author: SHARP, Judge. CURETON, Chief Justice.

text:
    HARDING et al. v. CITY OF RAYMONDVILLE.
    No. 1636—6059.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    Jesse G. Foster, of Raymondville, for plaintiffs in error.
    Crane & Hartwell and'’A. B. Crane, all of Raymondville, and Cunningham, Moursund & Johnson, of San Antonio, for defendant in error.
   SHARP, Judge.

The city of Raymondville, a municipal corporation, instituted suit in the district court against W. A. Harding et al., who were lien-holders and necessary parties thereto, seeking to recover judgment for the amount of taxes due and foreclose its tax lien. The cause was tried- before the court without a jury, and judgment was rendered that the city of Raymondville take nothing by reason of its suit. Notice of appeal to the Court of Civil Appeals at San Antonio was given, but no transcript was filed. The city abandoned the appeal, and sued out a writ of error and filed a transcript in the Court of Civil Appeals. The judgment of the trial court was reversed and the cause remanded for a new trial. (Tex. Civ. App.) 40 S.W.(2d) 888. A writ of error brings the cause here.

The writ of error was granted upon the proposition that the Court of Civil Appeals erred in overruling the motion by W. A. Harding, praying that the judgment of the trial court be affirmed on certificate, because the city of Raymondville failed to file a transcript within ninety days after the city had perfected its appeal and no good reason being shown why such transcript was not so filed within the statutory time.

From the record we gather the following facts: Judgment was entered by the trial court on August 19, 1980, to the effect that the city take nothing as against the defendants therein. The city excepted, and gave notice of appeal to the Court of Civil Appeals. No transcript was filed with the clerk of the Court of Civil Appeals within ninety days after the date of judgment. The record further shows that the attorney representing the city had moved or was about to move his residence out of the county, and other counsel were engaged to represent the city in this cause. The original appeal was abandoned, and on the 23d day of December, 1930, the city filed its petition for writ of error, and service thereof was had on the attorney for Harding on the 27th day of December, 1980. It was shown to the Court of Civil Appeals that the attorney originally representing the city had moved his residence and abandoned the case, and that other counsel had -been engaged to represent the city and perfect the appeal; that all necessary steps were taken to appeal the cause by writ of error, and the transcript was filed- with the clerk of the Court of Civil Appeals on February 4, 1931. During this time counsel for Harding asked the Court of Civil Appeals to affirm the,judgment of the trial court on certificate. This motion was objected to upon the grounds that, under the existing facts, the city was within its legal rights to perfect the appeal by writ of error, set up the facts and circumstances. surrounding the matter, and asked that the motion to affirm on certificate be denied. The Court of Civil Appeals overruled the motion to affirm on certificate, and considered the cause on its merits.

This contention involves the construction of our statutes regulating appeals from the trial court to the Court of Civil Appeals. Article 2249 (as amended by Acts 1927, c. 62, § 1 [Vernon’s Ann. Civ. St. art. 2249]) provides that an appeal or writ of error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases. Article 2072 provides that no bond shall -be required of any incorporated city or town in any action, suit, o-r proceeding. Article 2264 provides that, in cases where the appellant is not required -by law to give bond on appeal, the appeal is perfected by giving notice in open court of such appeal. Article 2265 reads as follows: "The writ of error, in cases where the same is allowed, may be sued out at any time within six months after the final judgment is rendered.” Article 1839, which was in effect at the time the judgment was entered in the trial court, reads as follows: “In appeal or writ of error, the appellant or plaintiff in error shall file the transcript with the clerk of the Court of Civil Appeals within ninety days from the perfection of the appeal dr service of the writ of error; • provided, that for good cause, the court may permit the transcript to be thereafter filed upon such terms as it may prescribe.” The foregoing article was amended by the Acts of 193Í, 42d Legislature, page 100, chapter 66, § 1 (Vernon’s Ann. Civ. St. art. 1839), went into effect ninety days after-May 23, 1981, and provides that the transcript shall be filed within sixty days instead of ninety days as required in the original article. Article 1841, in part, reads as follows: “If the appellant or plaintiff in error shall fail to file a transcript of the record, * * * then the appellee or defendant in error may file with the clerk of said court a certificate of the clerk of the district or county court in which such appeal or writ of error may have been taken, attested -by the seal of his court, stating the time when and how such appeal was perfected or such citation was served; whereupon the Court of Civil Appeals shall affirm the judgment of the Court below, unless good cause can be shown why such transcript was not so filed. * * * >f

Our courts recognize the rule that an appeal of a cause is a valuable right to litigants, and, in the absence of the issue of delay, the statutes and rules regulating appeals are given a liberal construction. Upon the precise question presented for decision the opinions of some of our courts are in conflict. Some give the statutes a strict construction while others give them a more liberal construction.

The authoritative decisions of this state have established the rule that a party dissatisfied with the judgment of a lower court may perfect his appeal, abandon same, and then sue out a writ of error within the statutory time provided therefor. Thompson v. Anderson, 82 Tex. 237, 18 S. W. 153; Eppstein & Co. v. Holmes, 64 Tex. 560; Schonfield v. Turner (Tex. Sup.) 6 S. W. 628; Scottish Union & Nat. Insurance Co. v. Clancey, 91 Tex. 467, 44 S. W. 482; Hawkeye Securities Insurance Co. v. Cashion (Tex. Civ. App.) 293 S. W. 664. The authorities also announce the rule that a party cannot resort to both methods of appeal in order to delay the case. Perez v. Garza, 52 Tex. 571; Knox v. Earbee (Tex. Civ. App.) 31 S. W. 531.

Where an appeal is abandoned and a writ of error is sued- out which would unduly delay the cause, the appellee has the right to have the judgment affirmed on certificate. Welch v. Weiss, 99 Tex. 356, 90 S. W. 160, 162; Insurance Co. v. Clancey, supra; Thompson v. Anderson, supra. The rule announced in the last-cited decisions rests upon the ground that, where a party recovers a judgment in the trial court, and the defendant appeals therefrom and executes a super-sedeas bond, the party appealing will not be permitted to abandon the appeal and deny the enforcement of the judgment by suing out a writ of error which would delay the cause; and that the privilege of suing out the writ of error under such conditions is subject to the superior right of the appellee to have the judgment affirmed on certificate.

An analysis of the facts involved in the principal cases relied upon that a party is entitled to have an affirmance on certificate, even though the party has appealed by writ of error, clearly shows a different state of facts from those involved here. For instance, in the case of Welch v. Weiss, supra, the certificate upon which that opinion rests stated: “This court at the last term held the excuse insufficient, and refused to allow the filing of the transcript. That matter was finally disposed of at the last term of this court. The final order therein was entered December 21, 1904.” In the case of Insurance Company v. Clancey, supra, the facts show that the appellant had appealed and executed a supersedeas bond, and, without giving good excuse for the delay, he sued out a writ of error which caused a delay in the case and denied the appellee the right to an enforcement of his judgment. These and other cases further show that the appeal was abandoned and writ of error sued out which delayed the cause and in some instances carried the cause into another term of court. Under this state of facts, the courts held that an affirmance of the judgment on certificate was proper. This conclusion rests upon the ground that the statute was enacted to prevent the use of the writ of error in such cases for the purpose of delaying the execution of judgments of the trial courts.

A distinction should be and is recognized where the plaintiff in the. lower court is denied any recovery in the judgment and an appeal therefrom is made and abandoned and no delay occurs, and, in the absence, of bad faith in suing out the writ of error, the courts will not apply as strict a rule as prevails on appeal from judgments, the execution of which has been arrested by superse-deas bond. If Harding had obtained a judgment against the city, and the city had appealed therefrom and had executed a super-sedeas bond, and the appeal had suspended his right to an enforcement of the judgment, there would be a strong reason for holding that a writ of error returnable to a term subsequent to that which the appeal was returnable should not be allowed to defeat his right for an affirmance on certificate. This principle is recognized in the leading case of Perez v. Garza, supra, and is followed, among others, in the following cases: Schonfield v. Turner, supra; Thompson v. Anderson, supra; and Scottish Union &. Nat. Insurance Co. v. Clancey, supra.

In the case at hand, the appeal and writ of error were both returnable to the same term of the Court of Civil Appeals. The issue of delay in the enforcement of the judgment by resorting to the writ of error is not here. The Court of Civil Appeals had before it the record, the reasons for the abandoned appeal and for resorting to the writ of error, the motion to affirm on certificate and the objections made thereto, and, with all the facts and circumstances before it, the Court of Civil Appeals overruled the motion to affirm on certificate and considered the cause on its merits.

