text:
    SANITARY APPLIANCE CO. et al. v. FRENCH.
    No. 3953.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 22, 1933.
    Rehearing Denied March 22, 1933.

      J. M. Marshall, of Lubbock, and Barkley & Webb, of Houston, for plaintiffs in error.
    Lockhart & Brown, of Lubbock, for defendant in error.
   HALL, Chief Justice.

The Sanitary Appliance Company and Cullen G. Jackson, hereinafter designated as appellants, sued defendant in error, hereinafter designated appellee, and obtained a temporary injunction against French restraining him from performing certain acts during the pendency of the suit. As required by the court, they executed an injunction bond in the sum of $1,000, payable to French, with the Equitable Casualty & Surety Com--pany as surety thereon. Thereafter the temporary injunction was dissolved and by cross-action French obtained a judgment against the Sanitary Appliance Company and Jackson as principals and the Equitable Casualty & Surety Company as surety, jointly and severally, in the sum of $500, with interest from date of the judgment.

From this judgment the Sanitary Appliance Company and Jackson have prosecuted a writ of error without making the Equitable Casualty & Surety Company a party to the proceedings.

French has filed his motion to have the writ of of error proceedings dismissed for want of jurisdiction on account of the failure of the Sanitary Appliance Company and Jackson to make the Casualty & Surety Company a party thereto.

R. S. art. 2257, provides that a petition for writ of error shall state the names and residences of the parties “adversely interested,” shall describe the judgment, etc.

Article 2263 provides: “If it appears from the allegations in the papers of the cause that the party is a non-resident of the State, or if it appears from the return of the sheriff or constable that the party cannot be found in the county of his residence, the citation shall direct the' officer to summon the defendant by making service on his attorney of record, if there be one.”

In Buttrill et al. v. Occidental Life Ins. Co. (Tex. Civ. App.) 31 S.W.(2d) 833, it appears that the citation in error failed to state the names of all defendants. Judge Looney said: “Plaintiff in error was not required to do other than allege ‘the names and residences of the parties adversely interested’ * * * and this requirement was complied with. The statute (article 2260) requires that the citation in error state ‘the names of the parties’ given in the petition but it is evident that provision refers only to parties whose names are required to be mentioned in tlie petition; that is, those ‘adversely interested.’ ”

The record shows that, when French filed his cross-action, the Equitable Casualty & Surety Company failed to appear and answer in the court below, and judgment was rendered against it by default, which could be done by express provision of R. S. art. 4649, without the service of citation on the company. Garrett v. Kelley (Tex. Civ. App.) 6 S.W.(2d) 414. The surety company filed no answer and no cross-action against the principals on the indemnity bond to recover over against them whatever amount French might recover against it. Neither has it appealed, but apparently is satisfied with the judgment as rendered below. So upon the face of the record its interest is not adverse to that of plaintiffs in error. The company is a nonresident of this state, and had no attorney representing it in the court below, so no service could be made under article 2263, which provides that, in ease of a nonresident defendant, the citation shall be upon its attorney.

It is held that the sureties on a cost bond are not adversely interested to the principal on the bond. Taylor v. Gardner (Tex. Civ. App.) 99 S. W. 411. See Blackman v. Harry (Tex. Civ. App.) 35 S. W. 290.

The surety company, having failed to appear or answer in the trial court, or to prosecute an appeal, has no standing in this court. Wanderlohr v. Grayson County National Bank (Tex. Civ. App.) 102 S. W. 746.

“An adverse party within the meaning of the rule is any party whose interest in the subject-matter of the appeal is adverse to that of appellant or may be affected by a modification or reversal of the judgment or order appealed from.” 3 C. J. 1218.

Certain documentary evidence has been filed with the record here, consisting of an order made by the Supreme Court of New York, which is the domicile of the Casualty & Surety Company, dated December 31, 1930, ordering the insurance commissioner of that state to take over the affairs of said company, and, by the terms of the order, the charter of the company is forfeited and the corporation dissolved. It is further ordered that all claims against the company be submitted before January 15, 1931. There is further a duly authenticated order issued out of the same court on February 7, 1933, which certifies to the correctness of the first order. Amongst the documentary evidence filed, we find a statement from the chairman of the board of insurance commissioners of the state of Texas with a copy of the order of the insurance commissioner of New York, from which it appears that the company had been dissolved in that state and that all of its liabilities ceased on the 15th day of January, 1931. But it is not shown that under the laws of the state of New York the company is defunct, so R. S. art. 1390, of Texas, must control, and it provides that dissolution of a corporation does not abate a suit pending against it.

We overrule the appellee’s motion to dismiss the writ of error proceedings.

Appellee also moves to strike the appellants’ brief because the propositions are mere abstract statements of rules of law, and do not point out any error which has been committed by the court or any one else.

With one exception we find that the propositions are subject to the objection, but, in amending article 1757 prescribing the requisites of a brief, the Forty-Second Legislature, chapter 45 (Vernon’s Ann. Civ. St. art. 1757), made no reference whatever to propositions. Because the brief contains assignments of error which sufficiently specify the errors complained of and also contains a “statement and/or argument on the errors assigned,” we will consider the assignments of error and treat the propositions as surplusage. Standard et al. v. Texas Pacific Coal & Oil Co. (Tex. Civ. App.) 47 S.W.(2d) 443.

We therefore overrule the appellee’s motion to strike the briefs.

The Sanitary Appliance Company, Inc., one of the appellants, entered -into a contract with its coappellant Cullen G. Jackson, by the terms of which Jackson was appointed 'as a general agent for the exclusive sale in certain counties mentioned in the contract of the Sanitary Appliance Company’s products. The contract contains, amongst others, the two following stipulations which are material in the consideration of this ease:

“8. It is understood that this agreement shall remain in full force and effect until either party hereto shall have given to the other party hereto at least thirty days prior written notice of its intention to terminate this agreement.
“9. Inasmuch as it will be necessary for the manufacturer to furnish the general agent with confidential information concerning its appliances and business, it is agreed that if either party takes advantage of the thirty days notice to discontinue this agreement, that the general agent will not sell any sewerage disposal equipment of any other manufacturer in the above named territory for a period of at least one year subsequent to the termination of this agreement. Also during the life of this agreement it is understood that the general agent will not sell any sewerage disposal equipment other than that of the manufacturer.”

Thereafter Jackson entered into a contract with French as subagent, which contains, amongst others, the following provisions:

“Whereas, the -said Cullen G. Jackson desires to employ the said W. A. French as a sales representative of the manufacturer subject to the terms, restrictions and conditions of said general agent’s contract with the manufacturer and further subject to the following terms and conditions: * * *
“8. It is understood by all parties hereto and the manufacturer in accepting the in-structiohs and agreements contained in this contract shall accept same with the understanding that this contract shall in no way alter or change the terins of the contract between the manufacturer and the general agent except to the extent of authorizing the manufacturer to pay one-half of the net cash commissions on sales made by the said W. A. French to him and one-half to Cullen G. Jackson.
“9. It is understood that this agreement shall remain in full force and effect until either party hereto shall have given to the other party hereto at least thirty days prior written notice of its intention to terminate this agreement. This agreement, however, shall be immediately terminated upon termination of the general agent’s sales contract with the manufacturer.”

In their original petition, the appellants, in addition to seeking the injunctive relief, sued appellee to recover $600 which they alleged was the value of certain printed matter, equipment, etc., which they had furnished to him while he was employed by them as salesman, and which he had failed to return upon leaving their employment.

French answered, and by way of cross-action sued the appellants to recover profits which he alleges he lost by reason of being restrained during the pendency of the temporary injunction from carrying on his business. He also sued for $186.46 alleged to be due him as commissions by the appliance company, and for $100 expenses which he alleges the appellants agreed to repay to him for a trip he made from El Paso to Houston. 1-Ie further sought to recover $2,500 as damages to his financial standing and reputation which he had suffered by reason of the wrongful and malicious acts and slanderous statements on the part of appellants.

No issue was submitted as to the item of $2,500, and the jury in response to special issues found that the reasonable market value of the, supplies and equipment which appellants had furnished to appellee and retained by him was $5. The jury further found that appellee sustained loss of profits by reason of the suing out of the writ of injunction in the sum of $500, that the appellant appliance company was due appellee on commissions $182.50, and further found that appellants did not agree to reimburse appellee for the expenses of his trip from El Paso to Houston.

The court rendered a judgment denying the appellants’ prayer for injunction, and decreed that appellee recover from appellants and from the cross-defendant Equitable Casualty &.Surety Company, jointly and severally, the sum of $500 as lost profits, and recover against the appliance company $182.50 as the balance due appellee on commissions, less a credit of $5, which the jury found to be the value of the supplies retained by appellee.

The first contention to be disposed of is that French had no right to recover upon his cross-action for damages occasioned by the wrongful issuance and service of the injunction because the litigation had not terminated.

