author: HADD, Chief Justice.

text:
    TERRELL v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    No. 3969.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 22, 1933.
    Rehearing Denied April 26, 1933.
    E. E. Diggs, of Childress, for appellant.
    Dorenfield, Foster & Fullingim, of Amarillo, for appellee.
   HADD, Chief Justice.

The appellant was engaged in selling automobiles in the city of Childress. He sold four automobiles, taking the notes of the several purchasers, each note being secured by a chattel mortgage upon the car so sold. The notes and mortgages securing them were assigned to the appellee company by written assignments, which authorized the company to do every act and thing necessary to collect the debt. The appellant guaranteed the payment of each note and agreed that his liabil,ity should not be affected by any. settlement, extension of credit, or variation of the terms of the contract with the purchasers of the cars and also waived notice of the acceptance of the guaranty and notice of nonpayment and nonperformance by the purchasers. It is provided in all four of the mortgages that the seller had the right to enter upon the premises of the purchaser and remove the same and to resell the car so taken at public or private sale, without demand for performance, with or without notice to the purchaser, and- with or without having such property at the place of sale and upon such terms and in such manner as the seller might determine and to deduct from the proceeds of any such sale all expenses, including a reasonable attorney fee.

The purchasers of the several cars defaulted, and upon the failure of Terrell to pay the corporation the amount due, this action was instituted.

J. M. Terrell, the brother of John J. Terrell, was made a defendant and alleged to be. a partner in the business. He was later dismissed as a party and the case proceeded to trial against John J. Terrell only.

By way of answer Terrell alleged that the plaintiff company did not sell the automobiles which it had repossessed at their reasonable market value, but that it sacrificed all of said cars'and sold them for a grossly inadequate price and if they had been sold at their reasonable and fair value, each of said automobiles would have been sold for sufficient money to have more than' paid the indebtedness against it. He sets out the reasonable value of each of the cars and states the amount for which it had been sold by the company’s representative and alleges “that if plaintiff had used reasonable care and diligence it could have sold each and all of the above named automobiles for the amounts of money herein last above named and stated as to each of them, but on the contrary plaintiff, in total disregard of this defendant’s rights and knowing that he was vitally interested in the said automobiles being sold for a reasonable and fair price and market value, so that he would not be required to pay anything. to plaintiff, or become liable to plaintiff in any sums whatever, by reason of •his endorsement of the notes and mortgages for and against said automobiles, assigned andj transferred to plaintiff as alleged by it, and this defendant avers that plaintiff willfully and wantonly sold each and all of said automobiles at the sacrifice prices named in plaintiff’s petition and had it sold each and all of said automobiles for a reasonable, fair and market price as hereinbefore alleged by defendant, plaintiff would have more than been paid the full amounts due upon said notes and each of them.”

When both sides had closed in the introduction of testimony, the court directed the jury to return a verdict in favor of the appel-lee company.

The evidence shows that the automobiles were repossessed by the appellee company under the powers contained in the several mortgages and sold by their agent McCormick at private sale. The evidence is sharply conflicting as to whether they were sold for a fair and reasonable price: The principal complaint by appellant is that because the evidence conflicted upon this issue, the court should have submitted the case to the jury instead of directing a verdict. We sustain the proposition.

We do not know upon what theory the court refused to submit the case to the jury upon special issues, but we assume from the position taken by appellee’s counsel in their .brief that it was because the court agreed with appellee’s counsel in their contention that there was no pleading and no proof of any unfairness, misconduct, or willfullness on the part of the appellee company in selling the cars at private sale. It will be observed that the appellant alleges that the sales were made in total disregard of his rights and that appellee willfully and wantonly sold each and all of them at “the sacrifice prices named in plaintiff’s petition” and that, if they had been sold for a reasonable, fair, and market price, they would have paid the full amount) due upon the notes.

The judgment shows' that the court overruled the appellee’s demurrers to the appellant’s answer setting up his defenses, but sustained the appellee’s demurrers urged to appellant’s cross-action.

The appellant filed no cross-action. The willful and wanton sale of the repossessed ears at a sacrifice was alleged by appellant as a set-off and counterclaim to ap-pellee’s action against him to recover the deficiency and this idea may have influenced the trial judge in his ruling excluding McCormick’s evidence and other testimony as to other sales which the court said would be sustained if offered. Appellee in its first supplemental petition is the first party to designate the appellant’s answer as a cross-action, and it is clear from the judgment of the court overruling it that the demurrer was argued and urged by appellee to the answer as a cross-action, thus inviting the error, if any. In any event, there was error in the ruling and from a consideration of the record as a whole, we strongly incline to the opinion that appellant was prejudiced! thereby. When the court erroneously overrules a general demurrer to an answer instead of sustaining if and defendant, relying upon the court’s ruling as to the sufficiency of his answer, is misled to his prejudice, he is entitled to have the ease reversed in order that he may amend. Colonial Building & Loan Association v. Meyer (Tex. Civ. App.) 48 S.W.(2d) 729, and authorities cited.

Although appellant did not except to the court’s ruling and assigns no error thereon, it is uniformly held that the action of the court in sustaining or overruling general demurrers to pleadings is fundamental and may be reviewed on appeal without assignments of error. City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518; Suhre v. Kott (Tex. Civ. App.) 193 S. W. 417; Grayson County v. Harrell (Tex. Civ. App.) 202 S. W. 160; Eldora Oil Co. v. Thompson (Tex. Civ. App.) 230 S. W. 738; Morrison v. Western Union Telegraph Co. (Tex. Civ. App.) 35 S.W.(2d) 215; Barcus v. J. I. Case, etc., Co. (Tex. Civ. App.) 197 S. W. 478.

Notwithstanding the ruling of the court, testimony was admitted as to the value of several of the cars and there is evidence tending to show that they were not sold at the market value or even a fair value.

Throughout the motion the appellee insists that there is not a “scintilla of evidence” which even tends to show any unfairness, willfulness, or wantonness on the part of the appellee company in disposing of any of the cars. We cannot assent to this. Terrell testified that he had made an agreement with a party by the name of Downing, who was postmaster and druggist at the town of Newlin, for the purpose of selling him the Riiey car for $800, with a small trade-in difference. That Downing was to pay $500 or $600 of the purchase price in cash and that Terrell had agreed to deliver the car on a certain date, but that the representative of the appellee company took the car away from him on the day agreed for delivering it to Downing and when he informed McCormick, the appellee’s representative, of his agreement to sell Downing and to deliver the car the next day and requested McCormick to let him close the deal, the latter said, “We can’t do it” and took the car with him. The -record shows that McCormick subsequently sold the Riley car for $425. Prom this testimony the jury might have concluded that McCormick acted arbitrarily and unfairly and as a result of his 'conduct the car was sacrificed and Terrell deprived of the difference between the price received by McCormick and the price which Downing agreed to pay.

We think the pleading was sufficient to charge a gross breach of duty on the part of the company in the manner in which the power of sale was exercised by it. The appellant did not use the words “fraudulently” or “wrongfully” in attacking the manner of the sale and made no specific charge of illegal conversion in connection with the sales of the cars. The rule is that as against a general demurrer to a pleading, every reasonable intendment must be indulged by the court in favor of its sufficiency. The specific charge is that the cars were- sold at a price which amounted to a sacrifice of them and that the appellee willfully and wantonly disposed of them at a price that was not reasonable and fair. To do a thing wantonly is to do it intentionally, with design, without excuse, and under circumstances evincing a reckless disregard of the lawful rights of others. Hardman v. Brown, 77 W. Va. 478, 88 S. E. 1016.

“The term ‘wantonly’ implies turpitude; that the act done is of willful, wicked purpose.” North Carolina v. Vanderford (C. C.) 35 F. 282, 287; State v. Massey, 97 N. C. 465, 2 S. E. 445. An act to be done wantonly “must be done intentionally and by design, and without excuse, and under circumstances evincing a lawless and destructive spirit.” Branch v. State, 41 Tex. 622.

See, also, Corrigan, Dee & Halpin v. Heubler et al. (Tex. Civ. App.) 167 S. W. 159; Indemnity Insurance Co. of North America v. Scott (Tex. Civ. App.) 278 S. W. 347; Alley v. Samples (Mo. App.) 194 S. W. 513.

It is said in. 8 R. C. L. 591, § 135: “The terms recklessness, wantonness and willfulness ex vi termini, imply a knowledge and present consciousness that injury must result from a wrongful act done or from a duty omitted.”

While the appellee’s witness McCormick was testifying as to the value of the Essex automobile, having testified that he had repossessed it and sold it on the 12th. day of March, 1930, for $100, which was its cash market value at that time, appellant’s counsel undertook to cross-examine him upon that point. It had been shown that the car had sold for $703 in July, 1929, and that it was a 1929 model. Appellant’s counsel asked the witness: “Did that car reduce in value from July, 1929, to that time $603.00?” Objection was made that the question was argumentative. The court sustained the objection. Appellant’s counsel then said: “We propose to show by this witness. * * * ” Appellee’s counsel interposed as follows: “I object to any proposals in the presence of the jury.” This was not ruled upon. Appellant’s counsel stated that he wanted to see what the witness would say .about the decline in the price and excepted to the ruling of the court and offered to ask the same question with reference to all. four of the cars and the court replied: “All right, they speak for themselves.”

McCormick was testifying as an expert upon the value of -the secondhand cars and we think the court erred in denying the appellant the! right of cross-examination.

This court said in Pecos & N. T. Ry. Co. v. Porter, 156 S. W. 267, 274:

“It appears from- the record that on direct examination the witness had been shown a list of goods belonging to his deceased brother and which had been included in the shipment and had testified generally that the goods in the list were of the value of $350, and appellant’s counsel sought by cross-examination to have the witness testify particularly as to the value of each article named in the list as a test of the accuracy and truthfulness of the witness’ statements and for the purpose of showing his credibility. We think he was entitled to that right. The purpose of a cross-examination is to sift and to modify and have the witness explain what has been said on his direct examination, and if the witness by this process can be discredited and the weight of his testimony weakened, the right should not be denied. ‘The benefit of cross-examination is an essential condition to the reception of direct testimony. That is to say, testimony is not admissible if the party against whom it is to be used or those in privity with him have no opportunity of cross-examining the witness. The right being a substantial and a very important one, it is error to restrict it so far as to prevent the cross-examining party from going fully into all matters connected with the examination in chief.’ Thompson on. Trials (2d Ed.) § 406. The author, quoted further, says, ‘A witness may be cross-examined as to his examination in chief in all its bearings and as to whatever goes to explain or modify what he has stated in his examination in chief, and prejudice will be presumed where this right is denied.’ Martin v. Elden, 32 Ohio St. 282. ‘Where a witness has on his examination in chief given his opinion as to value, he may be cross-examined in full respecting his reasons for such opinion, and here the rule applies that great latitude should be allowed in cross-examination.’ Mo., etc., Ry. Co. v. Haines, 10 Kan. 439. * * * This question has also been considered and the rules above announced followed by our state courts in the following cases: P. & G. Ry. Co. v. Kirby, 42 Tex. Civ. App. 340, 94 S. W. 173; Kirby v. P. & G. Ry. Co., 39 Tex. Civ. App. 252, 88 S. W. 281; M. K. & T. Ry. Co. v. Rich, 51 Tex. Civ. App. 312, 112 S. W. 114; Dittman v. Weiss [Tex. Civ. App.] 31 S. W. 67; Ft. Worth & D. C. Ry. Co. v. Travis, 45 Tex. Civ. App. 117, 99 S.W. 1141.”

