author: LESLIE, J.

text:
    PADGETT v. LAKE CISCO AMUSEMENT CO. et al.
    No. 1004.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 28, 1932.
    Grisham, Patterson & Grisham, of East-land, for appellant.
    Butts & Wright, of Cisco, for appellees.
   LESLIE, J.

This is an appeal from a judgment of the district court sustaining the plea of privilege of the defendant Waiter A. Myriek to be sued in Lubbock county. The plaintiff, C. K. Pad-gett, sued the Lake Cisco Amusement Company, a corporation, J. M. Williamson, and said Myriek in Eastland county, seeking to recover damages accruing to him by reason of personal injuries sustained by him while riding on a defective slide alleged to have been thus negligently maintained by the defendants at the park of the amusement company. It was alleged that Eastland county was the residence of Williamson and the domicile of the corporation, and the testimony SO' shows. The plea of privilege being filed, the plaintiff in due time filed his controverting affidavit, in which he seeks to •maintain the venue.against Myriek in East-land county under exceptions 4 and 29a to ttie general venue statute (article 1995). My-rick is shown to reside in Lubbock county.

Exception 4 is to the effect that, where two or more defendants reside in different counties, suit may be brought in any county where any one of the defendants resides. This statute has frequently been construed, and to meet the requirements of the same and come within its provisions, certain definite rules and principles as to pleading and proof have been announced and must be complied with. For instance, to authorize the plaintiff to maintain this suit in Eastland county against the defendant Myriek, he must have a bona fide cause of action against the amusement company and Williamson, or one of them, as well as Myriek, and such cause of action must be a joint one; or at least the cause of action against the resident defendant must grow out of the same transaction and be so intimately connected with the cause of action against Myriek, the nonresident defendant that the two should be joined under the rule intended to avoid a multiplicity of suits. Such is the test laid down by the Supreme Court in the opinion in Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S. W. 747, in answer to certified questions. It is also there held, as it has often been held before and since, that, where the plaintiff seeks to maintain a suit against the defendant outside the county of his residence under exception 4, he is required to both allege and prove the facts necessary to clearly bring his case under that particular exception, and the burden is upon him to prove the allegations of his petition to the extent of showing a bona fide cause of action against the resident defendant, as well as the nonresident defendant, ¡and to thus bring it within the limitations of the test above stated. Richardson v. D. S. Cage Co., supra; Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.(2d) 495; World Company v. Dow, 116 Tex. 146, 287 S. W. 241; Graves v. Buzbee (Tex. Civ. App.) 45 S.W.(2d) 392; Austin v. Bearden (Tex. Civ. App.) IS S.W.(2d) 856; Justin McCarty, Inc., v. Ash (Tex. Civ. App.) 18 S.W.(2d) 765; Russell Grader Mfg. Co. v. McMillin (Tex. Civ. App.) 271 S. W. 124; First National Bank of Bowie v. Bulls (Tex. Civ. App.) 243 S. W. 577; Jackson v. United Producers’ Pipe Line Co. (Tex. Civ. App.) 33 S.W.(2d) 540, 541.

Applying the above test to the proof made by the plaintiff on the trial of the plea of privilege in the instant case, we are of the opinion that the plaintiff wholly failed to meet its requirements, for there is no evidence in the record that the plaintiff, Pad-gett, sustained any personal injury from negligent acts of omission or commission chargeable to the amusement company and Williamson, or either of them, or to Myriek himself. The plaintiff did not testify. The only testimony referable to any injury is the following: Plaintiff’s attorney, while one Hunt was testifying, interrogated him thus: “You were not in charge when this boy received his injury out there, were you?” To which the witness answered, “Yes sir.” The further question was propounded: “Do you remember about the day of that accident?” To this the opposing counsel agreed that such date was June 21, 1931. Then the following question: “All right, do you know whether or not this man. received his injury while riding on a slide or toboggan, or whatever you call it, out there?” And the witness answered, “He did.”

From the statements quoted there is at most but an implication that the plaintiff sustained an injury at the time and place mentioned. These statements, taken alone or with the other testimony, fail to establish that the plaintiff sustained, on said occasion, an injury proximately resulting from negligence on the part of the resident defendants, or either of them, or Myriek. Hence, we conclude that the trial court did not err in sustaining the plea of privilege. It is obvious that plaintiff did not prove the bona fide cause of action required by the above test and the authorities there cited.

Of course, the allegations contained in ■the plaintiff’s petition and controverting affidavit are not proof of the facts therein alleged. World Co. v. Dow, and Richardson v. D. S. Cage Co., supra.

For the same reasons the venue could not be maintained under subdivision 29a. The testimony fails to fix on Myriek the status of a necessary party. As to the resident defendants the testimony was insufficient to disclose a prima facie cause of action lawfully maintainable in Eastland county against either of them.

If it be assumed that the plaintiff endeavors to maintain his suit in Eastland county under exception 9 to the general venue statute, basing it upon a trespass committed in said county, a wrongful act must have been committed by the defendant Myriek in that county, and not merely a tort resulting from the negligent omission to perform a duty. In other words, it would be necessary in such a case for the plaintiff both to allege and prove the fact or facts constituting active negligence as distinguished from passive negligence. Cook v. Guzman (Tex. Civ. App.) 19 S.W.(2d) 855; Lawless v. Tidwell (Tex. Civ. App.) 24 S.W.(2d) 515; Hill v. Kimball; 76 Tex. 210, 13 S. W. 59, 7 L. R. A. 618; Rigby v. Gaines (Tex. Civ. App.) 6 S.W.(2d) 422; Yaught v. Jones (Tex. Civ. App.) 8 S.W.(2d) 800; Thompson v. Wynne (Tex. Civ. App.) 9 S.W.(2d) 745; Winslow v. Gentry (Tex. Civ. App.) 154 S. W. 260.

From the viewpoint of a trespass thus committed, it is clear that there is no testimony to be found in tbe record convicting the defendant Myrick of active negligence.

Other phases of the case need not be discussed.

For the reasons assigned the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: LAWHON, J.

license: Public Domain

text:
    ELAM v. TUBRE et al.
    No. 2273.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 13, 1932.
    A. L. Shaw and B. E. Moore, both of Beaumont, for appellant.
    Chas. S. Pipkin, of Beaumont, for appel-lees.
   LAWHON, J.

Appellant, W. E. Elam, brought suit in the trial court to recover of C. M. Tubre and T. E. Danziger the value of certain services he alleged he performed for them in building or repairing a house on lot 8, block 20, of the Cartwright addition to the city of Beaumont. He also sought to foreclose a lien on this property against the defendants Tubre and Dan-ziger and Home Building & Loan Company. The case was tried by the court, and judgment was rendered that plaintiff take nothing as against the defendants. Plaintiff filed motion for new trial, which was overruled on December 19, 1931, and he excepted and gave notice of appeal. On the same date he requested the court to file findings of fact and conclusions of law. Appeal was perfected by filing an affidavit of inability to pay costs in lieu of an appeal bond. • A transcript has been filed in this court, but it was not accompanied by a statement of facts.

Appellant seeks to have the judgment of the trial court reversed solely on the ground that the trial judge did not file findings of fact and conclusions of law, as requested. The transcript does not show that appellant called to the attention of the trial court his failure to file findings of fact and conclusions of law, as required by article 2247, Revised Civil Statutes, as amended by the Forty-Second Legislature, 1931, c. 76 (Vernon’s Ann. Civ. St. art. 2247) which reads as follows: “When demand is made therefor, the Judge of a District or County Court thirty days before the time for filing transcript in the cause shall prepare his findings of fact and conclusions of law in any case tried before the Court. If he shall fail so to prepare them, the party so demanding, in order to complain of the failure, shall, in writing, within five days after such period, call the omission to the attention of the Judge, whereupon the period for due preparation and filing shall be automatically extended for five days after such notification.”

Appellant cannot complain of the action of the trial court without showing that he complied with this article of the statutes. The cases cited in appellant’s brief were decided before article 2247 was amended.

No other complaint being made in the brief, to the judgment, it is affirmed.


author: •ALEXANDER, J.

text:
    THEOPHILAKOS v. COSTELLO et al.
    No. 1233.
    Court of Civil Appeals of Texas. Waco.
    Oct. 20, 1932.

      Read, Lowrance & Bates, of Dallas, for appellant.
    W. J. Rutledge, 'Jr., of Dallas, for appel-lees.
   •ALEXANDER, J.

On July 17, 1930, Mrs. Mary Costello, Thomas J. Costello, and others brought this suit against George Theophilakos. Mrs. Costello is the surviving widow of M. Costello, deceased, and Thomas J. Costello and the other plaintiffs are the surviving children of M. Costello, deceased. The suit was in trespass to try title to recover a business house and lot located at 1303 Elm street in the city of Dallas. In the alternative the plaintiffs alleged that in September, 1925, M. Costello leased the premises in question to the defendant by written lease for a term of years beginning October 1,1925, and ending December 1, 1933, for a consideration of $28,425, payable monthly in advance at the rate of $275 for the first year and three months, at the rate of $300 per month for the year 1927, $325 per month for the year 1928, and $350 per month thereafter. They alleged that the contract provided that the landlord might declare the lease forfeited at his election for failure to pay rent; that the defendant paid the rent as per the contract until January 1, 1928, but that he had paid only the sum of $200 for the month of January, 1928, and since that time had paid only the sum of $225 per month. They alleged that M. Costello died on the 1st day of October, 1929, intestate, leaving the plaintiffs as his sole heirs and that they had elected to declare the contract forfeited for failure to pay rents. They prayed for judgment for the back rents in the sum of $3,500, for foreclosure -of their lien on the fixtures, and- for title ánd possession of the property. A writ of sequestration was sued out and the defendant dispossessed.