This contention is without merit. Where an injunction has been wrongfully issued, the defendant may by proper pleadings recover his damages in the same action or at his option subsequently file a separate suit and recover therefor. Coates v. Caldwell, 71 Tex. 19, 8 S. W. 922, 10 Am. St. Rep. 725; Robertson v. Schneider, 1 Tex. Civ. App. 408, 20 S. W. 1129; Dallas, etc., Bank v. Dallas, etc., Improvement District (Tex. Civ. App.) 2 S.W.(2d) 305; Avery v. Stewart, 60 Tex. 154; 32 C. J. 446, note (m), and authorities cited.

By the second assignment of error the appellants insist that there has been a mis-joinder of causes of action.

This contention is overruled. R. S. art. 2015, by express provision authorizes the defendant when sued upon any bond or otherwise to plead any counterclaim he may have against the plaintiff, subject to such limitation as may be* prescribed by law, and article 2017 is as follows: “If the plaintiff’s-cause of action be a claim for unliquidated or uncertain damages, founded on a tort or breach of covenant, the defendant shall not be permitted to set off any debt duo him by the plaintiff. If the suit be founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages founded on a tort or breach of covenant on the part of the plaintiff. However, the defendant may plead in set off qny counterclaim founded on a cause of action arising out of or incident to, or connected with, the plaintiff’s cause' of action.”

Under these provisions of the statute the courts have uniformly held that, where the counterclaim or set-off grows out of, is incident to, or connected with, the plaintiff’s cause of action, there is no misjoinder, nor can the cross-action be abated because part of the defendant’s cause of action may sound both in contract and in tort. According to the allegations of the answer, the appellee’s cross-action is not subject to the objection of ⅝ misjoinder.

The third assignment of error does not distinctly present any error for consideration.

The only errors which we think require special consideration are that the court erred in overruling the appellant’s general demurrer to the cross-action and the failure to instruct the jury to return a verdict for appellants and against appellee upon liis claim for damages by reason of the wrongful suing out of the injunction.

The two contracts were attached to the petition. At the time of the execution of the Jacbson-Fi'ench contract, Jackson’s contract with the appliance company was attached to and made a part of the first-mentioned contract. There was no ambiguity in either contract when considered alone or in connection with the other. The contract between Jackson and the appliance company bound Jackson not to sell any, sewerage disposal equipment of any other manufacturer in the named territory for a period of at least one year subsequent to the termination of his employment. Jackson’s contract with French expressly provided that French as a sales representative of the appliance company should be “subject to the terms, restrictions and conditions of” Jackson’s contract with the appliance company, and section 8 provides that all parties, including the manufacturer, shall accept the contract between the manufacturer and the general agent, except in one particular, not relevant to this case.

60 C. J. 673, defines “subject to” as “a phrase that has been variously held to 'mean. affected by, charged with, dependent upon ⅜ * * limited by, obedient to, subordinate to, subservient to * * * and employed usually to qualify something substantially already created.”

In People’s Ice & Manufacturing Co. v. Interstate Cotton Oil Refining Co. (Tex. Civ. App.) 182 S. W. 1163, and in Magnolia Provision Co. v. Coleman (Tex. Com. App.) 3 S.W.(2d) 412, the parties contracted “subject to the rules of” a certain association, and the holding in both cases is that the rules of the association were expressly made parts of the contracts. We think it is clear that French was bound by the restrictive covenant which prohibited him from selling or attempting to sell sanitary appliances for any competing company within twelve months from the date his employment ended, and the court should have so construed the contract and sustained the demurrer to the item of $500 for loss of profits. Wann v. Metropolitan Life Ins. Co. (Tex. Com. App.) 41 S.W.(2d) 50; Bredell v. Fair Grounds Real Estate Co., 95 Mo. App. 676, 69 S. W. 635; Cockerill v. Tobin, 59 Cal. App. 112, 209 P. 1022; In re Hammond’s Estate, 197 Pa. 119, 46 A. 935; Auburn & S. Electric Ry. Co. v. Headley, 119 Misc. 94, 195 N. Y. S. 517, 520; Englestein v. Mintz, 345 Ill. 48, 177 N. E. 746, 752; Jennings v. Shepherd Laundries. Co. (Tex. Civ. App.) 276 S. W. 726; Byers v. Trans-Pecos Abstr. Co. (Tex. Civ. App.) 18 S.W.(2d) 1096.

In Southern Properties v. Carpenter (Tex. Civ. App.) 21 S.W.(2d) 372, 375, it appears that Carpenter was engaged in a small way in selling ice in the city of Dallas and had established a retail trade territory in the city; that he entered into a contract with the Southern Properties Company by the terms of which the company acquired his equipment used in delivering ice, and it further appears that Carpenter agreed as a part of the same contract not to engage in the business of selling ice within the territory for a period of two years after his employment with the appellant should cease. The court said: “The burden was on appellant, when it sought to enforce this restrictive covenant against appellee, to show that it was both reasonable and necessary to protect it in its contract of purchase of appellee’s ice business.” And the court further holds that the reasonableness of the restriction was a question of fact for the jury.

In the instant case, the appellants alleged that the contracts contemplated that the general agent and the sales representative would obtain confidential information concerning the apparatus and business of plaintiff, and that it would not be proper, just, or fair for either the general agent or the sales representative to take advantage of the Sanitary Appliance Company by terminating either of said contracts on thirty days’ notice and then use said information in selling the products of a competitor or of any other manufacturer, and it was contemplated in the making of said contract between the general agent and the sales representative that the latter would not take advantage of his right to terminate said contract by giving thirty days’ notice and then use the confidential information and knowledge obtained through his services under said contracts, •by selling and installing the apparatus' or equipment of a competitor or of any other manufacturer, and plaintiffs aver that to do so would be unfair, unethical, improper, and in violation of said contracts and each of them.

With reference to the confidential information imparted to French, the general agent Jackson testified that he gave French advance information on the company’s products and manufacture of various forms of sewerage disposal equipment, including I. M. Hoff’s advance septic tanks, improvements on their chemical toilets, improved Saco pit sanitary toilets, Dossage chambers, and other “things from our production department. From our advertising department he received the benefit of the service of a high-class advertising manager, including cuts, drawings and other things. From the circulation department he received cards and inquiries from the various prospects over the territory, letters from city officials regarding the purchase or' contemplated purchase of equipment, blue prints, and other things of a confidential nature, legal forms, contract forms-and financial plans, including several plans which fitted the needs of tie various cities, one of which, plans originated in the office of the Sanitary Appliance Company which had heen worked out by John J. McCall, Mr. 'Garrett,” and the witness in Mr. McCall’s office.

If pleadings are necessary, we think they are sufficient to raise the issue of the reasonableness and necessity of the restrictive stipulation, and the evidence tends to show that the restriction was necessary for the protection of the appellant’s business. The evidence quoted was not contradicted, and it was therefore not necessary for the issue of the reasonableness and necessity of the restrictive covenant to be submitted to the jury.

As said by Judge Jackson in Garrett v. State (Tex. Civ. App.) 51 S.W.(2d) 822, 826: “Where there is no conflict in the testimony, and no room to doubt or hesitate as to a matter of fact in issue, the "Judge, in his charge, ought not to assume that it is or may be doubtful. * * * Where the evidence to a fact is positive and not disputed or questioned, it is to he taken as an established fact; and the charge of the Court should proceed upon that basis.”' (Citing authorities.)

It follows, therefore, that the appellants did not waive this ground of their action by failing to request the court to submit it to the jury as an issue.

The record shows that the conditions existed under the' contract, properly construed, which entitled the appellants to the •injunction, and that its issuance was not wrongful. If the injunction was rightfully issued, then Erench could not recover for profits lost during the pendency of the injunction. He could only recover his actual damages where the injunction was issued without probable cause. Hawkins v. Hubbell & Houser, 127 Tenn. 312, 154 S. W. 1146; Hudspeth v. Guggenheim (Tex. Civ. App.) 12 S.W.(2d) 238; Womack v. McMillan (Tex. Civ. App.) 47 S.W.(2d) 437; 32 C. J. 436, § 746.

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

On Motion for Rehearing.

We think we have disposed of all the contentions urged in the motion for rehearing by what we have said in the original opinion, except the additional ground presented as the eighth assignment in the motion, by which it is contended that under the prayer of the plaintiffs petition the court was not authorized to grant a temporary injunction on an ex parte hearing without notice, and, because this was done, the writ was wrongfully issued, and French could recover for profits lost during the period when the injunction was in force.

We overrule this contention. It is clear from the record that French had no right to sell the goods of his employer’s competitors until the expiration of twelve months from the date he ceased work for the appellant. Any sales which were made or could have ‘been made by him during the period of restraint were in violation of his contract, and the rule is that one who is restrained by writ of injunction from doing something he had no legal right to do cannot recover damages, though the injunction has been wrongfully issued.

