author: HIGGINS, J.

text:
    H. W. BROADDUS CO., Inc., v. BINKLEY et al.
    No. 2738.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 27, 1932.
    Rehearing Denied Dec. 1, 1932.

      Harrison, Scott & Rasberry, of El Paso, for appellant.
    Jones, Goldstein, Hardie & Grambling, S. P. Weisiger, W. O. Hamilton, and E. F. Cameron, all of El Paso, for appellees.
   HIGGINS, J.

Appellant brought this suit against J. B. Binkley and Dr. R. B. Homan to recover a broker’s commission. Dr. Homan in writing submitted an offer to exchange certain lots owned by him in the city of El Paso, upon which four business houses are situate, for lots in said city owned by Binkley upon which an apartment house is situate. This offer was, in writing, accepted by Binkley. Appellant acted as/agent in negotiating the contract; each defendant agreeing to pay it a commission for its services. Bater a supplemental agreement relative to the contract of exchange was entered into between the defendants. Thereafter Binkley declined to carry out the contract.

In justification of his refusal to finally consummate the contract, Binkley set up various defenses, all of which were found against him except the issue of fraud. This issue is sufficiently indicated by special issues 5, 6, 7, 8, and A, submitted by1 the court. These issues, with the answers returned, read:

“Question No. Five: Do you find from a preponderance of the evidence that Plaintiff, acting through J. M. Broaddus, represented in substance to the defendant, Binkley, prior to the time he signed said contract of exchange, that the three tenants who had leases on portions of the property of the said R. B. Homan were all financially responsible? Answer: ‘Yes.’
' “Question No. Six: Do you find from a preponderance of the evidence that such representation, if same was made, was false? Answer: ‘Yes.’
“Question No. Seven: Do you find from a preponderance of the evidence that the said J. B. Binkley believed such representations and relied thereon? Answer: ‘Yes.’
“Question No. Eight: Do you find from' a preponderance of the evidence that such false representations, if such representation was made and was false, operated as a material inducement to the said J. B. Binkley to sign the said contract of exchange? Answer: ‘Yes.’ ”
“Special Issue ‘A’: Do you find from a preponderance of the evidence that the defendant, Binkley on the date of executing the the supplemental agreement relating to the exchange of property had notice of the falsity of such false representations, if any false representations-were made? Answer: No.”

Upon the findings shown,, judgment was rendered in favor of defendants.

J. M. .(Morgan) Broaddus represented appellant in submitting to Binkley the Homan offer and in procuring Binkley’s acceptance thereof. At that time the business houses upon the Homan property were under lease to and occupied by different parties.

It was contended by Binkley he was induced to enter into the contract to exchange by false and fraudulent representations made by Broaddus concerning the financial responsibility of Homan’s tenants.

It is contended by appellant that the representations, if any, made by Broaddus were, as a matter of law, mere expressions of opinion rather than representations of fact; or, in any event, it was a question of fact whether the representations were expressions of oifinion or representations of fact, and the court erred in refusing to submit an issue requested by it inquiring whether the representations were made by plaintiff as mere expressions of opinion and received as such by Binkley.

Statements of the character here involved are not infrequently equivocal in their nature and are susceptible of different interpretation. Each case .in large measure depends upon its own facts. When the statement is so equivocal that it cannot be determined as a matter of law, whether it is made as a representation of fact or as the expression of an opinion, then the question is one of fact for the jury.

On the other hand, the statement may be of such character and made under circumstances as to stamp it, as a mattér of law, as a representation of fact or expression of opinion as the case may be. 12 R. O. L. 446. With reference to the statements made to him by Broaddus concerning the tenants, Binkley testified substantially that he (Binkley) asked about them; whether they were good tenants. Broaddus said they were all good tenants; that he had made the leases himself; he inquired why the doors of the Brownlee Laundry -were closed. Broaddus said Brownlee had been sick, he was a good tenant; that he had investigated Brownlee and found he was a rich man, and you need not worry about him because he was not doing business; they were all Al, good tenants because he had looked them all up and found them — their credit— in Al condition; that he made the leases himself and knew the people; “he had looked up every one of them and found them to be financially responsible.” “I asked him what he meant by good tenants and he said tenants that had been investigated and found to be responsible” and that they were paying their rent as it became due.

This testimony shows Broaddus undertook to state facts concerning the financial responsibility of the tenants based upon investigation made by him; that he negotiated the leases. He assumed to speak with knowledge of the facts, and what he stated was in our opinion, as a matter of law, a representation of fact rather than expression of opinion.

It is true Broaddus denied making any statement concerning any of the tenants except Brownlee, but it merely raises the issue as to whether he made the statement as testified to by Binkley. He admits making a statement concerning Brownlee, but the variance between his testimony and Binkley’s concerning Brownlee merely raises the issue of whether he made the statement concerning Brownlee as testified to by Binkley.

If Broaddus made the statements testified to by Binkley, they are, as a matter of law, to be treated as representations of fact concerning the financiál responsibility of the tenants. Hoyt v. First Nat. Bank (Tex. Civ. App.) 247 S. W. 637; Boles v. Aldridge, 107 Tex. 209, 175 S. W. 1052; Gardner v. Dorsey (Tex. Civ. App.) 272 S. W. 266; Riggins v. Trickey, 46 Tex. Civ. App. 569, 102 S. W. 918.

They are not of that uncertain character which would carry to the jury the issue of whether they were made as representations of fact or the expression of opinion.

Appellant objected to the eighth question submitted by the court upon the ground that it did not place upon Binkley “the correct burden,” and in connection with such objection requested the court to submit this issue; “Do you find from a preponderance of the evidence that such false representations, if said representations were made and the same were false, operated as a material inducement to the said J. B. Binkley to sign such contract of exchange, without which such false representations the defendant Binkley would not have signed such contract of exchange?”

The court gave this instruction:

“By the term ‘material inducement’ as used in the issues submitted to you is meant:
“That the representations in question operated materially to induce the execution of the contract in question; it need not be the sole inducement leading the party to execute the contract but it must have a material effect in inducing said' party to execute such contract.”

The refusal of the requested issue is assigned as error.

The court’s definition of the term “material inducement” was correct. No exception thereto was taken by appellant. The eighth question was framed in harmony with the definition as given. The requested’issue was not, and to have given the same would have tended to confuse the jury.

We think the issue of material inducement was correctly submitted by the court, and it was unnecessary to incorporate in the submission the further inquiry as to whether Binkley would have signed the contract without “such false representations.” 12 R. C. L. p. 299, § 61; 26 C. J. p. 1104, § 34; 20 Tex. Jur. p. 53, § 30; Hester v. Shuster (Tex. Civ. App.) 234 S. W. 713.

Appellant complains of the failure of the court to define “notice” ad the word is used in issue A, and in this connection also complains of the refusal of a requested charge and-issue.

The requested charge reads: “You are instructed in connection with question No. 6 that if defendant Binkley was in possession of facts which would place a reasonable and prudent person upon inquiry, and which if diligently pursued, would have disclosed the untruthfulness of the representations, if any, made by said Morgan Broaddus to the said defendant Binkley, said representations would not in law be considered false.”

The requested issue reads: “Do you find from a preponderance of the evidence that before or at the time the said defendant Bink-ley executed and delivered the supplemental agreement wherein he obligated himself to convey the) .furniture in his, Binkley’s apartment, to the defendant Homan, he, Binkley, was in possession of facts which would place a reasonably prudent person upon inquiry which, if reasonably pursued, would have discovered the untruthfulness of the representations, if any, made by the said Morgan Broaddus to the defendant, Binkley?”

The failure to define “notice” presents no error, for the reason that no exception was reserved to the failure so to do,' nor was any definition thereof otherwise requested.

The requested charge was properly refused for two reasons: First. Because it was a charge general in its nature undertaking to instruct the jury as to the law arising upon the facts. In special issue submissions such charges are improper. Connellee v. Nees (Tex. Com. App.) 266 S. W. 502. Second. The recitals of fact incorporated in the charge relate, not to the falsity of the representations as the charge asserts, but rather to the issue of constructive notice to Binkley of such falsity.

As to the issue quoted, its refusal presents no error. It relates to the issue of constructive notice of the falsity of the representations. Appellant’s contention in this cota-neetion is that Binkley’s knowledge that the Brownlee Laundry was closed and not operating was, of itself, sufficient to place Bink-ley upon inquiry.

Binkley testified: “Well, I asked him about different tenants, how, were they good tenants, and he said, yes they were, he said they were all good tenants, said he had made the leases himself; and I asked him about why was the Brownlee Laundry vacant, it was not vacant but the doors were closed, and he said, well, he said Mr. Brownlee had been sick, and he said that he had been sick and he was a good tenant, that he had investigated him right along and found he was a rich man and you need not worry about him because he was not doing business.”