'See, also, Labbe v. Corbett (Tex. Sup.) 6 S. W. 812; O’Connell v. Storey (Tex. Civ. App.) 105 S. W. 1174; 28 R. C. L. 600, § 189.

The original opinion is withdrawn.

For the reasons stated the motion is overruled and the judgment is reversed .and the cause remanded.


source: Caselaw Access Project

author: STANFORD, Justice.

license: Public Domain

text:
    BATSON et al. v. COLEY & WILSON.
    No. 1337.
    Court of Civil Appeals of Texas. Waco.
    April 6, 1933.
    Rehearing Denied May 4, 1933.

      Eric Eades, of Dallas, and Brownlee & Brownlee, of Madisonville, for appellants.
    M. B. Bennett, of Normangee, and Max M. Rogers, of Groveton, for appellees.
   STANFORD, Justice.

. This suit was filed by appellees, B. C. Coley and K. C. Wilson, for the sum of $608.05, the value of certain goods and merchandise sold to appellant Mrs. Fannie E. Batson and charged to her open account. The suit was also against C. L. Batson, J. H. Batson, and; W. R. Batson, individually and as trustees of the estate of Seth Batson, Sr., deceased, and Mrs. Lida Toland and husband, Mrs. Corrie Allen and her husband, Mrs. Myrtle Lewis and her husband, Mrs. Yelma Knight and her husband, Mrs. Pearl Campbell, a feme sole, and Miss Ellene Batson, feme sole. The appellants herein are Mrs. Fannie E. Batson and all others above named, who are the children of herself and her deceased husband, Seth Batson, Sr., deceased.

The appellees alleged that from October 13, 1929, until November 5, 1930, they sold and delivered said goods on open account, and that such goods and merchandise were sold to Mrs. Fannie E. Batson at her special instance and request, and that she agreed to pay for the same, and that the account is long since due and unpaid. An itemized and verified account of said goods was attached to appel-lees’ petition. Appellees also alleged the making by Seth Batson, Sr., deceased, and his wife, Mrs. Fannie E. Batson, of a deed to C. L. Batson, W. R. Batson, and J. H. Bat-son as trustees, whereby they conveyed to said trustees approximately 600 acres of land in Madison county, to be held and managed by said trustees, and the rents therefrom to be turned over to the grantors, Seth Batson, Sr., and wife, or the survivor of them, for their support and maintenance.

Appellees prayed for judgment for their debt against the trustees, as such, and against each of the appellants as heirs of the estate, and that a lien be adjudged against the estate to secure the payment of appellees’ indebtedness, and for foreclosure of such lien, and, in the alternative, prayed for judgment against each of the appellants for whose benefit said indebtedness was incurred, together with interest.

The case was tried before the court without a jury, on May 20, 1932, and the court rendered judgment against Mrs. Fannie E. Bat-son as primarily liable to appellees for their account, and against W. R. Batson and Miss Ellene Batson, as adult constituent members of the household of Mrs. Fannie E. Batson, as secondarily liable, and against O. L. Batson as secondarily .liable for, and on account of, having converted the lands belonging to said estate, for the full amount of appellees’ account, with interest thereon. The court further found and .adjudged that an equitable lien existed upon the 600 acres of land in question, and ordered a foreclosure thereof to satisfy said judgment. The court rendered judgment that appellees take nothing against Mrs. Lida Toland 'and husband, Mrs. Myrtle Lewis and husband, J. H. Batson, Mrs. Corrie Allen and husband, Mrs. Yelma Knight and husband, and Mrs. Pearl Campbell, and adjudged the costs 'against all of the appellants.

It appears from appellees’ first and second propositions as contained in their amended original petition that the goods and merchandise, for the value of which they sue, were sold only to Mrs. Fannie E. Batson and charged to her open account on appellees' books. The appellee K. C. Wilson testified with respect to said account, in part, as follows:

“Q. As a matter of fact, you just sold those goods to Mrs. Fannie E. Batson on open account and charged them to her? A. Yes sir, I sold them to her and) charged them to her on my books.
“Q. You didn’t extend any credit to any other member of the Batson family at that time? A. No sir.
“Q. You didn’t charge anything to Miss El-lene? A. No sir.
“Q. You didn’t look to her for her to pay you at all? A. No sir, I thought she was buying for her Mother.”
The appellee B. C. Coley testified with respect to the account, in part, as follows:
“Q. You sold this bill of goods to Mrs. Fannie Batson, and charged them to her account during the year 1930? A. Yes sir.
“Q. You sold.these goods to Mrs. Fannie E. Batson and charged them to her and didn't look to any other member of the family for payment? A. No. sir.”

The appellant Mrs. Fannie E. Batson testified by deposition, under cross-examination, with respect to said account, in part, as follows: “Q. Did you trade during the year 1930 with Coley & Wilson and cause to be charged to your account, goods, wares and merchandise? A. I did.”

The pleadings and the undisputed evidence show beyond question that the goods and merchandise, for the value of which ap-pellees sued, were sold to Mrs. Fannie E. Bat-son only, and charged to her open account on appellees’ books, and that appellees extended credit to no other appellant, and they looked to her alone for the payment of said account. The appellees declared upon, and proved an express contract between themselves and the appellant Mrs. Fannie É. Batson, to pay for the goods and merchandise sold by them to her. .It is a fundamental principle of law that recovery may only be had upon the identical contract declared upon and proven. Chitty on Contracts, 445; Clark on Contracts, 440 ; 6 R. C. L., p. 589, par. 8; Bailey v. Hicks, 16 Tex. 222, 227; Bennett v. Giles (Tex. Civ. App.) 12 S.W.(2d) 843; Burkhart v. Brownfield (Tex. Civ. App.) 33 S.W.(2d) 885. Appellants’ contention here is sustained.

Propositions 3 and 4 question the sufficiency of the pleadings and proof, to sustain the judgment establishing an equitable lien on the land and ordering a foreclosure thereof. Appellees plead the trust deed executed by Seth Batson, Sr., deceased, and Mrs. Fannie E. Batson to C. L. Batson, J. H. Batson, and Wade R. Batson, trustees, and alleged that Mrs. Fannie E. Batson and Wade R. Batson were managing the farm lands described in the trust deed. They also alleged that the trust deed was not called to appellees’ attention, and that the trustees failed to notify them of the trust agreement, or of unauthorized acts of Mrs. Fannie E. Batson. They alleged conveyances by Mrs. Fannie E. Batson and the other appellants, of their interest in the lands constituting the estate to C. L. Bat-son, and say that such conveyances were in violation of the terms of the trust deed, and that C. L. Batson had taken the lands charged with appellees’ indebtedness. Appellees also alleged that the consideration for the conveyances to C. L. Batson was that he would pay off and satisfy the indebtedness which had accrued against the estate, and, if such consideration was not recited in the deeds to him, it was the actual consideration for such deeds. The only evidence as to the contract for the purchase and sale of the goods and merchandise was the sworn account itself, the testimony of the two appellees, B. O. Coley and K. C. Wilson, and the testimony of appellant Mrs. Fannie E. Batson as above stated.

Both of the appellees testified that they knew nothing of the trust deed, or the existence of any trustees at the time they were running the account with Mrs. Fannie E. Bat-son.

The consideration recited in the deed from the children of Mrs. Batson to C. L. Batson was $20,000 cash, and assumption of -J. P. Batson $2,200 notes, and notes in the amount of $7,800.

The consideration recited in the deed from Mrs. Fannie E. Batson to O. L. Batson was “$10.00 and other considerations to me in hand paid by C. L. Batson, the receipt of which is hereby acknowledged, and subject to all outstanding indebtedness against the property hereinafter described.”

The only theory advanced by appellees in their pleadings, for the assertion by them of a lien upon the 600 acres of land in question, was that their account against Mrs. Fannie E. Batson was an “estate” debt; that the “estate” held by the trustees under the deed from Seth Batson, Sr., deceased, and Mrs. Fannie E. Batson was liable to them for their debt, and that C. L. Batson acquired the “estate” charged with their debt.

The appellees themselves testified that they contracted alone with Mrs.' Fannie E. Bat-son ; that they charged the goods to her alone, and looked alone to her for payment. The appellees alleged they did not know of the trust deed, and that it was never called to their attention. The appellees testified that they did not know anything about the trust deed or the existence of trustees, while they were selling the goods to Mrs. Fannie E. Batson, and that they only learned about the deed and the trustees after the account was closed.

In the first deed the consideration is specifically set out, and in the second the property was conveyed “subject” to all outstanding indebtedness against the property therein described. The acceptance of such conveyance subject to the payment of debts due thereon could not create any personal liability against the grantee, but, if O. L. Batson had expressly assumed all the debts due by the estate, the appellees’ debt would not have been included, because their debt was against Mrs. Fannie E. Batson alone, and was not a charge of any kind against the estate, or secured in any'manner by any property belonging to the estate.

The only right under the trust deed of Fannie Batson was to receive the net rents from the operation of the farm. But the court, by its judgment in this case, has decreed a lien upon the fee-simple title to the whole 600 acres of land, to secure Mrs. Bat-son’s open account with appellees. There is nothing upon which the judgment of the trial court, decreeing an equitable lien on the land in question and ordering a foreclosure thereof, can stand. These contentions of appellants are sustained.

Appellants’ fifth proposition attacks the finding of facts by the trial court as being wholly insufficient to support the personal judgment against Miss Ellene Batson and Wade R. Batson. The only findings filed by the court tending or attempting to show any liability on the part of Miss Batson and Wade Batson were as follows: “That Mrs. Fannie E. Batson, W. R. Batson and Miss Ellene Batson constituted a family residing in Nor-mangee, Leon County, Texas; that such account was for necessaries furnished to Mrs. Fannie E. Batson in carrying on her household and providing for her family during the period of time said account was running.”