The defendant, -in addition to entering a general demurrer, general denial, and plea of not guilty, admitted the execution of the lease contract and alleged specially that, at the time of the execution thereof, the said M. Costello owned the adjoining building and he represented to the defendant that the same, together with the second floor of the building so leased by -the defendant, was leased to and occupied by the Times Herald, and that the same was so leased to the Times Herald for a long term and would be so occupied, and that such occupancy would bring increased •business to the defendant, and that the said M. Costello verbally agreed that, in the event of any change in the occupancy of such adjoining building, he would “always treat the defendant right and give him proper consideration,” and would reduce' the rent in accordance with the rents being paid on adjoining property; that through fraud, accident, or mistake such provisions were omitted from •the rental contract; that about January 1, 1928, it became known that the Times Herald would remove from the adjoining premises, and the said M. Costello desired the possession of a part of the premises so leased to the defendant for the purpose of providing an entrance to the second story of said building, and that, with such desire in mind, the said M. Costello executed and delivered to the defendant a written contract by the terms of which the rent to be paid for the remainder of his lease contract should be reduced to $225 per month; that thereafter the defendant, in consideration of the reduction in rent, did surrender the possession of a part of the •building for the purpose of enabling the said Costello to provide a stairway to the second story of such building. The defendant further alleged that thereafter he paid the rents to the said M. Costello as per the terms of such new contract until the death of the said M. Costello on October 1, 1929, and that he so paid -such rents to the plaintiffs up to and including the month of-June, 1930, and delivered to said plaintiffs a check in the sum of $350 for the rent for the month of July, 1930; that the said M. Costello and the plaintiffs accepted such rents and thereby led the defendant to -believe that his payments were satisfactory; and that by reason thereof the plaintiffs were estopped to forfeit such lease contract for failure to pay the back rents in •accordance with the terms of the original contract. The defendant further prayed for damages for being unlawfully dispossessed from the premises under the distress warrant; The plaintiffs, by supplemental petition, directed a general demurrer, and special exceptions to the special matters of defense pleaded by the defendant and to his cross-action for damages. The substance of these exceptions will be discussed later.

The trial court sustained the plaintiffs’ demurrer and special exceptions to the defendant’s answer, excluded most of the evidence offered by the defendant, and gave an instructed verdict for the plaintiffs for the sum of $3,500 back rent, for title and possession of the premises,, with foreclosure of the landlord’s lien on the defendant’s fixtures, and against the defendant on his cross-action for damages. Judgment was entered accordingly. The defendant appeals.

The appellant’s first contention is that the court erred in sustaining the demurrer and special exceptions to the defenses pleaded by him. The appellant alleged, as a defense to his failure to pay the rents as provided in the original lease, that on January 20, 1928, the said M. Costello wrote and delivered to the defendant the following letter: “January 20th. 1928 — Mr. George Theo-philakos — Model Candy Kitchen, 1303 Elm Street, Dallas, Texas, Dear sir — I hereby reduce you rent as I promised to two hundred and twenty five dollars / 225 / per month on account of dull business, until further notice or until 31st day of December, 1933. Tours very truly, [Signed] M. Costello;” and that thereby the rents had been reduced to $225 per month and that he had paid the rents accordingly, and the plaintiffs had no right to-forfeit the lease for failure to pay more. The plaintiffs excepted to such allegations on the ground, and their contention 'here is that such allegations did not present a good defense to the plaintiffs’ cause of action because such letter did not state a valid consideration for a reduction in such rents. We think the plaintiffs are in error. The defendant alleged in his answer and in a trial amendment thereto that he had surrendered the possession of a part of the premises in consideration of the agreement to reduce the rent. This would be sufficient consideration for a modification of the original contract, and it was not necessary that the letter should recite the consideration for the reduction in the rent. Such consideration could be shown by parol evidence. Taylor v. Merrill, 64 Tex. 494; Norris v. Graham (Tex. Civ. App.) 42 S. W. 575. Both parties were competent to contract, and, if the landlord and the tenant, for sufficient consideration, as alleged, desired to modify or change the terms of the original contract by reducing the rents to be paid, they had -a right to do so. 10 Tex. Jur. 356. It was alleged that the new agreement was in writing signed by the landlord and accepted and acted on by the tenant. The court erred in sustaining the exception to the defendant’s answer in the above particular.

The court also erred in sustaining the exception to the defendant’s pleas of waiver ■and estoppel. The defendant alleged that he paid the rent in accordance with the terms of the above letter at the rate of $225 per month to M. Costello until the latter’s death, which occurred about October 1, 1029, and that thereafter he so paid same to the plaintiffs up to and including the month of June, 1930, and that such rents were received and accepted by the said M. Costello and the plaintiffs. He alleged that he tendered plaintiffs the sum of $350 on the first day of July, 1930, as rent for said month, but plaintiffs refused to. accept same. He contends that the plaintiffs thereby waived -their right to declare a forfeiture and are now estopped to do so. It is a well-settled principle of law that the contractual right to forfeit a lease for failure to pay rent, or for any other cause, may be waived, and, if the landlord accepts rent from his tenant after full notice or knowledge of breach of a covenant or condition in his lease for which a forfeiture might have been demanded, this constitutes a waiver of the right to declare a forfeiture for such breach and the landlord cannot thereafter declare a forfeiture for any such breach so occurring prior -to such acceptance of the rent. He loses his right to declare a forfeiture until, a new breach occurs. 16 R. C. L. 1132, § 653; 36 C. J. 603; 6 Tex. Jur. 688; Gulf, C. & S. Ry. Co. v. Settegast, 79 Tex. 256, 15 S. W. 228; Jackson v. Knight (Tex. Civ. App.) 194 S. W. 844; Barton v. Flanagan (Tex. Civ. App.) 25 S.W.(2d) 947; Gofer v. Beverly (Tex. Civ. App.) 184 S. W. 608; City National Bank v. Pope (Tex. Civ. App.) 260 S. W. 903; Weierhauser v. Bennett (Tex. Civ. App.) 19 S.W.(2d) 572. If M. Costello agreed to reduce the rents and thereafter he and the plaintiffs as his successors in title accepted the rents at the reduced rate and thereby led the defendant to believe that such payments were satisfactory, they thereby waived their right, and became estopped, to declare a forfeiture of such lease contract on account of the failure of the defendant to pay the full amount of such past due installments even though there was no consideration for the agreement to so reduce the rents. Their right to declare a forfeiture would not be revived until they had repudiated their promise to accept rents at the reduced rate and until the defendant had thereafter failed to pay a subsequently maturing installment at the higher rate. The court erred in sustaining the exception.

The trial court erred in sustaining an exception to the defendant’s cross-action for damages and in giving an instructed verdict for the plaintiffs, but in view of the fact that these matters will not likely arise upon smother trial in the same manner, we do not deem it necessary to discuss these assignments.

The appellant contends that the court erred in refusing to allow him to testify to certain transactions with the deceased, M. Costello. His contention is that the property in question was community property of the plaintiff Mrs. Mary Costello, and of her deceased husband, M. Costello, and since Mrs. Mary Costello acquired her interest therein as the community survivor and not as an heir of M. Costello, such -testimony is not rendered inadmissible by the provisions of Revised ■Statutes, article 3716, -prohibiting either party to testify -to a transaction with the deceased. There is nothing in the record, however, -to show that the property was community property. Mrs. Costello and the other plaintiffs brought the suit as heirs of M. Costello, deceased. The court therefore did not err in excluding this testimony. If upon another trial it ■ should appear that Mrs. Costello is the owner of a one-half interest in the property as community survivor and not as an heir of M. Costello, deceased, and that the other one-half interest is owned or claimed by the other plaintiffs as heirs of M. Costello, deceased, then the court will be controlled in the admission of this evidence by the case of King v. Morris (Tex. Com. App.) 1 S.W.(2d) 605.

On account of the errors above pointed out, the judgment of the trial court is reversed, and the cause remanded for a new trial.


author: WALKER, C. J.

text:
    NATIONAL AID LIFE ASS’N v. BAILEY.
    No. 2266.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 14, 1932.
    Rehearing Denied Nov. 23, 1932.
    Avery & Wallace, of Center, for appellant.
    Anderson & Lewis, of Center, for appellee.
   WALKER, C. J.

This was a suit by appellee, i\ B. Bailey, against appellant, National Aid Life Association, an Oklahoma corporation, upon a life insurance policy (assessment plan) in the sum of $2,500, issued by appellant to J. E. Bailey, naming appellee, his brother, beneficiary. The allegations of the petition were sufficient to state a cause of action for the amount of the policy. Appellant answered by general and special demurrer, general denial, and specially that the policy sued upon was a nonmedical policy, issued and delivered upon the written application of J. E. Bailey, making warranties of the statements and representations in the application; that, under the laws of the state of its incorporation and its by-laws, appellant could not insure an applicant who was more than fifty-five years of age, and that the application made this law and the by-laws a part of the contract; that by his application J. E. Bailey represented and warranted that he was of insurable age when, in fact, he was fifty-nine years of age on the date of his application; that, by the laws of its incorporation and its by-laws applicants were required to be in good health on the date of the application and on the .date of the bodily delivery of the policy to the insured; that J. E. Bailey represented and warranted by his application that he was in good health and had not suffered and was not suffering from a kidney disease when, in fact, he was not in good health and suffered with Bright’s disease on the date of the application, from which he shortly thereafter died; that had appellant known of the false representations in the application it would not have issued the policy. Wherefore, it prayed for judgment in its behalf. Appel-lee replied in his supplemental petition by general and special demurrers and general and special denial and specially pleaded that J. E. Bailey was iii good health at the time he applied for the $2,500 policy, and by the following special plea:

“And for further answer, plaintiff specially denies all of the defensive matters set up in paragraph No. 4 under his special exceptions in said answer and says that the same is not true in whole or in part, and says that the defendant entered into this contract herein sued on, with full knowledge of all conditions, or with reasonable diligence could have ascertained all the facts incident to or surrounding the transaction and it is here and now estopped from denying knowledge of any condition or circumstances surrounding the contract of insurance.
“Wherefore plaintiff prays judgment of the Court as in his original petition.”