Binkley had the right to rely upon this explanation by Broaddus, and appellant cannot complain that he did so. Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808; Hawthorne v. Walton (Tex. Civ. App.) 30 S.W.(2d) 397.

We think the evidence insufficient to put Binkley upon inquiry as to the truth of the representations made to him.

Nor does the evidence raise any issue as to any independent investigation made by Binkley which would bar his right to rely upon the representations, for which reason the refusal of appellant’s requested issues C and D, referred to in the seventh proposition, present no error.

Those propositions are also overruled which question the sufficiency of the evidence to establish the falsity of the representations made concerning the financial responsibility of the tenants. We regard the evidence as ample to raise the issue and to support the finding made thereon.

The court did not err in refusing the charge requested with respect to the burden of proof upon the issues of fraud.

A correct definition was given of the phrase “preponderance of the evidence,” and the issues as framed were each prefaced by the language, “Do you find from a preponderance of the evidence,” etc. Each issue thus correctly carried its own instruction upon the burden of proof, and no further charge thereon was necessary. Texas, etc., v. Finney (Tex. Civ. App.) 45 S.W. (2d) 29S: Vletas v. Stagner (Tex. Civ. App.) 45 S.W. (2d) 1009; Davis v. Morrison, (Tex. Civ. App.) 14 S.W.(2d) 296.

Propositions 9 and 10 complain of the overruling of special exceptions to the answer of Binkley.

The exception referred to in the tenth proposition is based upon the theory that the representations were mere expressions of opinion. What has heretofore been said upon this phase of the ease rules adversely upon this exception.

The exception referred to in the ninth proposition objected to the expressions: “And they will continue to keep said premises and could continue to pay the rent on said premises until the expiration, of their leases,” and further excepted to the expression: “And the three tenants who had leases on the stores located in the premises of R. B. Homan, described in said contract, would fulfill the terms of said leases.” These, standing alone, may perhaps be subject to the objection that they were merely matters of opinion, but they were proper in connection with the other allegations as to the representations made concerning the financial responsibility of the tenants.

In any event, the overruling of the exception, if erroneous, was harmless. Golden v. Odiorne, 112 Tex. 544, 249 S. W. 822.

Affirmed.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    COCKE v. PORT ISABEL-SAN BENITO NAV. DIST.
    No. 8882.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 2, 1932.
    Rehearing Denied Nov. 30, 1932.

      Greenwood & Lewis, of Harlingen, for plaintiff in error.
    Douthan & Bailey, of San Benito, for defendant in error.
   SMITH, J.

Mrs. A. W. Cocke was the duly elected and qualified treasurer of Cameron county for the period beginning January 1, 1929, and ending January 5, 1931, and by virtue thereof was also the acting treasurer of the Port Isabel-San Benito navigation district in said county, in behalf of which she received and disbursed the sums of 34,951.33, $488,041.06, and $29,420 in the years 1929, 1930, and 1931, respectively.

It appears that she did not retain her compensation out of the district funds passing through her hands during her tenure, nor did she during that period demand or receive a.ny compensation from the district for her services as district treasurer.

Shortly after going out of office; Mrs. Cocke “submitted a bill for her services as such treasurer, based on the drainage district's statute, namely, one-fourth of one per cent of the amount received and one-eighth of one per cent on the amount” disbursed by her, plus an undisputed item of $63.75, aggregating approximately $1,300.

The district rejected this demand, and a few days later its governing board passed an order fixing the compensation owing to Mrs. Cocke at one-twentieth of 1 per cent, of all moneys received and disbursed by her during her tenure of said office, then long since (five months) expired. The district computed the amount owing upon this basis, plus the item of $63.75, to be $306.72, which was thereupon tendered to and refused by Mrs. Cocke.

Subsequently Mrs. Cocke brought this action against the district to recover, specifically, the sums of $187.53, $2,000 and $735.-50, respectively, for the. years 1929, 1930, and 1931, with interest. This claim was based upon the contention that she was entitled to 4 ½ per cent, of the combined receipts and disbursements in the year 1929; 2½ per cent, on incoming and 2½ per cent, on outgoing funds in 1930, subject to the statutory maximum salary of $2,000 allowable to her under the maximum fee bill; and 2½ per cent, on incoming and 2½ per cent, on outgoing funds for the year 1931.

The trial court held that the retroactive order of the district trustees, fixing Mrs. Cocke’s compensation at one-twentieth of 1 per cent, on combined receipts and deposits, was valid and enforceable, and accordingly, upon that theory, rendered judgment awarding her recovery of $306.72, the sum tendered her by the district before suit was filed, and taxing the costs against Mrs. Cocke, who has appealed.

The general law providing for compensation of county treasurers is embraced in article 3941, R. S. 1925, which allows him a maximum of 2½ per cent, on all receipts and 2½ per cent, on all disbursements of moneys handled by him “for the county,” except school funds. It is provided in article 3913 that the commissions allowed treasurers of counties in a specified,class, which embraces Cameron, shall not exceed $2,000 annually. The funds mentioned in article 3941 obviously do not include funds of navigation districts, and it is probably true, although not necessary to decide here, that the limitation in article 3943 of the treasurers’ commissions to $2,000 annually does not apply to the commissions earned by him from navigation districts.

The appeal turns upon the right of the district governing board to arbitrarily fix the compensation to be paid Mrs. Cocke as district treasurer, after her term of office 'had terminated and the services had been fully performed.

It is provided in the Navigation Act (chapter 9, title 128, R. S. 1925) that “the County Treasurer of the county the commissioners court of which has jurisdiction shall be treasurer of said district.” Article 8220.

It was provided in the Acts of 1909, e. 15, § 28 (article 5988, R. S. 1911), in fixing the compensation of the county treasurer for his services as ex officio district treasurer, that “the treasurer shall be allowed such compensation for his services as such treasurer as may be determined by said [Board of Navigation] commissioners, not exceeding the same per cent as is now allowed by the county for his services as county treasurer.”

In 1917 (Laws 1917, e. 40, § 2) this provision was amended to read: “The County Treasurer shall be allowed such compensation for his services as Treasurer for such Navigation District as may be determined by said Navigation and Canal Commissioners not exceeding the same per cent as is now authorized by law for his services as County Treasurer.”

By the Act of February 19, 1925 (General Laws, Reg. Sess. c. 5, § 33, p. 19) now article 8263, R. S. 1925, the provision was again amended to read: “The county treasurer shall be allowed such compensation for his services as treasurer of such navigation district as may be determined by said navigation and canal commissioners not exceeding the same per cent as is now authorized by law for his services as county treasurer.”

By a later act of the same Legislature, approved March 24, 1925 (General Laws, c. 103, p. 280 [Rev. St. 1925, art. 8221]) the provision was still further amended to read:. “The county treasurer shall receive such ■compensation for his services as shall be determined by said navigation and' canal commissioners.”

Oddly enough, indeed, the provision does not appear to have been tampered with by any subsequent Legislature.

It was provided by the Legislature in 1909, c. 15, § 2, that the duties and powers herein conferred upon the county, city, and other officers, are made a part of the legal duty of said officials, which they shall perform without additional compensation, unless otherwise provided herein.

This provision has survived through all the changes made in the Navigation Act, and is still the law. Article 8263, R, S. 1925. The Acts of February 19, 1925, and March 24, 1925, when construed together, as they ■must be, make no provision for compensation to the county treasurer for his services as ex officio district treasurer, except that he “shall receive such' compensation for his services as shall be determined by said navigation and canal commissioners” (article 8221, as amended March 24, 1925), and, under the provisions of article 8263, quoted above, his compensation is restricted to that source.

It will be observed that,' prior to the last amendment, in March, 1925, the Legislature placed a limitation upon the compensation to be paid the treasurer for services rendered the navigation district, by providing that the same should be fixed by the district commissioners at an amount not exceeding “the same per cent, as is now authorized by law,” in one case, or “allowed by the county,” in the other case, “for his services as county treasurer.” But by the last amendment this limitation was removed, and the power-of fixing such compensation was placed uiitrammeled in the board of commissioners. This is important as defeating appellant’s contention that, in the presence of such limitation and the absence of an order of the commissioners fixing such compensation at the time of or prior to the performance of the services, the law will award the officer the maximum compensation computable under the statute, or, as is claimed in this case, 2⅛ per cent, each way of all funds passing through the hands of the treasurer.

