author: BARCUS, J.

text:
    SPURLOCK v. REPUBLIC BANK & TRUST CO.
    No. 1225.
    Court of Civil Appeals of Texas. Waco.
    Sept. 15, 1932.
    A. R. Stout, of Ennis, for appellant.
    J. C. Lumpkins, of Waxahaehie, for appel-lee.
   BARCUS, J.

Appellee instituted this suit in trespass to try title against J. S. and W. B. Spurlock to recover title to 110 acres of land in Ellis county. Henry Patak intervened, claiming that he was the owner of said land. J. S. Spurlock filed an answer, consisting of a plea of not guilty and a general denial, and by cross-action asked for judgment against Republic Bank & Trust Company. He alleged that he had rented said property on the third and fourth basis for the year 1930, that he had been forcibly ejected therefrom by ap-pellee, and asked for $1,450 actual and $5,000 exemplary damages. W. B. Spurlock was dismissed from the suit. Upon the trial, it was agreed between all the parties that ap-pellee had conveyed the land in controversy to Henry Patak and that the court should and it did, in accordance with said agreement, enter judgment for said Henry Patak awarding him the title and possession of the land. There being no complaint of that portion of the judgment dismissing the cause as to W. B. Spurlock and awarding Henry Patak the land, same is in said respects in all things affirmed. J. S. Spurlock alone appeals.

It appears from the record that appellant had for several years rented the property in controversy from appellee for farming purposes on the third and fourth basis. In January, 1930, appellee sold the land to Henry Patak and requested appellant to surrender possession. Upon his refusal to do so, it filed this suit in trespass to try title and had a writ of sequestration issued, and by virtue thereof obtained possession of the land and delivered same to Henry Patak.

The cause was tried to a jury and submitted on special issues. The jury found that appellant had rented the property for the year 1930 from appellee, and that appellee had 'wrongfully, without probable cause, and maliciously procured the issuance of the writ of sequestration. It found that appellant had Suffered no actual damages, but was entitled to $500 exemplary damages. Based on said -findings, the trial court entered judgment refusing appellant any recovery, on the theory that he could not recover exemplary damages without having recovered actual damages.

At the close of the testimony, and after the charge was read to the jury, appellant asked the court, under the provisions of article 2183, Revised Statutes, for the right to open and conclude the argument to the jury, on the theory that the burden of proof of the whole case devolved upon him. The court refused this request, and appellant presents same for review. We sustain this assignment. Unquestionably, under the facts in this case, ap^ pellant had the burden of proof cast upon him on each and every phase of the case as submitted to the jury. While appellant had entered a plea of not guilty and a general denial, he specifically alleged that he did not claim any interest in the land, and was only seeking damages by reason of having been illegally evicted therefrom.

Upon the trial of the cause, the parties agreed that appellee had conveyed the land to I-Ienry Patak, and that the trial court could and it did enter judgment in favor of Henry Patak for the land in controversy.

' Article 2183 of the Revised Statutes provides that, “after the evidence is concluded and the charge is read, the parties may argue the case to the jury. The party having the burden of proof on the whole case shall be entitled to open and conclude the argument." Unquestionably, under the facts in this case as revealed by the record, the burden of proof was upon appellant to establish affirmatively all material issues submitted to the jury; this being true, appellant was, by virtue of said article 2183, Revised Statutes, entitled to open and conclude the argument, although he did not file any admission as provided by rule 31 for the trial of causes in the district court. Haile v. Coker (Tex. Civ. App.) 258 S. W. 228; Texas Power & Light Co. v. Jones (Tex. Civ. App.) 293 S. W. 885 (error refused); Engelman v. Anderson (Tex. Civ. App.) 243 S. W. 728 (error refused); City of Rosebud v. Vitek (Tex. Civ. App.) 210 8. W. 728; St. Louis Southwestern R. Co. v. Roman (Tex. Civ. App.) 244 S. W. 197 (error dismissed).

Appellee contends that the trial court correctly refused appellant’s request on the theory that, since appellant had filed a plea of not guilty, the burden of proof was on it to show- title to the land. We cannot agree with this contention. As above stated, ap-pellee and appellant each agreed at the time of trial that the trial court should and it did enter judgment in favor of Henry Patak, the intervener, for the title and possession of the land in controversy. The sole issue then left for the trial court and jury to determine was whether appellant had a rental contract for the land in question for the year 1930 and whether appellee had illegally dispossessed him thereof, and, if so, the amount of damages he had suffered. The burden of proof rested upon appellant to establish the affirmative of each of these issues.

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


source: Caselaw Access Project

author: PELPHREY, C. J.

license: Public Domain

text:
    BORDELON v. PHILBRICK et al.
    No. 2701.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 15, 1932.
    Rehearing Denied Oct. 6, 1932.
    B. W. Ashworth, C. E. Parrall, and W. H. Hall, all of Dallas, for appellant.
    W. R. Herring, of Dallas, for appellees.
   PELPHREY, C. J.

Appellant, as plaintiff, sued appellee, A, G. Philbrick, and his surety, National Surety Company, in the county court at law, No. 1, Dallas county, Tex., seeking to recover the sum of $429.80, with interest.

Appellant alleged that Philbrick was the duly elected and qualified constable of justice precinct No. 7 of Dallas county during the month of January, 1929, and that the National Surety Company was the surety on his official bond as such constable; that on the 3d day of January, 1929, a suit was filed in the justice court of said precinct No. 7 by Metropolis Company, a corporation, against appellant; that, upon affidavit and bond being filed, a writ of sequestration issued to Philbrick as constable directing him to take possession of certain enumerated personal property then in the possession of appellant; that the possession of said property was lawfully in appellant, and that he had a money interest therein in the sum of $329.80; that on January 19, 1929, another suit was filed by the same party against appellant and another writ of sequestration issued commanding Philbrick to take possession of certain other personal property to the possession of which he was lawfully entitled and in which he had an interest of $100; that Philbrick or one of his deputies took possession of the property under said writs; that Philbrick later resigned as constable, and was succeeded by Jim S. Dancer, who in turn was succeeded by L. C. Sport; that Philbrick did not deliver possession, either actual qr constructive, of the property to his successor in office; that Phil-brick either stored the property with the Metropolis Company, who disposed of the property while Philbrick was still constable, or negligently stored the property whereby same was lost and cannot be located; and that lat'er the two cases were dismissed at request of the attorneys of the Metropolis Company, thereby entitling appellant to a return of the property or its value amounting to $429.80.

National Surety Company answered by general demurrer, special exceptions, and a general denial. Philbrick demurred generally and specially to the petition, generally denied the allegations thereof, and pleaded nonjoinder of his successor in office. National Surety Company also demurred generally and specially, and generally denied the allegations of the petition.

On motion of appellant, the court permitted the substitution of the state of Texas as party plaintiff. The state to maintain its suit for the use and benefit of appellant.

The cause was tried to a jury, but, upon the conclusion of the testimony, the court instructed the jury to return a verdict for both appellees. From' the judgment rendered upon such instructed verdict this appeal is prosecuted.

While there are several questions presented in the briefs of the parties, yet we have concluded that only one need be considered. Appellant based his suit upon the bond entirely, and prayed for judgment against ap-pellees as parties thereto; therefore, in order to recover, it is incumbent upon him to show a right under the bond.

Prior to the 1925 codification, the statute contained a provision allowing a party injured to recover on the official bond of a constable (article 7141, Revised Statutes 1911), but such provision was omitted from the 1925 Code (article 6881, Revised Statutes 1925).

Therefore, under the law as it now stands, third persons have no right of action on the official bond of constables, and the trial court properly instructed a verdict for appellees. American Indemnity Co. v. Yocham (Tex. Civ. App.) 42 S.W.(2d) 817 (writ refused).

The judgment of the trial court is accordingly affirmed.


author: JONES, O. J.

text:
    UNITED BROTHERS OF FRIENDSHIP OF TEXAS v. WILSON.
    No. 10995.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 10, 1932.
    Rehearing Denied Oct. 8, 1932.

      Webb & Webb, of Sberman, J. V. Meek and J. M. Nabrit, Jr., both of Houston, and Thos. B. Love, of Dallas, for appellant.
    W. J. Durham, of Sherman, for appellee.
   JONES, O. J.

■In a suit in the district court of Grayson county, app'ellee, James Wilson, recovered a judgment in the sum of $875, with interest, from appellant, United Brothers of Friendship of Texas, ao damages for the wrongful cancellation of a policy of insurance issued to appellee. From this judgment appellant has duly perfected an appeal. The following are the necessary facts:

Appellant is a fraternal benefit society doing business in this state on the lodge plan, the Grand Lodge being located at Houston, Tex., and local lodges being located -at different places in the state. There was one such lodge in Sherman, Grayson county, Tex., of which appellee had * been for many years a member. The policies of insurance issued to members of local lodges were issued by the Grand Lodge, and it alone is liable to the beneficiary for payment of insurance. This suit is against the Grand Lodge, and is for the alleged wrongful cancellation of appellee’s insurance policy which provides for the payment of $500 to the beneficiary named in the policy, and also the payment of the additional sum of $75 for burial expenses.

The contract of insurance contained no clause for sick benefit, but the local lodge at Sherman, as it was authorized to do, levied a local assessment against the local members for a sick benefit fund, and appellee, if his insurance to the Grand Lodge was in force, was entitled to the benefit, provided for in case of sickness, from the local lodge, to be paid out of such assessments, but the insurance policy issued to appellee does not create a contract with the Grand Lodge for the payment of any sick benefit. The local lodge at Sherman is alone responsible for such payment.

