulated requirement of the surety company bond, that it had from beginning to end been the sine qua non of their making the lease at all, and that the failure to furnish it as agreed had constituted the sole cause of their neither going on with the proposal nor paying the appellant the commission they had promised him, provided he obtained a lease so safeguarded.

The quoted agreement to make the lease, dated June 5, 1928, was the contract of Mrs. Gannaway, joined pro forma by her husband, as lessor-first parties, and of E. F. Brady, trustee for the proposed Edinburg Amusement Company, a corporation as lessee-second party; the corporation, it seems, never having been organized nor, as above stated, having executed any lease. The personal bond also alleged by appellant to have been obtained by him and accepted by the appel-lees in lieu of the specified one by the surety company, bore date of August 16, 1928, and was signed only by .Edinburg Amusement Company by E. F. Brady as principal, with Brown White and E. F. Brady as sureties.

Thus by his amended pleadings subsequent to the former reversal, as well as by his proof presented on this trial, appellant sought to modify the pre-existing contract between himself and the appellees calling for “a bond in the amount of $10,000.-00, signed by a reliable surety company in favor of First Parties, guaranteeing the performance of the terms and conditions” of the lease, by showing that they had mutually agreed to substitute the described personal bond in its place; to accomplish that it was necessary for him to show, not only that the minds of the parties ^met upon the subject-matter, but that that fact was communicated back and forth between them to the extent that they knew their minds had met upon it and that mutual assent to the change existed. Shearman v. Poe et al. (Tex. Civ. App.) 9 S.W.(2d) 762; Patton v. Rucker, 29 Tex. 402, 408.

The evidence here conclusively fails to show any such situation, it being plain from the testimony of Mr. Brady himself, as well as that of Mr. and Mrs. Gannaway, that their minds never met upon, that they did not make known to each other, and that they never mutually assented to the alleged change from the surety company bond to a personal one in their contract; even if it could be said that the testimony in behalf of appellant above referred to raised an issue of fact over whether they reached an agreement in their own minds, that fell short of carrying the matter to the jury as a material issue, because it indisputably appears, particularly from the testimony of Mr. Brady himself, that the fact of having so agreed was never communicated from one to the other, hence the mutual assent necessary to effect such a modification was wholly lacking. Shearman v. Poe, supra.

It therefore results that the requirement of a surety company bond in the original contract of June 5, 1928, remained in full force and effect, and consequently the appellees were within their rights in refusing to go further, upon the noncompliance therewith by the proposed lessee.

The judgment of the learned trial court will be affirmed.

Affirmed.


author: McClendon, c. j.

text:
    HANEY et al. v. TEMPLE TRUST CO.
    No. 7804.
    Court of Civil Appeals of Texas. Austin.
    Nov. 30, 1932.
    Rehearing Granted in Part and in Part Overruled Dec. 21, 1932.
    See, also, 55 S.W.(2d) 895.
    Dibrell & Starnes, of Coleman, for appellants.
    Jno. B. Daniel, of Temple, and Critz & Woodward, of Coleman, for appellee.
   McClendon, c. j.

Appellee sued appellants Haney and wife upon a number of promissory notes and to foreclose deed of trust liens securing them upon real estate in Coleman county, joining as defendants in its prayer for foreclosure Mrs. Dibrell and the bank (First National Bank of Coleman, Tex.), who were junior lienholders. From a judgment in favor of the trust company against Haney upon the notes and against all defendants foreclosing the trust deed liens, the latter have appealed.

Since we have concluded that the trial court erroneously overruled a plea in abatement setting up the pendency of another suit in Coleman county involving the same subject-matter, the following statement of the case will suffice:

September 19, 1931, Haney and wife filed suit in the district court of Coleman county against the trust company to cancel the notes and trust deeds in issue and to remove cloud from the title to the real estate by virtue of the trust deeds and their record, on the ground that the notes provided for usurious interest, and the payments they had made on that account were sufficient to discharge the principal in full. The trust company was served with citation in that suit September 23, 1931. The instant suit, which, as above stated, was upon the notes and for foreclosure of the trust deed liens, was filed in the district court of Bell county October 3, 1931. We will refer to the two causes as the Coleman and Bell county suits respectively. October 13, 1931, the Haneys amended their petition in the Coleman county suit, impleading as parties defendant Mrs. Dibrell and the bank, who on the same day filed original answers therein, accepting service, adopting the allegations of plaintiffs’ petition, and joining in the prayer for removal of cloud from title. The plea in abatement in the Bell county suit was filed October 20, 1931, and overruled November 12, 1931. On the same day the Haneys, Mrs. Dibrell, and the bank answered in the Bell county suit, setting up as defenses the same matters alleged in the Coleman county suit, and concluding with the following prayer: “Wherefore premises considered, these defendants plead all the foregoing facts in bar of any recovery herein by the said plaintiff and are ready to verify all of the allegations herein, and of this special answer they pray judgment of the court and that they go hence as to pláintiff’s suit and that this court adjudge said loan contract usurious and null and void as to amount or value of interest and adjudge and decree that payments and credits as hereinbefore plead by these defendants and cancelling the principal notes paid and not surrendered and cancelling all interest provided for in said loan contract and that they go hence as to plaintiff’s suit and recover their cost and for general and special relief.”