We hold that by the Act of March 24, 1925 (Acts 1925, e. 103), the Legislature removed that limitation, and lodged in the navigation commissioners the whole power of fixing appellant’s compensation. We conclude that it was immaterial that the commissioners did not exercise the power during appellant’s incumbency; in short, that the power survived until it was exercised.

-Appellant contends, and appellee does not in its brief notice the contention, that the judgment was inadequate even when tested by the award of compensation made by the district commissioners, of one-twentieth of 1 per cent, of all funds handled by appellant, and this contention appears to be supported by the record. The evidence shows, and the trial court found, that during the years 1929, 1930, and 1931, respectively, appellant received and disbursed for the district the sums of $4,951.33, $488,041.06 and-$29,420, one-twentieth of 1 per cent, of which appears to be $261.20. To this amount should be added the undisputed item of $63.75, making a total of $324.95. The amount awarded appellant in the judgment was $306.72, which was the amount tendered appellant by the district prior to suit. Obviously, both the tender and award were inadequate, and it devolves upon this court to render judgment for the correct amount.

Accordingly, the judgment -will he reformed so as to award appellant recovery against appellee for the sum of $324.95, with interest thereon at the rate of 6 per cent, from the date of the judgment below, together with all costs' in this and the trial court. As so reformed, the judgment will be affirmed.

Reformed and affirmed.


author: MARTIN, J.

text:
    McDaniel v. Belt.
    No. 3910.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 23, 1932.
    Dan P. Chisholm and Underwood & Strickland, all of Amarillo, for plaintiff in error.
    Henry L. Ford, of Amarillo, for defendant in error.
   MARTIN, J.

The parties will be designated herein as in the trial court.

Plaintiff, A. McDaniel, sued the defendant, J. S. Belt, in the county court at law of Potter county on an Oklahoma judgment which had been assigned to him.

Barker Lumber Company, a corporation, sued J. S. Belt, defendant herein, A. McDaniel, plaintiff herein, and C. L. Faubion and wife in the district court of Cleveland county, Okl., alleging, in substance, that said Belt was indebted to the said lumber company in the sum of $504.80 for lumber and building material purchased by said Belt, and that said lumber company had a materialman’s lien upon a certain lot in the town of Norman, Okl.; and alleging further that McDaniel and Fau-bion and wife claimed an interest in said property. The portions of said judgment which affect the law questions discussed are here set out:

“The Court further finds that the lien of plaintiff upon said real estate as above set forth is prior and superior to any right, title, interest or estate of said defendants and each of them.

“It is therefore considered, ordered, adjudged and decreed by the Court that the plaintiff have judgment against the defendant J. S. Belt, for the sum of Five Hundred Four and 80/100 Dollars (504.80) with interest thereon from the 9th day of September, 1921, at the rate of six per cent. (6%) per annum, for the further sum of Fifty and No/100 ($50.-00) and for all costs of this action.

“It is further considered, ordered, adjudged and decreed by the Court that plaintiff has a lien upon the real estate and premises hereinabove described to the amount of said judgment as above‘set forth, and that an order of sale issue to the sheriff of said county and state,commanding him to advertise and sell according to law the real estate and premises above described, and that the proceeds from the sale of said real estate be applied as follows:

“First: To the payment of any and all taxes legally levied and assessed against said property.
“Second: To the payment of the costs of this action.
“Third: The payment and satisfaction of plaintiff’s judgment, including interest and attorney’s fees.
“Fourth: The balance, if any, to be paid into court for the use and benefit of said defendants according to their interests therein.”

It appears from the transcript of the record of said Oklahoma proceedings that the lumber company made McDaniel, O. L. Fau-bion and his wife, parties because of the assertion by them of a “claim, right, title or interest in or to the said premises above described, the exact nature of which is unknown to plaintiff, but that the right, title or interest, if any, of said defendants or either of them is inferior and subject to the interest and lien of this plaintiff.”

No description of their interest further than the above appears in any of the proceedings in said cause.

J. S. Belt filed an answer which attacked the validity of the materialman’s lien and which contained in addition a general denial and an allegation that the property in controversy had been conveyed to a third party. McDaniel and Faubion and wife filed an answer containing a general denial and alleging that on the 12th day of May, 1920, Belt and wife conveyed said property to A. McDaniel, and containing further allegations intended as an attack upon the validity of the material-man’s lien. To these answers the lumber company filed a general denial.

This pleading is here referred to for the purpose of showing that it was made an issue in- Oklahoma of whether or not Belt had conveyed this property and whether or not the defendants in said suit claimed or had any interest therein. As will be noted, plaintiff sued defendant Belt alone, alleging in his petition that a general execution had issued, but not alleging the issuance of a special execution, known in our law as an order of sale.

Upon the trial of the case in Potter county, a warranty deed dated in 1920 from J. S. Belt to A. McDaniel was introduced, conveying the property upon which the lumber company foreclosed its lien. This deed and a transcript of the proceedings in Oklahoma was all the evidence introduced on the trial of this case. The date of the Oklahoma judgment was September 12, 1922, and the date of the assignment of said judgment to McDaniel was in January of the following year. It further appears that a general execution was issued on this judgment in January, 1927, by the district court of Oklahoma. No order of sale, or special execution, was ever issued.

The county court at law of Potter county, before whom this case was tried, rendered judgment for the defendant and in his judgment made the following findings:

“(1) That the Oklahoma judgment herein sued on is a final judgment, having disposed of all the issues raised and the rights of all parties involved in that suit.
“(2) That the Oklahoma judgment was a personal judgment against defendant Belt, and not merely a judgment of foreclosure against the property, or a judgment in rem;
“(3) That, although the Oklahoma judgment was a final judgment against defendant J. S. Belt, and a judgment in personam, no suit can be maintained thereon in this state until the property has been sold as ordered by the judgment of the Oklahoma Court, the proceeds applied to the discharge of the judgment, and the deficiency made certain; i “i(4¡) That the' Oklahoma judgment was dormant at the time this suit was filed, and that for that reason it will not support this action.”

These findings are under attack by plaintiff and will sufficiently illustrate the legal issues before this court.

It is definitely settled that a judgment of a sister state may not be made the basis of a suit in Texas unless it is final. Walker v. Garland (Tex. Com. App.) 235 S. W. 1078; Freeman on' Judgments, § 575.

We think the Oklahoma judgment upon which this suit is based determined all issues and disposed of all parties, leaving nothing to be done except to make the sale and distribute the proceeds, and hence is a “final judgment” as that term has been judicially defined. Grant v. Phoenix Life Ins. Co., 10(5 U. S. 429, 1 S. Ct. 414, 27 L. Ed. 237; Ware v. Jones (Tex. Com. App.) 250 S. W. 663, 665.

The above judgment is lacking in finality only in the sense that the step necessary to take in order to definitely ascertain the balance due by Belt has not been made. This does not affect its validity. Ware v. Jones, supra. Being a final judgment, it is entitled to acceptance in this state under the “full faith and credit clause of the Constitution of the United States” and is binding and conclusive on the merits which may not here be inquired into or reinvestigated. Cook v. Thornhill, 13 Tex. 293, 65 Am. Dec. 63 ; Griggs v. Becker, 87 Wis. 313, 58 N. W. 396. We must therefore presume, particularly in the absence of a contrary showing, that the Oklahoma court had before it facts which justified its findings. We cannot in this proceeding look behind such judgment to ascertain the sufficiency of the evidence to support same, nor notice any procedural errors which could have been, but were not, made the basis of an appeal from same. In no sense can we permit ourselves to assume the role of a reviewing court regarding such matters. We are forced to accept this judgment as we fin'd it. Hence we must here assume that facts were before the trial court in Oklahoma which justified its decree for the sale of the Oklahoma property and the distribution of the proceeds to all the defendants, including the defendant Belt. This necessarily constituted at least an implied finding that Belt then owned such an interest in this property as entitled him to have it sold and its proceeds distributed. If the facts then were as now contended for by plaintiff, no such judgment should have been rendered. Not having moved to set aside or modify such judgment in the original forum where entered, plaintiff cannot here impeach it. If Belt owned no interest in this property but same was owned, under successive warranty deeds by McDaniel and Eaubion, such a finding, should have been made in the Oklahoma -court with an appropriate order following it, but instead a finding of what is impliedly the opposite of this was permitted to go unchallenged and is here attempted to. be contradicted apparently for the first time.

Plaintiff in his first supplemental petition filed in the trial court in Potter county alleged: “That in the original case there was no issue by the defendant as to the ownership of the pz’operty or as to ownership of any surplus of proceeds in the event of sale under special execution. The record showed that Belt had sold the property to McDaniel under a general warranty deed and with a specific warranty that said property was free and clear of all liens and encumbrances. ⅜ ⅜ ⅜ That likewise McDaniel sold the property to defendant Eaubion with a warranty and an identical specific warranty as to encumbrances and that any surplus of proceeds from the sale of any real estate would have belonged solely to O. B. Faubion.”