As said in Guthrie v. Biethan, 25 Idaho, 706, 139 P. 718, 719:

“Under the law, a person who has been damaged by reason of having been wrongfully restrained by injunction from doing something, that he had a legal right to do may recover what damages he has sustained; but the law does not contemplate that a person may be compensated in damages for being restrained from doing a thing he had no legal right to do, for, if he had no legal right to do the act, he cannot be damaged, and has no cause of action if he be enjoined from doing an illegal act. It is held by very respectable authority that a person restrained from doing what he had no legal right to do has no action for damages, even though the injunction has been wrongfully issued. 22 Cyc. p. 1062; Parks v. O’Connor, 70 Tex. 377, 8 S. W. 104.
“In Sumner v. Crawford (Tex. Civ. App.) 41 S. W. 825, the court held that, where goods are illegally seized under execution, the plaintiff cannot recover damages by reason of an injunction to prevent a sale, sued out by the person entitled to the goods, even if the injunction were not warranted by law.
“It is clear that there must be an unjust restriction of a right to make one liable in damages for suing out a writ of injunction.”

See, also, 32 C. J. 436, § 748.

The motion is overruled.


source: Caselaw Access Project

author: BOND, Justice.

license: Public Domain

text:
    WEISS v. MITCHELL.
    No. 11105.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 11, 1933.
    Rehearing Denied March 18, 1933.
    W. P. Donalson and Muse & Muse, all of Dallas, for appellant.
    Coke & Coke and Thos. G. Murnane, all of Dallas, for appellee.
   BOND, Justice.

This is an action by G. A. Mitchell against Martin Weiss. From -a judgment of the lower court defendant makes his second appeal; the former appeal is reported in 26 S.W.(2d) 699.

On November 8,1924, appellee, G. A. Mitchell, leased to appellant, Martin Weiss, two two-story brick buildings, situated in the city of Dallas, Tex., and known as 907 Elm street and 906 Pacific avenue, and 909 Elm street and 908 Pacific avenue. The buildings are adjacent to each other and extend north and south from Elm street back to Pacific avenue. The term of the lease was for five years, beginning January 1, 1925; the tenant, Weiss, agreed to pay to the landlord, Mitchell, as rent, $450 per month for the first two years, and $500 per month for the last three years. The covenants in the lease, regarded as material to this appeal, are as follows:

“2. That the lessee shall take good care of the property and its fixtures, and suffer no waste; and shall, at his own expense and cost, keep said premises in good repair, keep the plumbing work, closets, pipés and fixtures belonging thereto in repair; * ⅞ * during the hereby granted term of five years, and at the end of other expiration of the tei'm shall deliver up the demised premises in good order and condition, natural wear and tear and damages by fire and the elements only excepted. * * * ”
“5. That the lessee shall, in case of fire, give immediate notice to the lessor, who shall thereupon cause the damage to be repaired forthwith. * ⅜ * ”
“6. * ⅜ * The said lessee hereby undertakes to make any repairs necessary for the occupation of the property known as No. Q07 Elm Street and No. 906 Pacific Avenue at his own expense, and the lessor is to be at no expense whatever for either of said properties during the currency of this lease.”

On April 27, 1927, fire damage was occasioned to the west building, known as 907 Elm street and 906 Pacific avenue, and the lessor immediately undertook to repair suck damages. All rents were paid under tke lease up to tke time of tke fire, and tkereafter 8277.75 was paid wkile tke repairs were being made, as an agreed rent to June 1, 1927, and a like amount was tkereafter tendered by the lessee to tke lessor up to the time lessee abandoned the premises in July, 1929, which tender tke lessor refused.

On June 1, 1927, after being advised by tke lessor that tke fire damage to tke lease premises had been repaired, and tke premises restored to its former condition, the lessee declined to accept the building, and immediately sought to cancel tke lease, on tke ground that the fire covenant had not been complied with by tke lessor. Notwithstanding his efforts to cancel tke contract, tke lessee continued in possession of tke lease premises, occupying ánd using the east building until July TO, 1929, when he abandoned it.

Appellant seeks a diminution of rents under tke contract for tke time he occupied and used the east building; a cancellation of tke contract for tke unexpired term of tke lease; and, by way of a cross-action, for damage to his stock of goods, wares, and merchandise, all on account of tke failure of appellee to repair the fire damage to the west building, and the negligent manner in which suck repairs were undertaken. The trial court sustained exceptions to and dismissed appellant’s cross-action for damages to his stock of goods, wares, and merchandise.

The case was tried to a jury, and evidence is found in tke record sufficient to support tke finding that appellee repaired such damages as resulted to the lease premises by fire; appellee restored tke premises to as good condition as it was in before the fire; that appellant did not make suck repairs necessary for the occupation of tke west building, and did not keep the lease premises, plumbing work, closets, pipes, and fixtures in good repair throughout tke term of tke lease. Ap-pellee suffered damages in the sum of $256.45, for the failure of appellant to make repairs necessary for tke occupation of tke west building, and $1,232.47, for his failure to keep the premises, plumbing work, closets, pipes, and fixtures in good repair throughout tke term of the lease. That appellant did not cause injury or damage to any portion of tke lease premises subsequent to June, 1927.

On suck findings, the court rendered judgment in favor of appellee against appellant for tke amount of tke unpaid rent under tke contract from June 1, 1927 to December 31, 1929, and 6 per cent, interest on each monthly installment since due, and for $1,488.92, the amount found by tke jury as damages for failure to repair the west building and keep the lease premises in repair.

It is a recognized rule of law that, in actions for rent, a tenant may plead, by way of reconvention for damages sustained on account of the failure of a landlord to perform a covenant to repair, or tke tenant may plead for a diminution of rents for suck failure, but to permit a recovery for damages, and also recovery for a diminution of rents for the breach of suck covenant, would be allowing double recovery. Oscar v. Sackville (Tex. Civ. App.) 253 S. W. 651, and authorities therein cited.

In tke instant case, there is no covenant that appellee was to repair the demised premises, except in case of fire, and, in the absence of such a covenant, there is no implied warranty on the part of appellee that either of tke lease buildings is in a tenantable condition, or would be kept in suck condition. If appellant suffered injury or damages to his goods, wares, or merchandise, for which appellee could be held legally liable, it could only be recovered under the terms of the contract—-for a failure to perform the covenant to repair the fire damage to the lease premises.

The buildings were repaired and restored to their former condition before the occurrence of any alleged damage to appellant’s goods. The evidence is sufficient to sustain the jury’s findings on that issue, and we are not authorized to disturb its findings. Perez v. Rabaud, 76 Tex. 191, 13 S. W. 177, 7 L. R. A. 620. There are three covenants by the lessee in the contract, viz.: (1) A covenant to make any repairs necessary for the occupation of the west building; (2) a covenant to keep the lease premises in good repairs ; and (3) a covenant to surrender the lease premises at the end of the- term in good order and condition, natural wear and tear and damage by fire, and elements, only excepted.

The west building was evidently in a bad state of repair when appellant rented it. No question is made as to the necessity for the repairs, and the rights of the parties must depend upon the construction of the lease contract. In the contract, appellant obligated himself to make the repairs necessary for its occupation at his own expense, and that appellee was to be at no expense whatever on the properties during the currency of the lease, except in case of fire. In the absence of such covenant, it may be conceded that appellant took the west building, in its dilapidated and almost uninhabitable condition, and no duty would rest upon him to make repairs necessary to preserve the property and to make it tenantable, and keep it in such repairs to the end of the lease. The term “make repairs” is not ambiguous; “repairs” means to “mend, remedy, restore; to restore to a sound, good or complete state after decay, injury, dilapidation, or partial destruction; restore, renovate.” Webster. It must be presumed that the parties to the contract used tlie term “repair” in its ordinary sense. In tlie case of Martinez v. Thompson, 80 Tex. 568, 16 S. W. 334, 335, the Supreme Court, in construing a covenant in a contract similar to the one in the instant case, construed the obligation of the parties hereto in the following language:

“It appears that the house was in bad condition when Martinez rented it, and that on this account he paid a less rental than the property would otherwise have brought; and it further appears that he desired to use it for a wholesale and retail tobacco and cigar store, a use to which it seems not to have been before applied, and that to adapt the house to his business it became necessary, or at least desirable, to make alterations or additions.
“In view of these facts, we are of opinion that Martinez obligated himself by the contract to bear all such expenses as might be incurred in making alterations or additions such as he might deem necessary or desirable to fit the house for the business which he contemplated carrying on in it, and that such alterations or additions were, within the meaning of the contract, improvements. He, however, obligated himself to bear the expenses of ‘repairing’ the leased premises, and the parties must be presumed to have used that word in its ordinary sense, except as this is shown to have been restricted in its application by other parts of the contract.”