The facts found by the court to the effect that Mrs. Fannie E. Batson, W. R. Batson, and Miss Ellene Batson constituted a family, and that appellees’ account was for necessaries furnished' to Mrs. Fannie E. Batson in carrying on her household and providing for her family, by no means support the judgment against Miss Ellene Batson and W. R. Bat-son. On the contrary, such a finding, in fact, precludes a recovery against them, in that the court finds that the account was furnished Mrs. Fannie E. Batson in providing for her family. Merely being a member of a family could not in any way render one liable for necessaries sold to the head of that family. Appellants’ proposition here is sustained.

The court’s finding (seventh proposition) that C. B. Batson accepted deeds from his mother and brothers and sisters to their interest in the land in question could not render him personally liable, whether the trust; deed provided, or did not provide, for such conveyances. Neither could such conveyances be of any concern to appellees. It is true, and the trial court specifically found, that at the time the deeds were made to O. L. Batson said “estate” was indebted to him, and the said deeds were executed to O. L. Batson for the purpose of satisfying such indebtedness to him. The findings by the court could do no more than place 0. L. Batson in the position of a creditor, and the court could not conclude that the conveyances amounted to a preference of O. L. Batson as such creditor. Even if this were true, O. L. Batson would not be rendered personally liable. A creditor has the right to take property of his debtor sufficient to pay his debt, even though the debtor, with the knowledge of the creditor, was insolvent. Black v. Vaughan, 70 Tex. 47, 7 S. W. 604; Sanger v. Colbert, 84 Tex. 668, 19 S. W. 863; Terry v. Spearman (Tex. Com. App.) 259 S. W. 563; Teague v. Fairchild (Tex. Com. App.) 15 S.W.(2d) 585. The appellees were not creditors of any one, other than Mrs. Fannie E. Batson, and neither the estate nor the trustees of the estate were in any manner indebted to appellees for their account.

Unless a lien of some kind was created before or at the time the debt was incurred, the subsequent acts of the parties certainly would not give rise to the creation of a lien to secure a deb,t which had theretofore been unsecured. The court found that C. L. Batson was a creditor of the estate when he accepted the deeds to the land, and that the deeds were made to him for the purpose of satisfying such indebtedness due him. No lien could arise unless same arose at the time the debt of appellees was created. Equitable liens do not arise except out of a contract between the parties, express or impliéd. Teague v. Fairchild (Tex. Com. App.) 15 S.W.(2d) 585; Vivion v. Nicholson, 54 Tex. Civ. App. 43, 116 S. W. 386; 37 C. J. 313, 315. We sustain appellants’ seventh proposition above.

Appellants’ ninth and tenth propositions attack the conclusion of the trial court to the effect that C. L. Bátson, by the acceptance of deeds from his mother and brothers and sisters to their interests in the land in question, converted said estate from the purposes of the trust agreement, undertook to prefer himself as a creditor, and by reason of such conversion and preferment made himself personally liable for the payment of appellees’ account against Mrs. Fannie E. Batson, and that by reason of such conversion of said estate and the 'agreement thereto among all their heirs, an equitable lien was caused to exist to secure the payment of appellees’ account against Mrs. Fannie E. Batson.

The court’s conclusion that when C. L. Bat-son accepted the deeds to said estate he converted said estate from the purposes of the trust agreement is, we think, erroneous. In the first place, the estate referred to consisted only of 600 acres of land. Real estate cannot be converted, as here contended. See 26 R. O. L. 1098; Terry v. Birmingham National Bank, 93 Ala. 599, 9 So. 299, 30 Am. St. Rep. 87; Glencoe Sand & Gravel Co. v. Hudson Bros. Commission Co., 138 Mo. 439, 40 S. W. 93, 36 L. R. A. 804, 60 Am. St. Rep. 560; Smith v. Jaggers (Tex. Civ. App.) 16 S.W.(2d) 969.

Whether or not, by the acceptance of the deeds in question, O. L. Batson undertook to prefer himself as a creditor, is wholly immaterial. The suit was not one brought for the purpose of setting aside a conveyance alleged to have been made by an insolvent debt- or for the purpose of delaying, hindering, and defrauding his creditors. Most of the grantors in the deeds tq C. L. Batson were admittedly not indebted to the appellees in any respect. If the transfer of the property to C. L. Batson should be considered as having been made by the grantors for the purpose and with the intent of defrauding, delaying, and hindering their other creditors, including the appellees, yet such deed would pass good title, because the court specifically found “that at the time of the execution of such deeds to C. L. Batson, said estate was indebted to C. L. Batson,” and “that said deeds were executed to C. L. Batson for the purpose of satisfying such indebtedness to him.”

The court’s conclusions above referred to are not supported by the facts, and such conclusions by no means support the judgment rendered decreeing an equitable lien against the land in question and ordering a foreclosure of such lien. The judgment of the trial court with respect to said lien is clearly erroneous. We sustain appellants’ contention here made.

In so far as-the judgment of the trial court attempts to fix and foreclose a lien upon the 600 acres of land, the same is hereby in all things reversed and rendered for the appellants. In so far as said judgment is rendered against W. R. Batson, Miss Ellene Batson, and C. L. Batson, the same is hereby reversed and rendered in favor of said appellants. In so far as the judgment is in favor of Mrs. Li-da Toland and husband, Mrs. Myrtle Lewis and husband, J. H. Batson, Mrs. Corrie Allen and husband, Mrs. Velma Knight and husband, and Mrs. Pearl Campbell, the same is in all things affirmed, and, in so far as the judgment is a personal judgment against Mrs. Fannie E. Batson, the same is in all things affirmed. All costs of this case, except that incurred in securing judgment against Mrs. Fannie E. Batson, is adjudged against appel-lees herein. That incurred 'in securing judgment against Mrs. Fannie E. Batson is adjudged against her.


author: LEVY, Justice

text:
    CITY OF TEXARKANA v. FLOYD.
    No. 4300.
    Court of Civil Appeals of Texas. Texarkana.
    March 2, 1933.
    Rehearing Denied March 16, 1933.

      Travers Crumpton, of Texarkana, for appellant.
    Wm. Y. Brown, of Texarkana, for appellee.
   LEVY, Justice

(after stating the case as above).

The charter of the city of Texarkana expressly provides that the compensation of all elective and appointive offices must be fixed at a specified time and “shall not be increased or diminished during the term for which such officers are elected or appointed.” Section 48. The restrictive provision of the charter was intended to operate as a limitation upon the power of the city council as to the time the compensation may be altered as to a present incumbent. The motion passed by the city council on September 8, 1931, was an undertaking to alter or discontinue during the appellee’s term of office ending in April, 1932, the salary allowable to him as ex officio clerk of the corporation court. The motion or resolution would therefore be ineffectual to in any way change the compensation, because violative of the charter provision as respects the time when such compensation may be altered.

The principal point of the appeal, as concisely and clearly stated in appellant’s brief, is: “The amount of compensation allowed to the city' secretary for the performance of the duties prescribed by the city charter being limited tó a maximum of twelve hundred dollars per annum, any amount paid to and received by said city secretary in excess thereof is illegal and without warrant of law.” The city attorney presents the point nicely and fairly and in the commendatory purpose of finally settling by judicial construction certain charter provisions. The precise facts are that the city council b'y ordinance duly enacted required the city secretary to act and perform the duties of clerk of the corporation court of the city. The city council by ordinance duly passed fixed and allowed compensation to the city secretary in the sum of $1,200, payable $100 per month. The city council also by ordinance duly passed fixed and allowed compensation to the “City Secretary as Ex-Officio Clerk of the Corporation Court of the City of Tex-arkana” for services as ex officio clerk in the sum of $100 per month. As to whether or not one person performing the duties of both positions may receive both salaries must depend upon the facts and upon whether authorized to do so by the charter. Under the terms of the charter the city secretary is required to perform the duties of the clerk of the corporation court for a year and to continue to perform the duties of that position in the event the city council deems it necessary and authorizes it. The duties thereof are performed for part of the time by the “recorder” or by the “city secretary” as determined by the city council. In respect to the pay the charter of the city, authorized by the Legislature, has conferred upon the city council the .power to fix a salary for the purpose of compensating for the services rendered as city secretary and as ex officio clerk of the corporation court. As “said city secretary” the incumbent “shall receive a salary to be fixed by the city council, not to exceed the sum of twelve hundred dollars per annum, payable in monthly installments.” And as further expressly provided, “said clerk,” meaning ex officio clerk, “shall receive such salary as shall be fixed by the city council.” The provisions indicate that it was intended to allow the council to provide compensation and to entitle the city secretary to collect and retain the compensation for each position, the duties of which he was required to perform. The phraseology of the legislation seems fairly to sustain that construction, putting the two provisions together, and thence derive a conclusion in regard to that meaning. Both provisions would necessarily have to be consulted in aid of the interpretation. The two provisions are not necessarily mutually opposed and incompatible. It is thought the limitation of section 125 was intended to apply only to the pay of the city secretary, for services exclusive of clerk of the corporation court. It does not mean that he shall receive only $1,200 while serving as city secretary and ex officio clerk, but only as “city secretary.” The Legislature would have so provided if it had intended to prohibit the allowance to the city secretary of ex officio compensation-when the maximum compensation of both positions would exceed $1,200 per annum. The general state law applicable to county officials does expressly debar further allowance of ex officio compensation when the compensation allowed to the chief fixed and established office “shall reach the maximum provided for.” Article 3895, R. S. Where the statute allows the additional compensation, and there is no statute debarring further allowance, the official can receive compensation for performing duties of an office to which the duties of another are attached. 43 C. J. p. 691.

The judgment is affirmed.


author: GALLAGHER, Chief Justice.

text:
    BENDER v. ARMSTRONG.
    No. 1341.
    Court of Civil Appeals of Texas. Waco.
    April 6, 1933.

      Slay & Simon, of Fort Worth, for appellant.
    O. F. Watkins, of Mexia, and L. W. Shep-perd, of Groesbeck, for appellee.
   GALLAGHER, Chief Justice.