If these allegations were true, plaintiff would have been entitled to a judgment, in our opinion, in the trial court, as we have no doubt that the law will look through the form of a judgment to its substance and not require the doing of a vain and useless thing, as would be the case in the sale of this property in which Belt had no interest and the title to which he had fully warranted. As pointed out above, the issues were such in the trial court in Oklahoma as would support a finding contrary to the above, and such a finding was in fact made. If Belt had an interest in such property and the proceeds of the sale of same, he was entitled to have the property sold and the proceeds applied on his debt and the deficiency thus made mathematically certain before an execution could issue against him and before -he could be made to respond in a suit of this character. This is the rule in both Texas and Oklahoma. Neuhardt v. Miller, 148 Old. 298, 298 P. 890; Tyer v. Cole, 118 Old. 279, 248 P. 601; Walker v. Garland (Tex. Com. App.) 235 S. W. 1078; Bailey v. Block, 104 Tex. 101, 134 S. W. 323.

A general execution could not issue under such judgment in advance of the sale, for neither the court nor the clerk is allowed to estimate in advance the proceeds that will probably result from a sale and award judgment or execution for a probable balance. Bailey v. Block, 104 Tex. 101, 134 S. W. 323. No proceeding against the property of a debtor, other than that mortgaged, is allowed until a foreclosure sale is made, the proceeds applied, and the balance due by such debtor mathematically made certain. Walker v. Garland (Tex. Com. App.) 235 S. W. 1078; Jones on Mortgages (6th Ed.) §§ 1709a et seq., 1920.

In the absence of a sale of this property as ordered by the court, the liability of Belt for a fixed amount has not been ascertained and made certain, and we are therefore of the opinion that the trial court correctly entered judgment for the defendant.

We judge from the oral argument made before us that the facts really are as claimed by plaintiff, and if we could here follow our inclination instead of what we conceive to he the law, we would not hesitate to reverse and render this case. We cannot here exercise, however, the prerogative of either a trial or reviewing court, of the Oklahoma proceedings.

The judgment is affirmed.


author: HICKMAN, C. J.

text:
    RAPE v. GARDNER.
    No. 1007.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 28, 1932.
    Rehearing Denied Nov. 25, 1932.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellant.
    York: & Camp, of Abilene, for appellee.
   HICKMAN, C. J.

Appellee instituted this suit against appellant for damages for an alleged breach by her of her agreement to carry out her husband’s instructions to pay a debt created by him during his lifetime in favor of appellee out of the proceeds of insurance policies on his life when collection was made by her upon such policies. Trial below resulted in a judgment in favor of appellee against appellant as prayed for. The case was tried before the court without a jury, and no conclusions of fact and law accompany the record. The evidence upon the trial was sharply conflicting, but it is our duty, in support of the trial court’s judgment, to resolve all conflicts in favor of appellee. The evidence offered in his behalf, disregarding conflicts, would support the following findings of fact:

Appellant is the surviving widow of the late P. E. Rape, and appellee is a practicing physician and surgeon at Merkel, Taylor county. For many months before the death of appellant’s husband he suffered from an incurable malady, and during a portion of that time appellee rendered him professional services to alleviate his suffering. After the deceased’s account with appellee had grown to be more than $100, appellee called on deceased for payment of his bill; whereupon he was informed by deceased that he was unable to pay same, but that he was carrying life insurance policies in which appellant was named as the beneficiary, and that he wanted ap-pellee to continue to treat him in the future and wanted appellant to pay him for such services thereafter to he rendered, as well as for the services theretofore rendered, out of the proceeds of such insurance policies. Appellant agreed to this arrangement and promised deceased and appellee to pay for such services, both past and future, out of the proceeds of the insurance policies when collected by her. Upon the faith of these promises by the -beneficiary, made at the request of the insured, appellee agreed to continue to render professional services in the future, and did, in fact, thereafter render such services of the value of approximately $250 in addition to those theretofore rendered.

At the time this arrangement was entered into, and at the time of the death of appellant’s husband, there were three policies, or certificates, of insurance upon his life, aggregating $3,500. One of these policies was introduced in evidence. It was a benefit certificate in a local mutual aid association with home office at Abilene. Upon this certificate appellant collected $1,500 after the death of her husband. It was provided in the certificate that the same was issued subject to the constitution and by-laws -of the association, and the by-laws provided that a member, upon written request and the payment of a fee of 50 cents, co-ul-d change the beneficiary named therein, and also provided that the payment of -death benefits could be made to a creditor.

The sole question presented for our decision is, Was a trust created by the foregoing transaction for a breach of which appellant should be held liable? An investigation of the authorities leads us to the conclusion that there was. It is a well-established rule that an oral promise by a beneficiary in a life insurance contract or benefit certificate to pay the proceeds of such policy or certificate, or a portion thereof, to a third person, creates a valid and enforceable trust. 39 Cyc. p. 73; 26 R. C. L. p. 1194, § 30; Lashley v. Lashley, 212 Ala. 255, 102 So. 229 ; Coyne v. Supreme Conclave, 106 Md. 54, 66 A. 704, 14 Ann. Cas. 870; Crews v. Crews’ Adm’r, 113 Ky. 152, 67 S. W. 276; Hirsh v. Auer, 146 N. Y. 13, 40 N. E. 397, 398; Kerr v. Crane, 212 Mass. 224, 98 N. E. 783, 40 L. R. A. (N. S.) 662; Bloodgood v. Mass. Benev. Ass’n, 19 Misc. 460, 44 N. Y. S. 563; Steller v. Sell, 55 N. J. Eq. 530, 37 A. 1010; Schomaker v. Schwebel, 204 Pa. 470, 54 A. 337; Waterhouse v. Waterhouse, 29 R. I. 485, 72 A. 642, 22 L. R. A. (N. S.) 639; In re Danville Hotel Co. (D. C.) 33 F.(2d) 162, 175. The decisions in our own state are in harmony with the above. Clausen v. Jones, 18 Tex. Civ. App. 376, 45 S. W. 183; Mellville v. Wickham (Tex. Civ. App.) 169 S. W. 1123.

Appellant relies upon the case of Fisher v. Donovan, 57 Neb. 361, 77 N. W. 778, 44 L. R. A. 383, in which a distinction seems to have been made because of thp fact that the certificate there involved was issued by a fraternal beneficiary society. We confess some difficulty in properly analyzing that decision. The facts fail to establish any promise by the beneficiary to pay the debts of the insured out of the proceeds of the certificate. The insured merely stated to his wife: “I want you to pay my debts. Will you do it?” To which she responded, “Yes.” Clearly this evidenced no attempt to create a trust, for there was no promise to pay out of the proceeds of the insurance certificate. But the opinion seems not to be based upon this reason, but rather upon the theory that the insured did not have such an interest in the certificate as that he could impress a trust upon the proceeds thereof. In so holding, the decision is in conflict with many of the cases above cited. We do not understand how any distinction in principle could be drawn between a benefit certificate issued by a fraternal beneficiary society, a certificate issued by a mutual aid association, and an ordinary life insurance policy, with respect to the power of the insured and the beneficiary to constitute such beneficiary a trustee for the benefit of a third person wheii and if proceeds are realized from the certificate or policy. In each case the trust deals with a contingent interest, and, as pointed out in Hirsh v. Auer, supra: “The fact that the trust dealt with a contingent interest of the insured in the certificate of insurance is of no moment. That interest became vested at the death of the insured, and, the beneficiary having collected the insurance money, the trust, under the agreement creating and acknowledging it, attached to the fund. A trust of this character is not to be distinguished from assignments of contingent interests, which courts of equity recognize as valid.”

It is our opinion that the facts in the instant case bring it well within the rule established and applied by the authorities above cited, and the judgment of the trial court will accordingly be affirmed.


author: LESLIE, J.

text:
    MILLS et al. v. DISNEY et ux.
    No. 1112.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 21, 1932.
    Conner & McRae, of Eastland, for appellants.
    L. R. Pearson, of Ranger, for appellees.'
   LESLIE, J.

This appeal is from the order of the district judge of'Eastland county granting a temporary injunction in behalf of R..A. Disney and wife to restrain y. W. Mills and the sheriff of Eastland county from selling property described in the petition under and by virtue of an order of sale issued out of the district court of Eastland county in cause No. 15192, in which Y. W. Mills was plaintiff and the Disneys were defendants. The right to in-junctive relief is based upon the alleged ground that the judgment in said cause is void, in that it was obtained by default, foreclosing a paving or assessment lien against property belonging to the Disneys and which constituted their homestead at the time of the fixing .of the lien, as well as the obtaining of the judgment.