The construction of an unambiguous contract is for the courts. Shepherd v. White, 11 Tex. 346; Cook v. Dennis, 61 Tex. 246; San Antonio Machine & Supply Co. v. Allen (Tex. Com. App.) 284 S. W. 542; Holt v. Wilson (Tex. Civ. App.) 55 S.W.(2d) 580. The contract itself, taken in connection with the actual condition of the lease premises and the evidentiary facts, showing a construction placed on the contract by the parties themselves, are indispensable aids to the court in arriving at its interpretation of the language and terms ordinarily used and were used by the parties to the contract.

Appellee introduced in evidence a letter by appellant to A. 6. Wood, agent for appel-lee, in reference to the lease, dated prior to the execution of the contract; the letter being as follows:

“October 31, 1924
“Mr. A. G. Wood, 1409 Magnolia Bldg., Dallas, Texas.
“My dear Sir: In reference to our conversation a few days ago, I, herewith, advise you that I will lease the Mitchell property located at 907 and 909 Elm Street from you, beginning the first of January, 1925, for a term of five years, paying you a rental for the 909 building, which you are now repairing, $300.-00 per month and the 907 building $150.00 per month for two years, and after two years I will pay you $200.00 per month.
“As soon as I occupy the 907 building I will repair, repaper and paint thfe same at my own expense. Of course, it is understood that the building at 909 Elm Street will be remodeled in first-class condition, lower and second floors will be in one continuous length without any partitions in it and the front and back all repaired in first-class condition.
“If possible I would like to have an option to purchase these two buildings at the prevailing market price whenever I am ready. I would thank you to confirm these arrangements and oblige.
“Yours very truly,
“[Signed] Martin Weiss [in ink].
“Accepted [in typewriting] except option as to purchase is modified to the extent that you will be permitted to make a bid for the property a little over that offered by other parties.
“[Signed] Martin Weiss.”

The letter was clearly admissible to show the understanding of the parties in reference to the repairs, and when they were to be made. Its introduction in evidence is not based on the contract being ambiguous, it does not tend to vary or alter the written obligation. It is to be construed as an explanation, making more certain the rights of the parties under the contract, and their intentions in using the words “make repairs.”

In the case of Ryan v. Kent (Tex. Com. App.) 36 S.W.(2d) 1007, 1010, the court cited with approval the rule laid down in Reed v. Insurance Co., 95 U. S. 23, 30, 24 L. Ed. 348, wherein the court said:

“Although a written agreement cannot be varied (by addition or subtraction) by proof of circumstances out of which it grew and which surrounded its adoption, yet such circumstances are constantly resorted to for the purpose of ascertaining the subject-matter and the stand-point of the parties in relation thereto. Without some knowledge derived from such evidence, it would be impossible to comprehend the meaning of an instrument, or the effect to be given to the words of which it is composed. This preliminary knowledge is as indispensable as that of the language in which the-instrument is written. A reference to the actual condition of things at the time, as they appeared to the parties themselves, is often necessary to prevent the court, in construing their language, from falling into mistakes and even absurdities. * * * ‘it may, and indeed it often does, happen, that, in consequence of the surrounding circumstances being proved in evidence, the courts give to the instrument, thus relatively considered, an interpretation very different from what it would have received, had it been considered in the abstract. But this is only just and proper; since the effect of the evidence is not to vary the language employed, but merely to explain the. sense in which the writer understood it.’ ”

Appellant contends that the trial court, in submitting the special issue to the jury, as to whether appellant kept the lease premises in repair throughout the term of the lease, erred in giving the following charge: “In answering special issue No. 5, you are instructed that you must exclude and not consider any repairs to the leased premises in question rendered'necessary as the result of damage done to said premises by the fire which occurred on April 27th, 1927. You must confine your findings in your answer to said Special Issue No. 5 to such repairs as were not contributed to or rendered necessary by reason of damage done to said premises by said fire.”

It is the duty of trial courts to guide the jury in appropriate explanations of words and terms used in submitting special issues, and the instruction complained pf does not violate the rule of law prohibiting a general charge. It eliminates from the consideration of the jury any damage to the lease prem-. ises occasioned by fire, for which appellant is expressly relieved to repair.

We have carefully considered each of appellant’s assignments and find no error; same are expressly overruled. From what we have said, the judgment of the lower court is affirmed.

Affirmed.


author: MURRAY, Justice.

text:
    SHEPPARD v. GILL et al.
    No. 8999.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1933.
    Rehearing Denied March 15, 1933.

      Kennedy Smith, of Edinburg, and Cunningham & Rabel, of Harlingen, for appellant.
    Strickland, Ewers & Wilkins, of Mission, Bryce Ferguson and Brown & Bader, all of Edinburg, D. W. Glasscock, of Mercedes, and Rogers Kelley, of Edinburg, for appellees.
   MURRAY, Justice.

In this case W. H. Sheppard, appellant, complains of the trial court’s action in sustaining some seventeen special exceptions to appellant’s petition, and the dismissing of his cause of action, upon his refusal to amend.

The facts set out in plaintiff’s trial pleadings are substantially as follows:

That T. C. (Tom) Gill is sheriff of Hidalgo county, Tex. That Mack Galbraith and J. A. Adams were his deputies. That the Stand-' ard Accident Insurance Company of Detroit, Ivlich., was surety on T. C. Gill’s official bond. That R. D. Combs is justice of the peace, precinct No. 6, Hidalgo county.' That J. Y. Dickinson is city marshal of the city of Edim burg, in Hidalgo county, Tex.

That plaintiff has not violated any criminal law of Texas. That he was arrested and placed in jail by Deputies Galbraith and Adams and City Marshal Dickinson (acting with others) on the 7th day of September, 1931. That just prior to said arrest (quoting from the petition) “defendants had secured from the defendant R. D. Combs, Justice of the Peace as aforesaid, a search warrant, empqwering and directing them to search the residence of one Mrs. Esther Griffin within the City of Edinburg, that the said defendants Dickinson, Adams and Galbraith secured the said search' warrant from said Combs by representing to him that the peace of the community was being disturbed in and about said residence and that the prohibition laws were being violated within said residence.” That said officers searched said residence, arrested persons found in said house, and arrested plaintiff, who had driven up to the front of said house and at the time was not disturbing the peace, violating the prohibition laws or any other law.

That said arrest occurred about 9 o’clock p. m. of said-day. That he was questioned concerning from whom twelve bottles of .beer had been purchased. That he explained to said defendants that he knew nothing of said twelve bottles of beer. That he was then taken and placed in jail in the city of Edin-burg. That about 2 a. m. of the same night he was brought before Combs, justice of the peace, and asked to plead' guilty to some unnamed offense, and upon his refusal he was ordered by Combs to be carried back “to his cell,” which.was done. That at 4 o’clock a.m. of the same morning he was again brought out and commanded to plead guilty to some misdemeanor, and upon his refusal “secured his release from said Combs and from the other defendants and from said jail by executing a bail bond signed by himself and secured by his watch, which said defendants compelled him to leave as security for his appearance before said Justice of the Peace on the 21st day of September, 1931.”

That after his release from jail he went to Kansas City, Mo., and upon his return “he. was forced to employ an attorney to defend him against the wrongful charges and accusations of the defendants, the exact nature of which he had never been by any person informed.”

That on September 21st, when he .appeared with his attorney, a complaint was filed with Combs, justice of the peace, alleging that plaintiff “did then and there unlawfully commit vagrancy, to-wit, by association with immoral persons.” That on the same day the complaint was dismissed and plaintiff discharged. That before plaintiff left the courtroom defendant Adams inquired of plaintiff’s counsel if he intended to file a damage suit, and, upon not being given a satisfactory answer, in vengeance filed a complaint charging plaintiff with disturbing the peace, and again arrested him. That ho was acquitted of this charge the next day. That by reason of his false arrest and imprisonment he was damaged in the sum stated.

The plaintiff also has alternative pleas setting up malicious prosecution as a result of the last charge against him of disturbing ,the peace.

From a judgment dismissing his case, appellant has appealed.

At the outset, we find that appellees T. C. (Tom) Gill and Standard Accident Insurance Company have filed a cross-assignment of error, to wit: “The court erred in overruling- the general demurrer of the appellees Gill and Standard Accident Insurance Company.”

We are of the opinion that this cross-assignment of error is well taken. The petition shows on its face that the sheriff, T. C. Gill, did not arrest appellant or imprison him, but that same was done by his deputies Galbraith and Adams. It does not attempt to allege that Gill knew anything about this arrest before it was done or ratified the conduct of his deputies. Article 6870, R. C. S. 1925, provides that a sheriff is responsible for the official acts of his deputies, and it is well settled in this state that the sheriff is not responsible for the unofficial and unauthorized acts of his deputies. In the recent case of Graves v. Buzbee (Tex. Civ. App.) 45 S.W.(2d) 392, it is held that the sheriff is not liable for his deputies’ unauthorized and .unofficial acts, such as arrest and imprisonment without legal authority. Numerous cases are cited in the opinion.