By permission of the court, after announcement of ready for trial, appellee filed the following trial amendment:

“That long prior to the issuance of this policy sued on herein the said J. E. Bailey was a member of a home or local Benefit Association with head-quarters at Center, Texas, and that subsequent to his being admitted to said Center Association and prior to the issuance of this policy sued on herein, the said defendant by due contract took over and merged the said Center Association into the .organization of the defendant and contracted and agreed to take over all members in said Center Association on the basis of the application in and to the Center Association, and that after such contract or merger was entered into, the agent of the defendant was instructed to have caused issued policies of insurance by the defendant in lieu of membership theretofore held in the Center Association, and said defendant made due investigation of all the conditions and circumstances before the issuance of policies from their association of the membership of the said Center Association and they are here and now estopped from denying said facts, and that this policy grew out of original membership in said Center Association.
“Wherefore plaintiff prays judgment as in his original pleadings.”

Upon the trial the jury found the following facts: (1) Appellant “agreed to take over and insure the members of the Shelby County Benefit Association of Center, Texas, on the basis of the application in and to the Shelby County Benefit Association.” (2) On the date of the merger by which appellant took over the membership of the Shelby County Benefit Association, J. E. Bailey “was a member in good standing of and held a policy of insurance in the Shelby County Benefit Association of Center, Texas.” (3) After the merger, appellant “issued to J. E. Bailey a policy in which P. B. Bailey was named as beneficiary in lieu of the policy held by him in the Shelby County Benefit Association of Center, Texas.” (4) The amount of the policy held by J. E. Bailey in 'S'helby County Benefit Association of Center, Tex., was $1,000. (5) The jury answered “No” to the question, “Do you find from the preponderance of the evidence that J. E. Bailey, the insured, was not in good health on January 30, 1930.” (6) The answer was “No” to the question, “Do you find from the preponderance of the evidence that J. E. Bailey was not in good health at the time of the delivery of the policy for $1,000.00 applied for on January 30, 1930.” (7) The jury found that J. E. Bailey was suffering with Bright’s disease on January 30, 1930; (8) and that he had Bright’s disease at the time of the delivery of the policy for $1,-000 mentioned in the application dated January 30, 1930. (9) The answer “No” was given to the following question, “Do you find from the preponderance of the evidence that the insured, J. E. Bailey, was not in good health on the 14th of August, 1930” ; and (10) the answer “No” was also given to the fiuestion, “Do you find from the preponderance of the evidence that J. E. Bailey was not in good health at the time of the delivery to him of the $2,500.00 policy sued on in this case.” Answering questions 11 and 12, it was found that J. E. Bailey had Bright’s disease on the 14th day of August, 1930, the date of the application for the policy of $2,500, and at the time the $2,500 policy was delivered to him. Answering questions 13 and 14, it was found that J. E. Bailey had been suffering with kidney trouble prior to January 30, 1930, and prior to the 14th of August, 1930. On the verdict, the trial court refused to allow ap-pellee judgment upon the policy for $2,500 sued upon, but rendered judgment in his favor for $1,000, the amount of the policy held by J. E. Bailey in the Shelby County Benefit Association of Center, Tex., on the date appellant took over the business of that association.

Opinion.

[I-] We agree with appellant that the judgment is entirely without support in the pleadings. Neither in his original petition nor in his supplemental petition nor in his trial amendment did appellee plead and pray for judgment upon the $1,000 policy held by J. E. Bailey in the Shelby County Benefit Association on the date appellant took over the business of that association. Even if, under the undisputed facts, appellant was liable on that policy, or the substitute policy of $1,000, the issue was not raised by the pleadings. But appellee pleaded only that appellant had issued to J. E. Bailey a $2,500 policy in lieu of the $1,000 policy, and in all of his pleadings asked for judgment upon the policy for $2,500. It is the rule that the plaintiff cannot recover beyond his allegations. Had he desired to have judgment alternatively upon the $1,000 policy, he should have pleaded facts entitling him to that relief. No such pleading is in the record.

Appellee has cross-assigned error against the refusal of the trial court to allow him judgment on the jury’s verdict for $2,500, the amount of the policy sued upon. These cross assignments are overruled. Under the verdict of the jury appellant’s defenses against the $2,500 policy were fuíly sustained.

Reversed and remanded.


author: FUNDERBURK, J.

text:
    WRIGHT v. COUCH et al.
    No. 897.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 14, 1932.
    Rehearing Denied Nov. 18, 1932.

      James H. Beall, Jr., of Sweetwater, for appellant.
    Mays & Perkins, of Sweetwater, for appel-lees.
   FUNDERBURK, J.

D. R. Couch and G. C. Forgus sued Rufus Wright and recovered judgment against him upon a promissory note, with foreclosure of a chattel mortgage lien upon certain live stock. The trial court sustained a general demurrer of the plaintiffs to a cross-action of the defendant, and the correctness of that action of the court is the only matter presented upon this appeal for our review and determination.

The allegations in the cross-action were briefly to the effect that, in the deal by which the defendant leased from plaintiffs 4½ sections of land (owned by Couch) adjoining lands owned by the defendant, and purchased certain live stock, tools, and implements from' plaintiffs for an agreed pride of $3,985 cash, and $18,047.50 note (being the note sued on), the plaintiff made certain false and fraudulent representations. One (which as hereinafter shown, we construe to be a warranty) was to the effect that 213 head of heifers and yearling steers (included in the purchase of live stock) would, on October 15, 1929, yreigh an average of 700 pounds each. Another of the alleged representations made to induce the sale was to the effect that the leased land would not be sold during the term of the lease unless the owner (Couch) should die, or unless the sale was for as much as $50 per acre. The pleading, by reference, acknowledged a contract pleaded by the plaintiffs and evidencing the deal by which the sale of live stock was made, and the lease of the land agreed to be made, a provision of which contract was that the lease was to be subject to the right of sale by the owner of the'land. Other allegations of the pleading were to the effect that defendant was not interested in the purchase of the live stock, but that he was interested in securing a lease of said lands, and that, in negotiating the deal, it was demanded of him, as a condition precedent to his obtaining the lease, that he should buy the live stock, tools, and implements; that defendant advised Forgus (one of the plaintiffs and acting for the plaintiff's) that defendant was not interested in the lease and certainly not in the live stock, tools, and implements unless he could have the lease for a •number of years; that Forgus promised that he would endeavor to get Mr. Couch to lease it for four years, “further explaining, however, that in the face of the lease the said D. R. Couch would want to provide that the lease was subject to sale, the said Forgus, however, expressly explaining that he was familiar with the said D. R. Couch and by reason of Ihis intimate close connection with him knew •that this would only mean that the land might be sold only in case the said Couch should die and it should, become necessary to sell it under that condition, or only in the event that said Couch could get a price for the lan.d for as much as $50.00 per acre or above.” By such representation and others the said Forgus assured the said defendant that the land would never be sold and that the defendant would have the use of it for the full term of said lease, even though a subject to sale clause was written into the face of the lease contract.

As to the guarantee (wárranty) of the weight of the cattle, it was alleged that they failed to. weigh 700 pounds each by a total of 14,249 pounds. Other allegations referred to the above mentioned guarantee as one of the “representations” complained of, and alleged that all said representations were false and were at the time made without intention to perform, etc. In short, the pleading contained the necessary allegations, we think, to show that the alleged false representations constituted actionable fraud if such could be shown by allegations additional to those aboye mentioned. It was further alleged that the live stock, tools, and implements were sold by the defendant, and the sale price of the live stock was made the basis to show, in part, the measure of damages. It was alleged that Couch, within two or three months after making the contract, and while living, sold the land for much less than $50 per acre and demanded possession. There was no allegation that possession had been surrendered, nor offer to return anything received by defendant in the deal. The prayer was: “That the above and foregoing mentioned fraudulent sale and purchase of said livestock, etc., be rescinded and that the note as sued for in plaintiffs’ original petition be cancelled, and that upon final hearing hereof the defendant have judgment for his damages in the principal sum. of $2745.28, and for interest thereon,” etc. The prayer also asked for general and special relief.

That the allegations in the cross-action stated no cause of action for rescission and cancellation is too1 certain to require discussion. Appellant did not in his brief or oral argument seek to sustain the pleading upon that theory. On the contrary it is his contention that the plea stated a cause of action for damages for false representations, and that the prayer for cancellation should be treated as inadvertent. Appellees, on the other hand, have construed the pleading as only attempting to state a cause of action for cancellation and by their brief have sought only to sustain the action of the court upon that theory. Since appellant, by his prayer above quoted, evidently at the time Ms pleading was filed; construed his cause of action as being for cancellation, he would perhaps have no just cause for complaint should we test the correctness of the court’s action based alone upon that theory, same being, as it was, acquiesced in by all parties.

We prefer, however, to assume, without deciding, that the plea should be construed as attempting to state a cause of action for damages for false representations which induced the making of the contract in question, and to determine whether, as such, it was subject to the demurrer sustained by the court. The preceding statement is subject to the qualification that, in addition to a cause of action for fraud, there is attempted to be Stated a cause of action based upon a warranty, as will hereinafter be shown.