No copy of the alleged void judgment is attached. Its invalidity is not otherwise made to appear, but the pleadings disclose that the judgment was taken March 24, 1932. The petition for injunction in the instant case was presented to the district judge on the 7th day of June, 1932, and granted the same day. Hence the petition shows on its face that the plaintiff had at that time an adequate remedy at law, to wit, writ of error (article 2255, R. S. 1925), by which he could have had reviewed the order and judgment below. For that reason the plaintiffs are not entitled to the equitable relief sought; San Antonio & A. P. Ry. Co. v. Glass (Tex. Civ. App.) 40 S. W. 339; Galveston, H. & S. A. Ry. Co. v. Ware, 74 Tex. 47, 11 S. W. 918; Jeffers v. Rondeau (Tex. Civ. App.) 1 S.W.(2d) 380; Dodge v. Youngblood (Tex. Civ. App.) 202 S. W. 116; Id. (Tex. Com. App.) 245 S. W. 225; Malone v. U. S. F. & G. Co. (Tex. Civ. App.) 9 S.W.(2d) 461; Svoboda v. Alexander (Tex. Com. App.) 3 S.W.(2d) 423; Givens v. Delprat, 28 Tex. Civ. App. 363, 67 S. W. 424; Woodley v. G. C. & S. F. Ry. Co. (Tex. Civ. App.) 20 S.W.(2d) 842, 843, and authorities therein; Ayres v. Parrish, 15 Tex. Civ. App. 541, 40 S. W. 435; Hill v. Brown (Tex. Com. App.) 237 S. W. 252; Thacher Medicine Co. v. Trammell (Tex. Civ. App.) 279 S. W. 307; Hetkes v. Gehret (Tex. Civ. App.) 16 S.W.(2d) 395; Texas-Mexican Ry. Co. v. Wright, 88 Tex. 346, 31 S. W. 613, 31 L. R. A. 200.

An injunction will not be granted to take the place of an appeal or writ of error. Hetkes v. Gehret, supra; D. F. Connolly Agency v. Popejoy (Tex. Civ. App.) 290 S. W. 831; Kyle v. Richardson, 31 Tex. Civ. App. 101, 71 S. W. 399; Turner v. Patterson, 54 Tex. Civ. App. 581, 118 S. W. 565; Race v. Decker (Tex. Civ. App.) 214 S. W. 709.

The mere averment that a judgment is void is but a legal conclusion, and not such allegation of fact as to warrant the granting of an injunction. Pye v. Wyatt (Tex. Civ. App.) 151 S. W. 1086; Lester v. Gatewood (Tex. Civ. App.) 166 S. W. 389; 49 C. J., p. 68, § 48.

For the reasons assigned, the judgment below is reversed, and the injunction is dissolved. It is so ordered.


author: JACKSON, J.

text:
    RELIANCE INS. CO. v. BOWEN.
    No. 3916.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 23, 1932.
    Thompson, Knight, Baker & Harris, of Dallas, for plaintiff in error.
    Cocke & Cocke, of Wellington, for defendant in error.
   JACKSON, J.

This suit was instituted in the county court of Collingsworth county by the defendant in error, Bob Bowen, hereinafter called appellee, against the plaintiff in error, Reliance Insurance Company, hereinafter called appellant, to recover the sum of $500 on a fire insurance policy issued by appellant to appellee, insuring certain household goods, wearing apparel, and furniture alleged to have been damaged and destroyed by fire.

The appellant answered by general demurrer and general denial, and pleaded that its policy contained a provision to the effect that, in the event of a disagreement as to the amount of the loss, the claim should be submitted to appraisers on the demand of either party; that a disagreement arose, an appraisal was demanded, an appraisal agreement was entered into, appraisers were appointed, and an award was made fixing the amount of loss and damage at $163.25; that under the provisions of the policy the award so made was binding; and that appellant had tendered appellee said sum and made tender thereof into court.

By supplemental petition, the appellee admitted the disagreement as to the amount of the loss, entering into an appraisal agreement and the selection of appraisers. I-Ie pleaded, however, that the award was not binding, first, because the appraisers had not found sound values; second, because the appraisers had not furnished him with any written award; and, third, that they had heard no evidence as to the value of the property.

In response to special issues submitted ‘by the court, the jury found that the furniture and property covered by the policy was damaged by fire and the amount of the damage thereto was the sum of $400. On these findings judgment was rendered that the appellee have and recover from the appellant the sum of $400 with his costs and interest, from which judgment this appeal is prosecuted.

The appellant presents as error the action of the trial court in holding that the award of the appraisers was not binding and in excluding it from the consideration of the jury on appellee’s objection thereto.

The policy provided: “In the event of a disagreement as to the amount of loss, the same shall as above provided be ascertained by two competent and disinterested appraisers, the assured and this company selecting one and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damages and failing to agree shall submit their difference to the umpire and the award in writing of any two shall determine the amount of loss.”

Appraisers were appointed in compliance with this provision and made the following awardj

“We the undersigned pursuant to the within appointment do hereby certify that we have truly and conscientiously performed the duties assigned to us in accordance with the foregoing stipulations and have appraised and determined the actual cash value of said property on the 6th of July, 1931, and the actual loss and damage thereto by the fire which occurred on that date, to be as follows, to-wit:
“Sound value $-.
“Loss and damage $163.25.
“Total amount of award $163.25.”

“The terms of submission to appraisers, referees, or arbitrators, if they are lawful and properly within the policy requirements, must at least be substantially complied with, in order to render any award made by them binding, since such terms determine the extent and limits of the powers and authority conferred upon them, and if the award shows especially upon its face, an exceeding of authority, or a failure to act in a vital particular, or fails to conform to such requirements as to the matters submitted, it -will not he sustained. So, an award will not be sustained where the arbitrators refused to find or appraise the ‘sound value’ as it was before the fire, for which purpose the submission was made; and in such case the insurer cannot successfully insist that insured must have a valid award made before bringing suit.” 7 Cyclopedia of Insurance Raw (Couch) 5664, § 1618.

In American Annotated Cases, 1916A, page 345, under note, “Necessity that Arbitrators Determine all Matters Submitted to Arbitration,” the editor says: “It is well settled that where parties refer their differences to arbitration, it is the duty of the arbitrators to pass on the whole subject in controversy, and if they do not dispose of the whole matter comprehended iu the submission, and there remains some further act to be done or inquiry to be made in order that the award shall be final, it is void and will be set aside.”

This is supported by the citations of decisions from numerous jurisdictions.

In Mason v. Fire Ass’n of Philadelphia, 23 S. D. 431, 122 N. W. 423, 427, the Supreme Court of South Dakota said: “It further appears, by an examination of the agreement for the submission to the appraisers, that they were appointed to appraise and estimate ‘the sound value and loss’ upon the property damaged and destroyed by the fire, and that the term ‘sound value and loss’ is repeated some three times in the submission. In the award, however, the appraisers find as follows: ‘To the parties in interest: We have carefully examined the premises and remains of the property hereinbefore specified in accordance with the foregoing appointment, and have determined the loss and damage to be $638. Witness our hands at Sioux City this 28th day of July, 1906. A. N. Hadley, S. E. Brookman, Appraisers.’ It will thus he seen that no statement.is made therein that they had appraised the ‘sound value’ of the property. Sound value of the property is defined to be ‘the cash value, making an allowance for depreciation due to use, etc., at and immediately preceding the time of the fire.’ Continental Ins. Co. v. Garrett, supra [(C. C. A.) 125 F. 589]. This definition is plainly implied by the paragraphs contained in the submission. In the ease at bar the court finds that the award is not in accordance with the submission, because the ‘sound value’ has not been estimated or appraised. In the ease last above referred to it was held that this failure to find ‘the sound value’ of the property was a fatal defect in the award. And that learned court further held that failure to give notice to the parties of the time and place of the appraisal, so as to permit the introduction of evidence, rendered the award void. The trial court was clearly right, therefore, in holding the award void, and vacating and setting aside the same.”

To the same effect is the holding in Coffin v. German Fire Ins. Co., 142 Mo. App. 295, 126 S. W. 253. The same principle is announced in 20 C. J. 423, § 559.

The Texas courts have approved this principle in the following cases: American Fire Ins. Co. of New York v. Bell, 33 Tex. Civ. App. 11, 75 S. W. 319; Security Insurance Co. v. Kelly (Tex. Civ. App.) 196 S. W. 874, 875; Great American Insurance Co. v. Marbury (Tex. Civ. App.) 297 S. W. 584; Fortune et al. v. Killebrew, 86 Tex. 172, 23 S. W. 976.