The petition in this case does not attempt to allege that a warrant of arrest was issued for appellant or that the arrest was made under one of the circumstances authorizing arrest without warrant.

The petition does allege that a search warrant to search the residence of one Mrs. Esther Griffin was issued. “That the said defendant Dickinson, Adams and Galbraith secured the said search warrant from said Combs by representing to him that the peace of the community was being disturbed in and about said residence and that the prohibition laws were being violated within said residence.” There is no law that would authorize the issuance of a search warrant because the peace was being disturbed in and about a residence.

Article 691, Penal Code 1925, provides, among other things, that “no warrant shall be issued to: search a private dwelling occupied as such * * * unless the affidavits of two credible persons show that such residence is a place where intoxicating liquor is sold,” etc. The petition does not attempt to show that said search warrant was issued upon the affidavit of two credible persons, but rather suggests that it was issued upon an oral representation that the prohibition laws were being violated. The requirements of a valid search warrant have been definitely set forth by the decisions of this state. It has been held that there must be a sworn written complaint setting forth the existence of one of the grounds on which a search warrant may issue; that said written affidavit must be either based on actual knowledge, or, if made upon information and belief, the information must be set forth in the affidavit, and that, when the warrant is to search a private residence, it must be signed by at least two credible persons. Manly v. State (Tex. Cr. App.) 48 S.W.(2d) 256, and authorities there cited; Const. U. S. Amend 4; Const. Tex. art. 1, § 9; Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Odenthal v. State, 106 Tex. Cr. R. 1, 290 S. W. 743; Horton v. State, 106 Tex. Cr. R. 144, 291 S. W. 224; Odom v. State (Tex. Cr. App.) 50 S.W.(2d) 1103; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Code Cr. Proc. 1925, art. 727a (as amended by-Aets 1929, 2d Called Sess., c. 45, § 1 [Vernon’s Ann. C. C. P. art. 727a]).

From the above decisions it will be seen that the allegations in appellant’s petition describe an invalid search warrant. It is further apparent from the petition that appellees had secured said search warrant and knew of the circumstances of its issuance. Therefore they were charged with knowledge that it was an invalid search warrant, and Sheriff Gill would not be responsible for a search made by his deputies under an invalid search warrant where said deputies were charged with knowledge at the time that the search warrant was invalid.

On the, other hand, if said search warrant had been a valid warrant, it would not make the arrest of appellant an official act of the deputies, for the reason that the pe-* tition does not attempt to allege that the search warrant directed the arrest of appellant.

We are of the opinion that the allegations of the petition do not show that Sheriff Gill authorized or ratified the acts of his deputies in arresting appellant. The allegations do not show that the deputies were acting officially when they made the arrest. It therefore follows that Sheriff Gill was not responsible for the unofficial- and unauthorized acts of his deputy, and that the general demurrer of Sheriff Gill and the insurance company should have been sustained as to them by the trial court. Maddox v. Hudgeons, 31 Tex. Civ. App. 291, 72 S. W. 414; Brown v. Wallis, 106 Tex. 546, 101 S. W. 1070, 1071, 12 L. R. A. (N. S.) 1019; King v. Brown, 100 Tex. 109, 94 S. W. 328; McBeath v. Campbell (Tex. Com. App.) 12 S.W.(2d) 118; Graves v. Buzbee (Tex. Civ. App.) 45 S.W.(2d) 392.

It is contended by appellees that there is a misjoinder of causes of action in this case. We are inclined to agree with that contention. It is our opinion that the original arrest of appellant, in front of Mrs. Griffin’s residence, and his second arrest in the courtroom two weeks later, are sufficiently disconnected to not constitute one continuous transaction. The first arrest occurred on September 7th; appellant was released about 4 a. m. on the following morning, upon signing a bond and leaving his watch with the justice of the peace. There was no complaint filed against appellant at this time. A bond without sureties is a nullity under our statutes. C. C. P. art. 273, subd. 4, requires that a bail bond be signed by sureties. Article 277, C. C. P., provides that one surety shall be sufficient, if it be made to appear that such surety is worth at least double the amount of the sum for which he is bound, but our statutes nowhere provide for a bond signed only by a principal, and, as a bail bond is strictly a statutory bond, it must contain all the requisites prescribed by the statute. Wallen v. State, 18 Tex. App. 414; Turner v. State, 14 Tex. App. 168; Washington v. State, 31 Tex. Cr. R. 84, 19 S. W. 900; Douglass v. State, 26 Tex. App. 248, 9 S. W. 733; LaRose v. State, 29 Tex. App. 215, 15 S. W. 33.

Appellant was required to leave his watch as security. There is no provision in our statutes for a cash bond or a. bond secured by personal property, and it therefore occurs to us that appellant was not under any legal obligation to return on September 21. However, it may have been proper for him to treat the bond as legal and return for trial on September 21. When he did return, on that day, a complaint was lodged against him for thé first time charging him with vagrancy. Afterwards, on the same day, said charge was dismissed by the county attorney and the appellant freed. This certainly ended his false imprisonment. After-wards the appellee Adams filed a complaint against appellant charging him with disturbing the peace, on which a warrant of arrest was issued and appellant arrested by Adams. There is no allegation that any one participated in this last proceeding but Adams. If this last complaint was maliciously made without probable cause, this last proceeding would constitute malicious prosecution, for which only Adams is shown to be responsible.

If the trial court had sustained the general demurrer of Sheriff Gill and the insurance company, appellant' would have, no doubt, pursued a very different course than that pursued by him in this case. That appellant may have an opportunity to file such amended pleadings as he may deem proper after the sustaining of the general demurrer of appellees Gill and the insurance company, the judgment of the trial court is reversed, and the cause remanded.

On Motion for Rehearing.

Appellant contends in his motion for a rehearing that in passing upon’ the general demurrer we should have looked not only to the petition but also to the answer, and, if we had done so, we would have found a copy of the affidavit and search warrant attached to the answer of the defendants Galbraith, Adams, Combs, and Dickinson. We do not disagree with the contention that we should have also referred to the answer.

The affidavit and search warrant so attached removes all doubt as to whether or not the warrant was legally issued. The affidavit, on its face, is not sufficient to-warrant the issuing of a search warrant. The affidavit is made upon the information and belief of the officers, and no attempt is made to set out in the affidavit what that information was. The case of Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095, is directly in point, holding that such an affidavit is insufficient to support the issuance of a search-warrant, and that, where a search warrant is issued upon such an affidavit, the warrant is void, and any search made under it is an illegal search such as is prohibited by U. S. Constitution, Amend. 4, Texas Constitution,art. 1, § 9.

The motion for a rehearing is overruled.


author: LESLIE, Justice.

text:
    CHICAGO FIRE & MARINE INS. CO. v. HARKNESS et al.
    No. 1088.
    Court of Civil Appeals of Texas. Eastland.
    March 24, 1933.

      Thompson, Knight, -Baker & Harris and Ben E. Vaughan, Jr., all of Dallas, for plaintiff in error.
    Butts & Wright and J. D. Barker, all of Cisco, for defendants in error.
   LESLIE, Justice.

By this suit Notre Dame Harkness, joined by her husband, R. T. Harkness, and T. I-I. Eoley, seeks to recover of the Chicago Eire & Marine Insurance Company on a $1,000 fire insurance policy, issued by that company to Mrs. Ada Stewart on secondhand furniture, situated in a rooming house and destroyed by fire. Foley seeks to recover on said policy as his interest therein appears and alleged to be $625.01. Mrs. Harkness sues as the as-signee after the fire for the remaining amount of said policy, alleged to be $374.99. The defendant, among other defenses, answered by general denial, and denied the agency or authority of J. M. Williamson & Co. to write the insurance policy. The trial was before the court and jury. Upon the answer of the jury to special issues, judgment was entered in favor of the plaintiffs. The defendant appeals. The parties will be referred to as in the trial court.

No issue as to the value of the personal property destroyed was submitted to the jury, and no request made therefor. Defendant’s first- contention is that, in a suit on a fire insurance policy for the destruction of personal property, where the only testimony of the value of the same is that of an interested witness, an issue must be submitted to the jury as to the value of such property, and, in the absence of a finding thereon by the jury, no judgment can properly be entered for any amount in favor of the plaintiff. As a corollary to this proposition, it is further contended, that in such a case the court cannot find the value and enter judgment accordingly. We sustain these propositions.

It appears that the only evidence as to the value of the property destroyed is the testimony of Mrs. Ada Stewart, the assured. She was the aunt of the plaintiff, Mrs. Hark-uess, and also a debtor in the sum of $625.01 to plaintiff Foley, the loss payee. Eoley held a mortgage against the property insured. If he recovered in the sum of $625.01, it had the effect of extinguishing Mrs. Stewart’s debt to him, and, if he did not so recover, she remained obligated to pay him the sum of $625.-01. Under these circumstances Mrs. Stewart must be regarded as an interested witness.