The contract of insurance evidenced by the policy issued to appellee is dated November 10, 1921, but this contract of insurance is in lieu of a former similar contract of insurance issued to appellee by appellant in 1901. Appellee is required to pay the sum of $4.20 quarterly under his contract of insurance, and is allowed thirty days, under appellant’s constitution, after the expiration of the quarter within which to make such payment. If payment should not be made within this time, appellee would become, automatically suspended, but, within a period of sixty days from the expiration of such thirty-day period, he could be reinstated and his insurance again placed in force by the payment of such assessment. .The constitution and by-laws of the appellant lodge requires payment of such dues to be made through the local secretary; that is, every member is required to pay his dues, not directly to the Grand Lodge, but to the local secretary, and the local secretary is required to send to the Grand Lodge that portion of the dues due such Grand Lodge and to hold that portion due to the local lodge.

The undisputed evidence shows that on July 1, 1929, a quarterly payment of $4.20 on appellee’s policy of insurance became due. Such evidence further shows that no payment of this sum was made by appellee, or by any one for him, and that on August 1st, thirty days after the maturity of the quarterly payment, appellee, having still failed to make the payment, became automatically suspended. However, appellee had the right, within sixty days from August 1st to pay to the local secretary of the Sherman lodge the $4.20 and become reinstated as a member of the lodge and thereby cause his policy to become again enforceable. The undisputed evidence further shows that no payment to the local secretary was made or tendered within this sixty-day period, and that such suspension became final. Such evidence also shows that one Overby, the beneficiary named in the policy, had been paying appellee’s dues for a number of years, appellee being over eighty years of' age and unable to earn any money, and that several days previous to October 1, 1929, Overby sent to the secretary of the Grand Lodge at Houston a postal money order in the sum of $4.20 to pay appellee’s dues and thus to keep the policy of insurance in force. This postal money order was returned to Overby by the grand secretary with the statement that the payment would have to be made to the local secretary and could not be accepted by the Grand Lodge. Overby was a member of the local lodge, had been secretary of same, and knew the provisions of appellant’s constitution in reference to making such payments. Overby accepted the return of the money order, but made neither payment of the money, nor a tender, to the local secretary. His excuse for sending the money to the secretary of the Grand Lodge and for not paying the $4.20 to the local secretary is that the lodge had given up its lodge room, was not holding any lodge meetings during the period of time referred to, and hence he could not find the local secretary in the lodge room so that he could make the payment to such local secretary. The local lodge had not disbanded and could not disband as long as it had seven members, but, as stated above, it was not holding lodge meetings. No explanation is offered why payment or tender within the sixty-day period allowed was not made to the local secretary either personally outside of a lodge room or by use of the mail. Both the secretary and Over-by lived in the city of Sherman. Appellee •testified that, in December, 1929, he asked the local secretary how much was due on his insurance policy and that the local secretary told him that he (appellee) was “already defunct,” and that he did not offer then to make the payment, although he had the money at that time to do so.

Appellant showed, hy evidence, that appel-lee was still carried as a member, no order of suspension or dropping appellee from its list of membership had ever been entered, either by the local lodge or by the Grand Lodge; that this course of procedure of thus carrying a member with full rights as to insurance, who, under the constitution and bylaws of the order, was automatically suspended, had been followed by appellant in a number of other instances.

At the close of the testimony, appellant moved for peremptory instruction, and also requested peremptory instruction, in its favor, bn the ground that the evidence failed to raise any issue as to the wrongful cancellation of appellee’s insurance policy. This motion was denied, and the request was refused by the court, and two special issues were submitted to the jury on appellee’s right to recover damages for the wrongful cancellation of his insurance policy; the jury solved these special issues in favor of appellee. On these issues the jury found: (1) That appellee, or another acting for him, tendered to appellant at its office in Houston, or to an agent authorized to accept such money, the money due, and made such tender prior to October 1, 1929; (2) that James Wilson has been suspended as a member of appellant’s order since .October 1, 1929; a third question as to the .amount of damages sustained by appellee was ■submitted and answered by the jury in the sum of $875.

. Numerous errors are assigned by appellant, but there are only two necessary to be discussed, under the disposition we make of this case. These issues are: First, in reference to an attempted appeal from an order overruling .appellant’s plea of privilege to be sued in Harris county, the domicile of the Grand Lodge; second, in reference to whether the .court erred in refusing appellant’s requested peremptory instruction.

It appears from a bill of exception in .the record that appellant’s plea of privilege was heard on the 9th day of June, 1930, and that the court overruled such plea, to which action appellant duly excepted. There is no judgment or order in the record before this court, showing the order or judgment, on this ■plea of privilege. The trial was in November, 1930, and a motion at that time was filed by appellant praying that the court reconsider and set aside its order overruling the plea of .privilege, which motion was overruled by the court and exception duly 'taken. We know judicially that the term of the court at which the order overruling the plea of privilege was made had adjourned, and that the motion to reconsider the action of the court had at such former term of court was made at a subsequent term, and hence cannot be considered for any purpose, for the judgment had then become final and not subject to review, by the character of motion filed. We cannot consider any judgment or order of a court unless the judgment or order complained of appears in the record, and this requirement is not satisfied by the mention of the existence of such order in a bill of exception. Appellant’s contention in reference to its plea of privilege is overruled.

Should appellant’s requested peremptory instruction in its favor have been given? Appellee’s contention in reference to this, issue is, and must be, based on the theory that the sending of a postal money order to the grand secretary at Houston within the sixty-day period was a legal tender of the amount of the dues, and should have been accepted by such secretary, and that his declining to accept same in no way prejudiced the right of appellee as to membership in the lodge, or as to his policy of insurance.’ If this-contention be correct, then there was- evidence to support the findings of the jury. The question at issue then is presented in this form: Was the secretary of the Grand Lodge acting in.the performance, of his duty, under appellant’s constitution and by-laws, when he returned the postal money order to Overby and refused to accept same in payment of appellee’s quarterly dues? It appears that this money order was returned in time for Overby to have made the payment to the local secretary through the United States mail at Sherman, Tex., within the sixty-day .period. Overby knew that the local secretary .of the Sherman lodge was the only one authorized by the constitution and by-laws of the order to receive such payment when he sent the money order to the grand secretáry. The grand secretary is charged with the performance of his duties under the constitution and by-laws of the order he represénts. A portion of this' money was to be retained by the local lodge,, and hence the reason for the law of the lodge, as to whom such payment' should be made, is clearly made to appear, and must be recognized as reasonable and just,- and binding on each member in the matter of making payment of his dues. It necessarily follows that the grand secretary was in the rightful performance of his official duty, when he declined to accept the money order and returned it to the sender with instruction -to pay it to the local secretary. This, Overby, the agent of appellee in making such payment, declined to do, and no payment of the delinquent dues was made within the sixty-day period. Thus, under appellee’s theory and testimony in this case, appellee became legally automatically suspended on October 1, 1929, and his insurance policy thereby canceled.

Under appellant’s testimony and theory of the case, appellee never was suspended, and his insurance policy is to-day’ in full force. If either appellant’s or appellee’s theory be accepted, the result is fatal to appellee’s cause of action. We therefore hold that there was no issue made by the evidence to submit to the jury as to the wrongful cancellation of appellee’s policy, and that the trial court erred in refusing the requested peremptory instruction.

It follows, from what has been said, that it is the duty of this court to reverse the judgment o.f the lower court and here render judgment in favor of appellant that appellee take nothing by his suit, and it is so ordered.

Reversed and rendered.


author: PUNDERBURK, J.

text:
    WHITNEY v. NOLAN COUNTY et al.
    No. 986.
    Court of Civil Appeals of Texas. Eastland.
    June 24, 1932.
    Rehearing Denied Sept. 30, 1932.
    H. R. Bondies, of Sweetwater, for plaintiff in error.
    Gus Parrar, of Austin, for defendants in error.
   PUNDERBURK, J.

This case comes up by writ of error to have us review ⅝>. judgment of the trial court awarding recovery in favor of the plaintiff Nolan county upon a promissory note in the principal sum of $17,714 against A. M. Sullivan and the foreclosure of a vendor’s lien securing said note as against the said Sullivan and A. G. Lynch and E. W. Whitney. Neither Sullivan nor Lynch has appealed, and hence the judgment as to them is not sought to be reviewed. E. W. Whitney as plaintiff in error challenges the judgment below in so far as it decrees a foreclosure against him of the vendor’s lien. He was a nonresident of the state. In this court his contention is to the effect that the return designed and necessary to show legal service of the required notice to him as a nonresident was insufficient in three respects, as follows: (1) It showed the date of such service to be an impossible date; (2) it was not shown to be signed by the party making such service; and (3) it was not shown to have been sworn to by the party making it. The return in question was as follows:

“The State of Oklahoma, County of Seminole.
“Personally appeared before me, the undersigned authority, S. A. Doyle, who being by me duly sworn deposes and says that on the 5th day of March, A. D. 1931 at 10:30 A. M. in the city of Wewoka, County of Seminole, State of Oklahoma, he delivered to E. W. Whitney, in person, the defendant in person, a true copy of this notice, with a certified copy of the plaintiff’s petition accompanying same; and further that he is an adult male, and is in no manner interested 'in this; suit.
“Sworn to and subscribed before me, this 3rd day of March, 1931. C. P. Aldridge, Sheriff, By S. A. Doyle, Deputy Sheriff. Ellis Cooper, County Clerk.
“[Seal.] Showing imprint of County Clerk, Seminole County, Oklahoma.”