The opening paragraph of this answer begins as follows: “Subject to their plea in abatement and not waiving same, but still insisting on said plea, come now”, etc.

Appellee urges three contentions in support of the trial court’s order overruling the plea in abatement, in substance as follows:

(1) The parties to the two suits were not identical in that Mrs. Dibrell and the bank were not necessary or proper parties to the Coleman county suit, and joining them therein as parties defendant, after the Bell county suit was filed, was “improper and ficti-, tipus.”

(2) The subject-matter of the two suits was not identical in that the relief sought by the trust company in the Bell county suit (judgment upon its notes and foreclosure of the trust deed liens) could not be obtained in the Coleman county suit except by waiving its right to sue in Bell county and filing a cross-action in the Coleman county suit, which it was not, required to do.

(3) The plea was waived by embodying in the answer a “cross-action” praying for affirmative relief (cancellation of the notes).

The junior lienhol/’ -rs were not necessary parties to the Coleman county suit. Independently of whether they could assert against the trust company the alleged usurious nature of the transaction, they had nevertheless a very substantial interest in whether the first lien debt was canceled at the suit of the Haneys; and a judgment against the trust company canceling the first lien notes would effectually bar the trust company from asserting its liens as superior to those of the junior lienholders, even though the latter were npt parties to the cancellation suit. A somewhat analogous situation was presented in Eastland County v. Davisson (Tex. Com. App.) 13 S.W.(2d) 673, 676, where parties secondarily liable were not made parties to one of the suits. We quote from the opinion: “It is also urged that, as there are different parties to the second suit, a judgment in the first would not be res adjudicata in the second. Ordinarily, this would be true, but there is a well-defined exception to the rule thus invoked to the effect that a plea of res ad-judicata, based upon the result of a former suit, is available to one, though not a party to that suit, who rests under a secondary or derivative liability which must have been considered and determined in the former litigation.”

Appellee asserts in this connection > that “plea in abatement is not favored; and pleader must bring himself strictly within the law.” Citing N. P. Davis & Co. v. Campbell & Clough, 35 Tex. 779, 781. This rule was formerly applied in this state to the plea of another suit pending. But, as said in Benson v. Eulmore (Tex. Com. App.) 26& S. W. 71, 72: “The present trend of authorities seems to be to give a liberal' construction to a plea of another suit pending affecting the same parties and subject-matter to the end that the court in which the cause is first filed shall try it.”

The reasons for such liberal construction form the inherent bases of the plea itself. They are fully discussed in the Benson-Eul-more opinion with citation of and quotation from the authorities; and further amplification of the subject is unnecessary.

The rule invoked by appellee does not require in every ease full identity but only substantial identity of parties; and where parties in the second suit filed are made necessary, merely by reason of some particular relief which pertains to that suit and not to the other, the former should not thereby be held not to abate, when the subject-matter of the two suits is identical. The same general principle is involved in appellee’s second contention, which we will now discuss.

This contention is clearly ruled by the holding in Cleveland v. Ward, 116 Tex. 1,, 285 S. W. 1063, 1069. The quotations below, except where otherwise noted, are from that case, paraphrased so as to substitute the Ooleman and Bell county suits, respectively, for the Johnson and Dallas county suits in the Cleveland-Ward Case.

Here the Coleman county suit, as there the Johnson county suit, “is an equitable one”, rescission and cancellation of written instruments and removal of cloud from title to real estate.