This precise question arose in the case of Hawkeye Securities Insurance Co. v. Cashion, supra. Chief Justice Hickman wrote the opinion in that case, and, after reviewing the authorities, held that the Court) of Civil Appeals could, under the facts involved there, refuse to affirm the case on certificate and consider the case on its merits. The Supreme Court granted a writ of error, and reversed the judgment upon issues involving the merits of the case. By implication the holding of the Court of Civil Appeals upon this question was upheld. The opinion is in harmony with the sound rule controlling this question.

The Court of Civil Appeals reversed and remanded this cause to the district court for another trial. Wo will not disturb this holding. Accordingly, we recommend that the judgment of the Court of Civil Appeals reversing and remanding this cause for another trial be affirmed.

CURETON, Chief Justice.

Judgment of the Court of Civil Appeals reversing the ease is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    UNION ASSUR. SOC., Limited, v. EQUITABLE TRUST CO. et al.
    No. 1643—6076.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    Thompson, Knight, Baker & Harris, of Dallas, for plaintiff in error.
    Benjamin Chilton, of Dallas, and Smith & Smith, of Fort Worth, for defendants in error’.
   SHARP, Judge.

The honorable Court of Civil Appeals has certified to the Supreme Court the following statement and question:

“In the above styled suit, the Union Assurance Society, Limited, has attempted to prosecute an appeal to this court from a judgment rendered against it by the District Court of Tarrant County for the 96th Judicial District, on July 15, 1931, on a policy of insurance issued by it covering a house which was destroyed by fire. The judgment was actually rendered, nunc pro tunc, on July 30, 1931, as of date July 15, 1931.
“The case was tried before the court without a jury and the judgment recites that the appellant gave notice of appeal at the time the same was rendered. No motion for new trial was ever filed. On August 13, 1931, appellant filed an appeal bond which was duly approved on that date. On October 6, 1931, appellant tendered to the clerk of this court a transcript and statement of facts which was retained by the clerk, but he refused to file the same unless appellant would first procure an order of this court granting permission for such filing.
“On October 8, 1931, appellees filed a motion to affirm the judgment of the trial court upon the certificate of the district clerk reciting, in due form, the rendition of the judgment in the trial court; and of the filing in the trial court the following instruments: An appeal bond on August 13, 1931; assignments of error on August 13, 1931; a statement of facts on September 9, 1931; the trial judge’s findings of- facts and conclusions of law on September 12, 1931; supplemental assignments of error on September 14, 1931; and the delivery of the transcript to appellants on September 26, 1931.
“On October 9, 1931, which was one day later than the filing of appellees’ motion to affirm on certificate, appellant filed in this court a motion for leave to file the transcript and statement of facts, together with a showing of excuses for failure to sooner file the record, and which excuses are shown in the motion which will accompany this certificate and therefore will not here be recited. The motion also embodies a resistance t.o the application of appellees to affirm on certificate.
“The motion for leave to now file the transcript and also the motion to affirm on certificate are both pending and undetermined in this court. In view of the uncertainty arising from the Act of the 42nd Legislature, Regular Session, the same being chapter 66, on page 100, amending article 1839 of the former statutes, and which became effective August 23, 1931, and in view of the fact that similar questions have arisen in several other cases now before us, we deem it advisable to certify to your Honors the following question :
“Should or should not the motion of appellant, for leave to file the transcript and statement of facts now and thereby defeat appel-lees’ motion for affirmance on certificate, be granted?”

The foregoing question involves the construction of our statutes regulating appeals from the trial court to the Court of Civil Appeals. Article 1839, R. S. 1925, which was in effect at the time an appeal was perfected from the judgment entered in the trial court in this cause, reads as follows: “In appeal or writ of error, the appellant or plaintiff in error shall file the transcript with the clerk of the Court of Civil Appeals within ninety days from the perfection of the appeal or service of the writ of error; provided, that for good cause, the court may permit the transcript to be thereafter filed upon such terms as it may prescribe.”

This article was amended by the Acts of 1931, 42d Legislature, page 100, chapter 66, § 1 (Vernon’s Ann. Civ. St. art. 1839), went into effect ninety clays after May 23, 1931, and as amended reads: “In appeal or Writ of Error the appellant or plaintiff in error shall file the transcript with the Clerk of the Court of Oivil Appeals within sixty days from the final Judgment or Order overruling motion for new trial, or perfection of the Writ of Error; provided, that for good cause shown before the expiration of such sixty day period, the Court shall permit the transcript to be thereafter filed upon such terms as it shall prescribe.”

The Supreme Court of this state has announced the rule in the construction of statutes changing the time within which appeals may be made, that as to the statutes of limitation where a different period is substituted, is, that the new law will control, provided that reasonable time is given within which to prosecute appeal. Odum v. Garner, 86 Tex. 374, 25 S. W. 18, 19; Wright v. Hardie, 88 Tex. 653, 32 S. W. 885; 3 Texas Jurisprudence, pp. 272 and 273, § 178, and cases cited. The case of Odum v. Garner, supra, involved the construction of the Acts of 1892, c. 17, p. 43, Laws of the 22d Legislature, prescribing that writs of error from judgments in the district and co-unty courts, in cases where same is allowed, may be sued out at any time within twelve months after the final judgment is rendered and not thereafter, and the court held that the law applied to judgments rendered before that law went into effect. The court then discussed and answered the question as to what period of time should be held to bar the right to a writ of error from a judgment rendered 'before the time that the new law took effect. It was held in that case that the time allowed was reasonable and discussed the change in statutory period within which an appeal may be taken applicable to judgments rendered prior to the taking effect of the new law, and stated the rule in the following language: “Our supreme court has adopted the rule that upon the substitution of a new term of limitation the time which elapsed under the former law will be counted in the ratio that it bears to the whole period, and the time of the new law will be computed upon the basis of the ratio that the unexpired term under the old law bears to the whole time. That is, if, under the old law, two-thirds of the time had expired, then one-third of the new law would be allowed within which to sue. Gautier v. Franklin, 1 Tex. 732. The same rules should be applied in construing this statute as in construing statutes of limitation of actions. Wade, Retro. Law, § 232; Howell v. Howell, 15 Wis. 57; 23 Amer. & Eng. Enc. Law, 450.”

The law under consideration, having furnished the litigants involved here a reasonable time within which to perfect an appeal, meets the requirements of the rule announced in the ease of Odum v. Garner, as well as the necessities of this case.

The following controlling facts appear: Judgment was rendered on July 30, 1931, as of date July 15, 1931. No motion for new trial was filed. On August 13, 1931, plaintiff in error filed an appeal bond, which was duly approved on that date. On October 6, 1931, plaintiff in error tendered to the clerk of the Court of Oivil Appeals a transcript and statement of facts which was retained but not filed. On October 8, 1931, defendants in error filed a motion to affirm on certificate the judgment of the trial court. On October 9, 1931, which was one day later than the filing of the motion to affirm on certificate, plaintiff. in error filed in the Court of Oivil Appeals a motion for leave to file the transcript and statement of facts, together with a statement setting out the excuses for failure to sooner file the record.

The appeal in this cause was perfected August 13, 1931, when the appeal bond was filed and approved. The original article 1839 allowed plaintiff in error 90 days from the perfection of its appeal in which to file a transcript in the Court of Civil Appeals. As amended, that article now requires the transcript to be filed in the Court of Civil Appeals “within sixty days from the final Judgment or Order overruling motion for new trial.” Under the original article then in force plaintiff in error was allowed 90 days from August 13, 1931, in which to file the transcript in the Court of Civil Appeals. The amended law took effect 90 days from May 23, 1931, which was August 22, 1931. Article 3, § 39, Const.; Halbert v. San Saba Springs Land & Livestock Ass’n, 89 Tex. 230, 231, 34 S. W. 639, 49 L. E. A. 193.

If the new law was to control independently of the provisions of the old law, then plaintiff in error was required to file the transcript within 60 days from the date of the rendition of the judgment in the trial court. But such rule does not control in this cause. It appears that, at the time the amended article took effect, 9 days under the original law had expired, that is nine-ninetieths of such time had expired when the amended article prescribing 60 days within which to file the transcript became effective. Using the rule announced by the Supreme Court as a basis to compute the time, plaintiff in error was entitled to eighty-one ninetieths of the 60-day period allowed by law, in which to file the transcript, which would be 54 days. By adding 54 days to August 22, 1931, carries the time to October 15, 1931. Therefore plaintiff in error had up to and including the 15th day of October, 1931, in which to file the transcript after the amended article took effect. The transcript, having been tendered on October 6, 1931, was in time under the amended law, and should have been filed.