We are of opinion that the affidavit shows with the requisite degree of certainty that proper notice was served upon said E. W. Whitney by S. A. Doyle on March 5,1931, and that said S. A. Doyle made and signed the affidavit showing such service. It is therefore, in our opinion, sufficient to show valid service. The affidavit plainly states that the date of service was March 5, 1931. This was required to be stated, and a failure to so státe, or the statement of an impossible date, would have been fatal. Texas State Pair & Dallas Exposition v. Lyon, 5 Tex. Civ. App. 382, 24 S. W. 328. It is insisted that the dating of the affidavit as of March 3,1931, shows that March 5, 1931, was an impossible date of the service. It may be conceded that, if the law required the date of the making of the affidavit to be stated, as it did require the date of service to be stated, the return would be void. Such invalidity, however, would not have been because the date of service was an impossible date, but because the date of the affidavit was an impossible date. The law, however, does not require the affidavit to state the date it is made. 2 Tex. Jur. 358; Order of Aztecs v. Noble (Tex. Civ. App.) 174 S. W. 623. The statement of the date as March 3, 1931, may therefore be regarded as immaterial error. It cannot, we think, be made to destroy the full force and effect of Doyle’s affirmation that he served the notice on March 5th.

The words, “C. E. Aldridge, Sheriff, By,” preceding the signature of “S. A. Doyle,” should be treated as surplusage. It in no manner contradicts or renders uncertain the fact that Doyle was the signer, and the one making oath to the instrument subscribed. The signature of Doyle should, according to good form, have preceded the jurat. It does not affect the validity of the affidavit that it comes after the jurat. 2 Tex. Jur. p. 255; Kohn v. Washer & August, 69 Tex. 67, 6 S. W. 551, 5 Am. St. Rep. 28.

Being of opinion that the proof of service was sufficient to support the judgment, and that the judgment should therefore be affirmed, it is accordingly so ordered.


author: WALKER, C. J.

text:
    BROOKS et al. v. ZORN.
    No. 2202.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 27, 1932.
    Rehearing Denied Oct. 12, 1932.
    Howth, Adams & Hart and S. M. King, all of Beaumont, for appellant.
    W. D. Gordon and E. E. Easterling, both oí Beaumont, for appellee.
   WALKER, C. J.

This case has been before this court twice before. Brooks v. Cherry, 298 S. W. 170, and Brooks v. Zorn, 24 S.W.(2d) 742, 745. We refer to our opinions thus reported for the history, nature, and result of this suit on the former appeals. Under our mandate of reversal and remand, it was again tried to a jury, and on the 15th day of May, 1931, on motion of appellee, judgment was rendered in his favor for “the following described property, to-wit: Situated in the City of Beaumont, Jefferson County, Texas, and being all of Block 4 of B. D. Crary Addition to Beaumont, save and except the lots 45 and 46 of said Block 4 sold on December 16,1924, to M. Kassan, as evidenced by deed recorded in Yol. 249, page 133, of the Deed Records of Jefferson County, Texas; and save and except the three lots out of said Block 4, described in a deed from T. D. Brooks et al. to J. B. Heartfield, et al., dated November 9, 1925, and recorded in Yol. 262, page 83 of said deed records, all the remainder of said lots in said Block 4 being hereby adjudged to the plaintiff against the said defendant, and that writ of possession and restitution ■be issued therefor.” Prom that judgment appellant has duly prosecuted her appeal to this court.

This case was an action by appellee, J. Zorn, trustee in bankruptcy of Brooks Supply Company, a corporation, against appellant, Mrs. Pearl Brooks individually and as independent executrix and sole devisee and as survivor in community of T. D. Brooks, deceased, •to recover that portion of block 4 of the Crary addition awarded to him,by the judgment of the court rendered herein, together with the proceeds of the sale of certain lots sold by appellant and her husband out of this block.

We take the following statement of the facts of the acquisition of block 4 of the Crary addition from our former opinion in Brooks v. Zorn, supra:

“The record discloses that the corporation, Brooks Supply Company, bought what is known as block No. 4 of the B. D. Crary addition to the city of Beaumont, for the purpose of erecting thereon a home for the corporation. It paid $10,000 cash for the land. The home for the corporation was not built. Brooks testified that the reason the home for the corporation was .not built was because when the corporation got any money ahead, the directors would have it paid out in dividends. He testified that the stockholders ‘kept after’ him to sell block 4, kept after him ‘to do something with it,’ said ‘we couldn’t build on it,’ and he decided to buy it himself. On February 9,1921, without any resolution or order by the board of directors of the corporation, authorizing the sale of this property, T. D. Brooks, as president of the corporation, executed a deed conveying to' himself said block 4 for a recited cash consideration of $12,000. This deed was attested to by H. W. Gardner, as secretary of the corporation, and impressed with the corporate seal. Subsequent to his purchase, August; 1924, Brooks transferred block 4 to his wife for a recited consideration of ‘one dollar and love and affection.’
“March 28, 1924, Brooks sold a one-half interest in three of the lots in block 4 to W. D. Gordon, who had previously purchased the stock of J. L. Ounningham in the corporation ; Brooks and Gordon made valuable improvements on these three lots and then sold them to Heartfield and others, the purchase price and interest thereon paid ;by Heartfield amounting to $14,340. December 16, 1924, Brooks and wife sold two of the lots in block 4 to one Kassan, for a consideration of $3,727.50. The remaining lots in said block were unsold, the title still standing in the name of Mrs. Pearl Brooks when this suit was instituted.”

We supplement the foregoing statement by the following excerpts from appellee’s brief:

. “Brooks himself was shown to own 66% of the stock of the corporation, Mr. Joe Cunningham 22% and all the other stockholders 12%. Cunningham was adduced as a witness by appellant and his narration of the details of such transaction is shown' in his testimony as follows:
“It was discussed for several days on the street, in the bank, in Mr. Brooks’ office, in arriving at a conclusion as what to do with this block, and when we met there and decided to affirm the sale, make the sale, it was so well known that no one had any objection and every one understood what was being done. . .
. “Q. Known to whom? A. Those interested.
“Q. Now where was that meeting? A. The meeting was in the Texas Bank when the consummation was made.
“Q. Now who was there? A. Well Brooks was thereGardner was there; Shelby was there; I was there, and Johnny Heartfield was there — I think all is mentioned except Mrs. Little and as I recall it now she wasn’t ■present. And that was the consummation after a week or two of discussion here and there in arriving at a program as to the deal.
‘■‘Q. After discussion where? A. At various places, as I said.
“Q. One at a time between Brooks and somebody? A. I think Mr. Brooks happened to be in the bank and Howard Gardner, who was there with me, or probably he had Johnny Heartfield with him and just as occasion would come up we would discuss it. I mean' several times during the course of arriving at a conclusion of a sale.
“Q. Now then who was, — what was said there? You have named who was there what was said there and who said it? A. Just an ordinary conversation closing the deal. Mr/ Brooks just said we are ready to close this matter up and he made payment to the other people then.
“Q. Right then the day that deed was made? A. The day that deed was made.
“Q. They were all paid right there with them? A. They were paid there.
“Q. Now who was paid and how much to each? A. I don’t just remember; their pro rata part according to agreement, and pre-' suming that it was — that they were paid ini accordance with the trade that’s all. They-were all to get theirs and I wasn’t to get mine.”
“He then narrates as a part of the discussion ‘2 or 3 days before’ took place in front of the City National Bank and that was a conversation between Brooks and Shelby, and that Mr. Brooks told him that he had had such conversation with Shelby and that they had had Mr. Pondrom, a disinterested party ‘to figure this thing out for us.’ ”
“This witness was asked the following question:
“Q. You know the only dividend you got was this informal dividend that you got out of this company’s block of ground? A. They just made a sale of the property and just distributed the proceeds of the sale proportionately.
“Q. In other words they valued that prop-; erty at $12,000, and said to Mr. Brooks informally, verbally, some of them did — or all-, of them did — you take this $12,000 and you give us your check for our pro rata share, of that $12,000 and it’s yours? This is the deal ain’t it? A. That describes it very well,' and I think I would have gotten mine right at the same time if mine hadn’t been sc> large that he (Brooks) says ‘I’ll fix yours' later Joe’ and this is the whole situation.”
“The following was adduced from this witness:
“Q. Well now you knew at that time that this corporation itself so far as its treasury was concerned received not, one dollar of that money didn’t you? A. Well it wasn’t the purpose of the sale for them to receive the money.
“Q. Was there anything said about who. was going to look after the creditors of this company after $12,000 of its assets was partitioned in that manner between the stockholders — who was going to pay the debts? A. I don’t think that was discussed.
“Q. Did Mr. Brooks, or any of the rest of you, say that that was the consideration that he was paying for this block or that he was going to pay some other consideration? A. That was the consideration.
' “Q. That was the whole consideration wasn’t it? A. That’s my opinion.
“Q. Your recollection? A- Tes sir.
“Q. You never heard of any additional consideration than that did you for the sale of this block? A. Well I thought that was the price.” .
‘‘He was asked about other stockholders and as to whether they were present but he ‘ was unable to say who were the other stockholders, particularly as to Mr. Edwards and Mr. Duncan Allen, and this question was asked him:
- “Q. But you have stated all who were present at that verbal agreement? A. Well the only onés-X recollect. It has been a long time ago, those are the only ones I recollect.”
‘‘He claims that he carried Mrs. Little’s share of the money to her, she not being there at the time.”