Further, her testimony was not as clear and unequivocal upon the question of value as it should have been. From her direct examination we take the following excerpts:

“Q. What were those dressers worth? A. Judge, I can’t hardly tell you. I gave $25.00 and $30.00 and some of them $15.00. I can’t tell you how much the whole-thing is worth.
“Q. About these dressers, do you know what they were actually worth at the time of that fire? A. Well, of course I had used them a good while, and I suppose—
“Q. Don’t suppose. We have got to get at some value here. A. Some' of them were worth $15.00, $20.00, $25.00 a piece * * *
“Q. Do you know the value of those 28 dressers at the time of the fire? A. Well, I can give you the value I gave for them; they were about $30.00 a piece. * » *
“Q. State whether or not you know the values; if you don’t know the value we will have to quit. A. I guess—
“Q. Don’t gugss. A. Well, $15.00 a piece.” Preceding the last question and answer the court struck out some of the answers, but the last was permitted. Then followed like testimony on the value of a great number of articles, and the qualification of' the witness to estimate the same became a few shades stronger, making what should possibly be regarded as a prima facie showing of qualification to so testify.

Upon the authority of the recent cases of I.-G. N. Ry. Co. v. Casey (Tex. Com. App.) 46 S.W.(2d) 669, Federal Surety Co. v. Smith (Tex. Com. App.) 41 S.W.(2d) 210, and Dallas Hotel Co. v. Davidson (Tex. Com. App.) 23 S.W.(2d) 708, we are of the opinion that it was necessary under the pleadings and the evidence for an issue on the value of the property to have been submitted to the jury and a finding made thereon favorable to the plaintiffs before a valid judgment could be rendered against the insurance company. The above authorities are by the Commission of Appeals, and each has the express approval of the Supreme Court. Several late cases by thb Courts of Civil Appeals have followed them.

On .the point that an issue arising out of the testimony of an interested witness should be submitted to the jury, we cite American Surety Co. v. Whitehead (Tex. Com. App.) 45 S.W.(2d) 958; Mills v. Mills (Tex. Com. App.) 228 S. W. 919; Pope v. Beauchamp, 110 Tex. 271, 219 S. W. 447; Walker v. Dawley (Tex. Civ. App.) 4 S.W.(2d) 159; Thomas v. Saunders (Tex. Civ. App.) 150 S. W. 768; A., T. & S. F. Ry. Co. v. Lucas (Tex. Civ. App.) 148 S. W. 1149; 17 Tex. Jur., § 418, p. 926.

In Houston, E. & W. T. Railway Co. v. Runnels, 92 Tex. 305, 47 S. W. 971, 972, it is said: “It is the province of the jury to pass upon the credibility of the witnesses, and they may disregard the testimony of a witness who has neither been impeached nor contradicted, if they believe his statements to be untrue from his manner of testifying, prejudice exhibited towards the opposite party, or his interest in the result of the litigation, or other things indicating that the evidence is not reliable.”

The testimony here under consideration has not the positive and unequivocal character of the testimony considered by this court in Golden v. First State Bank of Bomarton (Tex. Civ. App.) 38 S.W.(2d) 628, Boyd v. Guinn (Tex. Civ. App.) 44 S.W.(2d) 1112, Edelbrock v. Farmer (Tex. Civ. App.) 43 S.W.(2d) 456.

The third proposition complains that the assured, Ada Stewart, was permitted to testify as to the value of the property without qualifying to do so, etc. In view of another trial of the case, we desire to state that the record in the respect complained of is not entirely satisfactory. In 19 Tex. Jur., p. 188, § 123, it is said that, where property lost, destroyed, or injured has a market value, such value is the one contemplated by the rule in arriving at a proper measure of damage. That if it has no market value, the contemplated value "is its actual, reasonable, or intrinsic value or worth, and if the property has neither (1) market value, nor (2) actual, reasonable, or intrinsic value, then the measure of damages is (3) its value to the owners; that is, the actual monetary loss sustained by him. I. - G. N. Ry. Co. v. Casey (Tex. Com. App.) 46 S.W.(2d) 669.

In the instant case the contracting parties stipulated for the measure of damages in the event of the destruction of the property By fire. That provision of the policy reads: “In all other cases this company shall not be liable beyond the actual cash value of the property at the time of the loss, with proper deductions for depreciation, however caused, and shall in no event exceed what it would then cost the insureft to repair or replace the same with materials of like kind and quality.”

Undoubtedly, whatever the value sought to be established, the witness should show a reasonable qualification to speak thereon. 19 Tex. Jur. p. 138, § 93, et seq.

The actual cash value only being sought in the instant case, we think it should have been established more in harmony with the decisions, some of which are: J. B. Watkins Land Mortg. Co. v. Campbell, 98 Tex. 372, 84 S. W. 424; International & G. N. Ry. Co. v. Nicholson, 61 Tex. 550; Sinclair v. Stanley, 64 Tex. 67; So. Pac. Ry. Co. v. Maddox, 75 Tex. 300, 12 S. W. 815; T. & N. O. Ry. Co. v. Moore (Tex. Civ. App.) 271 S. W. 126; Ft. Worth & Rio Grande Ry. Co. v. Hurd (Tex. Civ. App.) 24 S. W. 995; St. L., I. M. & S. Ry. Co. v. Green, 44 Tex. Civ. App. 13, 97 S. W. 531; Commercial Acceptance Trust v. Parmer (Tex. Civ. App.) 241 S. W. 586; Ft. Worth & D. C. Ry. Co. v. Hapgood (Tex. Civ. App.) 210 S. W. 969; Pecos & N. T. Ry. Co. v. Porter (Tex. Civ. App.) 156 S. W. 267; T. & P. Ry. Co. v. Warner, 42 Tex. Civ. App. 280, 93 S. W. 489; G., H. & S. A. Ry. Co. v. Daniels, 9 Tex. Civ. App. 253, 28 S. W. 548, 711; Hartford Fire Ins. Co. v. G., H. & S. A. Ry. Co. (Tex. Com. App.) 239 S. W. 919, 928; Peterson v. Grayce Oil Co. (Tex. Civ. App.) 37 S.W.(2d) 367; Wells, Fargo Express Co. v. Williams (Tex. Civ. App.) 71 S. W. 314; Jacksonville, Etc., Ry. Co. v. Peninsular Land, Etc., Co., 27 Fla. 1, 157, 9 So. 661, 17 L. R. A. 33, 65; McMahon v. City of Dubuque, 107 Iowa, 62, 77 N. W. 517, 70 Am. St. Rep. 143; Texas Moline Plow Co. v. Niagara Fire Ins. Co., 39 Tex. Civ. App. 168, 87 S. W. 192; T. & P. Ry. Co. v. Wilson Hack Line, 46 Tex. Civ. App. 38, 101 S. W. 1042; M., K. & T. Ry. Co. v. Crews, 54 Tex. Civ. App. 548, 120 S. W. 1110; City of Wichita Falls v. Mauldin (Tex. Civ. App.) 23 S.W.(2d) 771; Pecos & N. T. Ry. Co. v. Grundy (Tex. Civ. App.). 171 S. W. 318; Lancaster v. Rogers & Adams (Tex. Civ. App.) 235 S. W. 643; Tubbs v. American Transfer & Storage Co. (Tex. Civ. App.) 297 S. W. 670.

In the production of competent testimony and in the proper qualification of the witness to speak on the question of value in this character of case, various elements and considerations are to be borne in mind; but the disposition which we are required to make of this appeal under other assignments renders it unnecessary, we think, to do more than cite some of the leading authorities throwing light on the point here presented.

There are other propositions in’the appellant’s brief, but they pertain to matters of sufficiency of testimony and argument of counsel, and will not arise on another trial.

For the reasons assigned, the judgment of the trial court is reversed, and the cause remanded.


author: FUNDERBURK, Justice.

text:
    CHICAGO FIRE & MARINE INS. CO. v. FOLEY.
    No. 1090.
    Court of Civil Appeals of Texas. Eastland.
    March 24, 1933.
    Thompson, Knight, Baker & Harris, of Dallas, for plaintiff in error.
    Butts & Wright and J. D. Barker, all of Cisco, for defendant in error.
   FUNDERBURK, Justice.

T. Hunter Foley sued the Chicago Fire & Marine Insurance Company to recover upon a policy of fire insurance for the alleged total destruction of a building owned by plaintiff in the city of Breckenridge. The amount of the policy was $6,000, $3,000 of which was paid to. Farm & Home Savings & Loan Association, the holder of a mortgage on said property. The claim involved in the suit was limited to the balance of $3,000. Plaintiff alleged the property was totally destroyed. The policy, among other things, provided that the insurance company was not to “be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion or military or usurped power, or by order of any civil authority, or by theft or by negligence of the insured to use all reasonable means to save and preserve the property at and after a fire, or when the property is endangered by fire in neighboring premises, or (unless fire ensues and in that event, for the damage for fire only) by explosion of any kind or lightening, but liability for direct damage by lightening may be assumed by a specific agreement thereon. If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease.”