The foregoing question is answered “Yes.”

We therefore recommend that the above question be answered as indicated.

CURETON, Chief Justice.

Certified question answered and ordered certified.


author: LEDDY, Judge. CURETON, Chief Justice.

text:
    SECURITY BEN. ASS’N v. WOODS.
    No. 1414—6200.
    Commission of Appeals of Texas, Section B.
    March 15, 1933.
    Ward & Ward, of Houston, and A. W. Eul-ton, of Topeka, Kan., for plaintiff in error.
    King, Wood & Morrow and H. E. Cox, all of Houston, for defendant in error.
   LEDDY, Judge.

Plaintiff in error is a fraternal beneficiary association operating under a lodge system, with a ritualistic form of work, organized and conducted without profit and solely for the mutual benefit of its members and their beneficiaries. It was incorporated under the laws of Kansas, and for many years has been licensed to transact business in this state under the provisions of the laws regulating the operation of such societies.

In 1919 plaintiff in error issued to John W. Woods a benefit certificate providing for the payment, upon his death, of the amount stated therein to his wife, provided that at such time he were a member of the order in good standing. The assured was required by the terms of the certificate to pay all monthly assessments and dues on the 1st day of each month; he being given the entire month in which to make payment. If the payment for any month was not paid on or before the last day of the month in which due, he be-' came, without notice, automatically suspended from the society, and all rights under the certificate were forfeited and could not be restored until he had complied with the laws of the association governing reinstatement of suspended members.

The undisputed evidence in this case shows' that Woods failed to pay the assessments and dues payable by him for the month of August, 1928, on or before the last day of the month, and he thereby became suspended on August 31. He also failed to pay the dues and assessments for September, October, and November. On or about the 10th day of December he made payment to the financier of plaintiff in error’s local council of all dues and assessments which would have been paid had he remained in good standing. He continued to pay the assessments for each subsequent month as they became due up to the time of his death, which occurred in April, 1929.

Defendant in error, the wife of Woods, and the beneficiary under said certificate; brought this suit against plaintiff in error to recover the amount stipulated in such certificate. She was awarded judgment for the amount of the certificate, less certain deductions, based upon findings of a jury in answer to special issues submitted to them. 'Upon appeal to the Court of Civil Appeals, the judgment of the trial court was affirmed.

It is an admitted fact that on the last day of August, 1928, and thereafter during the entire life of the said Woods, he was not in sound bodily health.

The laws of the association provided that each member who- had been suspended for nonpayment of an assessment should be reinstated only in accordance with the cohsti-, tution and by-laws of the association. These laws were, by the terms of the certificate held by Woods, expressly made a part thereof.

Woods’ status as a member of this organization at the time of his death is dependent upon the fact as to whether he complied with its laws governing the reinstatement of suspended members. The constitution and bylaws of the order provides that, where a member has been suspended for less than 60 days, he cannot be reinstated unless he is in good health at the time he pays all arrearages of dues and assessments, with the further provision that his payment of such dues is a warranty as to his good health at that time.

A different provision was made for members who were under suspension for more than 60 days at the time of attempted reinstatement. Reinstatement under such circumstances is controlled solely by the provisions of section 115 of the society’s by-laws, which reads as follows:

“How Reinstated, After Sixty Days. Any member * * ⅝ whose beneficiary certificate has been suspended for more than sixty days -and less than six months; may be reinstated to beneficial membership upon providing such proof of sound bodily and mental health as may be required by the National Executive Committee and the approval thereof by the National Medical Director or National Executive Committee. Notice of such approval shall be sent by the National Secretary to the Financier of the local epuncil and to the applicant for reinstatement. Reinstatement shall take place only after the approval of the application as hereinbefore set forth and the payment by the member to the Financier of his council of all assessments and dues accruing subsequent to the suspension of the certificate, including the assessment and dues for the month in which reinstatement takes place. All National Council funds collected for the reinstatement of suspended members shall be forwarded with the first report thereafter to the National Secretary by the Financier together with the report of such reinstatement.”

It will be noted that this section of the by-laws of the society does not contain any stipulation to the effect that a member shall not be reinstated unless he is in good health at the time. Under this section a suspended member is required to do two things as a prerequisite to his reinstatement: First, to pay all dues and assessments accruing subsequent to the suspension of his certificate, including the assessments and dues for the month for which reinstatement takes place; and, second, he must make such pi'oof of sound bodily and mental health as may be required by the national executive committee, which proof is to be passed upon and approved by said committee or the national medical director. Under this provision plaintiff in error had the right to require Woods to sign a certificate reciting that he was in good health or that he furnish a medical certificate of that fact, or it might demand such other reasonable proof as it might deem advisable. On the other hand, it might decline to require any proof as to the applicant’s physical condition. It was of course the duty of such committee to communicate to a member who. had been suspended for morc-than 60 days the character of proof it required as a condition precedent to the reinstatement of his certificate. After the suspended member had been informed of the requirement made by the committee, he would be compelled to comply therewith in order to restore himself to good standing in the order.

Under an unchallenged jury finding, plaintiff in error did not exact of Woods any proof as to the condition of his health at the time of the attempted reinstatement. He paid all dues and assessments required for suspended members, and continued to pay current dues and assessments up to ’the date of his death.

It is true that plaintiff in error’s national executive committee, acting under authority contained* in section 115 of its by-laws, sought to require Woods to sign an application for reinstatement certifying that he was in good health. This requirement was communicated to plaintiff in error’s local financier, but such officer failed to notify Woods that any such condition had been imposed as a prerequisite to the right to reinstate his certificate. The health certificate forwarded by plaintiff in error to its local officer was returned by that official with Woods’ purported signature. This was found by the way to be a forgery, with the further finding that this application for reinstatement was never at any time presented to Woods, or any one acting for him, for execution. Had plaintiff in error’s local officer informed Woods of the requirement of the national committee for a health certificate, it would have been his duty to have executed the same, and, if he failed to do so, it would have operated to prevent the reinstatement of his certificate.

Plaintiff in error'insists there was no valid reinstatement of Woods’ certificate because tinder its by-laws no officer of any subordinate council was authorized ,or permitted to waive any provision of the laws of the association relating to the contract between the member and the association, and also because of the further provision that the association should not be bound by the acceptance of assessments and dues from suspended members who were not entitled to reinstatement in accordance with the laws of the association. In this connection a great deal is said upon Che subject of waiver and es-toppel. The right of Woods’ beneficiary to recover under the certificate is not in any way dependent upon the existence of facts sufficient to constitute either waiver or estop-pel. The recovery awarded the beneficiary under the policy is justified upon the proposition that Woods did all that was required of him to reinstate his certificate under the laws of the association. He was only required to pay all arrearages of dues and assessments up to the time of his reinstatement, and to furnish such proof of his bodily and mental health as might be required by plaintiff in error’s national executive committee. It is undisputed that he complied with the requirement as to payment of all dues and assessments. The tender of these dues by him constituted an application for reinstatement of his certificate. Since plaintiff in error’s national executive committee did not make known to Woods its action requiring the execution of a health certificate, payment of such dues and assessments operated as a reinstatement of his forfeited membership.

This is not a case where the constitution of a fraternal society requires a suspended member to be in fact in good health as a condition precedent to his right to reinstate. Under the provisions of section 115, it is clearly within the province of the national executive committee to permit a suspended member to be reinstated who is not in good health at the time he attempts to reinstate. The committee was clothed with full power to protect the society against reinstatement of suspended members not in good health by requiring them to make proof acceptable to it of the condition of the applicants’ health at the time of reinstatement. If it fails to require any proof by a suspended member as to the condition of his health, the payment of the required dues and assessments would necessarily ox>erate to reinstate such member, regardless of the condition of his health at the time.

Plaintiff in error insists that under section 115 it is contemplated that a health certificate should be exacted from a member who has been suspended for more than 60 days at the time he attempts to reinstate. This contention is based upon this language of said section: “Reinstatement shall take place only after the approval of the application as hereinbefore set forth and the payment by the member to the financier of his council of all assessments and dues accruing subsequent to the suspension of the certificate,” etc. The language, “after the approval of the application as hereinbefore set forth,” can only have reference to the approval by the governing authorities of proof which has been furnished by the suspended member in compliance with the requirements of the national executive committee. If no proof has been required, there would be nothing for the committee or the medical director to approve.