At the time of this sale, Brooks claimed an account against the corporation in excess of the $12,000 purchase price. He paid the purchase price ‘by charging himself upon the books of the corporation with $12,000, and in addition thereto paid the other stockholders their pro rata part as represented by their étock holdings, as shown by the Cunningham testimony just quoted. Subsequent to the sale, in an attempt to ratify the deed in question, the board of directors passed the resolution set out in our opinion in Brooks v. Zorn, in the middle of column 2, 24 S.W. (2d) 742, 746. The facts of the ratification and the issues relating thereto are given in that opinion.

■ On the former appeal we construed appel-lee’s petition as an action to cancel the Brooks deed. On that theory we overruled the contention of appellant that she was entitled to an instructed verdict on her issue of. limitation; that is, that this suit was not seasonably filed and was subject to the bar of the statute of limitation of four years. Our opinion, as above reported, at bottom of page 749, paragraphs 18-21 to paragraph 22, column 1, page 750, shows that we treated this issue of limitation as one of the controlling issues in the case and that this theory of' limitation rested entirely upon our conclusion that 'the appellee’s petition was an effort to cancel the Brooks deed, and the pleadings of the defendant presented certain defenses thereto which we directed to be sent to the jury.

Appellants have briefed their case on the issues upon which it was reversed and remanded by our last opinion. Appellee has replied by three counter propositions, but on submission in this court submitted his case upon the following statement of the nature of the case, as made by his construction of the pleadings. In his written brief filed herein he says:

“This is not a suit by stockholders to cancel a deed and recover damages. It is not a suit by creditors to cancel a deed and to recover damages.- It is not á suit by the trustee in bankruptcy to cancel-the deed to Block 4, Orary Addition, or any part thereof. It is not a suit based upon allegations whereby the jurisdiction of a court of equity is invoked to annul a corporation’s act or transfer of its property.
“Yet an inspection of the brief by appellants and of propositions laid before the court in this case, assert that it is all of these things.
“We here state that this is á suit by the Brooks Supply Company, nouf in bankruptcy, acting through the agency and representative of the trustee in bankruptcy, to recover its assets, consisting of what is left unsold of Block 4 of the Crary Addition.” ; •'

„In his oral argument on submission, which he reduced to writing and filed with us as .a part of the record, he says:

“If the Court please, I concur with counsel that this case should be affirmed, reformed and affirmed, because of the failure of the lower court to add an item of recovery to the judgment or that.it should be reversed and rendered. We, therefore, occupy "common ground on what procedure ought to- occur in the disposition of the case.
* ⅜ So I repeat, it is up to you gentlemen to affirm this case or to reverse it and you will declare the law and apply it to a state of undisputed facts, and if you affirm it, you will do likewise, apply the law to the undisputed facts. , ,
“ » ⅜ * j ¾6116¥6 that this court misapprehended this case upon the former hearing of it, because the opinion clearly shows it in some of its recitals, that it conceived that this was a suit on behalf of stockholders seeking to cancel and annul a voidable conveyance. There never was any such; case here. No such case was initiated to start with, and it • has been amended twice or three times, and there is no such case presented in any amendment. Now what is the case? That is the first question, and what is the case depends upon what the pleadings define as the case. We never sought to cancel a deed, to attack a voidable transaction. We never instituted a suit for stockholders, to assert rights in them -to recpver anything.
“ * * * ⅛⅛ suit is to cancel a deed to that piece, of land, reverse and render it to them, not for us. Don’t affirm it; there has been no such case before this.court. We have a case before this court seeking to recover what? This land and the money oh-tain'ed by these defendants for purchases of this land sold by them. On what theory? On the theory that the transaction was absolutely- void, whereby they undertook to give it away from the corporation, that the title never left that corporation, and passed into Bankruptcy to Mr. Zorn, the trustee in bankruptcy, who is the' agent provided by law for the corporation, and the corporation is acting through him, just like it acted originally through the Board of Directors and President. Now that is our suit.”

As we understand appellee’s construction of the pleadings and the theory of the law thus advanced by him, he rests his case absolutely, and entirely upon his proposition “that the transaction was absolutely void.” He presented this theory of the case to us on the last appeal. We overruled this contention, saying:

“Appellee insists that the deed executed by Brooks to himself, without authorization of the board of directors, was utterly null and void and ineffectual to convey to him the corporation's title to block 4 in question; wherefore, the instructed verdict was proper ¿nd the judgment should be affirmed.
“We do not believe this contention sound. The mere fac.t that Brooks, as president of the corporation, executed the deed to himself as an individual, did not invalidate the deed, provided its execution was lawfully authorized. A deed executed by the president of a. corporation under the seal of the corporation, to himself as an individual, is not void on its face, but at worst only voidable. Speaking for the San Antonio Court of Civil Appeals, in Coleman v. Luetcke, 164 S. W. 1117, 1120, Judge Ely said: ‘There is no force in an objection to a deed because made by the president * * * to himself. Jones v. Hanna, 24 Tex. Civ. App. 550, 60 S. W. 279.’
• “We regard the case of Tenison v. Patton, 95 Tex. 284, 67 S. W. 92, 93, as being directly in point on the proposition that the deed by Brooks to himself was not void. In that case Tenison held the legal title in trust for the State National Bank of Dallas. Thus holding the title he deeded the land to J. P. O’Connor. The suit was against Tenison to require him to account for the profits made by a sale under O’Connor. The issue was whether O’Connor acquired the absolute title, or whether he held the title in trust for Teni-son. Judgment was against Tenison on the theory that O’Connor was holding the title in trust. Judge Williams thus stated the legal •issue: ‘The argument in support of the judgment rests upon the principle that a trustee, or person occupying a fiduciary relation to another, is incapacitated, in equity, to buy from himself property committed to his care.’ While recognizing the soundness of the principle thus stated by him, in overruling the proposition that a deed made in violation of this principle was void, he said: ‘We are therefore of the opinion that, situated as • was this corporation, the mere fact that Teni-son was a director of the corporation and was interested on both sides of the transaction in question, does not conclusively establish its voidability. That, at the worst; it was only voidable, nearly all of the authorities agree; the principal difference being upon the question whether or not it was voidable at the mere option of beneficiaries, without inquiry into its inherent fairness.’ Davis v. Nueces Valley Irrigation Co., 103 Tex. 243, 126 S. W. 4, 7, also supports our holding that the deed was not void. In that case Davis, as president of the corporation, deeded the land in question to his wife, who was also a stockholder in the corporation. Discussing this deed, Judge Brown said: ‘The invalidity of her purchase depends upon the question whether or not it was practically a purchase for and on behalf of her husband. If the property purchased by her became a part of the community estate of herself and her husband then the transaction would be voidable.’
“In support of their proposition that the deed by Brooks to himself was absolutely void, appellee cites the following Texas cases: Tempel v. Dodge, 89 Tex. 69, 32 S. W. 514, 33 S. W. 222; Green v. Hugo, 81 Tex. 452, 17 S. W. 79, 26 Am. St. Rep. 824; Aransas Pass Harbor Co. v. Manning, 94 Tex. 558, 63 S. W. 627; Davis v. Irrigation Co., 103 Tex. 248, 126 S. W. 4; Tenison v. Patton, 95 Tex. 284, 67 S. w; 92; Texas Consol. C. & M. Ass’n v. Dublin C. & M. Co. (Tex. Civ. App.) 38 S. W. 404. The Maiming and Teni-son Cases have already been reviewed, and they go no further than to say that at the worst such a deed is voidable. Tempel v. Dodge and Green v. Hugo are not in point for the reason that in those cases the deeds were not executed by the president of the corporation. The Dublin C. & M. Company Case is not in point, since in that case the deed was not executed under the seal of the corporation.” 24 S.W.(2d) 742, 749, bottom col. 1, top col. 2.

Appellee’s petition for writ of error against our last opinion .was dismissed by the Supreme Court for want of jurisdiction. As the Supreme Court thus refused to review our conclusion that the deed in issue herein was not absolutely void, we think that construction has become the law of this case.

As the Brooks deed was merely voidable, and not absolutely void, appellee could have relief only by having a cancellation of the deed. He now says that cancellation was not prayed for by him, nor does he ask that relief in this court. It follows from what we have said that the judgment of the lower court must; be reversed and judgment here rendered for appellant for the land in controversy.

However, if our last opinion correctly defines the issues made by the pleadings, it would still be our duty to reverse and render the judgment of the lower court. The issue of four years’ limitation, as defined in paragraphs 18 to 21 of our last opinion (24 S.W. (2d) 742), was sent to the jury by the trial court and found in appellant’s favor.

Reversed and rendered.


author: JONES, C. J.

text:
    ORCHIN et al. v. FORT WORTH POULTRY & EGG CO. et al.
    No. 10869.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 17, 1932.
    For prior opinion, see 43 S.W.(2d) 308.
    Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellants.
    McCormick, Bromberg, Leftwich & Car-rington, Seay, Seay, Malone & Lipscomb, and Tarlton Stafford, all of Dallas, for appellees.
   JONES, C. J.