This appeal is prosecuted from an order of the district court overruling a plea of privilege. Appellee, J. E. Armstrong, plaintiff in the court below, instituted this suit against the National Pipe & Supply Company, S. Bender, M. Anisman, and appellant, B. Bender, to recover the sum of $1,777.25 which he alleged was due him for pulling pipe from eight abandoned oil wells in Limestone county. The parties will be designated as in the trial court. The several defendants were duly cited to appear and answer plaintiff’s petition. S. Bender and M. Anismaii filed answers to the merits. B. Bender filed a plea of privilege, in which he alleged that he resided in Dallas county and denied venue in Limestone county. No answer was filed by the National Pipe & Supply Company. Plaintiff controverted said plea of privilege. The specific grounds set out in his controverting affidavit were as follows: (1) One or more of the defendants in the cause were nonresidents of the state, and therefore they and the other defendants could be properly sued in Limestone county because plaintiff resided therein; (2) one of the defendants was a private corporation, association, or company, doing business in said county, and the cause of action arose therein; (3) the defendant B. Bender was a transient person; (4) the nonresident defendants, S. Bender and M. Anisman, each had property within the jurisdiction of the court.

. The plea was heard by the court. Plata-tiff offered no testimony. Defendant B.Bender testified that he resided in the city of Dallas in Dallas county, and that he had no other place of residence. He-also testified that S. Bender and M. Anisman both resided in Shreveport in the state of Louisiana. He further testified that the defendant National Pipe & Supply Company was merely a name or designation assumed by him for business purposes, and that the same was not a company, joint-stock association, nor corporation. He further testi--fled in that connection without objection that he had filed in the office of the county clerk of Dallas county the certificate required by' the statute. He testified on cross-examination that he did business in several counties' in Texas, but had no residence in any other' county except Dallas. The court overruled said plea of privilege.

Opinion.

Defendant Bender, by appropriate as--signments of error, assails the action of the court in overruling his plea of privilege, ancf contends that such action cannot be sustained on any of the grounds set out in plaintiff’s controverting affidavit. Said affidavit" did not constitute proof'of the facts therein alleged. The burden of proving facts suffi--cient to fix venue in Limestone county on one or more of the grounds so alleged rested'on the plaintiff. When venue against a defendant who does not reside in the county' in which suit is brought is sought to be maintained on the ground that another defendant does reside therein, the burden is on theplaintiff to allege and prove a bona fide -cause of action against both such defendants. Padgett v. Lake Cisco Amusement Co. (Tex. Civ. App.) 54 S.W.(2d) 201, 202, pars. 1 to 4, inclusive, and authorities there cited; American Fruit Growers, Inc., v. Sutherland (Tex. Civ. App.) 50 S.W.(2d) 898, 899, pars. 2 to 3r inclusive. When none of the defendants resides in the county in which suit is brought, but venue of such suit is' maintainable therein against one or mo-re of the defendants under some specific exception to article 1995 of our Revised Statutes, and venue is sought to be' maintained against another defendant" solely under the provisions of subdivision 29a of said article (as added by Acts 1927, 1st Called Sess., c. 72, § 2 [Vernon’s Ann. Civ. SL art. 1995, subd. 29a]), the plaintiff must further show that the latter is a necessary party to his suit. Fox v. Cone, 118 Tex. 212, 217, 13 S.W.(2d) 65; Empire Gas & Fuel Co. v. State (Tex. Sup.) 47 S.W.(2d) 265, 267, par. 5; Umberson v. Krueger (Tex. Civ. App.) 49 S.W.(2d) 528, 529, par. 1; American Soda Fountain Co. v. Hairston Drug Co. (Tex. Civ. App.) 52 S.W.(2d) 764, 765, par. 1. We will consider the several grounds relied on by plaintiff to fix venue in Limestone county as set out in his controverting affidavit, in their serial order.

Subdivision 3 of the aforesaid article of our venue statutes provides, in substance, that, if one or more of several defendants reside without the state, suit may be brought in the county in which the plaintiff resides. Plaintiff alleged that one or more of the defendants resided without the state, and the testimony showed that both S. Bender and M. Anisman so resided, but it did not show, nor tend to show, the existence of a common cause of action in favor of the plaintiff against said defendants and the defendant B. Bender, who pleaded his privilege of being sued in the county of his residence. Pri- or to the revision of the statutes, the wording of this particular subdivision clearly excluded any contention that venue was fixed thereby in the county of the plaintiff’s residence unless all the defendants, whether one or more, resided without the state. A slight change was made in the language of such subdivision in the revision, but it has been held that the construction and application of same were not affected thereby. United States Gas & Oil Co. v. Duffy (Tex. Civ. App.) 8 S.W.(2d) 278, 280, pars. 1 and 2. See, also, Kennedy & Gafford v. Reppond (Tex. Civ. App.) 226 S. W. 140; Sublett v. Hurst (Tex. Civ. App.) 164 S. W. 448, 449, pars. 1 and 2; Hudgins & Bro. v. Low, 42 Tex. Civ. App. 556, 94 S. W. 411, 412, par. 4. Whether such holding is correct need not be determined, because the plaintiff’s failure to show a common cause of action against all the defendants and that defendant B. Bender was a necessary, party to a suit thereon excludes the application of subdivision 29a in determining venue herein.

Subdivision 23 of said venue article provides, in substance, that suit against a private corporation, association, or joint-stock company may be brought in any county in • which the cause of action, or a part thereof, arose. Plaintiff invoked said provision in his controverting affidavit, but it cannot avail to sustain the action of the court in overruling the plea of privilege because palintiff wholly failed to prove a cause of action arising in whole or in part in said county or elsewhere against any of the defendants.

Subdivision 2 of said venue article provides that a transient person may be sued in any county in which he may be found. A transient person, within the meaning of said subdivision, is one who is found in the state but has no fixed place of residence therein. Loos v. Swaim (Tex. Civ. App.) 16 S.W.(2d) 350, 352; Burns v. Napier (Tex. Civ. App.) 19 S.W.(2d) 578, 579 et seq. Plaintiff alleged that the defendant B. Bender was a transient person: The testimony showed that said Bender transacted business in several different places in the state and that he had recently made a trip to Oklahoma. These facts did not, in view of his testimony as a whole, constitute him a transient person within the meaning of the statute. The subdivision under consideration, however, does not authorize a suit against a transient person in any county except one in which he may be found. The testimony does not show that defendant B. Bender was found in Limestone county either at the time of the institution of the suit or of the service of citation upon him. Both the transcript and the testimony show affirmatively that he was served with citation in Dallas county.

The last ground of venue alleged in plaintiff’s controverting affidavit is that the nonresident defendants each had property within the jurisdiction of the court. There was no testimony supporting such allegation. The transcript shows the issuance of a writ of attachment against all the defendants and the levy thereof on six trucks as the property of the defendant National Pipe & Supply Company. There was no testimony that either of the nonresident defendants had any interest in such company. Defendant B. Bender testified that he was the sole owner thereof. The ground of venue so asserted is not included in the provisions of the aforesaid article. Such actions are authorized and the procedure therein prescribed by articles 1975 to 1979, inclusive, of our Revised Statutes. Said .articles declare the potential jurisdiction of the court over the property of nonresident defendants situated within the state, and prescribe the manner in which such jurisdiction shall be exercised. They are not venue statutes.

The order of the court overruling the plea of privilege is reversed, and the issue remanded for further hearing.


text:
    SKIPPER et al. v. DAVIS et al.

    No. 4340.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 10, 1932.
    Rehearing Denied March 9, 1933.

      Edwin M. Fulton and G. E. Florence, both of Gilmer, for appellants.
    Weeks, Hankerson & Potter, of Tyler, for appellees.

      Writ of error granted.

   LEVY, Justice

(after stating the case as above).

In order to determine the right of the appellants to have the issuance of an injunction, as the only means of effectuating a decree upon the merits of the principal controversy, there is included as a necessary consequence (1) the proper construction of the deed from H. T. Elder to the trustees of the African Methodist Episcopal Church, and (2) the decision as to the rights and privileges the several parties to the suit may have in the oil under the land under the established facts in the case.

The rule is too well established to admit of debate that the deed in question must be construed most favorably to the grantee so as to confer the largest estate which a fan-interpretation of its terms will admit. Hancock v. Butler, 21 Tex. 804; Hunt v. Evans (Tex. Civ. App.) 233 S. W. 854; Cartright v. Trueblood, 90 Tex. 535, 39 S. W. 930, 931; 14 Tex. Jur. § 148, p. 926. By the habendum clause in the deed the premises described were to be holden by the “Trustees and their heirs and assigns” by the specified kind of tenure of “forever.” Those words of themselves indicate the giving of complete dominion and an unlimited power of disposition of the estate conveyed which would be equivalent to a title in absolute fee simple. But in the face of the deed there is expressly set out words, apt and clear and specific, which point to a different conclusion than that of an estate created in full fee-simple title. Following the recited consideration “of Ten Dollars to us in handi paid,” appear the words “and the further consideration of agreement made that said premises shall be used for church purposes only and that in case the same is abandoned as such, that the title shall be re-vested in the said H. T. Elder.” The words import that the estate already created may be defeated upon the happening of the contingency named. The whole language used demonstrates the intention of the grantor of the accomplishment of the specific purpose “that the title shall be revested in the said I-I. T. Elder” when the condition named was broken. The provision for “the title” of the land to be “revested” in the grantor upon the contingency named is the distinctive characteristic of a grant of land upon condition subsequent. 12 Tex. Jur. § 86, p. 131; 1 Warvelle on Vendors (2d Ed.) § 445, p. 52T. It is thought the deed should be construed as a grant to the religious society of the land upon a condition subsequent, and simply that. 12 O. J. p. 410; 21 C. J. § 31, p. 928; 2 Devlin on Real Estate (3d Ed.) § 970d, p. 1813; 17 Tex. Jur. § 9, p. 107; 4 Kent Com. 12; Stevens v. G., H. & S. A. Rwy. (Tex. Com. App.) 212 S. W. 639; Pitts v. Camp County (Tex. Civ. App.) 42 S.W.(2d) 853; Id., 120 Tex. 558, 39 S.W.(2d) 608.