It is undisputed that plaintiff in error’s national governing body had notice of Woods’ suspension for nonpayment of dues. It knew when he paid all arrearages of dues and assessments that he was doing so for the purpose of reinstating his forfeited membership. It therefore devolved upon it to notify Woods of the character of proof it required him to make as to his bodily and mental condition as a prerequisite for reinstatement. This it failed to do through neglect on the part of one of its subordinate officers. Certainly Woods cannot be held responsible for the negligence of plaintiff in error’s local officer in failing to communicate to him the fact that a requirement for a health certificate had been made by the executive committee. While Woods was bound to take notice of any duty imposed upon him by the society’s laws in connection with the reinstatement of his certificate, he was not required to take notice of any action which might be taken by the society’s executive committee. The absolute duty devolved upon plaintiff in error to see that Woods had notice as to the character of proof it desired him to make in regard to the condition of his health. Since it did not notify him of any requirement whatever in this connection, and aft-erwards accepted his tender of all dues and assessments, it must be held that he fully complied with all requirements and that his certificate was therefore validly reinstated.

The by-laws of most fraternal societies contain a stipulation that a suspended member is not validly reinstated if he is not in fact in good health at the time he attempts to reinstate. The laws of the society in this case make such provision with reference to a member who seeks to reinstate within less than 60 days from the date of his suspension. No such requirement, however, is made by plaintiff in error’s by-laws where the suspension has existed for more than 60 days' at the time the reinstatement is attempted. In lieu of such provision, the laws of the society leave it to the discretion of its executive committee as to the nature of proof, if any, which shall be demanded from members wbo have been suspended for more than 60 days. When such committee fails to make any requirement in this regard of a suspended member, his membership is reinstated by compliance with the only condition exacted ; that is, the payment of all arrearages of dues and assessments.

The findings of the jury in connection with the undisputed evidence demanded the judgment entered by the trial court. We therefore recommend that the judgment of the Court of Civil Appeals affirming the judgment of the trial court be affirmed.

CURETON, Chief Justice.

Judgment of the Court of Civil Appeals is affirmed.


text:
    PARK PRESBYTERIAN CHURCH OF ITALY v. WILLIAM CAMERON & CO., Incorporated, et al.
    No. 1620—6039.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    Judgment of the Court of Civil Appeals reversed, and judgment of the Trial Court affirmed.
    Thompson, Knight, Baker & Harris and Lewis M. Dabney, Jr., all of Dallas, for plaintiff in error.
    J. L. Gammon, of Waxahaehie, Sleeper, Boynton & Kendall, of Waco, and J. T. Suggs, Jr.’, of Dallas, for defendants in error.
   SHARP, Judge.

Wm. Cameron & Co., Inc., instituted this suit in the district court of Ellis county aga'inst fBe Park Presbytérian Church of Italy, Owens-Nash Construction Company, and the Southern Surety Company. In this opinion we will designate Wm. Cameron & Co., Inc., as Cameron & Co., the Park Presbyterian Church of Italy, as the church, Owens-Nash Construction Company, as the contractor, and the Southern Surety Company, as the surety company. Cameron & Co. alleged that the church owed it a balance of $2,298.10 and asked for a judgment against the church, the contractor, and the surety company for that.amount, and for a foreclosure of its materialman’s lien on the church building. The church, by its answer, contended that Cameron & Co. had no mate-rialman’s lien and that it was nqt personally liable for the debt. By cross-action, the church sought judgment against the surety company for the amount it had spent above the contract price to complete the building and for the amount that Cameron & Co. might establish against the church and against the contractor for the amount it expended over the contract price and the amount of Cameron & Co.’s claim. The surety company, by its answer', contended that Cameron & Co. was not entitled to a personal judgment against it under the terms of the bond and that Cameron & Co. had not fixed any materialman’s lien, and further that it was entirely released from the bond because the church and the contractor had materially changed the terms of the contract, in that the church had paid to the contractor three items, totaling $850, which had not been paid to the contractor for either labor or material put into the building, and that the amount was paid without presentation of a statement for labor or material therefor certified by the contractor and indorsed by the engineer. The trial court denied Cameron c% Oo. recovery against the surety company, but allowed its lien upon the property of the church and rendered judgment in favor of Cameron & Co. against the contractor and the church decreeing a foreclosure of the lien. The church, in turn, was granted a judgment against the contractor for the full amount of Cameron & Co.’s recovery, together with the excess of the cost of completion of the building above the contract price therefor. The court also granted judgment in favor of the church against the surety company for an amount equal to the total of Cameron & Co.’s recovery against the church and the excess cost of completion of the building, less the amount of $860 paid to the contractor which had been shown to have been made neither for material nor labor. The surety company was granted judgment over against the contractor. The contractor allowed judgment by default. Cameron & Co. took no exception to the judgment, but thé church and the surety company appealed to the Court of Civil Appeals, and that court reversed the judgment of the trial court in favor of the church against the surety company and rendered judgment that the church take nothing against the surety company. In all other respects the judgment of the trial court was affirmed. 38 S.W.(2d) 901.

It is contended that the Court of Civil Appeals erred in holding that payments aggregating $850, which were alleged to have been made to the contractor without a proper engineer’s certificate, released the surety company from all liability under its bond and not merely to the extent of the payments. Upon this question the writ of error was granted.

The controlling facts are these: In January, 1926, Owens-Nash Construction Company made a contract with the church to erect a building at an agreed price of $16,745 and executed a bond with the Southern Surety Company as surety, conditioned that the contractor would complete the building and pay for all labor and material used in its construction and deliver same clear of all liens to the church. The contract between the church and the contractor, which was made a part of the bond, contained the following provisions: “All payments (under the contract) shall be paid by the owner to the contractors, as follows: All labor and wage expenses shall be paid weekly on certificate of the contractor, endorsed by the engineer. All material and other charges except labor and wages to be paid within ten days after presentation of statement certified by the contractor and endorsed by the engineer. Upon completion of the work and final acceptance by the engineer, the contractor shall present evidence satisfactory to the engineer and owner that there are no claims or liens against the work. Within ten days after presentation of the above evidence of no claims or liens, the owner shall pay all remaining funds due to the contractor upon the engineer’s certificate.”

The bond contained the following provision: “* * * If the said Owens-Nash Construction Company * * * shall complete said contract according to the plans and specifications for same, and shall indemnify said obligee against all loss or expense resulting- from the failure of said Principal to pay all labor and material bills in connection with said contract, then this obligation shall become null and void, otherwise to remain in full force ánd effect.”

Willis Livingston was the local agent and representative of Cameron & Co., and as such sojfi and delivered the lumber to the contractors for the job. He was a member of the church and treasurer of the building fund for the church. He was selected by all parties as the engineer in charge of the building. He filled these positions with the full knowledge and consent of the parties, and it is undisputed that he faithfully fulfilled the trust committed to his care and what he did in connection with the entire transaction was entirely satisfactory to all parties. All bills presented to Livingston were paid by checks signed by him and countersigned by Mr. George, and the bills were then receipted. On each occasion the party presenting the bill would also present an order from the contractor. The payments complained of by the surety as being in violation of the contract consisted in the issue of two checks payable to Owens-Nash Construction Company, one for the sum of $250 and one for the sum of $150, and the issuance of a draft to the Dallas Press Brick Company in the sum of $450. At the time of the issuance of the check for $250, material and labor amounting to $10,426.30 had been put into the building, and the church had paid out only $4,574.90. At the time of the issuance of the check for $150, material and labor amounting to $13,235.47 had been put into the building, and the church had paid out only $6,542.35. At the time of the issuance of the draft for $450, material and labor aggregating $11,703.84 had been put in the building, and the church had paid out only $7,345.29. The draft for $450 was signed by Livingston and delivered to the Dallas Press Brick Company on the written order of the contractor. George, the chairman of the building committee, countersigned the cheejks and was consulted about and agreed to the-issuance of the draft, and countersigned and indorsed it. The contractor, about the 5th of May, abandoned the contract, and the church, under the terms of the contract, notified the surety company thereof and then proceeded to complete the building at a cost of $1,493.98 above the contract price.