“Regardless of the question as to whether the original petition was sufficient in all respects against demurrer, its subject-matter was within the jurisdiction of the district court of Coleman county, and that court, by the filing of the petition, acquired jurisdiction. * * *
“Jurisdiction is power to hear and determine the matter in controversy according to established rules of law, and to carry the sentence or judgment of the court into execution. * * *
“When suit was filed in the Coleman county district court, the jurisdiction of that court attached, with power on the part of the court to permit the pleadings to be amended and amplified, new parties to be made. to determine all essential questions, and to do any and all tilings with reference thereto authorized by the Constitution and statutes, or permitted district courts under established principles of law. * * *
“The district court of Coleman county, then, in permitting the pleadings in that court to be amended so as to bring in parties interested in and to be affected by the decree sought, acted clearly within its express statutory jurisdiction and power to permit additional parties to be made ‘when they are necessary or proper parties to the suit.’
“The case therefore stands in that court, in so far as any jurisdictional question is concerned, precisely upon the same basis as if the original pleading filed had embraced fully the declarations of the last amendment, and had made all of those who are now parties to the suit parties in the first instance.
“Since jurisdiction attached upon filing the suit in Coleman county, the rule is elementary that it could not be taken away or arrested by the subsequent proceedings in another court. * * *
“The Coleman county court, having first acquired jurisdiction, may exercise it to dispose of the whole subject-matter of the litigation and adjust all the equities between the parties, and is entitled to do so. * * *
“The causes of action in the two conflicting trial courts involve the same transaction and the same state of facts. That the two cases present in substance and effect the same cause of action we do not think debatable. A recovery in the Coleman county case canceling the notes and deed of trust involved would necessarily be res adjudicata as against the cause of action asserted on these notes and deed of trust by the respondents herein as plaintiffs in the Bell county suit. * s *
“It is true the Coleman county suit is for the cancellation of the instruments involved, while the Bell county case is for recovery on them. However, such defenses as the defendants in the Coleman county case have to the suit for cancellation they may there assert. They must there assert the validity of the notes and deed of trust involved or be barred.
“The rule that a valid judgment for plaintiff is conclusive, not only as to defenses which were set up and adjudicated, but as to those which might have been raised inconsistent with the facts necessary to sustain the judgment, is one of universal acceptation. * * *
“Since the Coleman county court is a court of competent jurisdiction, and first acquired jurisdiction of this controversy, has all the necessary parties before it, and is entitled to proceed to judgment, and since it is evident that all questions necessarily or properly involved will be settled in that case, and that its judgment will be res adjudicata as against any judgment the Bell county court might render, it follows that the Bell county case is abated by the Coleman county suit.”

We should add that appellants’ right to have its debt and "lien enforced through the Bell county court is not in any way infringed by the above holdings. It could not be compelled, nor was it bound at its peril to seek affirmative relief in the Coleman county suit. Upon the termination of that suit favorable to it, it might then bring suit in Bell county upon the notes and trust deeds, the validity of which could no longer be brought in question. But even if such were not the ease, and the right to enforce payment of the notes and foreclose the lien would be barred if not asserted in the Coleman county suit, appellee could nevertheless not maintain the Bell county suit so long as the Coleman county suit, involving the validity of the notes and trust deeds was undisposed of. The Coleman county suit necessarily abated the Bell county suit, and appellee’s right to sue in the latter county was either suspended or destroyed by the same process of abatement. Any holdings not obiter in Business Men’s Oil Co. v. Priddy (Tex. Com. App.) 250 S. W. 156, inconsistent with our above holdings, would present like inconsistency to the holdings in Cleveland v. Ward, which latter are of necessity controlling.

Appellee’s third contention is overruled upon the authority of Hickman v. Swain, 106 Tex. 431, 167 S. W. 209, Gohlman, Lester & Co. v. Whittle, 115 Tex. 9, 273 S. W. 806, and Hall v. Castleberry (Tex. Civ. App.) 283 S. W. 581.

The trial court’s judgment is reversed, and the cause is abated and dismissed without prejudice.

Reversed, and cause abated and dismissed.

On Appellee’s Motion for Rehearing.

We have reached the conclusion that we were in error in dismissing the cause.

“At common law, a suit, when abated, is absolutely dead; but, in equity, a suit, when abated, is (if such an expression be allowable) merely in a state of suspended animation, and it may be revived.” Life Ass’n of America v. Goode, 71 Tex. 90, 8 S. W. 639, 640.

The identical, situation we have here was presented in Long v. Long (Tex. Civ. App.) 269 S. W. 207, 210, from the opinion in which we quote: “To sustain appellant’s plea in abatement does not mean that appellee is forced to assert her cause of action by cross-bill in the district court of Briscoe county. She may do this if she chooses. Charlton v. Charlton (Tex. Civ. App.) 141 S. W. 290; Rules 6 and 7 for district and county courts. Neither does it mean that she must abandon her suit, for it is'clearly within the discretion of the trial court, as a court of equity, instead of dismissing the-suit to suspend proceedings therein until the termination of the suit having priority, and, when the cause of abatement is removed, the suit may be revived if anything is left to litigate. 1 O. J. 27, § 2.”

Under the practice in this state the same rule of practice should apply to a case at law as to a cause in equity, as regards abatement under a plea of another suit pending. The instant suit being one to foreclose a trust deed would in the absence of governing statute be classed as an equity proceeding in those jurisdictions where law and equity are administered in separate courts.

Our former judgment is therefore modified so as hereafter to read:

The trial court’s judgment is reversed, and the cause is abated and remanded to the ' trial court with instructions to retain it suspended upon the docket until the Coleman county suit is determined, and thereupon to proceed in accordance with the final result of that suit. In all other respects the motion for rehearing is overruled.

Granted in part and in part overruled.