This assignment is overruled.

The appellant challenges as error the action of the court in admitting the testimony of appellee on the value of certain articles of furniture immediately before and immediately after the fire, over its objection that he failed to qualify on any kind or character of,,values and the testimony offered did not tend to prove the proper measure of damages.

The record discloses that the appellee was permitted to testify that a duofold was damaged in the fire; that he knew what it cost him, and that such cost was $50, and that its value was $50; that after the fire he did not know what the sound value was, but that it did not have any value.

The record shows that appellee had owned the property for approximately ten years, but does not reveal whether or not the furniture had a market value or a reasonable or intrinsic value.

Over similar objections, the appellee was permitted to testify as to the worth and value of numerous other articles which he claimed had been damaged without showing such qualifications as would entitle him to express an opinion as to the values.

“The kind or character of the value referred to in the rule fixing the measure of damages in actions resulting from the loss, destruction or injury of corporeal property will depend upon the circumstances of the case. If the property lost, destroyed or injured has a market value, such value is the valúe contemplated by the rule; if it has not, the contemplated value is its actual, reasonable, or intrinsic worth. If the property has neither a market value nor an actual, reasonable or intrinsic value, the proper measure of damages is its value to the owner — that is, the actual monetary loss sustained by him. While this rule is particularly applicable in cases wherein the property is irreplaceable, it appears to have been extended far enough to include such property as used household goods and the like.

“From these rules it is clear that a witness, offered to prove the damages in any such suit must qualify himself on the question of value.” 19 Tex. Jur. 188, § 123.

The admission of this testimony was error.

The judgment- is therefore reversed, and the cause remanded.


author: CHRISTIAN, J.

text:
    ALLEN v. STATE.
    No. 15397.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1932.
    Chas. T. Rowland, of Fort Worth, for appellant.
    Cecil C. Rotsch, Asst. Or. Dist. Atty., and Stanley Bransford, Asst. Cr. Dist. Atty., both of Eort Worth, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is aggravated assault; the punishment, a fine of $50 and confinement in jail for sixty days.

The state’s testimony was, in substance, as follows: Appellant was a professional wrestler, and was connected with a side show on the grounds of the Southwestern Exposition and Fat Stock Show at Fort Worth. Homer Schofner, the injured party, and Paul Schofner, who were brothers, entered the show with which appellant was connected. As they entered, Dobie Osburn, a wrestler, who was also connected with the show, came out into the arena and challenged any one present to wrestle him; the condition being that the acceptor of the challenge was to receive all of the gate receipts of the show if he was not thrown by Mm (Osburn) within ten minutes. Paul Schofner accepted the challenge. While the match between him and Osburn was in progress, harsh words passed between Homer Schofner, who was encouraging his brother in the match, and some other wrestlers connected with the show, who were encouraging Osburn. Before the ten minutes was up, Osburn was given the decision over Paul Schofner. Immediately after the wrestling match was finished, and as Paul Schofner and his brother were leaving, a fight started between the Schofner brothers on one side and several wrestlers connected with the show on the other. In this fight Homer Schofner’s leg was broken. He had to remain in bed in a hospital from the date of the injury, March 6, 1932, until the date of the trial, March 30,1932. The attending physician and surgeon testified that he would probably never recover the complete use of his leg. Appellant participated in the fight, jumping up and down on the injured party with his feet while he (the injured party) was being beaten by the other participants in the difficulty. At the same time some one twisted the injured party’s leg and broke it.

Appellant testified that he was not in the tent on the occasion in question, and knew nothing about the difficulty. He said there had been some harsh words between the parties prior to the time he left the tent, his testimony being to the effect that Homer Schof-ner and Paul Schofner were the aggressors. Several witnesses testified tnat appellant did not participate in the difficulty. Also they stated that the Schofner boys were the aggressors in the difficulty, some of them saying that no attack was made on the injured party, but that he fell from the platform and injured himself.

Appellant was convicted in the county court at Law No. 1 of Tarrant county. He urges that the act (Acts 1921, 37th Leg. c. 28) creating this court is invalid. Apparently reliance is had upon the case of State v. Gillette’s Estate (Tex. Com. App.) 10 S.W.(2d) 984, in which it was held that the Legislature was without power to increase, diminish, or change the jurisdiction of county courts of this state in probate matters. The court, however, recognized the power of the Legislature, under section 1, article 5, of the Constitution, to create such other county courts as the Legislature deemed necessary, and confer upon them criminal and civil jurisdiction within the limitations provided in section 22 of article 5 of the Constitution. We quote the section last mentioned as follows: “The legislature shall have power, 'by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and, in cases of any such change of jurisdiction, the legislature shall also conform the jurisdiction of the other courts to such change.”

We are constrained to overrule appellant’s contention.

Appellant contends in his brief that the court erred in not submitting a charge covering the law of simple assault. It appears that the first time appellant referred to the court’s failure to submit a charge on the subject was in his motion for a new trial. In the absence of a special charge, the matter cannot be reviewed by this court. Johnson v. State, 100 Tex. Cr. R. 28, 271 S. W. 622.

Appellant objected to the charge of the court on the ground that it twice informed the jury as to the punishment that could be assessed in the event of a conviction. We are unable to see how the repetition "could have injured appellant. The charge as to the penalty was accurate in both instances. In Woodward v. State, 54 Tex. Cr. R. 86, 111 S. W. 941, 942, the court repeated the charge upon provoking the difficulty. This court said: “The charge does repeat on the issue of provoking the difficulty, but the charges are accurate in every particular as laid down by the rules of this court, and we will not reverse the case on account of repetition alone.”

The court instructed the jury on the law of principals as follows: “All persons are principals who are guilty of acting together in the commission of an offense, and principals, whether jointly indicted or not, may be legally prosecuted and convicted as such, provided the evidence adduced against each clearly and satisfactorily establishes the guilt of each. Where an offense has been committed, the true criterion for determining who are principals is ‘did the parties act together in the commission of the offense? Was the act committed in pursuance of a common intent, and in pursuance of a previously formed design in which the minds of all united and concurred?’ If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in execution of the common design and intent of all, whether in point of fact all were actually bodily present on the ground where the offense took place or not.”

Appellant objected to the charge as follows: “For the reason there are no allegations in the information and complaint of a common design or conspiracy connecting or attempting to show any overt act or gesture in furtherance of the commission of any offense on the part of this defendant. For the further reason said charge is prejudicial to this defendant and not warranted by the evidence, but is contrary to the evidence in the case.”

The court submitted an instruction on alibi. It is observed that appellant did not except to the charge on the ground that it was contradictory of the charge on alibi. That a charge on principals was warranted is made plain by the evidence; the state’s testimony being to the effect that appellant and several others acted together in making the assault on the injured party. However, in view of the fact that appellant relied upon an alibi, it is doubtful whether the charge in question was, in its entirety, proper. Appellant objected to the entire charge, notwithstanding the fact that the charge was correct in that part in which the jury were advised that all persons are principals who are guilty of acting together in the commission of an offense. Article 65, Penal Oode. A charge on principals being warranted, the effect of appellant’s criticism, as embraced in his exception, was to assert that the court had inaccurately stated or applied the law of principals. Under such circumstances — this being a misdemean- or case — the alleged faults in the charge cannot be reviewed on appeal, in the absence of a specific exception to the charge pointing out the defect, and, in addition thereto, a special charge presented correctly stating the law of principals. Jones v. State (Tex. Cr. App.) 20 S.W.(2d) 1067; Parroccini v. State, 90 Tex. Cr. R. S20, 234 S. W. 671. Appellant presented no special charge.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of 'Criminal Appeals and approved by the court.


author: HAWKINS, J.

text:
    MARTIN v. STATE.
    No. 15362.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    Williford & Williford, of Fairfield, and A. B. Geppert and Ellen Victory, both of Teague, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor, punishment being two years in the penitentiary.

The sheriff, one of his deputies, and two constables were driving along a road on some business having no connection with appellant. They met a car driven by appellant, who was accompanied by Oscar Woodward. The officers testified that they “suspicioned” there was whisky in the car. The record furnishes no information as a basis for such suspicion save the fact that one of the officers said Woodward was known to be a bootlegger. The officers turned their car around, followed appellant’s car, overtook it, and as they passed, signaled appellant to stop, and cut their car in front of appellant’s car. One of the officers got out of the car in which they were riding, went back to appellant’s car, and said to appellant, “Bud, what have you got there?” to which question appellant answered that they had thirteen half-gallons of whisky. Upon receiving the answer indicated the officer opened the car door and found between the back and front seats the thirteen half-gallon jars of whisky mentioned by appellant. .