The rule is well settled in this state that a surety has the right to stand upon the terms of his contract and if any material change is made in the contract without his consent, regardless of whether the change injures or benefits him, it ceases to be his contract and he is no longer bound by its obligation. Fidelity & Deposit Co. v. Kelsay Lumber Co. (Tex. Com. App.) 33 S.W.(2d) 731; Ryan v. Morton, 65 Tex. 260; Lane & Saylor v. Scott & Culver, 57 Tex. 370; Durrell v. Farwell, 88 Tex. 98, 30 S. W. 539, 31 S. W. 185; Bullard v. Norton, 107 Tex. 571, 182 S. W. 668; Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 77, 104 S. W. 1061, 106 S. W. 876, 22 L. R. A. (N. S.) 364, 130 Am. St. Rep. 803.

The courts of this state have applied the foregoing rule where the contract provided that payment shall be made as the work progresses according to the amount of materials furnished or work performed upon certificates to be made by the supervising architect and that a certain percentage of the contract price shall be retained until the contract is fulfilled, and if payment is made in disregard of the provisions of the contract, that as between the surety and the principal a nonconsenting surety is released. Williams v. Baldwin (Tex. Com. App.) 228 S. W. 554.

The Honorable Court of Civil Appeals held that this case was controlled by the rule announced in the cases of Williams v. Baldwin, supra, and Fidelity & Deposit Co. v. Kelsay Lumber Co., supra. In the case of Williams v. Baldwin the owner sued the contractors and sureties and made the materialmen and laborers parties to the suit and answered seeking a recovery upon the bond. The bondsmen pleaded that the owner had violated the terms of the contract which were a part of the bond relating to payments and that he had changed the plans and specifications for the building without their knowledge and consent, for which reason they were discharged. The court held that the violation of the express terms of the bond discharged the sureties from all liability to him. The case of Fidelity & Deposit Co. v. Kelsay Lumber Co. involved a building contract, in the performance of which the surety stipulated that the contract price should be paid by the owner to the contractor in weekly installments on certificates of the architect, based upon 75 per cent, of the value of the material furnished and labor performed in the construction of the building, and the court held in that case that where the parties made a new contract without the consent of the surety and violated the terms of the contract, it released the surety from any liability thereon.

We think the Court of Civil Appeals failed to distinguish the facts involved here from the facts involved in the two cases just cited. It was correctly held in those two decisions that where the plain provisions of a contract requiring a certain percentage of the contract price to be held until the work is completed are disregarded and violated without the consent of the surety, the surety is released from the obligation.. The rule announced in those cases is sound and is supported by the great weight of authority.. But that is not the case in hand. The contract involved in this suit contains no such provision requiring a certain percentage of the contract price to be retained until the job is completed.

The question here for decision is; Do the facts of this case show that a material change has been made in the terms of the contract to such an extent as to release the liability of the surety thereon? The facts are undisputed that when the amounts aggregating $850 were paid, the contractor had been paid a sum materially less than that due him by the- church under his contract.

We think the sound rule to be that if the change alters the legal identity of the instrument or substantially increases the chances of loss to the surety, it is material and will release the surety. On the other hand, if the change or departure is immaterial as one which does not change the legal effect of the instrument or place the surety in a different position, he will not be released. 50 C. J. pp. 121, 122, § 201 and authorities cited in footnotes; 21 R. C. L. p. 1014, § 62. Where the payments are made to the contractor, as was done here, when considered in connection with the whole contract, and they do not constitute an inducement to the contractor to abandon the work, such payments do not, as a matter of law, constitute a release of the surety from his entire obligation but only pro tanto. The rigid rule announced by some authorities with respect to what will discharge the surety on his contract in some instances has been relaxed. Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 216 S. W. 621, 622; Equitable Surety Co. v. United States of America et al., 234 U. S. 448, 34 S. Ct. 803, 806, 58 L. Ed. 1394. In the case of Hess & Skinner Engineering Co. v. Turney, supra, the engineering company executed a bond as principal with the Lyon Bonding & Surety Company as surety to Bastrop county, conditioned that the H. & S. Engineering Company would construct a bridge and promptly make payments for labor and material therefor. To avoid its liability on the bond, the surety company relied upon two grounds: (1) That the bridge company shipped the steel without requiring one-half its cost to be paid in cash at point of shipment, when the contract between the bridge company and the engineering company entitled it to such cash payment; and (2) that the bridge company, when it held an assignment of the contract from the engineering company, to secure the purchase price of the steel, consented for $6,499.80 to be applied to claims of laborers and local merchants, and that this had the, effect of reducing the surety’s obligation to the bridge company in that amount. It was also contended in that case, among other things, that a material change in the terms f a contract on which one is secondarily liable as surety, without the surety’s consent, will discharge the surety-from his obligation under the contract. Mr. Justice Greenwood rendered the opinion of the court, and in answer to the contention that the surety was released from its obligation, said:

“There never was any change in the contract guaranteed by this surety company. Such contract was silent as to the terms on which the material for the construction of the bridge was to be purchased. The bond in effect authorized the contractor to make his own terms, and we see no good reason why it should be held that this did not include authority, while acting in good faith, to change such terms.
“As said by the Supreme Court of the United States in United States Fid. & Guaranty Co. v. Golden Pressed & Fire Brick Co., 191 U. S. 425, 48 L. Ed. 242, 24 S. Ct. 144: ‘The guarantor is ignorant of the parties with whom his principal may contract, the amount, the nature, and the value of the materials required, as well as the time when payment for them will become due. These particulars it would probably be impossible even for the principal to furnish, and it is to be assumed that the surety contracts with knowledge of this fact. Not knowing when or by whom these materials will be supplied, or when the bills for them will mature, it can make no difference to him whether they were originally purchased on a credit of 60 days or whether, after the materials are furnished, the time for payment is extended 60 days, and a note given for the amount maturing at that time.”

Articles 5452, 5453, 5454, 5455, et seq., of chapter 2, title 90, Revised Civil Statutes of 1925, provide for the protection of any person furnishing material and labor in the erection of a building and how the claim may be secured by lien. The bond executed in this case provides that the contractor “shall complete said contract according to the plans and specifications for same and shall indemnify said obligee against all loss or expense resulting from the failure of said principal to pay all labor and material bills in connection with said contract.” The evident purpose of the bond was to protect the church from the failure of the principal to pay labor and material bills in the construction of the building. It should be construed in the light of the foregoing statutes.

The case of Equitable Surety Company v. United States, supra, involved the construction of the bond given under an Act of Congress of February 28, 1899 (30 Stat. 906, c. 218), modeled after an Act of August 13, 1894, entitled “An Act For the protection of persons furnishing materials and labor for the construction of public works” (28 Stat. 278, c. 280, 40 USCA § 270 note). It was contended in that case that the surety on the bond was released by a change in the contract subsequent to the execution of the bond, and the court held that unless a substantial change was made in the contract the surety would not be released. Mr. Justice Pitney rendered the opinion of the Supreme Court in that case and after reviewing the authorities bearing upon this question, said: “In' the case of a bond given under a statute such as the act of February 28, 1899, there is no single obligee or creditor. The surety is charged with notice that he is entering into what is, in a very proper sense, a public obligation, and one that will be relied upon by persons who can in no manner control the conduct of the nominal obligee, and with respect to whom the latter is a mere trustee, and therefore incapable, upon general principles of equity, of bartering away, for its own benefit or convenience, the rights of the beneficiaries. In the light of the statute, the surety becomes bound for the performance of the work by the principal in accordance with the stipulations of the contract, and for the prompt payment of the sums due to all persons supplying labor and material in the prosecution of the work provided for in the contract.”

Therefore, in the light of the foregoing rule announced by the Supreme Court of this state, as well as by the Supreme Court of the United States, under the facts of this case the payment of the sum of $850 was not a material change in the contract that would release the surety company from its liability. The most that can be said for this contention is that it has been injured only to that extent. The ease was tried before the court without the aid of a jury. No findings of fact are contained in the record and judgment was rendered as above indicated. The trial court determined the issues involved in this case, and it is to be presumed that the court found all necessary facts which have any support in the evidence to sustain the judgment. There was sufficient evidence to support the judgment. The Court of Civil Appeals erred in holding, as a matter of law, that the church was not entitled to judgment against the surety company. In other respects the judgment of the Court of Civil Appeals is correct.

Therefore, we recommend that the judgment of the Court of Civil Appeals be reversed and that the judgment of the trial court be in all respects affirmed.

CURETON, Chief Justice.