The defendant pleaded a general demurrer, which was overruled and exception noted, and among other defenses, properly to be noticed because of questions presented, first, that the policy was issued by J. M. Williamson & Co., local agents of the defendant, of which Foley was a member; that the policy was issued at his instance and request, and upon a false and fraudulent representation that the property was worth in excess of $6,000, when to his knowledge it was worth not more than $3,000; that defendant would not have issued •the policy had it known the facts, and was not liable because of such fraud. Second that if Foley was not a member of said firm of J. M. Williamson & Co. he was working for the latter and receiving one-half of all commissions on policies solicited by him; that he was licensed through said agency to sell insurance ; that the policy in question was issued at his special instance and request upon the representation that same was worth $6,000, when he knew that it was not worth more than $3,000; that if the company had known these facts it would not have issued the policy, for which reason same was claimed to be void and defendant not liable. Third that Foley had concealed and misrepresented the value of the property, and had represented its value to be $6,000, when he knew it was only worth $3,000, and if the company had known of this fact it would not have issued the policy, and hence plaintiff should not recover becaus§ of a provision in the policy to the effect that same should be void if the assured had concealed or misrepresented in writing or otherwise any material fact or circumstance concerning the insurance or the subject thereof before or after the loss.

Special issue No. 1, submitted to the jury, was: “Would a reasonably prudent person, uninsured, in rebuilding the house described in the policy of insurance made tide basis of this suit, use the remnant of the house standing after the fire for restoring the building to the same condition which it was in before the fire occurred?” To which the answer was, “No.”

The jury further found that the reasonable cash market value of the property in question on January 26, 1931, at Breekenridge, Tex. (same being the date of the insurance policy), was $4,800. The jury was asked to find whether Foley knew that the sum they found to be the value of said property was the reasonable cash market value of the property at said time and place, but did not answer the question. The court gave Foley judgment for $3,000, with interest, costs, etc., from which defendant brings error.

The first complaint which appellant makes of the judgment is the refusal of the court to order a mistrial on the ground of the failure of the jury to answer the special issue regarding Foley’s knowledge of the value of the property at the date of the policy. In this action we think there was no error. There was no evidence that Foley was a member of the firm of J. M. Williamson & Co., and the fact that he represented that firm to the extent of receiving a part of the commissions upon policies which he was instrumental in procuring did not, we think, necessarily bring him into any fiduciary relationship with appellant. In writing the policy in question, the insurance agents were charged with knowledge that, as to that transaction, by reason of his personal interest in the matter, Foley was not representing either appellant or the agents; and the evidence does- not show any misrepresentation or any concealment which, independently of a fiduciary relationship, would avoid the policy.

We are also of opinion that there was no error in admitting the testimony of the witnesses Harrell,, Clements, and Latson, regarding the condition of the building several months after the fire, as against the objection that it was not shown that the building was in the same condition at the time when examined as it was immediately after the fire. Appellee as a witness testified that he saw the building two days after the fire, and between that time and the time he showed it to each of the said witnesses no part of the building had been burned, destroyed, or carried off. We are inclined to the view that this testimony was sufficient to render the testimony objected to admissible.

Complaint is made of the action of the court in permitting the above-named witnesses, who were shown to be building contractors, to testify, in substance and effect, that “A reasonably prudent person, uninsured, in rebuilding the house described in the policy of insurance,” would not use the remnant -of the structure left standing after the fire as a basis for restoring the building to the condition it was in before the fire, as against the objection that same was the opinion and conclusion of the witnesses in reference to an ultimate issue in the case, and being one entirely within the realm of the jury to answer. In support of this contention appellant cites the single case of Reliance Insurance Company of Philadelphia v. Jesse V. Nichols et al., 56 S.W.(2d) 479, by the El Paso Court of Civil Appeals, a report of which is not presently available to us. Quotation in the brief is made from this case, as follows: “The nineteenth proposition complains of the admission of testimony to the effect that a reasonably prudent man desiring to rebuild plaintiff’s house would not use the foundation as a basis for rebuilding, also that the foundation was not a substantial part of the building. This was the opinion of the witness upon the vital issue in the case, and it should have been excluded.”

Independently of this decision, we are clearly of opinion that the testimony in question was not admissible under the authority of the decision of the Supreme Court in H. & T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S. W. 808. The principle upon which such evidence is excluded is that the answer of the witnesses involved a determination of what a reasonably prudent person, under the circumstances found to exist, .would have done, which is a question of mixed law and fact.

Complaint is made of the form in which special issue No. 1, quoted above, was submitted to the jury. It is insisted that it was incorr rect, in that it ignored the element .of desire to restore a structure such as the one destroyed was before the fire. The real issue was whether the building was a total loss. It occurs to us it would have been better to have submitted the issue so as to call for a finding of whether the building was a total 'loss, together with a definition, to be framed according to the opinion in Royal Insurance Co. v. McIntyre, 90 Tex. 170, 37 S.W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797, and to include the element of “substantial”' as applied to the remnant, as discussed in Fire Ass’n v. Strayhorn (Tex. Com. App.) 211 S. W. 447. However, in the absence of objection, the issue may be submitted in terms of the definition itself, and we are not prepared to hold that the issue in question was so incorrect as to require a reversal of the judgment, were that the only error of which complaint is made. We are inclined to the view that the element which it is claimed was absent was implied in the issue as submitted. We suggest, however, that upon another trial any such question may and should be obviated, as above indicated.

It is further contended that the court below erred in overruling the defendant’s general demurrer to the plaintiff’s petition. Plaintiff’s petition alleged that on the 22d day of April, 1931, while the policy was in force and effect, “said building was destroyed by fire.” That the loss was total, “and that by reason thereof the sum of $6000.00 for which the same was insured against loss by fire by said policy of insurance became and was and is a liquidated demand.” It was not alleged that the fire did not occur under any of the conditions or circumstances excepted from the obligations of the policy. It is established by the decisions of this state that, where provisions of an insurance policy have the effect of making exceptions from the general liability imposed by the policy, the insured has the burden in a particular case of pleading and proof to negative the existence of the exceptions. Travelers’ Ins. Co. v. Harris (Tex. Com. App.) 212 S. W. 933; Coyle v. Palatine Ins. Co. (Tex. Com. App.) 222 S. W. 973; Pelican Ins. Co. v. Troy Co-op. Ass’n, 77 Tex. 225, 13 S. W. 980; Phœnix Ins. Co. v. Boren, 83 Tex. 97, 18 S. W. 484; Alamo Fire Ins. Co. v. Shacklett (Tex. Civ. App.) 26 S. W. 630; Northwestern National Ins. Co. v. Westmoreland (Tex. Civ. App.) 215 S. W. 471.

There are three or four other assignments of error, including one or more, complaining of the argument of counsel. It occurs to us, without definitely determining the last-named questions, that the argument complained of was erroneous, and would probably require a reversal of the ease. But with this suggestion made in view of another trial, we deem it unnecessary to discuss the other assignments. ' '

For the errors mentioned, it is our opinion thát the judgment of the court below should be reversed, and the cause remanded, which is accordingly so ordered.


author: HALL,-Chief Justice.

text:
    HOME INS. CO. v. KLOUS et al.
    No. 3973.
    Court of Civil Appeals of Texas. Amarillo.
    March 1, 1933.
    Rehearing Denied March 22, 1933.
    C. D. Russell, of Plainview, for appellant.
    Williams & Day, of Plainview, and Dennis Zimmermann, of Tulia, for appellees.
   HALL,-Chief Justice.

The appellee Klous had about 2,000 acres of land in Swisher county planted to wheat in 1930, and on the 29th day of April of that year he executed to the appellant company a mortgage note in the sum of $1,929.90', which recites that it is given in consideration for hail insurance on his crop of wheat then growing on certain lands in Swisher county. A mortgage lien is acknowledged to secure the note, which- further recites, in part: “If -any attempt shall be made to sell or remove said ci‘op or any part thereof before the full payment of this note (permission, however, granted to sell not to exceed 25% of the above crop for the purposes of paying this note and harvesting expenses) this note shall at once become due and payable,” etc.