The rule is well established that a condition subsequent operates upon an estate already created and vested, rendering it liable to be defeated if tbe condition is broken. 12 C. J. p. 410; 21 O. J. § 39, p. 929; 12 Tes:. Jur. § 83, p. 126; Wiederanders v. State of Texas, 64 Tex. 133; Colvin v. Tomlinson (Tex. Civ. App.) 293 S. W. 313; and other cases. The former estate, though; is not de-vested, although the condition is broken, until the grantor or his heirs take advantage of the breach of condition and re-enter, or bring timely suit, which is the equivalent of re-entry. 12 Tex. Jur. § 89, p. 136; 17 Tex. Jur. § 20, p. 117; 2 Devlin on Real Estate (3d Ed.) § 959, p. 1780, and § 974, p. 1821; Johnson v. Gurley, 52 Tex. 222, 227. Therefore, treating the conveyance to the church as the grant of the estate upon a condition, the heirs of the original grantor would be entitled to have their legal rights to take back and re-enter into the possession of the land determined, according as the facts may •appear, by whether or not the condition named in the deed has been broken. The precise facts appear that (1) the church “has never abandoned the property as a place of religious worship,” although (2) the trustees under the authority of the church have “ex-cuted an oil and gas lease for a term of ten years on the land,” and (3) the lessee 4thas moved the church located on said property and has erected a drilling rig thereon preparatory to drilling a well for gas and oil.” There was no abandonment by the church, as found by the trial judge. It is believed the facts are insufficient to establish a breach of the subsequent event named in the deed so as to operate to absolutely devest the estate granted from the church and become a right to secure a revesting in the heirs of the former estate by entry or by action at law. The conditional character of the title depends upon the words in the deed of “in case the same is ever abandoned as such,” meaning the use of the land “for church purposes only.” Therefore the condition cannot be said to be broken so as to absolutely devest the estate granted until the land is “abandoned” for use of “church purposes only.” The factual element that the church “has never abandoned the property as a place for holding religious worship” clearly and indisputably establishes a continuing and existent use. The words “abandonment as such” means to wholly discontinue the use, and may not be construed to mean that the estate shall be devested out of the church merely because of an additional use of the property. A sale is not considered at all events an abandonment entitling the right of reverter. 2 Devlin on Real Estate, § 970a, p. 1808. As to whether the additional use for the production of oil constitutes a wrong is a question aside from the question of reverter of title. A dual use is nevertheless a use and not an abandonment. The deed does not provide for a forfeiture by the additional use of the property. Gleghorn v. Smith, 26 Tex. Civ. App. 187, 62 S. W. 1096; Priddy v. School Dist., 92 Okl. 254, 219 P. 141, 39 A. L. R. 1334, and other cases. Quoting, as applicable, from Waggoner’s Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.(2d) 27, 32, as respects abandonment: “It is easy to confuse this principle with that of abandonment, which implies an intention to give up the interests granted. There should be no such confusion. * * * But it is not a partial use, nor a negligent use, nor an imperfect use, but cessation of use, which terminates the lessee’s estate.” This being so, then on the issue of title the plaintiffs’ title must be deemed imperfect, and there right of entry would be, too.

Although on the issue of title the reversion of title may not be predicated, yet there arises the question to be determined of whether or not injunction, as sought, is a remedy allowable to the plaintiffs against the consequences of the acts complained, in protection of their right of reversion against the misuse operating as a diminution of the corpus of the estate. The petition of the plaintiffs is not without indefinitencss and uncertainty, yet it may, as against a general demurrer, be fairly construed as by intendment-seeking in the alternative an injunction against wrongful use of the land in taking-oil from under the land. It is not entirely without averments of substance. The petition may be subject, however, to special exceptions, when urged upon the trial, and, unless amended, to make more definite and clear the averments of such ground of remedy. Under the terms of the statute of this state a complainant is entitled to the remedy of injunction when required for “the restraint of some act prejudicial to him.” Subdivision 1, art. 4642, R. S. Whatever may be the rule in equity, this statute will control.

The opening up of an oil well for extraction of oil in place from under the land is in the view of commercial and not religious purposes, and is for profit and gain. Such disposition of the oil in place would rest, not under the deed of the grantor, but in the consent merely of the church, acting through its trustees. The test is, not what purpose the money derived from the oil may be put to when extracted from the land, but is oil operations upon the land in diminution or depletion of the corpus a use created by the grantor’s deed. 18 C. J. § 416, p. 373. It is well settled that oil in place before its extraction is deemed a part of the land. Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S. W. 290, 29 A. L. R. 566; Waggoner’s Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.(2d) 27. A lease or grant of oil in place, creating in the lessee a Vested right to enter and produce oil, is a new title, and the title thus sold operates to cut off and de-vest all estate in reversion in the oil produced. Such lease for extraction of the oil in effect obviously depletes the corpus of the subject of lease as the lessees’ operations and productions progress. It operates to he a spoil and destruction of the estate itself, in actual and intentional demolition of the land, and as to the reverter it is a means of transferring without recourse the property of real estate. It is more than the ordinary use and enjoyment of the premises. Therefore the act of opening up wells and taking' the oil in place may be regarded as acts constituting waste of a voluntary kind which may be enjoined. 40 Cyc. pp. 497, 501; 27 R. C. L. §§ 1 and 12, pp. 1011, 1022; Ohio Oil Co. v. Daughetee, 240 Ill. 361, 88 N. E. 818, 36 L. R. A. (N. S.) 1108; Brugh v. Denman, 38 Ind. App. 486, 78 N. E. 349; Smith v. Sharpe, 44 N. C. 91, 57 Am. Dec. 574. This rule applies as well to oil wells. Swayne v. Oil Co., 98 Tex. 597, 86 S. W. 740, 69 L. R. A. 986, 8 Ann. Cas. 1117. And it is evident that such spoil and destruction of property in real estate is a permanent injury that would be esteemed equitable waste. Equitable waste is, as defined, a species of manifest injury in spoil and destruction of the property of real estate, although not inconsistent with the legal rights of the party committing them. 2 Story, Eq. Jur. (4th Ed.) § 1242, p. 593. Equity will interpose and afford relief by injunction against waste, in destruction or material alteration of the property. 27 R. C. D. S§ 37, 38, pp. 1044r-1046; Pomeroy, Eq. Rem. (4th Ed.)1 § 1339; 1 High on Injunctions (4th Ed.) § 680. And it appears that one who has not an absolute unqualified title is of the class who can commit waste and be held liable by the material alteration or destruction of the estate granted. 27 R. C. L. § 21, p. 1032; Hayman v. Rownd, 82 Neb. 598, 118 N. W. 328, 45 L. R. A. (N. S.) 623; Brigham v. Overstreet, 128 Ga. 447, 57 S. E. 484, 10 L. R. A. (N. S.) 452, 11 Ann. Cas. 75; Price v. Ward, 25 Nev. 203, 58 P. 849, 46 L. R. A. 459; Duvall v. Waters, 1 Bland, 569, 18 Am. Dec. 350. But the most interesting and important question arising is the further one of whether the appellants who have the right of reverter after a conveyance upon a condition subsequent or determinable fee have redress for this injury of waste and by way of remedy to restrain the waste. It is a question in this state of first impression. By the rule of the common law a reverter upon a grant of condition subsequent or determinable fee was regarded ás “a mere possibility” or mere expectancy of having at some future time an interest or estate in the land that can be made the subject-matter of conveyance and devise. A possibility or expectancy of an interest in land in futuro was not made by the common law a subject-matter of bargain and sale or devise. It was not such a fixed estate as was devisable, or alienable by conveyance, but only descendible. 21 O. J. § 180, p. 1017. Several cases set forth and apply the rule. See, especially, Dees v. Cheuvronts, 240 Ill. 486, 88 N. E. 1011. Consequently a reverter, having no right or estate in the land, could not be classed as a person who was injured by waste. 2 Cooley on Blackstone (4th Ed.) p. 1017. But the rule of the common law has been expressly modified by the statutory provisions of some of the states. Statutes have been enacted making a reversion a right or estate that may be conveyed or devised, and conferring the right of action upon the holder for waste. As a consequence of such statutory provisions in those states, a reverter has become an estate that may be made alienable and devisable, and not merely, as heretofore under the common law, a possibility or expectancy of an interest or estate. In this state by the statute controlling the descent of property, “all the estate, right, title and interest in possession, reversion or remainder” in land can be devised. Article 8282, R. S. “Reversion” and “reverter” are synonymous, and denote a vested- estate or right. 21 C. J. § 179, p. 1016. And by provision of article 1296, R. S., regulating conveyances,” an estate * * * to commence in futuro,” which would include a reverter, may be conveyed “in like manner as by will.” In virtue of these provisions, a reverter becomes such an interest or estate in land as may be conveyed or devised. It is believed, therefore, that, in virtue of his property interest in the land, the holder of a right to reversion is a person who may maintain a suit to prevent waste, by depletion or destruction of the corpus of the estate.

In this case by way of remedy, there could be the joinder of the appellants with the trustees in the lease, thereby affecting a merger of the two estates in the lessee, entitling the lessee to proceed with the operations for oil, and make division of the rents and royalties as they may agree upon. In the absence of such joinder and agreement, the trustees or the trustees and their lessee may still be entitled to remedy, in order to protect the estate against loss by outside drainage of the oil, by application to a' court of equity for opening up an oil well, through lease or by receiver, with division made equitable by the court of the money proceeds therefrom.

There was error in refusing the temporary injunction, and the order is reversed a.nd the cause remanded.


author: JACKSON, Justice.

text:
    TEXAS UTILITIES CO. v. WEST et al.
    No. 3893.
    Court of Civil Appeals of Texas. Amarillo.
    March 29, 1933.
    Rehearing Denied April 26, 1933.
    Dameron & Dameron, of Hereford, and Underwood, Johnson, Dooley & Simpson and .Vance Huff, all of Amarillo, for appellant.
    Paul A. Speer, of Amarillo, and Jno. A. Coffee and Carl Gilliland, both of Hereford, for appellees.
   JACKSON, Justice.

The plaintiffs Mrs. O. F. West, surviving wife of O. F. West, deceased, acting for herself and as the legally appointed guardian of Howard Floyd and Maurine, the minor children of herself and her deceased husband, joined by H. T. West and wife, Mattie, the parents of the deceased, instituted this suit to recover from the defendant, Texas Utilities Company, a corporation, damages for the death of O. F. West which they alleged was occasioned by the negligence of the defendant.

The plaintiffs pleaded that O. F. West and his aforementioned wife and minor children occupied as a home certain property in Hereford, Tex., across which the defendant maintained high-tension power lines which extended between the dwelling and the windmill tower on said premises; that on September 20, Í927, O. F. West attempted to put up an uninsulated copper wire from the windmill tower to his dwelling as an aerial for his radio; that the copper wire came " in contact with the defendant’s high-tension line, and O. F. West was electrocuted; that the high-tension wire constituting defendant’s lines were covered, with some substance, which, to a person of ordinary prudence, but not skilled in the operation of electricity, gave them the appearance of wires which were insulated to protect persons coming in contact therewith from danger, and the deceased relied on such appearance and was deceived and misled thereby; that said lines were not sufficiently insulated and would not protect a person who came in contact therewith from injury.