Judgment of the Court of Civil Appeals reversed, and judgment of the district court is affirmed.


author: ORITZ, Judge. CURETON, Chief Justice.

text:
    WRIGHT v. ROBERT & ST. JOHN MOTOR CO.
    No. 1635—6057.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    York & Camp, of Abilene, for appellant.
    Kirby, King & Overshiner, of Abilene, for appellee.
   ORITZ, Judge.

This case is before the Supreme Court on certified questions from the Court of Civil Appeals of the Eleventh district. The certificate states the case. It is as follows:

“In this suit Robert & St. John Motor Company, a corporation, is plaintiff, and T. H. Wright, Jr., and T. H. Wright, Sr., are defendants. Plaintiff’s petition alleged the execution and delivery by T. H. Wright, Jr., of a promissory note in the principal sum of $575.00, payable in certain installments, and also the execution by him of a certain chattel mortgage upon an automobile to secure the same. The petition is deemed in all respects sufficient to state a cause of action against T. H. Wright, Jr., upon the note, and for a foreclosure of the mortgage.
“The only allegations to show .a cause of action against T. I-I. Wright, Sr., if any, were that, ‘After the execution of the above note this indebtedness was assumed by T. H. Wright, Sr., and he agreed in writing to pay the same.’ In addition to the above, the only allegations having any reference to T. H. Wright, Sr., were to the effect that the defendants had failed and refused to pay the balance due; had defaulted in the payment of the installments; that by reason whereof the defendants and each of them had become liable to pay the plaintiff the principal of the balance due, with attorney’s fees. The prayer was to the effect that the defendants be cited, etc., and that plaintiff have judgment upon the note and for a foreclosure of the mortgage lien, and for general relief.
“Before the trial of the case T. H. Wright, Jri, was dismissed from the suit. Judgment by default was taken against T. H. Wright, Sr., for the^ sum of $419.10, and for a foreclosure of said mortgage lien. In due time a remittitur was made to cure an error in the amount of the recovery, thereby reducing same to the principal sum of $255.15. T. H. Wright, Sr., has brought the case to this court upon writ of error.
“Plaintiff in error contends that the plaintiff’s petition was insufficient to support a judgment by default against him. The question of law involved in this contention is whether or not the pleading was insufficient to state a cause of action by reason of its failure to allege a consideration for the written agreement of T. I-I. Wright, Sr., to pay the note. This question has arisen out of the fact that the Revised Civil Statutes of Texas, as adopted in 1925, omitted the provisions of R. S. 1911, art. 7093, unless same, as contended by ap-pellee, were continued as a part of the provisions of R. S. 1925, art. 27. Revised Statutes 1911,' art. 7093, reads as follows: ‘Every contract in writing hereafter made shall be held to import a consideration in the same manner and as fully as sealed instruments hare heretofore done.’ Revised Statutes 1925, art. 27, reads: ‘Each commissioner and each commission and each hoard which is or may be created by the laws of this state, shall have authority to adopt a seal with which to attest its official documents, certificates or any official written paper of any kind. No private seal or scroll shall be required in this state on any written instrument except such as is made by corporations.’
“In this connection, please notice the provisions of R. S. 1911, art. 7092, as follows: ‘No private seal or scroll'shall be necessary to the validity of any contract, bond or conveyance, whether respecting real or personal property, or any other instrument of writing, whether official, judicial or private, except such as arc made by corporations, nor shall the addition or omission of a seal or Scroll in any way affect the force and effect of same.’
“Upon the original hearing, as shown by the opinion, a copy of which is hereto attached, we concluded that the provisions of R. S. 1911, art. 7093, were not included in the provisions of R. S. 1925, art. 27, and that same being entirely omitted from R. S. 1925, that same were repealed by R. S. 1925, sec. 2 of the Pinal Title, which provides: ‘That all civil statutes of a general nature in force when the revised statutes take effect, and which are not included herein and which are 'not hereby expressly continued in force, are hereby repealed.’ We also concluded as the result of such repeal that it is necessary to the statement of a cause of action upon a written instrument that there be alleged a consideration for the agreement.
“Because of our action in reversing and remanding the case, and in view of another trial, we called attention to a matter not complained of by plaintiff in error; namely, that the petition appeared to be insufficient to support the provision of the judgment awarding a foreclosure of the lien as against plaintiff in error, T. H. Wright, Sr. It will be noticed that the petition does not allege that T. H. Wright, Sr., was a party to the mortgage or was in possession of the automobile, or had converted same or had any connection with same.
“The defendant in error has filed a very able motion for rehearing in which it greatly stresses the importance of our decision upon the first question mentioned. Alternative to its prayer that we reverse our decision, request is, made that we certify the question to the Supreme Court for decision. Being deeply sensible of the fact that the decision does have far-reaching consequences, we have concluded that, pending the motion for rehearing, and before acting upon same, it is advisable to certify same to Tour Honors for final decision, and in order to dispose of the case we also certify the additional question as to the sufficiency of the pleading as a fundamental matter to support a judgment awarding a foreclosure of the-mortgage lien as against plaintiff in error.
“The questions which we "certify are as follows:
“First: Is this court correct in holding, as shown by said opinion, that the provisions of R. S. 1911, art. 7093, have been repealed by the adoption of R. S. 1925, thereby having the effect to require that, in the statement of a cause of action upon a written instrument which is not a negotiable instrument, a consideration must be alleged?
“Second: Is the plaintiff’s pleading in this case sufficient to support a judgment by default against T. I-I. fright, Sr., awarding a foreclosure as against him of the chattel mortgage lien upon the automobile?”

Opinion.

The first question certified involves the proper construction of article 27, R. S. 1925. That article reads as follows: “Each commissioner and each commission and each board which is or may be created by -the laws of this State shall have authority to adopt a seal with which to attest its official documents, certificates or any official written paper of any kind. No private seal or scroll shall be required in this State on any written instrument except such as are made by corporations.”

Under the codification of our Civil Statutes of 1911, the subject-matter of article 27, supra, was embraced in articles 7092 and 7093. These articles read as follows:

“No private seal or scroll shall be necessary to the validity of any contract, bond or conveyance', whether respecting real or personal property, or any other instrument of writing, whether official, judicial or, private, except such as are made by corporations, nor shall the addition or omission of a seal or scroll in any way affect the force and effect of the same.
“Every contract in writing hereafter made shall be held to import a consideration in-the same manner and as fully as sealed instruments have heretofore done.”

Under the common law, a simple contract such as the one in suit here under seal or scroll for seal imports a consideration. Jones v. Holliday, 11 Tex. 414, 62 Am. Dec. 487; 13 C. J. p. 303, § 122; 6 R. C. L. 651, § 65.

The statute now in force, article 27, supra, and in force when this contract was made and sued on, among other things, expressly provides: “No private seal or scroll shall be required * * * on any written instrument except such as are made by corporations.” If the seal was required under the common law on simple contracts such as this to import a consideration, and the statute now provides that no seal shall be required, it follows that the only effect the statute can possibly have on such a contract is to dispense with the common-law rule requiring the seal in order to import a consideration. In other words, the last clause of article 27, supra, which dispenses with the seal, as applied to simple contracts, can have no other meaning except to say:' No private seal or scroll shall be required on any written instrument in order to import a consideration, etc.

It seems to be contended by appellant that, since article 7093 of the 1911 codification was left out of the 1925 codification, it was repealed. A careful reading of article 27 of the 1925 codification and a comparison of same with the two articles of the 1911 codification above quoted convince us that the 1925 codification includes in one article the substance of the subject-matter of the two 1911 articles.

As to the second question certified, we presume from the certificate, and the opinion of the Court of Civil Appeals accompanying the same, that the Court of Civil Appeals holds that appellee’s petition in the county court was subject to a general demurrer, and is insufficient to support a default judgment against appellant for two reasons: (a) Because it failed to affirmatively allege a consideration for appellant’s contract in writing to pay the debt of T. H. Wright, Jr.; and (b) because the petition failed to allege that appellant had possession of the property foreclosed on, or claimed some interest therein.

It is evident from our discussion of the first question certified that we hold it was not necessary for the appellant to plead a consideration for the simple written contract sued on. If the contract imports a consideration, the pleading of the contract by ap-pellee was all that was necessary to plead consideration. The burden then rested upon the appellant to plead under oath, and prove a want of consideration. Article 2010, sub-div. 10, R. O. S. 1925.