At a former day during this term of court, this cause was reversed and remanded, writ of error was prosecuted to the Supreme Court, and a final judgment of denial of such writ was entered by the Supreme Court. After the mandate of the Supreme Court was filed in this court, but before this court had issued its mandate to the lower court, appellants duly filed a motion to reform the judgment entered in this court and to retax the cost. Appellee Fort Worth Poultry & Egg Company filed a similar motion and ásked for similar relief.- Appellee Indemnity Insurance Company of North America, a corporation, filed a motion also praying that the judgment of this court be reformed and' the cost retaxed. The relief sought by each party will appear in the discussion of the motions. The original opinion is reported in (Tex.Civ.App.) 43 S.W.(2d) 308, and reference is made to such opinion for a full statement of the case.

For the purposes of this discussion, it may be briefly stated that Joe Orchin, deceased, was the husband of appellant Mrs. Eunice Orchin, and the father of the minor plaintiff, Dorothy Orchin; that Joe Orchin, at the time of his death, was an employee of the Gulf Refining Company and received his fatal injuries while in the scope of his' em: ployment; that the Indemnity Insurance Company of North America was the compensation carrier; that because of the death' of Joe Orchin, the appellants were entitled to compensation of $20 per week for 360 weeks and the Indemnity Insurance Company of North America has become obligated to pay to appellants such weekly allowance, and has made all matured payments on Such 'obliga'tion, and will continue to make the -future payments until the obligation is fully'- discharged. Appellant's instituted the suit to recover damages suffered by them, in excess of the compensation payments, against the Fort Worth Poultry & Egg Company, on'-allegations that the negligence of the operator of a truck belonging to, and being operated by, the Fort Worth Poultry & Egg Company, directly and proximately caused the. death of Joe Orchin. The Indemnity Insurance Company of North America intervened in this suit and set up its statutory cause of action against the same defendant for recovery of the amount it had paid on the weekly allowance to appellants, and the amount it is obligated to pay to appellants in the future.

The trial in the district court resulted in a judgment against appellants, as plaintiffs, and against the Indemnity Insurance Company of North America as interveners, and they were adjudged to take nothing by their suit. Appellants prosecuted an appeal to this court, but the Indemnity Insurance Company of North America prosecuted no appeal, and permitted the judgment against it to become final in the district court. Appellants and the -Fort Worth Poultry & Egg Company urge that the judgment entered in this court may in legal effect be construed to reverse and remand the entire case, both as to appellants’ cause of action and as to the cause of action alleged by the Indemnity Insurance Company of North America, though the opinion of this court indicates that it is only in"tended to enter a judgment reversing the-case as to the cause of action alleged by appellants. The Indemnity Insurance Company of North America urges that the language of the judgment should be changed so as clearly to indicate that the entire case, both as to appellants and as to it, is reversed and remanded, and that such is the only procedure to be followed under the issues of this case.

• We are of the opinion that the judgment is, perhaps, susceptible of the meaning that the entire case as to all parties is reversed and remanded, and we will reform said judgment, so as to state positively and directly that the judgment of the district court as between the appellants and the Fort Worth Poultry & Egg Company is reversed, and that such judgment as between the Indemnity Insurance Company of North America and the Fort Worth Poultry & Egg Company is not disturbed. Hamilton v. Prescott, 73 Tex. 565, 11 S. W. 548; Wimple v. Patterson (Tex.Civ.App.) 117 S. W. 1037; Larson v. Middleton (Tex.Civ.App.) 19 S.W.(2d) 120; Adams v. Houston National Bank (Tex.Com.App.) 1 S. W.(2d) 878; Murchison v. Davis (Tex.Civ.App.) 4 S.W.(2d) 1016; Sullivan v. Doyle, 108 Tex. 368, 194 S. W. 136.

It appears that cost was taxed against the Fort Worth Poultry & Egg Company and against the Indemnity Insurance Company ■of North America. This, of course, was error, for the Indemnity Insurance Company of North America did not join in the appeal and did not incur any of the cost in this court, and the motions to retax cost are .granted and all the cost of this court is taxed against the Fort Worth Poultry & Egg Company.

Appellants’ motion, and the Fort Worth Poultry & Egg Company’s motion to reform the judgment and to retax cost, are granted; the motion of the Indemnity Insurance Company of North America to reform the judgment in the manner requested by it is denied ; its motion to retax cost is granted.

Judgment of this court reformed-and cost retaxed.


text:
    SACKVILLE et al. v. GARRETT.
    No. 1255.
    Court of Civil Appeals of Texas. Waco.
    Sept. 15, 1932.
    Rehearing Denied Oct. 13, 1932.
    Gene Madden and Tirey & Tirey, all of Waco, for plaintiff in error.
    R. W. Cowan, of Waco, for defendant , in error.
   BARCUS, J.

Appellants instituted this suit against ap-pellee to recover alleged damage which they claimed to have suffered in the exchange of properties. Appellants alleged that they traded a tract of land in Coryell county for some business property in Mart, that prior to and at the time the trade was consummated appellee represented that the Mart property was rented for $85 per month, and that the roof on said property had been repaired and was in good condition. They alleged that these representations were material and were false, and that they xelied thereon in making said exchange of properties, that, if the property had been rented for $85 per month and if the roof on said building had been in good repair, the Mart property would have been wdrth $7,009, but that, since said .facts were untrue, it was only worth $6,000, and that they had been damaged in the sum of $1,000 for which they Sought judgment.

The cause was tried to a jury, and at the conclusion of the testimony the trial court instructed a verdict for appellee. The law is well settled that, if the testimony, viewed in its most favorable aspect, would have entitled appellants' to recover, it was error for the trial court to peremptorily instruct the jury.

As stated, appellant alleged that appellee falsely represented to him at the time he consummated the trade and made the exchange of properties that he had repaired the roof- on the Mart property and that same was in good condition, and he further alleged that but for said representations he would not have made said trade. He alleged that, if the roof on the property had been in good repair and had been as represented, the property would have been worth $7,000, but that in truth and in fact, by reason of the defective roof, it was only worth $6,000, and that he had been damaged in the sum of $1,000, for which he ashed judgment. The testimony tended to raise said issues. Appellant testified to the representations as made and' to their falsity in fact and further testified that he relied on said representations being true and would not have made the exchange of property if he had known that the roof was not in good repair. The Witness Powell testified that, if the roof had been in good condition, the property would have been worth $6,006; that Jay reason of the defective condition of the roof it was only worth $5,000.

Appellant requested the court to permit him to amend his pleadings to conform to said proof, changing the pleadings from alleging that the property would have been worth $7,000 when in fact it was worth only $6,000, so that same would read that the property would have been worth $6,000, but in fact it was worth only $5,000, a difference in each instance of $1,000, for which amount appellant was suing. The trial court overruled said request. Appellant then requested the court to permit him to withdraw his announcement of ready for trial and to continue the cause. This the court also refused. Appellant assigns error to the action of the trial court in refusing to permit him to amend his pleadings and in refusing to permit him to withdraw his announcement of ready for trial and to continue the cause. Appellee did not contend that he was surprised at the proposed amendment to the pleadings, and no possible injury is suggested in the record that would have been caused appellee if the trial court had permitted- said amendment to be filed. The effect of appellant’s petition was that the property at Mart would have been worth $1,000 more if the roof had been in good repair as represented. Article 4004 of the Revised Statutes provides in effect that persons guilty of fraud in the exchange of real estate shall be liable to the person defrauded for all actual damages suffered, and that the rule of damages shall be the difference between the value of the property as represented and its actual value, and this is the measure of damage that our courts have, since the enactment of said statute, adopted. Sibley v. Southland Life Ins. Co. (Tex. Sup.) 36 S.W.(2d) 145; Reed v. Hester (Tex. Com. App.) 44 S.W.(2d) 1107.

Our courts have uniformly held that, since it is discretionary with the trial court whether it will allow pleadings to'be amended, it is an abuse of discretion not to permit an amendment to be filed when the ends of justice so demand. Western Union Telegraph Co. v. Bowen, 84 Tex. 476, 19 S. W. 554, 555; Roland v. Employers’ Casualty Co. (Tex. Civ. App.) 290 S. W. 895, 898, affirmed (Tex. Com. App.) 1 S. W. (2d) 568; Rivers v. Griffin (Tex. Civ. App.) 16 S. W. (2d) 874, 879; Ford; V. Liner, 24 Tex. Civ. App. 353, 59 S. W. 943.

In Western Union Telegraph Co. v. Bowen, supra, the Supreme Court, speaking through Judge Gaines, said: “The trial judge has a large discretion in regard to the conduct of a trial, and it should always be exercised so as to obtain the ends of justice” — and in said case held that the trial court properly permitted the plaintiff to amend his pleadings showing the real telegram in question.

In Rivers v. Griffin, supra, the court, in holding that the trial court properly permitted plaintiff to amend his petition, stated: “It is provided by statute and rules of the court that the allowance of trial amendments are within the discretion of the trial court. The court is required, in the interest of justice, to grant leave to amend in proper cases, and it is error to arbitrarily refuse,” citing a large number of authorities.

In Roland v. Employers’ Casualty Co., supra, in reversing the judgment of the trial court because it refused to permit a trial amendment to be filed, the court said: “The-filing of a trial amendment is largely within the trial court’s discretion, but the court’s refusal to file a trial amendment and withdraw an announcement of ready for trial was-held to be error, where no injury could have resulted to defendant therefrom, in Ford v. Liner, 24 Tex. Civ. App. 353, 59 S. W. 943. In Caswell v. McCall & Sons [Tex. Civ. App.] 163 S. W. 1001, the Court * * * held that the trial court abused its discretion in not permitting defendant to amend his petition. * * * to allege the facts constituting damages so as to render admissible evidence of damages, where the court had sustained the petition on demurrer.”