In the alternative, plaintiffs say that, if said lines were originally sufficiently insulated, then such insulation had become defective, insufficient, and inadequate by reason of bréales and abrasions therein caused by age and exposure, to the weather; that all of such conditions were known to the defendant, or could have been known by ordinary diligence, but were unknown to the deceased, and he was given no notice or warning of the conditions of said lines or the danger of coming in contact therewith; that such acts were negligence and the proximate cause of the death of O. P. West.

The defendant answered by general demurrer, certain special exceptions, general denial, pleas of limitation, and alleged the contributory negligence of the deceased based on numerous different grounds.

The defendant specially excepted to the cause of action alleged in behalf of the respective plaintiffs, as their pleadings disclosed that their claims were barred by limitation.

The deceased was killed September 20,1927. Mrs. O. E. West, on December 16th thereafter, was appointed guardian of the estates of Howard Floyd, age 6, and Maurine, age 4, at the time of their father’s death. The original petition was filed January 22,1931.

The court sustained the defendant’s contention as to the individual claims of the surviving wife and parents of the deceased, but held that limitation did not defeat the rights of the minor plaintiffs.

In response to special issues submitted by the court, the jury found, in effect, that, at the time the deceased lost his life, the high-tension wires of the defendant were not sufficiently insulated to prevent the escape of a dangerous electric current; that the insulation had breaks and abrasions therein, caused by age and exposure to the weather; that the defendant knew, or could have known by the exercise of reasonable diligence, of the defective and dangerous condition of said lines; that it did not warn the deceased of such defects or the danger caused thereby; that defendant was negligent in maintaining its said lines without sufficient insulation and in permitting such insulation to become and remain defective, negligent in failing to warn the deceased of the condition of said lines and the resultant danger of coming in contact therewith, and that such negligence was the proximate cause of the death of O. P. West. The jury found that the deceased did not know and could not, by the exercise of ordinary care, have known of the defective conditions of the insulation of said lines and the consequent danger thereof and acquitted the deceased of all acts of contributory negligence charged against him by the defendant.

The court entered judgment that Mrs. O. P. West individually and I-I. T. and Mattie West take nothing and on the findings of the jury decreed that. Howard Ployd West recover the sum of $3,500 and Maurine West recover the sum of $4,000, from which judgment in favor of the minor plaintiffs this appeal is prosecuted.

The appellant contends by proper assignment that, inasmuch as the record shows without dispute that Mrs: O. P. West was legally appointed and qualified as the guardian of the estates of the minor plaintiffs more than two years prior to the institution of this suit, its plea of limitation should have been sustained against the minor plaintiffs and judgment in their behalf denied.

At the time the cause of action accrued to the minor plaintiffs, and at the time of the trial, they were under the disability of minority, and were not subject to the statutes of limitation, article 5535, R. O. S., unless their rights were barred by the failure of their legally appointed guardian to institute suit in their behalf within two years from her qualification.

“In reference to this it is sufficient to say that in our own state it is held that the heir or ward under disability is not deprived of his action by any neglect on the part of the administrator or guardian to bring suit within due time. * ⅜ *

“However much the courts of other states may differ upon this point, they have almost universally agreed that the position of a trustee under deed is different from that of a guardian or administrator, the trustee holding the legal, while the cestui que trust holds the equitable, title; whereas the heir or ward holds the legal title, subject only to the right of the administrator or guardian to control the estate for the benefit of all parties interested in it or its administration.” Collins v. McCarty, 68 Tex. 150, 3 S. W. 730, 731, 2 Am. St. Rep. 475.

In Shaw, Banking Commissioner, v. Dalston (Tex. Civ. App.) 18 S.W.(2d) 215, 219, writ refused, in speaking of the trust reposed in a guardian, the court says: “His powers and obligations are similar to those of a trustee, with the distinction that a guardian does not have title to the ward’s property.”

The rules of limitation controlling suits by trustees for their beneficiaries “have no application when the legal title is vested in the cestui que who labors under the disability of minority. In such case the statute of limitutioa does not run against him, although it may have run against the trustee.” 21 Tex. Jur. 389, § 118, and authorities cited.

The statutes give to the minor plaintiffs a cause of action against the defendant for the wrongful death of their father. K. C. S. article 4671, and article 5525 (as amended by Acts 1927, c. 239, § 1 [Vernon’s Ann. Civ. St. art. 5525]). Such a cause of action is a property asset or an estate. 13 Tex. Jur. p. 623; St. Louis Southwestern Ry. Co. v. Smitha, 111 Tex. 285, 232 S. W. 494. See, also, 37 C. J. p. 1018.

The cduse of action arising from the death of their father was a property right or an estate belonging to the minor plaintiffs, and the *ial court correctly held that the suit of the ;minor plaintiffs was not barred by limitation.

The appellant presents as error the action .of the trial court in refusing to direct a ver-,diet in its behalf (1) because the testimony -fails to show that it was guilty of actionable -negligence; and (2) the testimony shows that -the deceased was, as a matter of law, guilty „of contributory negligence.

In determining whether the peremptory instruction should have been given, we must discard the adverse testimony, credit the evidence favorable to the plaintiffs, and indulgeevery legitimate conclusion that may be drawn from the evidence in their favor. Gross v. Shell Pipe Line Corporation (Tex. Civ. App.) 48 S.W.(2d) 377; Jones v. Jones, et al. (Tex. Civ. App.) 41 S.W.(2d) 496; and authorities cited in both opinions.

Measured by the rules thus announced, - the record reveals that Hereford had between -2,500 and 3,000 inhabitants in 1927, many of whom had windmills located in the rear of their premises and more of whom had radios in their homes. The radios were operated with standard copper wire aerials, approximately 100 feet in length, and such wire was frequently extended from the radio in the house to the top of the windmill tower lo.cated in the back yard. They were generally strung at right angles to telephone lines and light wires in order to better avoid electrical interference and to secure better reception. The deceased was not a trespasser or a licensee. He occupied the .premises as a home under a lease from the owner, across which ,the appellant, with the permission of the owner, had extended its high-tension lines and suspended them between the dwelling and the windmill tower about 20 feet above the ground. These lines carried a deadly current of 2,300 volts of electricity, and were inclosed in triple braid weatherproof, consisting of three braids of cotton fiber saturated with a :bitumen material. This covering gave the lines the appearance of being insulated, and, when new and in good condition, constituted a fairly effective insulation and afforded reasonable protection to any person or conductor of electricity coming in contact with the lines. The covering deteriorates with age- and exposure to the weather, and becomes defective and inadequate after having been in use a number of years. To determine whether such covering is insufficient or has become inadequate, electricians employ a volt meter or other device to determine whether the current in a line carrying 2,300 volts will be transmitted to and through such a conductor as the wire the deceased placed in contact with appellant’s lines. These high-power •lines had been erected across the premises occupied by the deceased about' eighteen years, but the insulation thereon at the time of his death did not appear to have anything wrong with it, and the defects therein were not noticeable to the average person in the exercise of reasonable prudence. A test of 8 or 10 feet of one of appellant’s lines with the same coverage and voltage, after it had been in use four years, disclosed no reaction to the volt meter. A test of the same kind of a line, in different places, after it had been in service approximately ten years, showed a reaction from zero to 2,300 volts.

The deceased had his copper wire wound around a small board, and, in order to erect his' -aerial, ascended the windmill tower, nailed a strip of wood thereto, which projected above the tower, fastened one end of his wire to such projection and either from the platform of the windmill tower or from the ground, threw the piece of board around which the most of the aerial wire was coiled, over the high-tension wires which were about 12 or 15 feet from the tower. The aerial wire fell across the power lines, deceased went toward the house to where the board had fallen, picked up the wire, and was killed by a current of electricity.

The deceased had only such knowledge of electricity as that possessed by the ordinary person, and appellant had given him no warning of the inadequacy of the insulation or the deterioration thereof rendering it dangerous to come in contact therewith, all of which it knew or by the exercise of ordinary care would have known. Appellant' knew, through its officers and agents, of the many windmill towers in Hereford and the customary manner of erecting the radio aerials and the frequency with which people attached their aerial wires to such towers. The telephone wires ran along the street in front of the residence of the deceased, and, in order to secure an aerial of standard and satisfactory length, he was intending to extend his wire from the windmill tower beyond the power lines to the radio in his house.

It was the duty of appellant to use due care in constructing and maintaining its lines, remedying defects therein, anticipating and preventing injuries, and the degree of care required was proportionate to the danger to be avoided, taking into consideration the nature of the agency and the place and likelihood of injury.

“In the exercise of proper care the company is required to inspect its lines and appliances, to afford protection against ordinary atmospheric conditions, and, when necessary to guard against accidental injuries, to give warning of concealed or latent perils, to install safety devices, such as circuit breakers, ground detectors, and lightning arresters, and to insulate its wires.” 16 Tex. Jur. § 9, p. 237 et seq.
“In general, a duty to have wires insulated exists at places where the public, or workmen or other persons whose duties called them in proximity, would be exposed to injury. This duty may also obtain when insulation is necessary to prevent contact with another wire, or where a radio aerial or telephone wire is strung above a light or power line, under such circumstances that, in case of breakage of the upper wire, it will fall and come in contact with the charged line.” 16 Tex. Jur. p. 242, § 11.

It is not contributory negligence, as a matter of law, for a pedestrian on a. sidewalk to touch a hook on an electric pole, East Texas Public Service Co. v. Johnson et al. (Tex. Civ. App.) 300 S. W. 975; Id. (Tex. Com. App.) 6 S.W.(2d) 344; for a police officer, in attempting to relight a street lamp, to shake the cable by which it was suspended, San Angelo Water, Light & Power Co. v. Anderson (Tex. Civ. App.) 244 S. W. 571; For a person, after receiving a slight shock from' his telephone, to attempt to cut the wire, Temple Electric Light Co. v. Halliburton (Tex. Civ. App.) 136 S. W. 584.