The Court of Civil Appeals cites the case of Lewis v. Southwestern Tel. & Tel. Co., 59 S. W. 303, to support its holding that the burden was on appellee to plead and prove a consideration for the contract. An examination of the Lewis Case demonstrates that it is not in point. The suit in that case was not based on a written contract.

A reading of Judge Pleasant’s opinion in the Lewis Case, supra, shows that he cites, among other authorities, the case of Jones v. Holliday, 11 Tex. 414, 62 Am. Dec. 487, cited by us above. In the Jones Case, supra, Judge Wheeler, speaking for the Supreme Court, says: “A consideration is essential to the validity of a simple contract, whether it be verbal or in writing. This rule applies to all contracts not under seal. * * ⅜ In contracts under seal, a consideration is implied, in the solemnity of the instrument.”

Prom the very language above quoted it appears that, under the common law, simple contracts in writing, under seal, implied a consideration. Since the necessity for a seal has been done away with, as applied to simple written contracts, all such contracts now imply a consideration.

Certainly no harm could have resulted to appellant on account of the failure to allege that he had possession of the property, or some interest therein. If he has no such possession or interest, he is not concerned with this part of the judgment. If he does have such possession or interest, the judgment is sufficient to foreclose as to same.

We recommend that question No. 1 be answered “No,” and that question No. 2 be answered “Yes.”

CURETON, Chief Justice.

Opinion of the Commission of Appeals answering certified questions is adopted and ordered certified.


author: HARVEY, Presiding Judge. CURETON, Chief Justice.

text:
    TINNIN v. WILKIRSON et al.
    No. 1641—6072.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.

      Paul Moss, of Odessa, for plaintiff in error.
    Frazier & Averitte, of Hillsboro, John F. Weeks and Del W. Harrington, botli of El Paso, and O. W. Tate, of Amarillo, for defendants in error.
   HARVEY, Presiding Judge.

This suit was brought by O. D. and Oad T. Willdrson, partners, against the Odessa Building & Finance Company, a domestic corporation, to recover of the company a debt due by it to tbe Wilkirsons. On March 23, 1929, the Wilkirsons caused to be issued and levied a writ of attachment on a large number of city lots and blocks belonging to the said corporation, in the town of Odessa, Tex. Henry Pegues, one of the defendants in error, subsequently intervened in the suit and set up title to lot Y in block 101 and lot 11 in block 104, being two of the lots involved in this controversy. His title to said lots was shown by his pleading and proof to have been acquired as follows: On March 19, 1929, the Odessa Building & Finance Company, which will be hereinafter designated as the corporation, executed its note to O. W. Tate and John F. Weeks for the sum of $2,000, and, to secure same, executed a deed of trust, with the usual power of sale in the trustee. The deed of trust covered a half interest in the two lots mentioned, and same was put of record on March 23, 1929. In July, 1929, the trustee, in conformity to the power of sale, duly sold said half interest to Pegues, and duly exeputed to him a deed therefor. The other half interest in said two lots was acquired by Pegues from one Carl Crowley by deed dated December 10, 1929.

The plaintiff in error, E. L. Tinnin, also intervened in the suit, claiming a prior judgment lien on all the property in controversy, by virtue of the due recording, on October 8, 1928, of a certain money judgment recovered by him, on September 25, 1928, against Florence Williams personally.

The ease was tried to a jury, and at the conclusion of the testimony the trial court peremptorily instructed the jury to return a verdict in favor of the Wilkirsons and Pe-gues. This being done, the trial court entered judgment as follows: (a) In favor of Pegues for the two lots mentioned; and (b) in favor of the Wilkirsons for the amount of their • claim, with foreclosures of their attachment lien on the property in question, except the two lots of Pegues; and (c) subject to the above decretals, foreclosing the judgment lien of Tinnin. The Court of Civil Appeals affirmed the judgment of the trial court, and Tinnin brought the case here on writ of error.

The only questions material to a decision are those to be discussed and which relate to the claim of priority asserted by Tinnin for his judgment lien which arose from the abstracting and recording, on October 8,1928, of Ms judgment against Florence Williams, who is not a party to this suit. The pertinent facts are substantially as follows:

On and prior to November Y, 192Y, Florence Williams owned a large number of city lots and blocks in the town of Odessa, including all the property involved in this suit, except the half interest in lot Y, block 101, and lot 11 in block 104 which was owned by Crowley. On that date Florence Williams, in payment of her stock subscription in the corporation to be known as the Odessa Building & Finance Company, which was then in process of organization, executed a deed to the company for all the property above mentioned. The deed was recorded on November 8, 192Y. On January Y, 1928, a charter was duly issued to the company; all the capital stock, except two shares of $100 each, being owned by Florence Williams. ' Thereafter she controlled the corporation and its activities, and managed its affairs. In practical effect, the corporation was what is sometimes termed a “one man corporation.”

There is no testimony to show that the deed of conveyance made by Florence Williams to the corporation, on November Y, 192Y, was made for the purpose of defrauding her creditors, as alleged by Tinnin. No fact issue in that respect is raised. There was no testimony to show that, at the time the deed to the corporation was executed, Florence Williams owed Tinnin anything, or that she intended to incur any indebtedness to him.

However, counsel further contends, in effect, that, because Florence Williams owned practically.all the capital stock and controlled the affairs of the corporation, Tinnin’s judgment lien attached, on October 8, 1928, to the property involved in this controversy, and said lien, being prior in point of time, takes precedence of the claims of the Wilkirsons and Pegues. In support of this contention the doctrine is invoked which is to the effect that, where such a stockholder so conducts his individual affairs, and those of the corporation which he controls, as to intermingle the identity of the corporation with his own, a court of equity will charge either with liability according to the equities of the case. Inasmuch, however, as a statutory lien arises independently of voluntary action on the part of the lien debtor, it is not perceived that the above doctrine has any application at all to a lien of that character. At any rate, with respect to property belonging to the corporation, as such, there is no reason to say that equity will subordinate, to a statutory lien which becomes fixed as against the individual stockholder, the rights of creditors and privies of the corporation. Substantially the same doctrine which Tinnin invokes here was applied in the leading case of Aransas Pass Harbor Co. v. Manning, 94 Tex. 558, 63 S. W. 627. The court there, by clear implication, indicated that such doctrine would not be so applied as to affect the rights of any one but the stockholder and the corporation itself. We conclude, therefore, that, as regards property which Florence Williams had conveyed to the corporation, the judgment lien asserted by Tinnin could not, in any event, affect the rights of the Wilkirsons or those of Pegues which he acquired under the deed of trust executed by the corporation itself.

With regard to the half interest in lots 7 and 11 which Pegues acquired from Crowley. it is sufficient to say that no' error in that respect was properly presented or briefed in the Court of Civil Appeals, and that court, in the exercise of its discretion in that respect, properly declined to review that branch of the case.

We recommend that the judgment of the trial court and that of the Court of Civil Appeals affirming same be affirmed.

CURETON, Chief Justice.

Judgments of the district court and Court of Civil Appeals are affirmed.


text:
    ASHBURN BROS. v. EDWARDS COUNTY.
    No. 1639—6066.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    J. R. Creighton, of Mineral Wells, and Mor-riss & Morriss and Reed Cozart, all of San Antonio, for plaintiffs in error.
    Stevenson, Baker & Knetsch, of Junction;, and Pierce Stevenson, of Austin, for defendant in error.
   SHARP, Judge.

Ashburn Bros, filed this suit in the district court of Edwards county for a balance claimed against Edwards county on a road contract. The county answered by plea of res adjudicata and to " the jurisdiction of the court on the grounds that the contract had been completed and the road tendered by Ashburn Bros, and accepted by Edwards county; that the commissioners’ court had audited and settled the account; that the commissioners’ court entered a judgment reciting that the road contract had been complied with, the roa,d accepted, and that Ash-burn Bros, were entitled to the sum of $15,-047.74, for which amount voucher was issued and was accepted and cashed by Ashburn Bros.; that from the judgment of the commissioners’ court no appeal was made; and the trial court sustained the contentions made by Edwards county and entered judgment accordingly. The Court of Civil Appeals affirmed the judgment of the trial court. 39 S.W.(2d) 945.