Prior to the execution of this instrument, Klous was indebted to the First National Bank of Plainview, and there appears in the record a stipulation of counsel to the effect that the First National Bank in Plainview took over all the assets and assumed the liabilities of the first-named bank on August 30, 1930. The note was not paid to plaintiff when due on the 15th day of July, 1930, and this suit was instituted against Klous to recover the amount of the mortgage note, less two credits thereon aggregating about $550. The First National Bank in Plainview was made a party defendant upon the grounds alleged as follows:

“That at the time the note was executed, a mortgage was given to appellant by Klous on the insured wheat to secure the payment of the note but that at some time prior thereto Klous had executed a mortgage on the same wheat to the First National Bank of Plainview. That before accepting the note and issuing the hail insurance policy, the appellant required and defendant bank executed the following waiver:
“ ‘This mortgage waiver to apply to application of Foster Klous of Tulia, Texas, assured. For and in consideration of loss payable clause attached to policy No. 75,756 in Home Insurance Company of New York, First National Bank, Plainview, Texas, mortgagee, hereby. consents that the mortgage given to Home Insurance Company of New York, Ñ. Y., for $1929.90, shall be a first and prior lien on the crop described in said policy and in the event we take the property or proceeds thereof to satisfy our claim, we agree to protect said Home Insurance Company or its assignees.
“ ‘The Plainview National Bank,
“ ‘Plainview, Texas,
“ ‘By R: A. Underwood,
“ “Vice President.’ ”

That said waiver was executed and delivered to appellant in order to induce it to insure the wheat crop of said Klous against loss by hail with loss payable clause in favor of said bank.

The petition then alleges the fact that the First National Bank in Plainview was iricor7 porated and took over the assets and assumed the liabilities of the bank described in the foregoing waiver, and that said bank had knowledge of all the facts alleged; that, after the wheat had been harvested, the defendant bank caused it to be sold and' disposed of and acting through its duly authorized officer, Guy Jacobs, vice president, induced and caused Klous to pay to it the sum of $4,000 out of the proceeds of said wheat and agreed with Klous that it would pay appellant’s note out of said $4,000; that said bank authorized Klous to use a large portion of the proceeds of said wheat in defraying the expenses of harvesting and paying other obligations which inured to the benefit of the bank.

The bank answered, alleging specially that by the mortgage set up in plaintiff's petition Klous was given permission to sell not to exceed 25 per cent, of his wheat crop for the purpose of paying the note sued upon and harvesting expenses, thereby waiving the appellant’s lien upon the wheat and making Klous its agent and representative to dispose of the crop, that Klous did sell about 14,000 bushel of wheat and received therefor the sum of $10,786.40, and that the amount received for 25 per cent, of said wheat was sufficient to pay the note sued on with the harvesting expenses.

The bank further alleged that the appellant’s mortgage was void for want of description of the property mortgaged and -was insufficient to identify the land upon which the wheat was growing. It further alleged that the bank’s mortgage covered other and different wheat growing upon land not described in appellant’s mortgage.

The case was tried to a jury, but the court directed a verdict in favor of appellant against Klous for the’ sum of the note, interest, and attorney’s fees, less the credits, and further decreed that plaintiff and Klous take nothing against the bank.

It is unnecessary to diseñé the several assignments in the order presented in the brief.

Klous testified that, when Underwood, the vice president of the original bank, found that there was no hail insurance upon the wheat upon which the bank had mortgages (which included other property) to cover Klous’ indebtedness, aggregating about $19,-000, he approved Klous’ action in having the wheat insured. The effect of the waiver signed by Underwood is to postpone the bank’s debt and mortgages to the note and mortgage sued on. It is supported by a valuable consideration, is a complete estoppel on the part of the bank to thereafter insist upon priority in the payment of its debt, and fixes 'the rights of the parties as between the bank and the appellant. The record fails to show that the rights so fixed have been in any way modified by any subsequent, agreement or acts of the parties.

The contention of the bank throughout its brief is that the waiver clause in the mortgage note sued upon constituted a waiver of the appellant’s mortgage lien upon the crop because it authorized Klous, the mortgagor, to sell 25 per cent, of the wheat raised on the mortgaged lands. We cannot assent to this proposition. The consent on the part of the mortgagee for the mortgagor to sell 25 per cent, of the crop is upon the express condition that it was for the purposes of paying the note sued on and the expenses of harvesting the crop. The rule is established that, “when a mortgagee’s consent to the sale by the mortgagor is given on condition, the condition must be performed in order to render the consent a waiver of the mortgage lien as between the parties or as against a purchaser who was a party to the condition or had knowledge thereof, as where consent is given on condition that the proceeds of the sale be applied on the mortgage debt or that the mortgage debt should first be paid.” 11 O. J. 625.

As said in 9 Tex. Jur. 185: “A waiver in law is the intentional relinquishment of a right. A mortgagor has the right to sell the mortgaged property subject to the encumbrance and the mortgagee has the right to assume that a buyer will not dispute his lien, where proper notice exists. Accordingly mere knowledge on the part of the mortgagee that the mortgagor would sell the mortgaged property to discharge his debt does not necessarily show a waiver of his lien and one who consents to a proposed sale of the property but refuses to release his lien thereby, negatives the intention of waiver.”

Since the mortgage note was executed at the instance of the bank’s vice president to protect the wheat upon which it held a mortgage, and in the face of the express agreement that the bank’s debt and lien should be postponed to the mortgage note, it does not lie in the mouth of the bank to insist that the appellant has waived its lien in any sense in so far as the bank is concerned. The presumption obtains that the agreement of the insurance company that Klous might sell 25 per cent, of the crop to pay the note and harvesting expenses was made with reference to the bank’s agreement that the appellant’s lien should still be prior to the latter’s mortgages. Weeks v. First State Bank (Tex. Civ. App.) 207 S. W. 973; Trabue v. Wade & Miller (Tex. Civ. App.) 95 S. W. 616; First National Bank of Tulsa v. Hoover et al. (Tex. Civ. App.) 244 S. W. 1044; First National Bank of Greenville v. First State Bank of Campbell (Tex. Civ. App.) 252 S. W. 1089; Crow, Hargadine & Co. v. Red River County Bank, 52 Tex. 362.

The appellee bank further contends that the court was justified in directing a verdict because the evidence did not show that any of the $4,000 had been received as proceeds of the sale of the wheat covered by the appellant’s mortgage, and for this reason there was a failure of proof.

Klous testified that he raised wheat in Swisher county on approximately 2,000 acres of land during the year 1930; that before he made application for - hail insurance he talked to Underwood, the vice president of the bank, and that the latter told him to be sure and have the wheat insured against hail; that the land described in the mortgage note is practically a correct description of the land on which he had wheat planted during that year; that he harvested all the wheat he raised during 1930 and sold it and paid $4,000 of the money to the First National Bank of Plainview. This question was asked him: “I will ask you whether or not that $4,000.00 came from the wheat you had raised on this land described in this insurance policy?” He answered: “Yes sir, it was.” He further testified that, at the time he paid the $4,000 to Guy Jacobs, the vice president of the defendant bank, he told Jacobs that the insurance mortgage would have to be paid, and Jacobs said he would pay it if he had to. Klous admitted that he had received about $13,000 for all the wheat which he had raised and sold during 1930. He was then examined with reference to the disposition made of the remaining $9,000 after having paid the bank $4,000. He said that Underwood told him to sell the wheat and pay the expenses of harvesting; to harvest it as quick as he could and deliver it to the elevator, and, after paying the expenses, to send some money down to the bank; that he told Jacobs that the $4,000 was a part of the proceeds of the wheat raised upon the mortgaged premises and that the insurance note must be paid out of the $4,000, but they would not let him do so; that Jacobs took the $4,000 and released the mortgages which the bank held against Klous. He • further testified that he bought four or five trucks, for which he paid $1,000 to $1,500 out of the proceeds of the wheat; that he could not hire all the wheat hauled, and called Underwood’s attention to that condition, and Underwood said to buy some trucks. He then gave an itemized statement of where the remainder of the' money was spent, in sums from $570 and less. We think this testimony was all immaterial.

The waiver signed by the bank in order to get the hail insurance unquestionably gave the appellant insurance company priority. The record fails to show that anything happened thereafter to change the relative position or rights of'the respective parties. It is clear from Klous’ testimony, from which we have quoted in part, that the $4,-000 paid by him to the bank constituted a part of the proceeds of the wheat covered by appellant’s mortgage. Appellant’s mortgage does not specify that the $1,929.90 due it shall be the first money realized from the sale of the wheat, and, in view of the waiver and the agreement of the bank incorporated therein that, in the event the bank should take the property or proceeds thereof to satisfy its claim, it would protect the appellant, prevents the bank from insisting that appellant should not be paid out of the proceeds. No duty rested upon the insurance company to look to the application by Klous of the money received for the wheat which he sold. As stated, its mortgage covered no particular part of the entire crop, and, when the bank received any part of the proceeds, it became the trustee of the amount received for the benefit of and to the extent of appellant’s debt.

In view of another trial, we suggest that the court has improperly excluded the testimony of several witnesses as to conversations between Klous and Peters in the absence of the bank, and Klous and the officers of the bank in the absence of the insurance company, most of which we think was admissible as to all parties under the res gestee rule.

We think the testimony of Klous unquestionably required the court to submit the issues to the jury, and, because of the error committed in failing to do so, the judgment is reversed and the cause is remanded.

MARTIN, J., disqualified and not sitting.