For additional authorities on the actionable negligence of the defendant and the contributory negligence of the deceased, we cite the following: Olivas et ux. v. El Paso Electric Co. (Tex. Civ. App.) 54 S.W.(2d) 154; West Texas Utilities Co. et al. v. Renner (Tex. Civ. App.) 32 S.W.(2d) 264; Id. (Tex. Com. App.) 53 S.W.(2d) 451; Texas Power & Light Co. v. Culwell (Tex. Com. App.) 34 S.W.(2d) 820; Oil Belt Power Co. v. Touchstone (Tex. Civ. App.) 266 S. W. 432; Gulf States Telephone Co. v. Evetts (Tex. Civ. App.) 188 S. W. 289; Snyder Ice, Light & Power Co. v. Bowron (Tex. Civ. App.) 156 S. W. 550; Standard Light & Power Co. v. Muncey, 33 Tex. Civ. App. 416, 76 S. W. 931; Kessler v. West Missouri Power Co., 221 Mo. App. 644, 283 S. W. 705; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S. W. 654 ; McLaughlin v. Louisville Electric Light Co., 100 Ky. 173, 37 S. W. 851, 34 L. R. A. 812; Braun, Adm’r v. Buffalo General Electric Co., 200 N. Y. 484, 94 N. E. 206, 34 L. R. A. (N. S.) 1089, 140 Am. St. Rep. 645, 21 Ann. Cas. 370; Sanders v. Charleston Consolidated Railway & Lighting Co., 159 S. C. 266, 156 S. E. 874; 9 R. C. L. pp. 1210-1213; 20 C. J. pp.( 355, 356.

In our opinion the trial court was not authorized to hold as a matter of law that the appellant was not guilty of actionable negligence or that the deceased was guilty of contributory negligence, and direct a verdict for appellant.

The appellant, by proper assignment, contends that the judgment rendered against it was unwarranted and unsupported by the verdict, because of the conflicting findings of the jury on certain issues.

Special issue No. 14 (a), submitted by the court in his main charge, is:

“Special Issue No. 14 (a). Could the defendant have reasonably anticipated prior to the time of O. F. West deceased, was killed, that the said O. F. West, might reasonably be expected to install a radio in his house on the premises where he was killed, and that he might reasonably be expected to install said radio and to suspend an outside aerial wire consisting of bare copper wire, from a connection with said radio, 4n his said residence, above and across defendant’s high-tension wire, to the windmill tower located on said premises, and in such proximity to the high' tension wire, that in the suspension of said aerial wire that same might come in contact with defendant’s said high tension wire, or one of them, where the said breaks and abrasions, if any, in the insulation around defendant’s high tension wire, or where the amount of insulation around the high tension wire was insufficient, if you find it was insufficient?” To which the jury answered: “Yes.”

Special issues Nos. 14,15, and 16 submitted by the Court at the request of appellant read as follows:

“Defendant’s Requested Special Issue No. 14: Should a person of ordinary prudence have reasonably foreseen that someone might probably get a bare wire in contact with the defendant’s electric wire or wires in question in the manner which O. F. West did, or some similar manner, with the rest of the bare wires hanging down on the ground, and then while standing on the ground attempt to handle the said wire in the way and manner attempted by said West or some similar way or manner?” '
“Defendant’s Requested Special Issue No. 15: Would a person of ordinary prudence have reasonably foreseen that somebody might probably get a bare wire in contact with the defendant’s wire or wires in question in the manner in which the deceased, O. F. West, did, or some similar manner, with part of the bare wire hanging down to the ground, and that as a result the said wire would become charged with electricity sufficient to hurt or kill the person attempting to handle same?”
“Defendant’s Requested Special Issue No. 16: Would a person of ordinary prudence liave reasonably foreseen that someone might probably get a bare wire in contact with the defendant’s wire or wires in question in the manner in which the deceased, O. F. West, did, or some similar manner, with part of the bare wire hanging down to the ground,- and then attempt to handle the said wire in some way or manner that would cause said hanging wire to become charged with electricity that would hurt or kill the person in contact therewith?”

Each of said last issues were answered in the negative.

In Fort Worth & D. C. Ry. Co. v. Armitage, 39 S.W.(2d) 108, 112, it is said by Chief Justice Hall of this court that:

“To be the proximate cause, the injury must be the natural and probable consequence of the act complained of and of that character which should reasonably have been foreseen' as such a consequence in the light of attending circumstances. Eames v. T. & N. O. Ry. Co., 63 Tex. 660; T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Steed v. G., C. & S. F. Ry. Co. (Tex. Com. App.) 231 S. W. 714; Id. (Tex. Civ. App.) 209 S. W. 772; Galveston, H. & S. A. Ry. Co. v. Bell, 110 Tex. 104, 216 S. W. 390.

“These and other cases hold that foresee-ableness is a necessary element of proximate cause. Linn Motor Co. v. Wilson (Tex. Civ. App.) 14 S.W.(2d) 867; Blanch v. Villiva (Tex. Civ. App.) 22 S.W.(2d) 490.”

See, also, Enterprise Company v. Alexander (Tex. Civ. App.) 6 S.W.(2d) 423.

The trial court recognized the law as above announced in the issues submitted in his main charge and- at the request of appellant, but the findings of the jury on the question of foreseeableness are in irreconcilable conflict. West Lumber Co. v. Keen (Tex. Com. App.) 237 S. W. 236; Southwest Bithulithic Co. v. Dickey (Tex. Civ. App.) 28 S.W.(2d) 264; San Antonio & A. P. Ry. Co. v. Milam County (Tex. Civ. App.) 191 S. W. 571. This assignment is sustained.

Because it assumes as a fact the existence of negligence and is on 'the weight of the evidence, the appellant challenges as erroneous special issue No. 15 (a), given in the court’s main charge, which reads as follows: “Do you find from the evidence that Howard Floyd West and Maurine West have been damaged by reason of the negligence of the defendant?”

This contention is correct. Gordon v. McIntosh (Tex. Civ. App.) 54 S.W.(2d) 177; City of Amarillo v. Rust (Tex. Civ. App.) 45 S.W.(2d) 285; Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662.

The appellant presents seventy-three other assignments of error which we deem it unnecessary to discuss separately. On the question of burden of proof, we call attention to Psimenos v. Huntley (Tex. Civ. App.) 47 S.W.(2d) 622; on duplicity in some of the fssues, Theis v. Curts (Tex. Civ. App.) 33 S.W.(2d) 754. Under this record the appellant was not an insurer, and the charge should have been so framed as to make it liable for negligence only. The alleged misconduct of the jury, if error, will probably not occur on another trial.

The judgment is reversed, and the cause remanded.

MARTIN, J., not sitting.


author: FUNDERBURK, Justice.

text:
    CONTINENTAL OIL CO. v. BAXTER.
    No. 1100.
    Court of Civil Appeals of Texas. Eastland.
    April 14, 1933.

      Burney Braly, G. B. Smedley, and G. R. Pate, all of Port Worth, for appellant.
    Ernest Belcher, of Stephenville, for appel-lee.
   FUNDERBURK, Justice.

C. C. Baxter, owner of KFPD Radio Station, Dublin, Tex., sued Continental Oil Company a corporation, in justice court, upon an account amounting to $147.20. Judgment for plaintiff as prayed for. Same judgment in county court upon appeal. An agreed statement of the oral pleadings shows that the cause of action was upon a contract for advertisingby electrical transcription from December 25, 1930, to June 1,1931, consisting of twenty-six programs entitled “Conoco listeners’ Hour.” Plaintiff alleged the contract was made with defendant “by and through its duly authorized agent J. P. Powell,” and that “said services were actually and beneficially received by said defendant * * * and (hat they (it) are indebted to this plaintiff in the sum of $147.20 for services rendered as stated, which are reasonable, just, due and unpaid,” etc.

The jury to whom the case was submitted on special issues found: (1) That the witness J. P. Powell, at Cisco, Tex., during the month of December, 1930, entered into the contract in question under which the broadcast was performed by plaintiff; (2) that said witness J. P. Powell, in so entering into such contract, purported to act as the agent of the Continental Oil Company; (3) that the agent J. P. Powell was acting within the scope of his apparent authority in entering into the agreement in question; and (4) that the plaintií'f, C. C. Baxter, did not “enter into a written contract witli W. A. Crumpton, under the terms of which services sued for herein were performed.” The last-named issue was in response to evidence to the effect that the services in question were performed under a written contract between W. A. Crumpton and the plaintiff. From the judgment entered in accordance with said verdict, the, defendant Continental Oil Company, has appealed.

The questions presented for determination aire so closely interrelated that we deem it advisable first to discuss the principles of law thought to be controlling and then to make the application to the propositions asserted under the different assignments of error.

With reference to the scope of their authority, agents are of two kinds, general and special. “A general agent is defined to be one who is employed to transact generally all the business of the principal in regard to which he is employed, or in other words, to do all acts connected with a particular trade, business or employment, or to transact all the business of his principal of a particular kind, or in a particular place, and hence a general agency exists when there is a delegation of authority to do all acts connected with a particular trade, business or employment, for the fact that the authority of an agent is limited to a particular business does not make it special as it may be as general in regard to that business as though, its range was unlimited.” 2 O. J. 427, § 15; Great American Casualty Co. v. Eichelberger (Tex. Civ. App.) 37 S.W.(2d) 1050. A “special .agent” is “one who is employed to act only in a special or specific transaction, or to do a specific act, or to do one or more specific acts, or for a particular purpose only, or to act within limited and circumscribed powers under restrictions imposed by the principal or implied from the nature of the act to be done, or as one who is not given entire control over the particular business, but only the right to do specific acts.” 2 C. J. p. 428, § 16.

A careful study of the subject convinces us that the only practical distinction between a general and special agent is in the different character of proof or evidence necessary to show the scope of the agent’s authority. All other rules or principles are alike applicable to each.

“With reference to their authority in fact, agents are said to be either (a) actual, or (b) apparent or ostensible. An actual agent is one who has either expressly or by implication in fact been authorized by the principal to act in his behalf. An apparent or ostensible agent is one whom the principal either intentionally or by want of ordinary care induces third persons to believe to be his agent although he has not either expressly or T>y implication conferred authority upon him.” (Italics ours.) 2 C. J. 427, § 14. It thus appears that actual authority of an agent includes express and impMed authority. Lane v. Sullivan (Tex. Civ. App.) 286 S. W. 541; Denison v. Nunn (Tex. Civ. App.) 293 S. W. 838. Just as there is no difference between an express and an implied contract of agency (2 Tex. Jur. 298, § 16) when the inquiry is with reference to the existence or not of an agency, so there is no difference in express authority and implied authority of an agent, in an inquiry as to the actual authority of the agent. In contrast with “actual authority” is “apparent authority” or “ostensible authority.”