Under the facts in this case, we think it was error for the trial court not to permit appellant to amend his pleading. As stated, it did not change the measure of damage. Appellant’s real cause of action as alleged was that the property, regardless of its value, was worth $1,000 less in the condition it was delivered than it would have been if the roof thereon had been in the condition as represented. It therefore makes no difference whether the property would have been worth $6,000 or $7,000, the measure of damage remains the same.

For the error indicated, the judgment of the trial court is reversed, and the cause remanded.


author: . LEVY, J.

text:
    JAMES v. TUBBS et al.
    No. 4230.
    Court of Civil Appeals of Texas. Texarkana.
    July 15, 1932.
    Rehearing Denied Sept. 8, 1932.
    Wynne & Wynne, of Longview, for plaintiff in prror.
    Bramlette & Meredith, of Longview, and Puller & Leaverton, of Marfa, for defendants in error.
   . LEVY, J.

Ai.'H. Tubbs and wife brought the suit against C. W. James in the purpose of having a decree, canceling a certain recorded written agreement which apparently obligated A. H. Tubbs and wife to execute to C. W. James an oil and gas lease, known as form No. 88, on fifty- acres of land of the D. Sanch-es survey in Gregg county. It was alleged in the petition that the agreement was a cloud upon, title and should, be canceled because (1) “the signatures were secured through the artifice, fraud and overreaching of the defendant through his agent and without knowledge or consent of the plaintiffs or either of them,” and (2) “said instrument was never delivered to the defendant or his agent and was taken away from the residence of A. H. Tubbs and wife contrary to their agreement,” and (3) “that no consideration whatever was promised, paid or given.”

J. K. Wadley intervened, adopting plaintiffs’ pleading.

C. W. -James answered by general denial, and by cross-action sought specific performance of the alleged lease agreement, or, in the alternative, damages.

The case was- submitted to the jury on certain special issues, and they made answers thereto. A judgment was rendered in favor of the parties plaintiffs and intervener, canceling the instrument in suit, and that the defendant take nothing on his cross-acrtion. The defendant C. W. James has timely prosecuted an appeal from the judgment.

It was shown that A. H. Tubbs -owned the fifty acres of land in suit, and at one time lived on it with his family as a homestead. On July 2, 1931, O. W. James, acting through his agent, offered to lease the land for the production of oil, and orally agreed to make payment of $600. A. H. Tubbs and his wife assented to the proposal to lease the land upon the condition that the $600 be paid immediately in cash. ' Thereupon A. H. Tubbs and wife signed and acknowledged the instrument noted below in the purpose merely of evidencing in written memorandum the terms of oral agreement and’ with its delivery not to be before and in anywise until the contemplated act of payment “on the next day” of $600 cash was wholly performed. The instrument reads:

“Memorandum of Purchase and Sale of Oil and Gas Lease.
“For and in consideration of the covenants and agreements hereinafter set forth, A. H.. Tubbs and his wife, Dell Tubbs, of Longview, Texas, hereinafter known as the sellers, whether one or more, agree to sell, grant and convey unto O. W. James, hereinafter known, as buyers, whether one or more, a good and valid Oil and Gas Lease on a regular form 88 (Producers) Texas form for a term of ten years, and if a well be not commenced within one year buyer or lessee shall pay a rental of one dollar per acre per year in accordance with the terms of regular form of lease above mentioned, covering the following described lands located in Gregg County, State of Texas, to-wit: [Here follows description] * * * for the sum of Six Hundred Dollars ($600.00) subject, however, to the following terms and conditions:
“1. Sellers agree to attach Oil and Gas Lease (or conveyance) which has been duly signed and acknowledged according to law covering said above described lands, to a draft drawn upon the above buyers, in care of Exchange National Bank of Tulsa, Oklahoma, in the sum of $600.00 Dollars, and to deposit same for collection with the First National Bank of Longview, Texas, immediately following the execution of this instrument.
“2. Sellers agree to furnish buyer with a complete abstract of title to the said above described lands down to the date of this agreement, showing good and valid title in sellers.
“3. Sellers agree that buyer shall have twenty days from receipt of said abstract by the buyer, at the collecting bank first above mentioned, in which to have title examined.
“4. Sellers shall be furnished with such exceptions to said title as may be found thereto by buyer or his attorneys, in writing, and sellers agree to forthwith remove such exceptions to the satisfaction of . the buyers, but in the event of failure of sellers to clear said title to the satisfaction of the buyers within a reasonable length of time after notice of said exceptions, then in that event buyer shall have the right and privilege of engaging in the work of clearing up said title and removing such objections as may be required, and it is expressly understood and agreed that the time limit as provided for in paragraph 3 above written is hereby extended to provide such additional time as is necessary to perfect said title.
“5. In the event title is found finally to be unsatisfactory to buyer, it is expressly agreed and understood that buyer shall have the option of rejecting conveyance herein provided for, thereby rendering this agreement null and void and of no force and effect and buyer shall not be liable in damage to the sellers.
“6. Both the forwarding and collecting banks hereinbefore named are hereby appointed agents of both parties hereto and are instructed to observe and require the compliance with the terms and conditions of this agreement.
■ “7. Duplicate copy of this agreement must accompany draft and attachments above provided for, and both collecting and forwarding banks are instructed to re-forward draft and Oil and Gas Lease herein mentioned to such bank or bankers as buyer may designate, for final payment, and neither the bank forwarding the draft, the collecting bank, nor any to which papers have been reforwarded at the direction of buyers as herein authorized, nor the drawer hereof, shall have any right to demand the said draft nor of said papers attached thereto as above provided for prior to expiration of the time provided for in paragraph 4 above written.
“8. Sellers agree to accept the money on said draft in case same is paid within the time provided in paragraph 4 above written.
“9. It is understood and agreed that buyer shall pay the cost of executing this agreement.
“10. The consideration for the privileges extended to the buyer under the provisions of this contract is the sum of one ($1.00) Dollar, cash in hand paid to the seller, the receipt of which is hereby acknowlédged.”

The instrument bears date of January 2, 1931. At the same time the blank spaces in a regular printed lease in form No. 88 were filled out covering the fifty acres of land was signed by A. H. Tubbs and wife, but the blanli acknowledgment was not filled out. Also the following draft was filled out arid delivered to A. H. Tubbs:

“First National Bank. ■
“Longview, Texas, 1/2/1931
“Pay to the Order of A. H. Tubbs Six Hundred and No/100 Dollars (In consideration of the attached lease, mineral deed or conveyance)
“By-
“Drawer.
“To O. W. James, Exchange National Bk. Tulsa, Oklahoma.”

The memorandum of the agreement and the lease with the draft pinned to it were then placed on a table in the room and in the control and possession of A. I-I. Tubbs. A. H. Tubbs, as testified, was. to continue and. hold possession of the memorandum, and “on the next morning” was to have the lease acknowledged by him and his wife and the notary seal placed thereon, and then to' deposit all the instruments in the First National Bank of Longview arid to be immediately paid $600. According to the affirmative testimony of A'. H. Tubbs, the memorandum was never intended to be delivered to O. W. James or his agent at that time, nor until and unless the $600 was actually paid on the next day, and that he never made delivery, or assented thereto. As further testified by A. H. Tubbs, “as Mr. Doming laid the papers down (after looking over the acknowledgment) he said, ‘Here is all your papers and you wait until I get back in the morning to have the seal put on them so that you can take them to the bank,’ and he offered me a dollar. I told him my $600.00 was to be my pay, and I didn’t receive it. He said the law required him to give the dollar and he gave me the dollar and went on out. He never came back the next morning nor sent me any word.” It appears that in leaving the home of A. H. Tubbs the agent of O. W. James took the original ex-ecutory agreement with him, and promptly filed it for record in the county clerk’s office on “January 2, 1931, at one o’clock P. M.” The agent appears to have understood there was complete delivery of the memorandum to be immediately effective. There is seeming conflict in the evidence as respects the delivery of the memorandum at the time the agent took the agreement. It appears that A. H. Tubbs, who was shown to he nearly blind, did hot know until the next day, January 3, 1931, that the memorandum was taken and placed of record. Immediately upon information of the recording of the instrument, he proceeded at once on January 3, 1931, to file this suit ⅛ the district court to have decree of cancellation as a cloud upon title.

Among other issues, which we regard as immaterial, the following issue was submitted to the jury: “No. 7. Did A. H. Tubbs and wife deliver to Doming the instrument sought to be canceled with the intent and purpose to surrender control over such instrument to Doming and to give effect and operation to it as a contract on the hight it was prepared and signed?” Jury answer: “No."

Doming, it was shown, was the agent acting for C. W. James. There is sufficient evidence to warrant the verdict of the jury.