The burden of appellant’s argument is to show that promises to be performed in the future which induce the making of a contract may constitute fraud when made without intention at the time to perform and for the purpose of inducing another in reliance upon same to enter into the contract. The proposition urged is too well established as an exception to a general rule to require the citation of authorities. So far as we know, since the decision of the Supreme Court in Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, no' court in this state has denied such exception.

But the proposition is by no means conclusive of the question presented for our determination. False representations, whether regarding matters of present or past existence, or whether, (in the nature of promises) of future existence, do not constitute actionable fraud if the contract which it is claimed they induced specifically provides to the contrary of such representations and no claim is made that the contract does not express the true agreement. To hold otherwise would 'be' to permit a party to a contract, while admitting its provisions and claiming its advantages, and while conceding that it was executed with full knowledge of its provisions, to prove by parol evidence that the parties intended that one or more provisions, although clear and unambiguous, were intended to mean something different from, and possibly contrary to, the provisions expressed. This would be a clear case of varying a written contract by parol evidence. If appellant accepted the lease in question, as the allegations show he did, knowing that it provided that his rights as lessee were subject to the right of Couch, the owner, to sell the land and thereby terminate the lease, he cannot show fraud by proof of representations that the land would not be sold except under certain conditions not expressed in the lease. The right of sale expressed in the lease was unqualified. To admit proof that it was only to be exercised in case the owner died, or a sale could be made for $59 per acre or more, would clearly result in varying that provision of the contract. Whatever the nature of the negotiations and preliminary agreements preceding the execution of the lease, no proof of same can, in a case like this, be permitted to contradict or qualify the expressed right of sale. Another way of stating the principle is that, when appellant accepted a lease, knowing that it was subject to the unqualified right of the owner to sell the land, he, as a matter of law, could not rely upon prior promises not to sell or to sell only upon the happening of specified contingencies.

We therefore conclude that the pleading alleged no cause of action based upon fraudulent representations to the effect that the land would not be sold unless the owner died or was sold for $50 per acre or more.

Let us consider now if the pleading stated a cause of action for a fraudulent representation to the effect that 213 head of the cattle would, on October 15, 1929, a little over four months after such representation was alleged to have been made, weigh on an average of 700 pounds each. Such a representation was either the expression of an opinion in the nature of a future prediction or else it was a warranty. Whether the one or the other, it was not the representation of a present or past existing fact. Neither was it the expression of an opinion equivalent to the statement of a present or past existing fact. It is well settled that the statement of an opinion may sometimes he made under such circumstances as to be the equivalent of the statement of a material fact. For instance, let us suppose the allegation was to the effect that plaintiffs, being experienced cattlemen and capable of judging the weight of cattle, and defendant being inexperienced in such matters, which fact was known to the plaintiffs, the latter .represented to defendant that the cattle would (then) average 700 pounds each, in that case the matter of opinion would be shown to be the equivalent of the statement of a present fact upon which, if the defendant relied, he would have the right to do so. Rut what right would the defendant have to rely upon a prediction that, over four months later, the cattle would average 700 pounds each? It would in no sense constitute the representation of a fact. Nor would it be an opinion in any way of the same nature as the statement of fact. While it was alleged that defendant was not at the time an experienced cattleman, and was not experienced in judging the weight of cattle, it was not alleged that plaintiffs were experienced cattlemen or had more experience than the defendant in judging, the weight of the cattle. These or similar allegations would have been necessary to show the right of the defendant to rely upon an opinion as to the weight of the cattle as of the time the representations were made. If a right to rely upon a mere prediction could be shown in any case, which may be doubted, certainly there was an entire absence of allegations to show it here.

If the representation in question cannot be regarded as a statement of a fact, nor the expression of an opinion of the general equivalent thereof, then what could it be and yet be regarded as a representation upon which a claim for damages could be predicated? It seems to us that it would have to be either a promise to be performed in the future or else a warranty. A false promise which may constitute fraud is a promise to do or refrain from doing something in the future, made without the intention to perform and for the purpose as a device to procure agreement of the other party to the terms of a proposed contract. Such a promise contemplates the exercise of volition upon the part of the promisor. In other words, it includes the essential idea of action or inaction on his part. The only action or want of action that could be involved in the representation that the cattle would, four months in the future, weigh on an average of 700 pounds each, would be to make good the loss or shortage. The representation, if not a warranty, was a mere prediction as to the future condition of the cattle, and in no sense a promise to do or not to do something.

But the pleading, we think, plainly alleges a warranty. It alleges that Forgus (representing the plaintiffs) made the “very material representation to the defendant that he would guarantee that the 213 head of heifers and yearling steers * * * would weigh on an average of 700 pounds each on October 15th, 1929.” (Italics ours.) The allegations to show a breach of the obligation were: “That plaintiffs have violated the representations which were made concerning the weights of said 213 head of heifers and yearling steers also. That said heifers and yearling steers failed to average a weight of 700 pounds per head on October 15th, 1929 as guaranteed, and represented by plaintiffs, but were about 14,249 pounds short of such weight, and that the plaintiffs, instead of ao-Icnowledgmg an oWgation upon their part to accept such loss in weight, have refused to abide 6y their guarantee and have refused, to make such loss of weight good." (Italics ours.) Plainly these are allegations of a contract obligation arising from the existence and breach of a warranty.

It becomes necessary then to consider the sufficiency of the pleading as alleging a cause of action upon a warranty. We think the pleading would be sufficient to state such a cause of action for at least nominal damages, but for the allegations as to the nature and provisions of the contract. Would defendant have the right to prove such a parol warranty and claim damages for its breach when, by his own allegations, same was a part of a transaction by which the sale of live stock, etc., to him and the lease of land to him was evidenced by a written contract? We are forced to the conclusion that defendant, by such parol proof, could not thus add to the obligations of the plaintiffs as expressed in the written contract. We know of no exception to the parol evidence rule which would permit this to be done.

In our original opinion we affirmed the judgment. On rehearing we reversed that action, holding the pleading good as stating a cause of action on the warranty. Upon consideration of appellees’ motion for rehearing we have concluded that no right of action on the warranty was shown for the reasons discussed above. Our original disposition of the appeal was correct, but based upon the wrong ground. We have therefore decided to withdraw both opinions, the original and the one on rehearing, and to substitute this as the final opinion of the court.

Being of opinion that the judgment of the trial court should be affirmed, it is accordingly so ordered.


author: WALKER, O. J.

text:
    SHAMBAUGH v. MOORE et al.
    No. 2267.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 7, 1932.
    Rehearing Denied Nov. 9, 1932.
    W. H. Graham, of Houston, for appellant.
    Adams & Moore, of Beaumont, for appel-lees.
   WALKER, O. J.

This suit was filed by appellant, Scott Shámbaugh, against appellees Amos Moore and Miss Mary Conroy, to foreclose a paving lien in the sum of $208.10, with reasonable attorney’s fees, against lot 12, block 21,'Park-dale addition to the city of Beaumont, with prayer for joint and several judgment against appellees for the amount of the certificate. All facts necessary to make the amount of the certificate a lien against the lot -were duly alleged. The answer of appellees raised the issues; (a) That the lot was the homestead of Amos Moore and wife at and before the time the assessment was made against it and has been continuously their homestead since that time; and (b) that Miss Mary Conroy’s interest in the lot, when the assessment was made against it and since that time, was not such as to make her personally liable for the amount of the certificate. The trial was to the court without a jury, with personal judgment against Amos Moore for the amount of tbe certificate and $50 attorney’s fees, but denying foreclosure of the lien, as described in the petition, on the ground that the property was his homestead, and with denial of a personal judgment against Miss Conroy. In support of the judgment, the court found that Miss Conroy, on the 31st of December, 1923, was the owner of the lot in question and remained the owner until the 10th day of August, 1927,- when she entered into the following contract of sale to Amos Moore:

“Contract for Deed.
“This agreement this day duly entered into by and between Mary Conroy, of Jefferson County, Beaumont, Texas, as party of the first part and Amos Moore and wife Harritt Moore, parties of the second part: Witness-eth:
“That the parties of the second part agree to buy and party of the first part hereby agrees to'Sell that certain lot or parcel of land lying and being situated in the Parkdale Addition to the City of Beaumont, Jefferson County, Texas,, according to the recorded map of said addition which is hereby referred to for full and complete description, the property conveyed being lot number twelve in block number twenty one of the Parkdale Addition.
“The parties of the second part agree to purchase said property for the sum of Twenty Eiv.e Hundred Dollars ($2,500.00) on the following conditions, to-wit: $50.00 cash, the receipt of which is hereby acknowledged and the balance of Twenty Four Hundred and fifty Dollars ($2,450.00) to be paid to the said Mary Conroy at Beaumont, Texas, as follows : Twenty Two ($22.00) Dollars per month, the first installment being due and payable on or before the 10th day of September, and one of said remaining installments being due and payable on or before the 10th day of each and every consecutive month thereafter, until the full amount of said note, together with interest thereon at the rate of 8% per annum is fully paid, interest payable monthly as it accrues, it being understood and agreed that as each installment are paid thereon as aforesaid, same shall be applied first to the payment of interest due thereon and the balance to the payment of principal of said note, which note contains the usual 10% attorney’s fee clause and recites- that failure to pay any installment of principal or interest thereon when due or failure to keep the taxes paid on said property as they accrue shall, at the option of the holder, at once mature the same for the full amount then paid. Thirty days notice of such action on the part of the party of the first part is to be granted party of the second part.
“The parties of the second part in consideration of purchase price above specified have givep thpir promissory note of even date herewith for the remainder of the purchase price which note is hereby identified with this agreement. Parties of the second part reserve the right to pay any and all of the installments above set out before their maturity and interest being charged from this date to the time said installments are paid. Taxes for the year 1927 to be prorated.
“In consideration of the covenants and, agreements hereinabove made by the parties of the second part, the party of the first part agrees when all payments have been made according to the terms and conditions of this agreement, to deliver to the parties of the second part a good and sufficient warranty deed to the premises herein described. If the parties of the second part desire to take a deed when one half of the principal of the total purchase price has been paid, they shall have the right to have same made, the purchasers taking up the note now given, and giv-« ing new note or notes acceptible to party of the first part for the balance unpaid for which balance vendor’s lien is to be retained by the party of the first part.
“It is mutually agreed that should the parties of the second part fail to make any of the payments as hereinabove specified, the whole amount remaining unpaid shall at once become due and payable and at the option of the party of the first part may be either revoked in any proper action on said note or notes may be returned to the parties ^of the second part and all the payments previously made shall be forfeited to the party of the first part as liquidated damages for breach of this contract, the parties of the first part hereby waiving all legal demands and formal putting in default.
“Now, therefore, in consideration of the premises and of the said purchasers hereby stipulating, obligating and binding themselves and their heirs and assigns this piece of land is sold subject to the'covenants and condi-itons herein specified.
“This agreement shall be mutually binding upon the heirs and assigns of the parties hereto.
“In witness whereof, the parties to this agreement have hereunto set their hands and to a duplicate instrument of like tenor, on this the 10th day of August, A. D. 1927.”

This contract was not acknowledged by either party nor filed in the office of the county clerk of Jefferson county. On the date of this contract the lot was vacant and unimproved, but shortly thereafter Miss Conroy erected a dwelling house thereon for the use of Amos Moore and wife, which was completed in six or seven weeks after the date of the contract. As soon as the dwelling house was completed, Amos Moore and wife moved into it as their home and continuously occupied the same, claiming it as their home, from the date they took possession of it until this case was tried. They bought it Mth the intention of making it their home. • The court further found that lot 12, block 21, Parkdale addition to the city of Beaumont, being the lot in issue herein, was paved by appellant, under a contract with the city of Beaumont, made long after Moore’s homestead interest attached thereto, and while he was occupying it as his home, and that the city had taken all necessary legal steps to fix the assessment lien against this lot, provided it was not the homestead of Amos Moore, and to make the owner of the lot personally liable for the amount of the certificate; but, in this connection, the court found that neither Miss Mary Conroy nor Amos Moore and wife ever executed any mechanic’s lien or other contract in favor of the contractor for paving the street in front of this property. The court further found that the certificate was regularly issued and delivered to appellant under the terms of its contract with the city, entitling it to the ownership ; and that appellant, as owner of the certificate, had made demand upon appellees for its payment; that payment was refused; that it was placed in the hands of an attorney for collection; and that suit was regularly filed thereon.

Opinion.

Appellant says that the ownership of the above-described property, at the time the assessment was made against it, is the only question in issue; if Moore was the owner, the conclusion that it was his homestead has support in the record and the judgment should be affirmed; but “appellant contends that Miss Conroy was the owner and that’ Amos Moore was not the owner.” This very issue, on identical facts, was before the Waco Court of Civil Appeals in Ingram v. Central Bitulithic Co., 51 S.W.(2d) 1087. On the principles announced in that ease, supported by authorities from the Supreme Court, which we think are directly in point, Amos Moore was the owner of this property, and Miss Conroy’s’ interest therein, under her contract of sale with him, was not of such nature as to render her personally liable for the amount of the certificate. Amos Moore’s homestead interest in the property exempted it from the assessment lien. If the case cited is in conflict in any way with Whitham & Co. v. Gambrell (Tex. Civ. App.) 48 S.W.(2d) 347; a point we do not decide, we believe the cited ease controls the proposition before us.

For the reason stated the judgment of the lower court is in all things affirmed.


author: GRAVES, J.

text:
    MOLLER & ROBERTS v. HARRIS COUNTY.
    No. 9764.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 13, 1932.
    W. Owen Dailey, of Houston, for plaintiffs in error.
    E. A. Knipp, of Houston, for defendant in error.
   GRAVES, J.

The brief of plaintiffs in error thus correctly states the general background of the cause, on its presentment to this court:

“This is a suit 'brought by Moller and Roberts, a partnership composed of G. E. Moller and H.. L. Roberts, against' the County of Harris, for the sum of $487.25 'alleged to be due them, according to -the bills rendered by them, for ‘Extra Work on Shoulders, Highway 3,’ and the additional sum of $800.00 which had been deducted by the County as damages for failure to complete a contract for the construction of a paved road in Harris County within the time fixed by the contract. The cause was tried before the court without a jury.
“The controversy arose out of a contract between the plaintiffs and the defendant covering the ‘paving main street road from Brays Bayou Bridge to Station 195-00 Section 2 and to construct and deliver in a good sound and workmanlike manner, in strict accord with specifications for said work, prepared by the County Engineer ⅜ * * complete with all details and appliances and appurtenances such as usually go with a completed road’ — a distance of approximately 3.3 miles. The total consideration actually paid by the County for the work done under the contract was $93,693.30, and the plaintiffs claimed the additional amount of $487.25 for the ‘extra work,’ because they claimed, it was work not covered by the contract, and for which compensation was not included in the consideration paid. The plaintiffs also claimed that the deduction of $800.00 for sixteen days delay in completion of the contract was improper, and that they were entitled to recover this amount also.
“The defendant answered by general demurrer, general denial, and a plea of accord and satisfaction, insisting that upon payment of the final estimate under the contract referred to, the contractors had executed a full acquittance to the County for all sums which might be due theretofore. Judgment was for the defendant.”

As they did below, the contractors on the appeal again claim that the $487.25 worth of work they were required to do in smoothing down the shoulders to the 3.3 miles of paving done was “extra,” for which they, were not obligated under the contract, nor the “proposal sheet” thereunder that the commissioners’ court accepted; hence it was prejudicial error to deduct from their agreed com.pensation that amount, as well as the $809, penalty visited upon them for the 16 days’ delay in completing it.

On reviewing the record, this court is unable to agree with them, concluding rather that the trial court’s judgment is shown to be properly sustainable on more than one ground.

In the first place, as even the brief quotation from the contract makes manifest, it seems plain that this smoothing work on the shoulders was included in the contract price agreed upon for a pavement “complete with all details and appliances and appurtenances such as usually go with a completed road,” since the undisputed evidence showed, not only that these shoulders were shown on the plans made a part of the contract, but also that they constituted such án appurtenance as usually went with and was incidental to a completed road.

In the next place, and likewise without contradiction, there was an accord and satisfaction over the matter between the parties, in that, when the dispute first arose, the doing of this additional shoulder work, on which the suit was later .brought, had been insisted upon by the county, with notice that it would not be paid for as “extra work,” and on the finishing of it thereafter, as a further condition precedent td payment of the final estimate on the contract as a completed whole, deduction of the $800, penalty for the delay had been made, all to the acknowledged satisfaction of the contractors, as shown by this written instrument then executed and delivered by them:

“Houston, Tex.', Oct. 1, 1928.
“I have read over this bill and certify that the same includes all items and balances due me remaining unpaid, and I hereby accept the same in full release to Harris County and in final and complete satisfaction of any and all claims due me from Harris County by virtue of this contract and work arising under the same.
“Moller and Roberts “By H. B. Roberts.”

An acquittance on both items accordingly resulted to the county, whether or not the contractors signed the release under protest. Clopton v. Caldwell County (Tex. Civ. App.) 187 S.' W. 400, writ refused; Daugherty v. Herndon, 27 Tex. Civ. App. 175, 65 S. W. 891, writ refused.

In the third place, ¡by the express terms of their engagement the county engineer was made the arbiter between the parties in the interpretation of the plans, specifications,_ and acceptable fiulfillment of the terms of’ the contract, .as well as all matters pertaining to construction, material, work, and the performance of the conditions under which payments became due; since he undisputedly determined that the claim sued upon was part of the contract, was shown on the plans, and that, compensation for it was included within the price per square yard for the paving, that action was final and binding on both .parties. An abstract of these conditions in the contract is this:

“The finding and determination of the County Engineer on all questions arising under this contract as to material and workmanship, shall be final and binding upon the said Contractor. * * *
“The Engineer shall decide all questions which may arise as to the interpretation of the plans and specifications', and all questions as. to the acceptable fulfillment of the contract on the part of the contractor. * ⅜ ⅜ It is mutually agreed by both parties to this contract that the Engineer shall act as ref-. eree in all questions arising under the terms of this contract between the parties hereto, and that the decision of the Engineer in such cases shall be final and binding upon both parties hereto and that the decision of the Engineer in such eases shall be final and binding upon both parties alike.”

In these circumstances, since the whole dispute centered about the construction of the plans as referred to in and made a part of the written contract, the engineer contending that the work for which this additional pay was claimed was plainly ■ indicated thereon, and the contractors insisting that it was not, the quoted submission of this very bone of contention to the former of what it meant and his resolving the controversy in favor of the county settled the whole controversy; especially so, since neither in the pleadings nor in the testimony is there even any intimation that the engineer’s action as such arbiter was not in good faith. Simpkins on Contracts, at page 664; Kilgore v. N. W. Texas Baptist Ed. Soe., 89 Tex. 465, 35 S. W. 145.

Pursuant to these conclusions the judgment' of the trial court has been affirmed.