When a liability is enforceable because of the “apparent” or “ostensible” authority of an agent, having no actual authority, it is upon the principle of an estoppel. 2 Tex. Jur. p. 424, § 3S; Tres Palacios Rice, etc., Co. v. Eidman, 41 Tex. Civ. App. 542, 93 S. W. 698; Reo Motor Car Co. v. Barnes (Tex. Civ. App.) 9 S.W.(2d) 374; Lane v. Sullivan (Tex. Civ. App.) 286 S. W. 541; Hobby v. King Trailer Co. (Tex. Civ. App.) 273 S. W. 650; Shippers’ Compress Co. v. Northern Assur. Co. (Tex. Civ. App.) 208 S. W. 939; J. I. Case Threshing Mach. Co. v. Morgan (Tex. Civ. App.) 195 S. W. 922; Overton v. First Texas State Ins. Co. (Tex. Civ. App.) 189 S. W. 514; Holmes v. Tyner (Tex. Civ. App.) 179 S. W. 887; W. D. Cleveland & Sons v. Houston Sporting Goods Store (Tex. Civ. App.) 166 S. W. 912; Cannel Coal Co. v. Luna (Tex. Civ. App.) 144 S. W. 721; Great American Casualty Co. v. Eichelberger (Tex. Civ. App.) 37 S.W.(2d) 1050; Tarver, Steele & Co. v. Pendleton Gin Co. (Tex. Civ. App.) 25 S.W.(2d) 156; American Mortgage Corp. v. Spencer (Tex. Civ. App.) 45 S.W.(2d) 301; Kohlberg v. Awbrey & Semple (Tex. Civ. App.) 167 S. W. 828.

Where plaintiff seeks to hold defendant to liability for an act or contract of an agent without actual authority, but within the scope of such agent’s “apparent” or “ostensible” authority, it is necessary that the issue of such authority be presented by a plea of estoppel. 2 Tex. Jur. p. 637, § 217; Tres Palacios, etc., Co. v. Eidman, 41 Tex. Civ. App. 542, 93 S. W. 698; Tarver, Steele & Co. v. Pendleton Gin Co. (Tex. Civ. App.) 25 S.W.(2d) 156; Reo Motor Car Co. v. Barnes (Tex. Civ. App.) 9 S.W.(2d) 374; Climber Motor Corp. v. Fore (Tex. Civ. App.) 273 S. W. 284; Farmers’ Union Co-op. Clearance House v. Guinn (Tex. Civ. App.) 208 S. W. 362; Bankers’ Trust Co. v. Cooper et al. (Tex. Civ. App.) 179 S. W. 541; Swayne v. Union Mutual Life Ins. Co. (Tex. Civ. App.) 49 S. W. 518; Mutual Ben. Life Ins. Co. v. Collin County Nat. Bank, 17 Tex. Civ. App. 477. 43 S. W. 831; Western Industrial Co. v. Chandler (Tex. Civ. App.) 31 S. W. 314; Rail v. City National Bank, 3 Tex. Civ. App. 557, 22 S. W. 865; Garrow et al. v. Texas & N. O. R. Co. (Tex. Civ. App.) 273 S. W. 277; Y. M. C. A. v. Schow Bros. (Tex. Civ. App.) 161 S. W. 931; Wolf Co. v. Galbraith, 39 Tex. Civ. App. 351, 87 S. W. 390. See, also, Johnson v. Dallas Cooperage, etc., Co., 120 Tex. 27, 34 S.W.(2d) 845, an opinion approved by the Supreme Court, wherein the holding on this point by this court in Tarver, Steele & Co. v. Pendleton Gin Co., supra, was apparently approved.

Some confusion in the authorities is manifest in the employment of the term “apparent authority.” For instance, in the recent case of Cox, Inc., v. Humble Oil & Refining Co. (Tex. Com. App.) 16 S.W.(2d) 285, 286, a judgment of the trial court was approved by the Supreme Court as against a contention that a finding that “said Monroe, at the time he acted for appellant, had ‘apparent authority * * * to make such agreement as he made,’ ” was without support in the pleadings, the only pleading being that the contract in suit was made “through its duly authorized agent Monroe.” Obviously if “apparent authority” as thus found by the jury meant the same thing as that term is employed in the foregoing decisions (i. e., as a term contrasted with “actual authority”), then the decision in Cox, Inc., v. Humble Oil & Refining Co., suprá, shows a conflict and raises a question of whether the former decisions are to be regarded as overruled. We cannot bring ourselves to believe that the last-named effect was intended. The seeming conflict is attributable, we think, to the use of the term “apparent authority” in different senses. In many cases “apparent authority” seems to be used in the same sense as, or as included within, the meaning of “implied authority.” Collins et al. v. Cooper, 65 Tex. 460; Gulf, C. & S. F. Ry. Co. v. Hume, 87 Tex. 211, 27 S. W. 110; Sealy Oil Mill, etc., Co. v. Bishop Mfg. Co. (Tex. Com. App.) 235 S. W. 850; Bergere v. Parker (Tex. Civ. App.) 170 S. W. 808; Sanders v. Elberta Fruit Co. (Tex. Civ. App.) 190 S. W. 817; Glens Falls Ins. Co. v. Bendy (Tex. Civ. App.) 39 S.W.(2d) 628; Merriman v. Fulton et al., 29 Tex. 98; Hull v. East Line, etc., R. Co., 66 Tex. 619, 2 S. W. 831. But in none of the cases we have read, with the exception of Cox, Inc., v. Humble Oil & Refining Co., supra, was any possible distinction between “apparent” and “implied” authority discussed with special reference to a different rule of pleading. Aside from the question of pleading and for most practical purposes, there may be little importance whether a liability is sought to be enforced on the theory of an implied, authority of an agent or of the apparent authority of the agent. There are, however, important distinctions, a failure to note which may be a fruitful source of error. For instance, “implied” authority differs from “apparent” authority in that the former cannot exist when there is no actual authority, while the latter does exist in the absence of actual authority. The former exists as incidental to express authority, while the latter exists only by operation of an estoppel. City Nat. Bank v. Conley (Tex. Civ. App.) 228 S. W. 972; Lane v. Sullivan (Tex. Civ. App.) 286 S. W. 541; W. D. Cleveland & Sons v. Houston Sporting Goods Store (Tex. Civ. App.) 166 S. W. 912; Denison v. Nunn (Tex. Civ. App.) 293 S. W. 838; Holmes v. Tyner (Tex. Civ. App.) 179 S. W. 887; T. H. Baker & Co. v. Kellett-Chatham Mach. Co. (Tex. Civ. App.) 84 S. W. 661. That “implied authority” is something different from “apparent authority” is convincingly demonstrated by the following propositions: “Where an act for which it is sought to hold the principal was within the authority actually conferred by. the principal, whether expressly or impliedly (italics ours), it is not necessary for the third person to show that he had knowledge of that fact and acted on the faith of it” (2 C. J. p. 576, § 215); but, where it is sought to hold the principal on the ground of “apparent authority,” it is necessary “that the person dealing with the agent was aware of the principal’s acts from which the apparent authority is deduced, and that he dealt with the agent in reliance therein in good faith and in the exercise of reasonable prudence.” 2 C. J. p. 575, § 215.

It is not permissible to take into consideration, as a basis for a conclusion as to the extent of apparent authority, the power that the agent pretends to have or his activities that are unknown to and unratified by the principal.* 2 Tex. Jur. 427, § 39; Id., p. 563, § 204; Reo Motor Gar Co. v. Barnes (Tex. Civ. App.) 9 S.W.(2d) 374; Thompson v. Keys (Tex. Civ. App.). 162 S. W. 1196; William Cameron & Co. v. Blackwell, 53 Tex. Civ. App. 414, 115 S. W. 856; Tompkins’ Machinery & Imp. Co. v. Peter & Sherrill, 84 Tex. 627, 19 S. W. 860; Galveston, H. & S. A. R. Co. v. Allen, 42 Tex. Civ. App. 576, 94 S. W. 417; Morgan v. Harper (Tex. Com. App.) 236 S. W. 71; Ford Motor Co. v. Maddox Motor Co. (Tex. Civ. App.) 3 S.W.(2d) 911; Coleman v. Colgate, 69 Tex. 88, 6 S. W. 553.

Another rule of law is that the mere title or name of the position of an agent does not (except in a few cases, as established by judicial decisions) afford sufficient proof of the scope of the agent’s authority. 2 Tex. Jur. p. 443, § 50; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S. W. 550; Henderson Mercantile Co. v. First National Bank, 100 Tex. 344, 99 S. W. 850.

In the light of these rules and principles of law, it is our conclusion that there was no evidence of either actual or apparent authority of the agent J. F. Powell to bind the appellant by the contract alleged. In reaching this conclusion, in accordance with one of the rules stated, we exclude from consideration the acts, conduct, and representations of Powell himself; there being no evidence that the appellant had any notice thereof. Aside from that, the evidence shows no more than that Powell was district superintendent of the Abilene district, his jurisdiction extending over ten or twelve filling stations. The evidence introduced by the appellant showed that he had authority to call upon the dealers to explain the company’s advertising program, to direct the operators of the local stations, “to a limited extent”; to call upon them in order to get new business and encourage .old business. It was shown that one of the talking points to get new business was the programs being broadcast by the Continental Oil Company. This is explained by evidence showing that the company broadcast programs over two stations in Texas and prepared free of charge records for station agents to arrange at their own expense for broadcasting over local stations. This evidence wholly fails to show that Powell was a general agent or had any express authority to make the contract for appellant. It fails to show that as a special agent he had any duties from which could be implied authority to make such contract. The evidence fails to show that he had any duty to deal with others than the station agents and by and through them to promote by advertising the business of his principal.

We are also of opinion that the point is well taken that there was no pleading sufficient to present the issue of apparent authority as contradistinguished from actual authority. Conceding that “apparent authority” may mean or be included in “implied authority,” and that when used in such sense, the pleading was sufficient under the holding in Cox, Inc., v. Humble Oil & Refining Co., supra, the term was not so used in this case. The court, in connection with the special issues, defined “apparent authority” as “such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally and reasonably suppose the agent to possess.” This was clearly no definition of implied authority.

Prom these conclusions it also follows that the court erred in submitting to the jury, over the timely objection of appellant that there was no pleading to support same, the issue of apparent authority.

We are also of opinion that the right, if any, of the plaintiff, to recover upon the contract alleged, was conclusively disproved by the undisputed evidence showing that the services for which compensation was sought were performed under a written contract, to which, on the face of same, plaintiff and W. A. Crumpton were the contracting parties. It is elementary that the plaintiff must recover, if at all, upon the identical contract alleged. See McAlister v. Bivings (Tex. Civ. App.) 29 S.W.(2d) 853, and authorities there cited.

It is believed that the discussion of other propositions is, by reason of the conclusions above announced, rendered unnecessary.

Our opinion therefore is that the judgment of the court below should be reversed, and judgment here rendered for the defendant that plaintiff take nothing by his suit; and it is accordingly so ordered.