The principal point presented for decision on-appeal is that of whether or not in the situation shown judgment should have been rendered in favor of the plaintiff in error, C. W. James. It is believed that the contention of the plaintiff in error must be sustained that invalidity of the agreement cannot be predicated in the evidence upon the ground that fraud or deceit was practiced in obtaining the memorandum. Such conclusion is not legally warranted when all the circumstances are correctly considered. There is, however, evidence warranting the conclusion that ■ the apparent written agreement, although containing the terms of a proposed contract, was not drawn dp and signed in the purpose and intention of being ready for delivery and as constituting a mutual obligation bo be immediately effective as passing present rights in the land and oil. There was not the intention at the time on the part of A. H. Tubbs and wife to make the apparent agreement ready for delivery and being handed, to C. W. James with the intention of passing the present interest or title through lease of the land. The right of renunciation or repudiation by A. H. Tubbs and wife existed and was reserved until next day. The writing was not tó be evidence of the actual terms of an agreement between the parties before or until the happening next day of the p'ér-formance of the agreed condition of immediate payment in cash of the $600. The factual elements of delivery as well as intention to have the writing evidence an immediate and effective mutual contract became vital facts in the case. Delivery is legally re-jgarded as a question of mutual intent and •purpose of parties, and ordinarily one for the jury. Without the intention and purpose of delivery by A. H. Tubbs and wife, the apparent agreement never became operative and 'its obligation never commenced. It is only in case a writing is signed ivith the intention of presently and effectively evidencing the actual terms of an agreement between the parties when delivered that the agreement may be enforced, although the writing itself •be not delivered. It is believed the finding of fact by the jury that there was not delivery made of the memorandum may not be set aside by this court in the light of the evidence. In this view it is concluded that the assignment of error should be overruled as not warranting reversal of the judgment The judgment is affirmed.


author: HIGGINS, J.

text:
    HAYWARD v. HAYWARD.
    No. 2712.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 22, 1932.
    Rehearing Denied Oct. 13, 1932.

      M. E. Cassidy, of Phoenix, Ariz., and Nealon, Hudspeth & McGill, of El Paso, for appellant.
    W. G. Gilmore, of Douglas, Ariz., and Whitaker & Peticolas and Turney, Burges, Culwell & Pollard, all of El Paso, for ap-pellee.
   HIGGINS, J.

This is a suit by Nellie A. Hayward against J. W. Hayward, filed February 16, 1931, in the Thirty-Fourth district court of El Paso county, to set aside a decree of divorce rendered by said court September 7, 1928, in. favor of the said J. W. Hayward and against the said Nellie A. Hayward.

A general demurrer to the petition was sustained, and the suit dismissed.

The petition discloses the original action was based upon the statutory ground of aban, donment; that service was obtained by publication as upon a nonresident defendant, and that plaintiff did not know of the divorce proceedings and decree until December, 1930; that an attorney was appointed to represent her in the suit and a statement of facts filed as required by article 2158, R. S.

Appellant alleged the judgment of divorce was procured by fraud practiced upon plaintiff and the district court in the following particulars (copied from appellant’s brief):

"First, that the allegation that Nellie A. Hayward voluntarily left the bed and board of J. W. Hayward with intention of abandonment and the allegation of refusal upon the part of said Nellie A. Hayward to live with J. W. Hayward were false, and that the allegation of said alleged abandonment had continued for more than three years was false, the said Nellie A. Hayward alleging the truth to be that she did not abandon the said J. W. Hayward and did not separate from him without his consent and that no such alleged abandonment continued for a period of three years prior to the filing .of the suit and that at the time of the filing of said suit she was not refusing to live with the said J. W. Hayward as his wife.
“Second, that the said J. W. Hayward practiced a fraud upon the said Nellie A. Hayward and said District Court by testifying as shown by the said statement of facts filed in said Court, that on or about the month of November, 1922, the said' Nellie A. Hayward voluntarily left the home of the said J. W. Hayward and remained away from him until the time of giving of said testimony on September 7th, 1928, and that she told him that she did ■ not further intend to live with him as his wife and that said alleged abandonment continued for more than three years and that said separation was with the intention on her part to abandon the said J. W. Hayward and that there was no community property belonging to either which-had not been adjusted and taken care of; the said Nellie A. Hayward affirmatively alleging that when they separated in November, 1922, it was not with the intention upon the part of said Nellie A. Hayward that she should abandon the said J. W. Hayward, but that both of said parties deemed it wise for her to go to Phoenix, Arizona,. both of them .believing that the altitude and water at Douglas, Arizona, aggravated certain physical ailments to which she was subject and that she therefore went to Phoenix, Arizona, and accepted a position there, but that the said J. W. Hayward maintained his residence at Douglas, Arizona, claiming. that it was necessary for him to live at Douglas, because he was an employee of the El Paso and Southwestern Railway Company, running between Douglas and El Paso, Texas, and having sleeping quarters in each of said cities to use when he was at the one or the other place, and that there was at one time a disagreement and she filed a suit for divorce, and a form of agreement by which certain properties were allotted to each of the parties thereto was entered into, but as a result of entreaties upon the part" of the said J. W. Hayward and his display of signs of affection for the said Nellie A. Hayward, she did sign a purported property right settlement, but thereafter they regarded said agreement as dissolved and the said J. W. Hayward promised that the sarde should never be recorded and that'it'was not recorded until December, 1929, and that at the said J'. W. Hayward’s request the said Nellie A. Hayward dismissed her divorce proceedings in Arizona, and that said agreement was entered into ánd said dismissal had without the advice "of counsel upon her part, but that she was persuaded to so act on account of the express wishes of the said J. W. Hayward and on account of the apparent affection that he displayed for her. She further alleged'- that in' September and October, 1926, the said parties lived and cohabited as husband and wife, and in June, 1926, the said J. W. Hayward in an interview at Phoenix, Arizona, promised to go to that city and live' as soon as he could be transferred and that'they lived together as husband and wife in the latter part of June and early' part ' of July, 1926; that in 1927; he furnished' her with transportation to Los Angeles, California, and that he came to see her two or three times in 1927 and two or three times in 1928, wheh he had her sign a number, of' papers .disposing of property or property interests and remained apparently on good terms with her until she had signed the various papers he had requested her to sign. She further alleged that the last papers she signed for him were signed on or about May 16th, 1928, and May 31st, 1928, in Phoenix, Arizona, and that when they last separated in Phoenix, Arizona, in 1928, it was with the understanding that the said J. W. Hayward would go back to that city to live when he could get his affairs straightened out so that, he might do so without losing his seniority on the railroad or jeopardizing his opportunity, of getting a pension. She further alleged that they became reconciled in 1926 and were, as she believed, on as* good terms as ever subsequent to said reconciliation and lived together as husband and wife at Indian Hot Springs, Atizona, in 1926. She further alleges that while J. W. Hayward in his suit for divorce alleged that her residence was somewhere in the State of Arizona, the exact location being unknown to the said J. W. Hayward, such allegation was false, as he at all times knew that she was at Phoenix, Arizona, and but a few months before had visited her there and that the evidence of J. W. Hayward as shown by the statement of facts to the effect that her residence was somewhere in the State of Arizona was intentionally misleading as it was intended to carry to the court the conviction that J. W. Hayward did not know the whereabouts of Nellie A. Hayward.
“Third, as further ground for setting aside and holding for naught said divorce decree appellant alleged that the said J. W. Hayward in his original petition failed to allege that he had been a bona fide inhabitant of the State of Texas for twelve months immediately preceding the filing of said suit.
“Fourth, as a yet further ground for setting aside said divorce decree, appellant alleged that the statement of facts filed in said suit No. 30476 which was approved upon the agreement of counsel in said cause as ‘all of the facts proved' failed to disclose evidence that the said J. W. Hayward had been a bona fide inhabitant of the State of Texas for twelve months next immediately preceding the filing of said suit, or that at.the time of filing said suit he had resided in El Paso County, Texas, for six months next immediately preceding the filing of said suit. Appellant further alleged that she did not know of the filing of said divorce suit or of the obtaining of the decree of divorce therein until late in December, 1930, more than two years after the entry of said decree, and that it was necessary for her to make arrangements to secure counsel to file her petition and that she acted with diligence; that had she known of the filing of said suit prior to its trial she would have appeared and defended the same and have introduced the testimony to prove facts as alleged by her. .Had she known prior to two years after September 7th, 1928 (the date of said divorce decree) of the rendition and entry of said decree of divorce,' she would have filed her petition for review, but that she was ignorant of said proceedings and as she believes was purposely kept in ignorance by J. W. Hayward and she alleged it as her belief that the said J. W. Hayward caused process to be served by publication instead of having non-resident notice served upon her in order to keep her from knowing of the pendency of said suit so that she would not be afforded an opportunity to make defense and thus he would be able to mislead the court to her prejudice and to the prejudice of the cause of justice.”

The first point presented is that the court had no jurisdiction to enter the decree of divorce in favor of appellee in the absence of an allegation that he was and had been a bona fide inhabitant of the state of Texas for twelve months immediately preceding the exhibiting of his petition, and for this reason the demurrer was improperly sustained.

Plaintiff alleged that “said J. W. Hayward in his original petition failed to allege that he had been a bona fide inhabitant of the State of Texas for twelve months immediately preceding the filing of said suit,” but in the briefs it is stated by appellant and assented to by appellee that the jurisdictional grounds in the divorce suit were alleged in this language: “That he is and has been for more than twelve months prior to exhibiting this petition herein an actual bona fide inhabitant of the State of Texas, and has resided in El Paso County, for at least six months next preceding the filing of this suit.”

It will be observed these allegations follow almost literally the language of article 4631, R. S. They are sufficient. McCullough v. McCullough (Tex. Com. App.) 36 S.W.(2d) 459.