Bills of exception numbers 2, 3, 4, 5, 6, 7, 8, and 9 all complain in one form or another of the admission in evidence of the result of the search of appellant’s car. The officers had no warrant to arrest appellant nor to search his car. It is urged that the facts failed to show “probable cause” which authorized the search in the absence of a search warrant, and, therefore, that the evidence was received in violation of article 727a, O. O. P., as amended by Acts 1929 (2d Called Sess.) c. 45, § 1 (Vernon’s Ann. C. C. P. art. 727a)» We would have no difficulty in sustaining such contention if appellant had remained silent, ás he had a right to do, when the officer asked him what was in the car. Appellant’s statement that they had thirteen half-gallons of whisky was res gestte of the very criminal act of transporting the whisky which appellant was then committing. The car had not yet been searched, nor the whisky discovered. If appellant was under arrest, the res gestas statement would be admissible, and not in violation of article 727a. The following cases are direct authority supporting the action of the court in admitting the evidence complained of under the circumstances. Carter v. State, 113 Tex. Cr. R. 433, 22 S.W.(2d) 659; Chapman v. State, 117 Tex. Cr. R. 150, 36 S.W.(2d) 742; Newman v. State, 119 Tex. Cr. R. 299, 45 S.W.(2d) 602; Bell v. State (Tex. Cr. App.) 47 S.W.(2d) 839. • In the opinions in Chapman’s Case other authorities are collated which in principle are thought to support the holding there announced.

Bill of exception 1 and 1A present complaint at some language used by the county attorney in his closing argument. The record reflects that appellant was a young negro, 23 years of age. He filed an application for suspended sentence. He used only one witness, a negro, who testified that he had known appellant all his life, and that appellant had never been convicted of a felony in this or any other state, and had never been convicted of any violation of the law, and had never been prosecuted for anything. The state did not by any evidence combat the application for suspended sentence. The cour.t correctly instructed the jury that, in the event of conviction, they could recommend that sentence he suspended if they found appellant had never been convicted of a felony in this or any other state. In his closing argument the county attorney said: “Gentlemen, the defendant is not entitled to a suspended sentence ; if he has a good reputation why did he not bring some good men down here from Navarro County and prove it; he has just brought one nigger here, he is not entitled to a suspended sentence unless he proves a good reputation, and he has brought no one here, but one nigger.”

Appellant objected to said argument, and requested the court to then instruct the jury that the statement of the county attorney was not the law, but that the proof required by statute was that appellant had never been convicted of a felony. The court refused to give such instruction. Appellant then prepared a written special charge upon the subject of the proof required as to suspension of sentence. The court likewise refused to give such special charge.

Article 778, C. C. P., requires the court to submit to the jury only the question as to whether an accused seeking a suspended sentence had ever before been convicted of a felony. It does provide that “the court shall permit testimony as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence.” Upon filing an application for suspension of sentence appellant placed his general reputation in issue. He could have offered evidence as to his general reputation to support his application, likewise, the state could have offered evidence to defeat it; neither was done. If the statement of the county attorney could be regarded only as an expression of his opinion that the suspended sentence should not be recommended in the absence of proof of good reputation, it would perhaps not call for a reversal. From the manner in which the question arose, the statement appears to have gone further than the mere expression of an opinion. The jury unquestionably had the power and right to recommend the suspension of sentence in the absence of proof of good reputation if, under the circumstances of the case, they thought it proper to do so. However, the county attorney told them that appellant was not entitled to a suspended sentence unless he had proved a good reputation. This language was objected to in the jury’s presence as being an incorrect statement of the law. It- was incorrect, and not in accord with the court’s instruction on the subject. The court declined to tell the jury that the statement objected to was not the law, and refused the special charge requested regarding the matter. This action may have been regarded by the jury as an indorsement by the court of what the county attorney had stated the law to be. In support of the proposition that the incident discussed calls for a reversal appellant cites Nichols v. State, 110 Tex. Cr. R. 432, 10 S.W.(2d) 109. Other authorities in point are Rodriguez v. State, 100 Tex. Cr. R. 11, 271 S. W. 380; Funderburk v. State, 117 Tex. Cr. R. 182, 35 S.W.(2d) 417; Williams v. State, 117 Tex. Cr. R. 356, 35 S.W.(2d) 726; Bergdorf v. State (Tex. Cr. App.) 20 S.W.(2d) 778.

For the error discussed the judgment is reversed and the cause remanded.


text:
    CRANFILL BROS. OIL CO. et al. v. STATE.
    No. 2742.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 10, 1932.
    Rehearing Denied Dec. 1, 1932.

      Rutledge Isaacks and D. A. Dale, both of Pecos, for appellants.
    H. E. Wassell, Co. Atty., of Wink, for the State.
   HIGGINS, J.

This is a suit by appellee to recover state and county taxes for .the year 1929, brought against Cranfill Bros. Oil Company, alleged to be a copartnership composed of T. B. Cran-fill and B. E. Cranfill, Murko Oil & Royalty Company, a corporation, and others not necessary to mention.

It was alleged the taxes were assessed and levied against the mineral interest in four tracts of land in Winkler county, which tracts for the purpose of this opinion may be designated as tracts Nos. 1, 2, 3, and 4.

It was alleged the amount of delinquent state and county taxes against said mineral interests are as follows: Against tract No. 1, $1,115.71; against tract No. 2, $1.25; against tract No. 3, $65.52; against tract No. 4, $808.08. Then follows this tabulated statement:

State ad valorem.$ 650.76

County ad valorem. 765.60

County road special. 574.20

Penalty . 199.06

Interest . 253.86

Fees and costs. 16.00

Total .$2,459.48

It was further alleged the Murko Oil & Royalty Company is now the record owner of the property and the other defendants claim some interest therein.

Judgment was rendered against Cranfill Bros. Oil Company, T. B. Cranfill, and B. E. Cranfill for the sum of $1,375.02, as taxes, interest, and penalties due upon tracts 1 and 2, and against T. B. Cranfill for $1,075.40 as the taxes, interest, and penalty due upon tracts 3 and 4.

The judgment forecloses the tax lien against the Murko Oil & Royalty Company and the other defendants.

The foreclosure portion of the decree segregates the amounts against the different tracts as follows: Against tract No. 1, $1,-373.44; against tract No. 2, $1.58; against tract No. 3, $80.66; against tract No. 4, $994.-74.

The tracts were ordered sold separately for the amounts due against them. From the judgment rendered, all defendants appeal.

The court did not err in overruling the motion to quash the citation. The citation commanded the officer to summons the defendants, etc., “to answer plaintiff’s first Amended Petition filed in said court on the 9th day of March A. D. 1932, in a certain suit No. 757, in which said suit,” etc. “And you are further commanded to deliver to each of the above named defendants, in person, a . true copy of this citation, together with a certified copy of plaintiff’s said original petition.”

Accompanying the citation was a copy of the first amended petition certified to be “a full, true and correct copy of Plaintiff’s First Amended Original Petition in Cause No. 757, styled ■ State of Texas v. Cranfill Bros. Oil Co. et al, filed in said court the 9th day of March, 1932.”

In support of the motion to quash, it is urged that “the citation having directed and commanded the sheriff to serve each of the defendants with a certified copy of plaintiff’s original petition, the sheriff was not authorized to serve the defendants with a certified copy of plaintiff’s first amended original petition, and such service being without warrant of law was ineffective to require the defendants to answer.”

The citation directed the defendants to answer the first amended .petition filed March 9, 1932. The certified copy accompanying the petition and served upon the defendants was the first amended original petition. The defendants could not possibly have been misled as to which petition they were called upon to answer. The variance indicated by appellant’s proposition is unimportant. The motion to quash was properly overruled. Pipkin v. Kaufman & Runge, 62 Tex. 545; W. U. Tel. Co. v. Johnson, 16 Tex. Civ. App. 546, 41 S. W. 367; Pruitt v. State (Tex. Civ. App.) 47 S. W. 553.

Furthermore, the record discloses defendants answered and announced ready for trial. No motion for continuance was made. It is not contended the ruling upon the motion to quash in any wise contributed to the rendition of an improper judgment upon the merits, nor is there anything in the record to so indicate. Under such circumstances the error, if any, in overruling the motion, should be regarded as harmless. Boles v. Adams (Tex. Civ. App.) 173 S. W. 561.