It is conceded by plaintiffs in error that there is only one question of law involved in this case, and that is whether or not the judgment of the commissioners’ court of Edwards county is binding upon them. They contend that the judgment is not binding upon them, because they did not participate in the hearing of the commissioners’ court nor present any estimate or account to that court; that the judgment of the commissioners’ court was entered upon the estimate of the county engineer without their knowledge; that the judgment does not' recite upon its face that they had notice of the audit or that they were present or participated, nor that the commissioners’ court audited the extra items for which they claimed compensation; that under these circumstances they were not bound by the action of the commissioners’ court and now estopped from bringing suit therefor in a court of competent jurisdiction.

This record furnishes the following controlling facts: Ashburn Bros., as contractors, executed a contract dated January 16, 1924, with Edwards county, to do certain road work for a certain sum of money; that W. E. Simpson was tlie county engineer; that attached to the contract were the specifications as to how the work was to be done; that Edwards county had issued $400,000 in bonds, the proceeds thereof to be set aside and used for the purpose of building the road; that state and federal aid from the highway department in the sum of $73,259.31 had been appropriated as a supplement to the funds set aside by Edwards county to complete the road contract. It is also shown that the contract was completed and that at the August term, A. D. 1925, the commissioners’ court met at a regular session for the purpose of auditing and settling the accounts due for this work. As part of the records of that court, and which accompanies the record in this cause, is the final estimate of the work done by Ashburn Bros, and the amount due them, which is $15,247.74. This estimate further recites that this is the amount due on the contract, and further recites that this estimate is certified as correct by W. E. Simpson, county engineer, and is dated 8-10-25. On August 13, 1925, the commissioners’ court, among other things, entered the following judgment:

“August 13th, 1925, it appearing to the Court that Highway No. '41, from the town of Roeksprings to the Real County Line, as constructed and completed by Ashburn Brothers has been approved by W. E. Simpson, the County Engineer of Edwards County, and it further appearing to the satisfaction of the Court that said Highway has been constructed and completed in accordance with the plans and specifications, and that the contract for such construction has been fully complied with by Ashburn Bros., it is the order of the Court that said Highway as completed and tendered by said Ashburn Bros., be and the same, is here now in all respects accepted by this court.
“August 13th, 1925.. It is ordered by the Court that Ashburn Bros, be and they are hereby allowed the sum of $15,247.74 as per their Einal Estimate, to be paid out of the Special Road Improvement, for work done on •Highway No. 41, Job No. 70-B, Federal Aid Project No. 335-A; And it appearing to the court that the said Ashburn Bros, is indebted to Edwards County in the sum of $200.00 for the rental and use of certain machinery belonging to said County, which is to be deducted from said total amount due to Ashburn Bros, and that the Clerk of this court issue to said Ashburn Bros, against said fund for said total amount in two pieces, one for the ■sum of $15,047.74, and the other piece in the sum of $200.00; and it is further ordered by the court that the County Treasurer of this County be ordered to cancel the scrip in the sum of $200.00 upon the records of her office, and that the other scrip in the sum of $15,047.74, be delivered to the said Ashburn Bros, to be paid to them.”

By virtue of the foregoing judgment, the county clerk of Edwards county issued two pieces of scrip, dated August 14, 1925, drawn on the treasurer of Edwards county, payable to Ashburn Bros., one for $15,047.74 and one for $200, the last item to cover a certain sum due the county by Ashburn Bros, for the use of certain machinery belonging to the county. The scrip issued to Ashburn Bros, for the sum of $15,047.74 reads as follows:

“$15,047.74 No. 645
“The Treasurer of the County of Edwards, State of Texas.
“Will pay to Ashburn Bros, or bearer the sum of Fifteen Thousand Forty Seven & 74/ 100 Dollars out of the Special Road Improvement Fund, being the amount allowed by the County Commissioners Court of said County at their August Term, 1925.
“For work on Highway
“Witness my hand and seal of said Court at Roeksprings, this 14th day of August, 1925.
“[Seal.] S. A. Hough, County Clerk.
“Min. Book 5, Page 310
“Fractional See Scrip No. 645
“Deputy.”

This check was accepted and cashed by Ash-burn Bros, without any protest to the commissioners’ court that it was not the proper amount due them under the terms of the contract.

It is undisputed that no effort was made to change or modify the judgment entered by the commissioners’ court of Edwards county on August 13, 1925, and no appeal was made therefrom. On January 25, 1927, this suit was instituted in the district court to recover the additional amount claimed by reason of extra work done under the contract.

Certain fundamental rules with respect to the powers and duties of the commissioners’ court are firmly established both in the Constitution and statutes of this state. Section 1 of article 5 of the Constitution makes the commissioners’ court a part of the judicial system of this state. Section 18, art. 5, Constitution, provides that the commissioners’ court shall exercise such powers and jurisdiction over all county business as is conferred by the Constitution and the laws of this state. Article 2351, R. S. 1925, defines the powers and duties of the commissioners’ court, and subdivision 10 thereof provides that they shall “audit and settle all accounts against the county and direct their payment.”

It is furthermore undisputed that the contract made by Ashburn Bros, with Edwards county involved the construction of a highway in which the county, state, and federal governments were interested in the work done and the payment to be made therefor. It appears that Ashburn Bros, had complied with the contract, and as the work progressed had been paid installments thereon from time to time. The road was completed in accord-anee with the terms of the contract and tendered to the county, and the tender was accepted. It logically followed that the time for settlement had arrived and that an audit of the accounts growing out of the contract would he made, and, to attain that end, the commissioners’ court, using as a basis the final estimate filed showing the balance due Ashburn Bros., audited the account and entered a judgment in which it was recited that Ashbum Bros, were entitled to the sum of $15,247.74, for which vouchers were issued, as above indicated. Ashbum Bros, accepted and cashed the voucher for $15,047.74 with the minutes.of the commissioners’ court open to them. It was their duty to ascertain what the records contained.

The law conferred upon the commissioners’ court of Edwards county the jurisdiction of the business affairs of the county. This includes the power to establish and maintain highways. It was its duty to audit and settle accounts pertaining to the construction of highways in which it was spending money belonging to the county. In this instance the commissioners’ court exercised that jurisdiction and duty and audited and settled the accounts of Ashbum' Bros, with respect to the road contract and entered judgment accordingly. The rule is well established in this state that an order of the commissioners’ court acting judicially in a proceeding in which the court has jurisdiction is a judgment of a court of record and is not subject to collateral attach. It is - review-able only upon an ‘appeal or in a- direct action for that purpose. Const, art. 5, § 8; article 1908, R. S. 1925; Oden v. Barbee, 103 Tex. 449, 129 S. W. 602; 11 Tex. Juris, pp. 566, 567, and 568, § 39. But it is contended that the rule announced in the case of Eastland County v. Davisson et al. (Tex. Com. App.) 298 S. W. 268, 270, controls. To this contention we cannot agree. The facts involved in this case are different frpm the facts involved in that case. In that case the county sued Davisson et al. for a certain item due on a contract. Davisson et al. contended that certain items had been paid; the county contended that they had not been paid. All the courts agreed that Eastland county had no authority to waive its claim agqinst Davisson et al. or to surrender it as a gratuity; that the only way it could be lawfully settled would be by payment of value to the county. It is also> stated in that opinion that “the record shows conclusively that this item was not paid by work done for the county.” It was also suggested that the judgment should be entered in favor of the' county, but, on, account of other matters involved, the case was reversed and remanded. The basic rule controlling the decision in the Eastland County Case, supra, rested upon the proposition that a claim due the county must be scrupulously enforced, and section '55, art. 3, of the Constitution, prohibits the county from receiving a less sum than is actually due.

It will be observed that Ashburn Bros, made no effort to vacate, modify, or change the judgment entered by the commissioners’ court, nor was any appeal taken therefrom. They saw fit to accept and cash the check with the recitations therein without a protest. About eighteeh months thereafter a suit was filed in the district court for the balancel claimed to be due for extra work done by them. No question of fraud on the part of the commissioners’ court in rendering the judgment is raised. To permit Ashburn Bros, to accept and cash the check received from Edwards county for the sum of $15,047.74 with the recitations therein, under the circumstances surrounding the issuance of the check, and then afterwards to file an -independent suit for the extra items, would be to destroy the verity of judgments rendered by commissioners’ courts over matters intrusted to'their jurisdiction, and would create a precedent that would result in much confusion and uncertainty in finally closing up road accounts. Such procedure is neither contemplated not sanctioned by the well-recognized rules of law controlling this subject.

We recommend that the judgments of the Court of Civil Appeals and trial court be affirmed.

CURETON, Chief Justice.

Judgments of the district court and Court of Civil Appeals are affirmed.