Appellant alleged as a part of her cause of action “That the statement' of facts filed in said suit No. 30476 which was approved upon the agreement of counsel in said cause as all of the facts proved failed to disclose evidence that the said J. W. Hayward had been a bona fide inhabitant of the State of Texas for twelve months next immediately preceding the filing of said suit, or that at the time of filing said suit he resided in El Paso County, Texas, for six months next immediately preceding the filing of said suit.”

It is objected that the indicated insufficiency of the statement of facts was fatal to the validity of the divorce decree, but we do not so regard it. The failure of the statement to show the necessary inhabitancy in this state and residence in El Paso county would have been ground for reversal upon appeal or writ of error and for new trial upon motion filed within two years under subdivision 1, of article 2236, R. S., but we do not regard it as sufficient to completely invalidate the decree of divorce and render the same void. Buse v. Bartlett, 1 Tex. Civ. App. 335, 21 S. W. 52; Crosby v. Bonnowsky, 29 Tex. Civ. App. 455, 69 S. W. 212; McLane v. Kirby & Smith, 54 Tex. Civ. App. 113, 116 S. W. 118.

The controlling question in this case arises upon the equitable grounds alleged, which in substance are that the decree was based upon false and perjured testimony, and for the fraud thus practiced the decree should be set aside.

The authorities in this state support the view that an action may be successfully maintained to set aside a'judgment based upon false and perjured testimony of the. party procuring such judgment when the party against whom the judgment was rendered is not wanting in diligence.

The leading case to this effect is McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357, which has been often followed. See, also, Swearingen v. Swearingen (Tex. Civ. App.) 193 S. W. 442; Bonner v. Pearson (Tex. Civ. App.) 7 S.W.(2d) 930; Avocato v. Dell’Ara (Tex. Civ. App.) 84 S. W. 443; Davis v. Jones (Tex. Civ. App.) 149 S. W. 727; Ellis v. Lamb-McAshan Co. (Tex. Civ. App.) 264 S. W. 241; Ralls v. Ralls (Tex. Civ. App.) 256 S. W. 688; Reed v. Bryant (Tex. Civ. App.) 291 S. W. 605.

The petition discloses the service in the suit was obtained by publication and plaintiff did not learn of the filing of the suit and the decree rendered until December, 1930. The present suit was filed in due time thereafter. The allegations show she has not been lacking in diligence and further show that the decree was obtained by the false and perjured testimony of the plaintiff. Under the authorities cited, the petition states a cause of action.

The Texas authorities cited by appellee need not be reviewed. An examination of those cases will disclose that the rulings therein were based upon facts different from those in the case at bar.

We doubt if the matter presented by the sixth proposition is properly before us for review at this time. We therefore refrain from discussion thereof, but will say that in our opinion the proposition is well taken. McConkey v. McConkey (Tex. Civ. App.) 187 S. W. 1100; Pinkard v. Pinkard, 14 Tex. 356, 65 Am. Dec. 129.

For the error in sustaining the general demurrer, the judgment is reversed, and the cause remanded.


author: PLEASANTS, O. J.

text:
    BURKE et ux. v. BELLE.
    No. 9742.
    Court of Civil Appeals of Texas. Galveston.
    July 13, 1932.
    Rehearing Denied Sept. 29, 1932.
    P. Plarvey, of Houston, for appellants.
    Fred W. Moore, of Houston, for appellee.
   PLEASANTS, O. J.

This is a suit by appellee, brought in the form of an action of trespass to try title. The land involved is a portion of lot 5 in block 29 of Englewood addition to the city of Houston, described in the petition as a strip on the west side of said lot “about two-feet and ⅞„ of -an inch wide” at the front end of the lot on Bear street, and running back to the rear line of the lot where said strip is “about 3 feet, four or five inches in width.”

In addition to the statutory requirements for a petition in trespass to try title, ap-pellee’s petition specially pleads title- to the land in controversy under the several pleas of limitation prescribed by the statute in suits for' the recovery of land. The suit was filed October 28, 1929.

The defendants answered by general demurrer and general denial, and specially pleaded the three, five, and ten years’ statutes of limitation. They further pleaded title and possession in themselves, and asked for judgment against plaintiff giving them title and possession of the strip of land in controversy.

The trial in the court below without a jury resulted in a judgment in favor of the plaintiff for the title and possession of the strip of land in controversy.

The record contains no findings of fact and conclusions of law by the trial court; no request therefor having been made by appellant.

The statement of facts filed by appellants contains testimony which we think sufficient to show the following facts:

■The land in controversy is a part of the Harris and Wilson original two-league grant in Harris county. Many years ago the owner of this grant subdivided a portion of it fronting on the north side of Buffalo bayou about three miles east of the city of Houston into two tiers of smaller tracts. The second tier of these subdivisions contains four lots or tracts of land each containing 297½ acres. These subdivisions are’designated on the plat or map shown in the statement of facts as Nos. 7, 8, 9, and 10. Englewood addition to the city of Houston was laid out and platted on subdivision 7 of the Harris and Wilson grant, and a map thereof duly recorded in the office of the county clerk of Harris county some time prior to 1892. Lots 5, 6, and 12 of block 29 of this addition were conveyed by R. B. Bear to W. B. Mulvey by deed of date February 23,1892. By mesne conveyances, recorded in the deed records of Harris county, appellee holds the title so acquired by Mulvey to lot 5 in block 29 of said addition. All taxes have been paid on this lot, as they occurred, since 1901, by •appellee or his vendors. Appellee’s stepfather, Mr. Underwood, obtained from an agent of the former, Mrs. W. B. Mulvey, and her •second husband, W. W. Thomas, some time in 1921, a contract for the purchase of lots :5 and 6 in block 29, Englewood addition. At the time this contract was made, Mrs. Thom.as owned all of the title of W. B. Mulvey in said lots. In 1921 or the first part of 1922, appellee was placed in possession of lot .5 by Mrs. Thomas, and shortly thereafter ■assumed the contract of his stepfather for the purchase of the lots. • This contract was completed by appellee, and all of the purchase money for the lots paid and a deed made to him by Mr. and Mrs. Thomas on May 15, 1926. Appellee and his stepfather had begun the use of lot 5 before appellee was placed in. .possession by Mrs. Thomas. Appellee testified that, when Mrs. Thomas turned the property over to him, his stepfather had collected and placed a number of old brick and concrete rocks on lot 5 that were given him by the gas company, for which his stepfather worked; after Thomas put him in possession of the property he bought an old house and moved it on lot 5, and he and his stepfather continued to use the lot for the storage and beating up of concrete blocks and old bricks, 'out of which they made material for sidewalks; that at the time he so took possession of lot 5 there were no improvements of any kind on the adjoining lot 4, now owned by appellants. He further testified that appellant Morris Burke- first placed improvements on lot 4 in 1922 or 1923; that he built back of the line between lots 4 and 5 about ten feet; that he was about two years building the house he now occupies, which was completed in 1923; that Burke first built' a barn on the back end of lot 4 and lived in it while he was completing his dwelling house; that, when Burke first began his improvements on lot 4, he built a fence on the back end .of lot 4; that in March, 1924, appellee discovered that this fence was over on lot 5; that he then spoke to Burke about it, and, after he had lot 5 surveyed' by the county surveyor and the line marked with stakes, Burke said he would move the fence. When appellee began to build his house after he got his deed in 1926, he again spoke to Burke about the fence on the back end of the lot and told Burke that when he (appel-lee) got ready to build a fence along the line dividing the two lots they would build it together, each paying one-half of the. costs of the fence. The matter remained in this status until some time in 1928 on a day on which appellee was away from home, when Burke moved a part of this fence further over on lot 5. The testimony is somewhat confusing as to what occurred thereafter, but appellee took down a portion of this fence and put it back on lot 4. There were frequent interviews and disputes between the parties as to proper location of this fence, which finally resulted in the bringing of this suit by appellee to recover title and possession of the strip of land in controversy.

The evidence is sufficient to show that the strip of land in controversy is a part of lot 5, and we do not understand appellants to contend otherwise.

• The propositions upon which this appeal ■is based are, in substance! that, appellee having failed to show title from the sovereignty or from a common source, and failed to prove title by limitation, because whatever possession he once had of the land in controversy was abandoned more than six years before the filing of this suit, and appellants have held actual adverse possession of the strip in controversy during all of these six years, judgment should have been rendered in their favor.

From the foregoing statement of the facts shown by the evidence, it is clear this contention of appellants cannot be sustained.

Appellee was in possession of all of lot 5, save a portion of the strip in controversy along the west line of the lot, claiming and holding it under duly registered deeds, and paying all taxes thereon for more than five years before this suit was brought, and appellants by cross-action herein set up their claim of title and possession of the disputed strip. As shown by the facts before stated, appellee's use and possession of lot 5 began not later than 1922. According to the testimony of appellee, which the court evidently accepted as true, the appellants agreed with appellee in 1924, when he first discovered that they had fenced a portion of the strip now in dispute, that they would move the fence, and again in 1926, when ap-.pellee built his dwelling house, that when appellee got ready to build a fence they would build a partnership fence on the true line. These agreements until repudiated by appellants destroyed the adverse character of their possession of any part of the land and made them tenants at will of appellee. According to appellee’s testimony, there was no repudiation of these agreements until 1928, which' was six years after appellee’s possession of lot 5 began.

Upon the facts before set out, we think ■the trial court correctly held that appellee had title to all of lot 6 under the five years’ statute of limitation.

This conclusion renders it unnecessary for us to set out and discuss the several propositions presented in appellants’ brief. All of these propositions are overruled, and the judgment is ordered affirmed. ,

Affirmed.