Appellant excepted to the petition upon the ground of misjoinder, in that two of the properties described in the petition and upon which foreclosure is sought belonged to Cranfill Bros. Oil Company on January 1, 1929, and the other two properties belonged to T. B. Cranfill on said date and there is no showing that T. B. Cranfill is liable as to the first two properties and no showing that the company is liable as to the last two properties. The exception does not truly reflect the allegations as to tracts 3 and 4. The allegation was that T. B. Cranfill was “the record owner” thereof on January 1, 1929. It is immaterial who the record owner was on that date. The allegation was unnecessary and surplusage. An allegation later quoted shows that “Cran-fill Brothers Oil Company, T. B. Cranfill and B. E. Cranfill” were the owners in fact on the date mentioned and personally liable. Special exceptions 5, 6, and 7 were well taken, but the error in overruling same is harmless. Golden v. Odiorne, 112 Tex. 544, 249 S. W. 822.

The Murko Oil & Royalty Company is sued as “a corporation,” but it was not alleged to be duly incorporated. Exception was taken to the petition because of the failure to so allege. The overruling of this exception presents no error. Houston Water-Works v. Kennedy, 70 Tex. 233, 8 S. W. 36; Texas & Pacific Ry. Co. v. Bufkin (Tex. Civ. App.) 46 S.W.(2d) 712. The ruling upon evidence complained of in the seventh proposition presents no error.

The order of the commissioner’s court -of Winkler county levying the county taxes sued for reads:

“On this, the 14th day of August, 1929, all members of the Court being present there came on for consideration the matter of fixing the County Tax Rate for the year 1929, and the said matter having been duly considered by this court and this court being of the opinion that the following rate be fixed as, and for the County tax rate for the year 1929, it is therefore ordered by the court that the same be fixed as follows, to-wit: ,
“General Fund twenty five cents on each $100.00 -valuation.
“Jury Fund fifteen cents on each $100.(K) valuation.
“Road and Bridge Fund fifteen cents oh each $100.00 valuation.
“Permanent Improvement Fund twenty cents on each $100.00 valuation.
“Road Bond, Interest and sinking fund sixty cents on each $100.00 valuation.
“Cheyenne Common School District fifty cents on each $100.00 valuation.
“Kermit Independent School District $1.00 on each $100.00 valuation.
“Total $2.90 on each $100.00 valuation.”

It is objected to this order that it is not “a levy of taxes but a mere fixing of certain rates of taxation.”

In 3 Bouvier’s Law Dictionary (Rawles’ 3d Rev.) p. 3239, the term “tax levy” is defined to be: “The total sum to be raised by a tax. Also the bill, enactment, or measure of legislation by which an annual or general tax is imposed.”

It is the legislative act, whether state or municipal, which lays the tax. Cooley on Taxation (2d Ed.) 324.

The order in question does not use the term “levy,” but it “fixes” the county tax rate at “$2.90 on each $100 valuation” and apportions the same among the various funds. In our opinion the order was clearly intended as a tax levy, and such is its import and meaning. Its meaning could not be reasonably misunderstood, and it is a valid levy.

This view may be in conflict with Purington v. Broughton, 158 S. W. 227, decided by this court. That was an action'in trespass to try title. Purington claimed under a tax collector’s deed. The order levying the tax for which the land was sold is very similar to the one here involved. It was held the order did not constitute a levy, but this ruling was not strictly necessary to the decision, for the deed was also held to be invalid for noncompliance with other statutory provisions.

The only error disclosed by the record is that presented by the ninth proposition which complains of the personal judgment against T. B. Cranfill for the taxes assessed against tracts 3 and 4.

It is alleged-that T. B. Cranfill was the record owner of these tracts on January 1, 1929. Later in the petition it is alleged: “That the defendants who plaintiff alleges are personally liable to pay said taxes, interest, penalty and costs, because of their being the owner of said lands, property and interests involved in this cause, on the 1st day of January, of the year for which said taxes were assessed and levied as shown on the schedule and exhibit hereinbefore referred to are as follows: ‘Cranfill Brothers Oil Company, T. B. Cranfill and B. E. Cran-fill.’” '

The inventory of all the tracts, as rendered for taxation by Cranfill Bros. Oil Company, by tbeir agent, shows that it was all owned by said company on January 1, 1929.

The true owners of the property on that date, and against whom the taxes were assessed, were the ones personally liable for the tax for the year 1929. Articles 7151 and 7207, R. S.; Connell v. State (Tex. Civ. App.) 55 S. W. 980; Humble O. & R. Co. v. State (Tex. Civ. App.) 3 S.W.(2d) 559.

The fact that T. B. Cranfill was the record owner of tracts 3 and 4 on January 1, 1929, did not impose any personal liability upon him when it was further averred the “Cran-fill Brothers Oil Co., T. B. Cranfill and B. E. Cranfill” were the owners thereof on January 1, 1929, and personally liable therefor, with prayer for “judgment against all persons shown by the evidence in this case to be personally liable for the taxes,” and where the evidence shows such company to have been the owners on January 1, 1929.

The inventory and rendition made by such company establishes such ownership.

The error indicated will be here corrected. The judgment will be reformed by eliminating the recovery against T. B. Cranfill alone for the taxes against tracts 3 and 4, and recovery therefor is here awarded against T. B. Cranfill and B. E. Cranfill composing the partnership of Cranfill Bros. Oil Company.

Reformed and affirmed.


author: PELPHREY, C. J.

text:
    MURCHISON OIL CO. et al. v. STATE.
    No. 2741.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 10, 1932.
    Rehearing Denied Dec. 1, 1932.
    L. A. Dale and Rutledge Xsaaeks, both of Pecos, for appellants.
    H. E. Wassell, Co. Atty., of Wink, for the State.
   PELPHREY, C. J.

This is a suit by the state of Texas, as plaintiff, against appellants as defendants in the district court of Winkler county to recover alleged delinquent taxes for the state and county and to foreclose a lien on the property described in the petition. The cause was tried before the court, and judgment was rendered against the Murchison Oil Company for the sum of $4,586.70, and that the interest of claims of the other defendants, except T. P. Lee, were inferior to the lien for taxes, establishing the statutory liens, and ordering the sale of the property described to satisfy the judgment. It was further ordered that appellees take nothing' as against T. P. Lee, and that as to him the suit be dismissed without prejudice.

Prom this judgment Murchison Oil Company, Texas State Oil Company, E. S. McLaughlin, and the First National Bank in Dallas have appealed.

Opinion.

Appellants assign error to the action of the trial court in overruling certain of their exceptions to appellant’s petition; in overruling their motion to strike out Appellee’s Exhibit A; in not sustaining their objection to the introduction of the order of the commissioners’ court of Winkler county, purporting to fix the tax rate for the year 1929; in not sustaining their objection to the testimony of Miss Hollis Payne; and in rendering judgment for the state of Texas, for itself and for Winkler county; and in ordering a foreclosure of the tax lien.

All of these questions, except those as to the sufficiency of the petition in describing the land on which the taxes are alleged to be due, the adding to and consideration of Exhibit A as a part of appellee’s petition, and the overruling of appellant’s motion to strike said Exhibit A, were raised and considered' in the case of Cranfill Bros. Oil Company et al. v. State of Texas (Tex. Civ. App.) 54 S.W.(2d) 813, this day decided.

In appellee’s petition we find the following-allegation:

“That there is attached hereto and marked Exhibit ‘A’ for identification and made a part, hereof, the same as if fully set out at length herein, a schedule showing the amount of taxes herein sued for, which were levied and assessed as provided by law and are delinquent; the name of the owner assessed, if known, and if unknown it is so stated; that such property and interest therein described in said Exhibit and involved in this suit, are situated in Winkler County, Texas.”

■ “That suit is brought for the collection of Delinquent taxes aforesaid in the sum of $4,-463.73 which includes state and county taxes for said year of 1929 in the sum of $3,725.80; penalty of $372.58; interest to date of filing this suit, May 11, 1931, $348.35 and costs and fees of $17.00 as provided by law. That on said exhibit A is further shown the rendered valuation of each tract for the mineral interests there set out and on which said taxes are due as rendered by the Murchison Oil Company for said year, and the amount of taxes assessed and due thereon.”

The exhibit having been referred to specifically and made a part of the petition, the court did not err in refusing to strike it and in overruling the exceptions to the petition. Port Huron Engine & Thrasher Co. v. McGregor, 103 Tex. 529, 131 S. W. 398; Broocks v. State (Tex. Civ. App.) 41 S.W.(2d) 714.

The remaining questions having been decided adversely to the contentions made by appellants in the Oranfill Bros. Oil Company v. State of Texas Case, the judgment of the trial court must be affirmed.

Affirmed.