Affirmed.


author: ELY, C. J.

text:
    BAKER v. REED et al.
    No. 8879.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 12, 1932.
    Rehearing Denied Nov. 16, 1932.

      Greenwood & Lewis, of Harlingen, for appellant.
    Adams & Glass and Polk Hornaday, all of Harlingen, for appellees.
   ELY, C. J.

Appellees sued appellant and others, alleging a partnership in the real estate business, and alleging that certain commissions had been earned and collected by the firm and appropriated by appellant. Appellees sought to recover their part of all commissions and a dissolution of the partnership. George E. Critchfield intervened and sought to recover of the partnership. Intervener alleged that Baker and the partnership owed him $1,375, which he sought to recover. P. G. Greenwood also intervened.

The cause was submitted to a jury on special issues, and on the responses thereto judgment was rendered that Gertrude Mae Reed recover practically what she sued for, and certain sums were adjudged in favor of the two interveners.

Baker pleaded that the contract provided that Mrs. Reed was to receive only one-half of the proceeds of all business brought into the firm by her. That was the theory upon which was based the defense of the claim of appellees that there was a full partnership and sought'recovery of one-half of all sums collected by the partnership.

The court presented an issue as to whether a partnership existed between Baker and Mrs. Reed. There was no issue as to the partnership. Baker admitted a partnership, the only dispute being as to the terms and scope of the partnership. Mrs. Reed contended that she was to receive one-half of commissions and fees earned and collected by the partnership. Baker contended that she was to receive one-half only of the fees and commissions brought to the partnership by Mrs. Reed. This was in fact the only issue in the case. The court did not present that issue to the jury and there was nothing in their verdict adverse to appellant’s theory. There was a partnership from which Mrs. Reed was to receive one-half the profits, as found by the jury. The jury did not pass upon the extent or terms of the partnership, although appellant alleged and proved only a limited partnership. He requested a special issue presenting his only issue, but it was denied. He had the right to have his theory of the case, as alleged and proved by him, submitted to the jury. A failure and refusal to present the defense was error requiring a reversal.

The court may not have credited the defense advanced, still appellant was entitled to have it go before the jury. Fox v. Dallas Hotel Company, 111 Tex. 461, 240 S. W. 517.

It was admitted by the parties that the division of the profits was to be made after deducting the expenses of the partnership. The jury was not permitted to pass on this phase of .the case, although appellant sought to have it submitted and sought to obtain a finding as to the expenses as a basis for the settlement. That was error.

Appellant sought to have a judgment rendered covering his theory of the case, although such theory was not passed upon by the jury. The court did not err in denying the motion for judgment.

There were two interveners in the case, each-claiming a one-third interest in a certain commission of $900, deposited in court, and in a certain judgment obtained by appellant for commissions. The jury was asked if Critchfield, one of the interveners, was the procuring cause of a certain exchange of properties out of which appellant had obtained commissions. Each one of the inter-veners was declared in the judgment to be an owner of a one-third interest in the judgment and the deposit in court. Greenwood, one of the interveners so called, filed no pleadings in the case, was not a party to the suit, and yet he was adjudged $300 out of the $900 deposited in the court. Of course, there was no basis for such adjudication, although the $300 was admitted to be an attorney’s fee.

The evidence is sufficient to show that Critchfield was the procuring cause of the exchange of the properties and there is testimony which sustains the finding. The judgment in his favor should be sustained. If he earned the commission it is a matter not affecting his interests as to the division of the balance of the commission between the parties.

The judgment as between the Reeds and E. B. Baker and as to P. G. Greenwood will he reversed and the cause remanded, but that part of it affecting Critchfield will be affirmed.

Reversed and remanded in part,'and affirmed in part.


author: O’QUINN, J.

text:
    INTERNATIONAL-GREAT NORTHERN R. CO. v. MINER.
    No. 2256.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 13, 1932.
    Andrews, Streetman, Logue & Mobley, of Houston, and Foster & Williams, of Conroe, for plaintiff in error.
    Pitts & Liles, of Conroe, for defendant in error.
   O’QUINN, J.

This suit was instituted by defendant in error against plaintiff in error in the justice court, precinct No. 3, of Montgomery county, Tex., to recover $136 as the value of two cows alleged to have been negligently killed by plaintiff in error, and for $20 as ¿ttorney’s fees.

Judgment in the justice court was for defendant in error for the amount sued for. The case was appealed to the county court of Montgomery county. Plaintiff there answered by general demurrer, several special exceptions, general denial, and specially that the killing of the cows occurred fa) at a place where the railroad was not required- to fence its track; (b) that the killing of the cows occurred within switch limits and contiguous grounds at Fetzer, a flag station on plaintiff in error’s road where public necessity and convenience required the railroad to be left unfenced, and where, by law, public necessity and convenience required the railroad to be left unfenced, and where the railroad was not required to fence and could not fence same; (e) that the cows were killed where the safety of the railroad’s employees and the convenience of the public required the railroad to be left unfenced; and (d) that the place where the cows were killed was where a sawmill was operated and where a number of persons were employed by the mill and where it was necessary to leave the railroad unfenced for the operation of the mill- and the loading of cars, and for the convenience of the citizens of that community who patronized the mill, and that it was necessary that the railroad be left unfenced for the convenience and safety of the railroad’s employees.

The cause was tried to the court without a jury, and judgment entered for defendant in error for $135, the value of the cows, and for $20, attorney’s fee. The railroad, plaintiff in error, brings this appeal.

Plaintiff in error’s brief contains six assignments of error, but the sixth is, in effect, a restatement of all the others, and is the only one under which a statement, argument, and citation of authorities is made. In fact, plaintiff in error says: “Our ’assignments of error appear at the end of this brief as an appendix. There are several of them, sufficient to base our present contentions upon, but we present the following both as an assignment and a proposition, as We believe it sufficient.”

It follows:

“Sixth Assignment of Error
“The court erred in rendering judgment herein for the plaintiff, Lee Miner, because:
“(a) There is no evidence which shows or tends to show any negligence on the part of tile defendant in tile operation of its engines, trains or cars.
“(b) Even if it be conceded that there is some evidence which shows or tends to show negligence on the part of the defendant in the operation of its engines, trains and cars, still there is no evidence which shows or tends to show that such negligence, if any, was the proximate cause of the killing of the animals involved in this lawsuit.
‘‘(c) There is no evidence which shows or tends to show that the defendant violated article 6402 of the Revised Statutes of 1925 in such a way as to cause it to be liable or guilty of negligence in this cause.
“(d) There is no evidence which shows or tends to show that, even conceding that the defendant was guilty of a violation of article 6402 in such way as to be negligent or liable for the killing of the animals involved in this lawsuit, still, nevertheless, there is no evidence which shows or tends to show that such negligence or violation of said article, if any, was the proximate cause of the killing of the animals in question.”

[ I -4] It is a general rule that each error relied on must be separately and distinctly specified, and that no assignment shall embrace more than one specification of error. An assignment is duplicitous or multifarious when it embraces more than one specific ground of error, or when it attempts to attack several distinct and separate errors or rulings of the court. 3 Tex. Jur. § 597, p. 855; Galveston, H. & S. A. Railway Co. v. Roemer (Tex. Civ. App.) 173 S. W. 229 (writ refused); Karotkin Furniture Co. v. Decker (Tex. Com. App.) 50 S.W.(2d) 795. The assignment of error announces several grounds by reason of which it asserts the judgment was erroneous. Obviously it is multifarious, and should not be considered. Moreover, it is submitted as a proposition. The rule (Rule 30 for Courts of Civil Appeals) requiring propositions to be stated consecutively, separately subdivided and numbered, contemplates that each error shall be separately and definitely presented, and that a proposition shall deal with a single reason supporting the assignment to which it is germane. A proposition which presents several separate, unrelated points of law is duplicitous or multifarious, and should not be considered. 3 Tex. Jur. § 616, p. 884; Galveston, H. & S. A. Railway Co. v. Roemer (Tex. Civ. App.) 173 S. W. 229 (writ refused); Karotkin Furniture Co. v. Decker (Tex. Com. App.) 50 S.W. (2d) 795.

While, under all the decisions, the assignment and proposition, it being presented as both, is multifarious, still, if it be considered, we think the judgment should be affirmed. The determining question, under the facts, is whether plaintifE is liable by reason of its not having fenced its line at the place of killing. Article 6402, R. S., provides:

“Killing Stoolo. — Each railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways. Such liability shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle. If said company fence its-road it shall only be liable for injury resulting from a want of ordinary care.”

The animals were killed at a point where the track was not fenced. It is the contention of plaintiff in error that under the facts shown it was not required or permitted to fence its track. There is a full description of the premises in the statement of facts and a sketch showing the exact situation. The question is one of fact, and the court found against plaintiff in error, thereby finding that the facts did not show such conditions or surroundings as would excuse the failure to fence the track. Without setting out the facts, we will say that, after carefully considering all the evidence, including the map or sketch of the premises, we think the finding of the court has ample support in the record.

The judgment should be affirmed, and it is so ordered.

Affirmed.


text:
    SOUTHERN SALES CO. et al. v. PARKER et al.
    No. 2247.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 27, 1932.

      O. Huggins, of Sherman, for plaintiffs in error.
    John F. McLaurin, of San Augustine, for defendants in error.
   LAWHON, J.

This is an appeal from an order granting a temporary injunction against Southern Sales Company, C. Huggins, and H. J. Wilkinson, restraining them from levying an execution issued by the justice of the peace of precinct No. 1 of Grayson county, Tex., on property of Sam Parker, Mrs. Judy Parker, and F. K. Parker of San Augustine county, plaintiffs in this suit.

Plaintiffs alleged in their petition that they and the defendant Southern Sales Company had some character of business dealings, but that the'defendant Southern Sales Company would not adjust a matter growing out of such transactions as plaintiffs thought right, and that the Southern Sales Company brought suit against them on an open account in justice court, precinct No. 1, Grayson county, Tex.; that they filed a plea of privilege to be sued in San Augustine county and employed an attorney to look after the case for them; that their attorney did not notify them of the overruling of their plea of privilege, and, on August 24,1931, wrote them that the case was set for trial on the 28th day of August, A. D. 1931; that at the time this letter was written judgment had theretofore, on July 9,1931, been rendered against them. The judgment was for $168.12. It was further alleged that the judgment was for a greater sum than they owed the Southern Sales Company, and that an execution had been issued on said judgment and placed in the hands of I-I. J. Wilkinson, one of the defendants in this suit, he being sheriff of San Augustine county, Tex. There is nothing in the petition to show why C. O. Huggins was made a party. It was alleged that the execution was issued on a void judgment, and that, unless the defendants in 'this suit were restrained, a levy would be made on their property. This petition was sworn to by F. K. Parker, one of the plaintiffs, and was presented to 1-Ion. G. E. Richardson, district judge of the first judicial district, on December 18, 1931. 1-Ie indorsed on the petition an order granting the injunction upon plaintiffs’ giving bond, which bond was duly filed and a writ of injunction issued. The appeal is before us solely on the allegations contained in the petition.

Appellants say that the injunction was improperly granted because it is not shown that the judgment out of which the execution issued was void, but that, if the judgment was void or was improperly rendered, the defendants therein should have exhausted their legal remedies of appeal, certiorari, or proceedings in the nature of a bill of review in the court rendering the judgment.

From the allegations of the petition the judgment rendered in the justice court of precinct No. 1 of Grayson county, Tex., was not void. The amount involved was within the jurisdiction of the court, and it is alleged that they were served with citations and employed an attorney to represent them in the case. In Cotton v. Rhea, 106 Tex. 220, 163 S. W. 2, 4, the Supreme Court, in an opinion by Judge Phillips, said: “Viewing the question as it arises under the cause of action presented in the petition which concerned the validity of the county court judgment, the district court at all events and regardless of the effect of article 4653, R. S. 1911, upon the authority to enjoin the enforcement of a void judgment of another court, was without jurisdiction to interfere with its execution if it was not void; and this part of the question may be resolved, therefore, by determining that of the validity of the judgment.”

The court then held that the judgment under consideration was not void because the county court had complete jurisdiction to try the cause, and held that however erroneous the judgment of the lower court might have been, the district court had no jurisdiction to grant the writ of injunction. In Mann v. Brown, 201 S. W. 438, 441, by the Galveston Court of Civil Appeals, the court said: “It being shown by the record that the justice court had jurisdiction to render the judgment in favor of appellee Bryan against appellant Mann, and to foreclose the attachment lien on the property involved in this suit, and that upon the trial of said cause it found that said property was subject to said lien, we hold that the judgment of said justice court was a valid judgment, was not void, and therefore the district court of Anderson county was without jurisdiction to enjoin the enforcement and execution of the same. Rountree & Green v. Walker, 46 Tex. 200; Denson v. Taylor [Tex. Civ. App.] 132 S. W. 811; G., H. & S. A. Ry. Co. v. Dowe, 70 Tex. 1-5, 6 S. W. 790. See note 30 L. R. A. 702-706; Odom v. McMahan, 67 Tex. 292, 3 S. W. 286; Tex. Mex. Ry. Co. v. Wright, 88 Tex. 346, 31 S. W. 613, 31 L. R. A. 200 ; Frazier v. Coleman [Tex. Civ. App.] 111 S. W. 662.”

The petition does not allege any fraud, accident, or mistake in procuring the rendition of the judgment in the Grayson county suit. The only complaint made in procuring this judgment is that their own attorney did not notify them of the setting of the case for trial and that he gave them wrong information as to the facts. Nothing is charged against the plaintiff in that suit. This certainly would not justify the issuance of an injunction by one court restraining the execution of a judgment in another court unless the judgment was void on its face. In Clayton v. Stephenson (Tex. Civ. App.) 254 S. W. 507, 508, the court said: “It is an established rule in this state that a party to a suit may not obtain an injunction to restrain the execution of a judgment rendered therein unless he shows a good excuse for not seeking such relief in the original case in which judgment was rendered either by motion for new trial or by appeal or writ of error from the judgment.”

If plaintiffs in this suit could get any relief by reason of their attorney’s negligence, they would certainly have to show that they had exhausted all of their legal remedies before an injunction could be granted in any court. It is not alleged when they learned of the rendition of the judgment. At the time they received the letter from their attorney on August 24, 1931, they had ample time in which to remove the case to the county court by certiorari. Rev. St. art. 946. In the case of Clayton v. Stephenson, supra, it is said: “But relief against judgments cannot he granted on the ground that, as the result of the ignorance, neglect, or mistakes of a litigant’s lawyers, his rights were not fully protected in the litigation closed by the judgment.”

Injunctions will not be granted to restrain the execution of a void judgment where the parties have had an opportunity to have the judgment reviewed by appeal, writ of error, or other legal methods. In Tex. Mex. Ry. Co. v. Wright, 88 Tex. 346, 31 S. W. 613, 614, 31 L. R. A. 200, the court there held that the justice court judgment was void because no service was had upon the defendants. In an opinion by Judge Brown, the Supreme Court said: “The judgment of the justice of the peace, enjoined in this case, was void because the court which rendered it had no jurisdiction of the defendant. [Gulf, C. & S. F.] Railway Co. v. Rawlins, 80 Tex. [579], 581, 16 S. W. 430. But the court below and the court of civil appeals correctly held that the defendant in that judgment, having the right to a writ of certiorari, could not sue out an injunction to stop the execution of the judgment. The case of [Galveston, H. & S. A.] Railway Co. v. Ware, 74 Tex. 47, 11 S. W. 918, cited and followed by the court of civil appeals, lays down the correct doctrine upon this question.”

The Commission of Appeals, in Svoboda v. Alexander, 3 S.W.(2d) 423, 424, said: “When a judgment purports to have been rendered by a justice court, in a suit of whose subject-matter the court has jurisdiction, the absence from the. justice court record, or from the judgment itself, of a recital of the specific facts upon which the validity of the judgment depends, does not invalidate the judgment or destroy the presumption of regularity in its rendition.”

The decision held that the district court had no authority to grant the injunction because the judgment did not on its face show to be void. It was further held in the same opinion that, before the execution of a judgment can be enjoined, the parties must exhaust their legal remedies of appeal or certio-rari. Judge Speer, in Southern Surety Co. v. Texas Oil Clearing House (Tex. Com. App.) 281 S. W. 1045, held that either a void or a voidablé judgment could not be enjoined until the parties had exhausted their legal remedies by appeal or writ of error. The case of G., H. & S. A. Railway Co. v. Ware, 74 Tex. 47, 11 S. W. 918, 919, is a leading case on this question. There it was sought to enjoin the execution of a number of justice court judgments and in this opinion, by Judge Gaines, it is said: “We are of opinion, however, that the general rule of equity should apply; and that if the defendant in the void judgment has had an opportunity to avail himself of a legal remedy to vacate it, and has neglected to make use of it, relief by injunction should be denied him.”

In a late case by the Galveston Court of Civil Appeals, Burris v. Myers, 49 S.W.(2d) 931, Chief Justice Pleasants held that an injunction could not be granted to restrain the execution of a judgment of a justice court not void on its face without exhausting all remedies to have it set aside in the trial court. This case holds that a defendant in such cases would be required not only to resort to an appeal or certiorari, but also to bring proceedings in the nature of a bill of review to set aside the judgment if the term of court had expired. In this case it was alleged that the judgment was procured by fraud. In that case a judgment was rendered in justice court, precinct No. 1, of Harris county, Tex., and the injunction was granted by a district judge of Galveston county, Tex. Judge Pleas-ants holds that the district court had no jurisdiction, as proceedings to set aside a judgment not void on its face should be brought in the court in which the judgment was rendered.

The petition in the case under consideration does not allege a meritorious defense to the cause of action in the justice court. It is merely alleged that the judgment was for a greater amount than the plaintiffs owed. The amount of the excess is not shown and no facts are alleged to apprise the court of the nature of the defense they had to such excess. If plaintiffs are contending that the judgment was procured by fraud, accident, or mistake, before they can get relief, after the close of the term, it is necessary for them to show that they had a meritorious defense and that the failure to avail' themselves of such defense was not the result of negligence or want of diligence on their part. In such cases the court in which relief is sought examines the entire case and renders such judgment as equity demands. The petition in this case is wholly insufficient for such purpose. Overton v. Blum, 50 Tex. 417; Southern Surety Co. v. Texas Oil Clearing House (Tex. Com. App.) 281 S. W. 1045; Cooper v. Cooper (Tex. Civ. App.) 260 S. W. 679.

The judgment of the lower court granting the temporary injunction is reversed and the injunction dissolved.


author: FLY, C. J.

text:
    FOOSHEE & HUNGERFORD v. CITY OF VICTORIA.
    No. 8875.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.

      Linebaugh & Guittard, of Victoria, and H. W. Wallace, of Cuero, for appellants.
    J. L. Dupree, Proctor, Vandenberge, Crain & Vandenberge, and J. W. Ragsdale, all of Victoria, for appellee.
   FLY, C. J.

This is a suit for $25,000, instituted by appellants against appellee. A general demurrer to the petition was sustained. The facts alleged in the petition must be assumed to be true for the purposes of this appeal.

It was alleged that a regular' election was held as to whether the city of Victoria should issue bonds in the sum of $250,000, the proceeds from the sale of which were to be used for the construction and improvement of the roads, bridges, and streets of said city. The proposition to issue the bonds was favored by the voters of the city and authority given for issuance of the bonds. It was alleged that after the bonds had been voted the city of Victoria entered into a contract with appellants, in terms as follows; unnecessary parts being omitted herefrom:

“First Party contemplates the installation of Street Paving for the City on streets to be hereinafter designated from the proceeds of $250,000.00 bond issue authorized by vote in the City of Victoria September 2nd., 1930, with the property owners to pay a proportionate part of said streets to be hereinafter designated, and Second Party agrees to do all engineering work in connection with making and constructing all such contemplated improvements.
. “A. Second Party agrees to make all necessary field surveys, prepare all plans, estimates and specifications, proposals, contract and bond for work contemplated. Field surveys to include any adjacent areas necessary for establishing drainage provisions.
“B. Plans and specifications to include detailed design of all work necessary to complete the project, including grading, grade and alignment of any drainage ditches, storm sewers, or other drainage provisions necessary to the proper drainage of said street paving.
“C. Supervision of construction to include all assistants, and inspectors necessary to properly supervise the work, preparation of all estimates and the furnishing of any reports of progress or cost data desired by the City.
“D. Compensation as agreed upon shall include all expenses including transportation and testing of materials incidental to the engineering of the project. And it is further agreed that either Mr. Fooshee or Mr. Hungerford is to be present during construction:
“It is further agreed that the work herein undertaken to be done by the Second Party shall be commenced immediately, and same shall be continued with due diligence until completed, the good of all parties concerned being considered, and that First Party, on their part, shall cooperate to the end that said work to be done by and under the supervision of Second Party shall be commenced and completed with due diligence, consistent of the good of all parties concerned.
“For and in- consideration of the' above mentioned and described engineering services, in connection with said street paving which is to be performed by Second Party, the City, First Party, hereby agrees to pay Second Party five per cent (5%) of the total cost of the construction of paving, storm sewers or ditches, including cost of material in construction of same, it being agreed that one per cent (1%) based on the estimated cost of construction to be paid to Second Party upon1 the completion of survey on any one street which may be hereinafter designated, and an additional one per cent (1%) to be paid upon completion and approval of the plans and specifications for the said improvements by First Party. The remainder of five per cent (5%) heretofore mentioned to be paid in proportion to the amount of construction done monthly.”

Appellants allowed a credit of $9,332.19 on a sum alleged to be due them of $24,728; after deducting the said credit, the amount of the indebtedness was $15,395.81, for which the suit was filed. The city seems to have changed mayors, and afterwards, by ordinance, canceled, abrogated, and revoked the contract made with appellants.

It was alleged that the contracts for the building of storm sewers, drainage ditches, and other improvements had already been made and said work practically completed, and that the sum of over $55,000 has been or will be paid for such improvements.

The allegations as to the storm sewers and drainage ditches are as follows:

“Plaintiffs allege that, of said sum of approximately $250,000.00 realized from the sale of said bonds, approximately $55,000.00 has been and will be expended for the construction of storm sewers, drainage ditches and other improvements contemplated by said contract and bond issue other than the paving of streets in said City. Plaintiffs are informed and believe, and therefore allege, that contracts have already been made, since the execution of the contract herein sued upon, between said City and various contractors, and work has been begun, for the construction of storm sewers and drainage ditches in said City, being those mentioned in paragraph X hereof, and an additional storm sewer beginning at the intersection of Church Street and De Deon Street in said City and extending eastward along said Church Street to Depot Street, thence northward along said Depot Street to Goodwin Avenue, the length of eight blocks, all of which storm sewers and ditches will be constructed for the estimated cost of approximately $49,350.00, including cost of en-: gineering, such estimated cost to be paid for out of the proceeds of said bond issue, without any contribution by owners of prop; erty situated adjacent thereto. The plaintiffs allege that an additional amount of approximately $5,650.00 will probably be expended out of the proceeds of said bond issue for storm sewers and improvements not above mentioned and not now contemplated, and that no other storm sewers and improvements other than street paving will be necessary. Plaintiffs allege that the sum of approximately $55,000.00 will be all of the money expended from the proceeds of said bond issue for the construction of such sewers, ditches, and improvements, other than street paving.”

The paragraph referred to in the language copied contains a description of the streets upon which the improvements were being made. The allegations as to the improvements in question separate and segregate them from the allegations seeking to hold the appellee liable for work not designated and which is merely anticipatory.

Appellants have based their suit for recovery for profits on the $250,000 bond issue, and contend that work on designated streets was to be done, such designations to be made at once and the whole of the amount of the bonds expended thereon. It is insisted that, when the bond issue was authorized by a vote of the people, such authorization was equivalent to a mandate to the municipal governing body to spend the money as fast as possible, no matter what inflation or depression existed, no matter what the market value of the bonds might be, the city council had been ordered to get what money they could and then spend it as fast as possible. The mandatory order to sell bonds and spend it at once on street paving carried with it an imperative order to levy assessments on owners of city lots in sums which in the end would result in an expenditure- of $500,000. The suit of appellants contemplates such assessments and such expenditures, and they are seeking to recover the modest sum of 5 per cent, on that vast outlay of money. To recognize such a claim would have the effect of placing the government of the city in the hands of' appellants and rob the city council of all discretion in the government of the municipality. No authority for such theories as those advanced by appellants has been presented, although it has been represented that wide search has been made for them. As -said by a learned lawyer who -cares more for wisdom and reason than for the rules of grammar: “It ain’t in the books.” The governing body of the city of Victoria has not and cannot abrogate the power and discretion vested in it by the voters. The bonds were placed in the hands of the council for certain purposes. The council had the power to determine the time and manner of the expenditure of. such fund, and they cannot be interfered with in the discharge of their powers by any judicial procedure, even though a contract has been made by them which would conflict with their governmental discretion. The council alone had the power to designate streets for improvement, and they could not be compelled by judicial process to expend money for such purposes at a time or in a manner not deemed by them wise and expedient. Dillon, Mun. Oorp. (5th Ed.), §§ 242 and 243. The learned judge said:

“Power to do an act is often conferred upon municipal corporations, in general terms, without being accompanied by any prescribed mode of exercising it. In such cases the common council, or governing body, necessarily have, to a greater or less extent, a discretion as to the manner in which the power shall be used. This discretion, where it is conferred or exists, cannot be judicially interfered with or questioned except where the power is exceeded or fraud is imputed and shown, or there is a manifest invasion of private rights. Thus, where the law or charter confers upon the city council, or local legislature, power to determine upon the expediency or necessity of measures relating to the local government, their judgment upon matters thus committed to them, while acting within the scope of their authority, cannot be controlled by the courts. In such case the decision of the proper corporate body is, in the absence of fraud, final and- conclusive, unless they transcend their powers. Thus, for example, if a city has power to grade streets, the courts will not inquire into the necessity of the exercise of it, or the refusal to exercise it, nor whether a particular grade adopted, or a particular mode of executing the grade, is judicious. * * *
“So, also, where, by its charter, a mu-nieipal corporation is empowered, if it deems the public welfare or convenience requires it, to open streets or make public improvements tbereon, its determination, whether wise or unwise, cannot be judicially revised or corrected.”

In passing upon ,the validity of the contract, allegations that the contract was valid, binding, and subsisting will be held by intendment to include the performance of every statutory requirement in the execution of the contract on the part of the council. This must be done under the familiar rule that every reasonable intendment will be read into the allegations of a pleading when assailed only through a general demurrer. If any cause of action is alleged, however imperfectly it may he done, a general demurrer will not lie against the pleading. To succeed in 'destroying pleadings through a general demurrer, no cause of action must be stated, or no matter of defense advanced. Imperfections, inaccuracies, inconsistencies must be reached through special exceptions. The general demurrer cannot serve the purpose of a special exception, for every reasonable intendment will be indulged to support a pleading under a general demurrer.

If it be true that there was a lack of mutuality in the contract, that defect was removed so far as that part of the contemplated improvements were completed or being completed, and the contract would become binding as to that portion of it.

It is contended by appellee that the uncertainty of the contract as to the improvements that would be made would render it void and incapable of enforcement. The contract is not open to attack on that ground. It clearly states that the streets of the city were to be paved in the designated order. The streets of the city are laid off and located. The number is known, the names are known, and all that remained to be done was the indication of the order in which the streets would be improved. The difficulties presented in the case of El Paso Gas, Electric Light & Power Company v. City of El Paso, 22 Tex. Civ. App. 309, 54 S. W. 798, cannot arise in this case, and there can be no conflict arising from fact or law. The electric lights in that case were not located and no number designated. The difference is clear.

However inadvisable and shortsighted it may have been on the part of a city administration to have made the contract with appellants, it was executed by the city, and it .has no more power to arbitrarily cancel and repudiate the contract than any citizen would have. It may be that an election had been, held after the contract was made, it may be that those in office were assailed for entering into the contract and were defeated on that issue, and it may be that a new administration is endeavoring to carry out pre-election promises to destroy the contract, but of these matters this court is not informed. If all the suppositions are true, they would not authorize the reckless disaffirmance and cancellation of a contract, merely because it was not entered into with reason and good business sense. There is nothing to indicate that fraud or deception was used to procure the contract or that by inefficiency or any valid reason appellants should not be permitted to do the work named in the contract.

The judgment will be reversed, and the cause remanded.