author: JACKSON, Justice.

text:
    FIRST NAT. BANK OF AMARILLO et al. v. SLATON INDEPENDENT SCHOOL DIST. et al.
    No. 3962.
    Court of Civil Appeals of Texas. Amarillo.

      Feb. 22, 1933.

    Rehearing Denied March 29, 1933.

      Madden, Adkins, Pipkin & Keffer, of Amarillo, for appellant First Nat. Bank of Amarillo.
    John W. Goodwin and Joe T. Goodwin, both of Austin, for appellant Shaw*.
    R. A. Baldwin, of Slaton, and Bledsoe, Crenshaw & Dupree, of Lubbock, for appel-lee Slaton Independent School Dist.
    Wilson, Randal & Kilpatrick, of Lubbock, for appellee First Nat. Bank of Lubbock.
   JACKSON, Justice.

On March 3, 19-32, the Slaton independent school district, instituted cause No. 5055 in the district court of Lubbock county against the defendants James Shaw, banking commissioner of Texas, the First State Bank of Slaton, Tex., and the First National Bank of Amarillo, Tex., to recover $6,130.80, alleged to be school funds due the plaintiff by the defendants.

On March 14, 1932, the plaintiff instituted cause No. 5076 in the same court against said banking commissioner, the First State Bank of Slaton, and the First National Bank of Lubbock, Tex., to recover the same sum.

The First National Bank of Amarillo in cause No. 5055 in due time and form filed its plea of privilege, and the plaintiff seasonably filed its controverting affidavit.

Subject to the plea of privilege, the First National Bank of Amarillo answered, and among other things alleged the pendency of cause No. 5076, and that the pleadings therein revealed that the First National Bank of Lubbock, Tex., was a necessary party in cause No. 5055.

On April 21, 1932, the court, on its own motion, consolidated the two causes, .and ordered all parties to replead.

The plaintiff repleaded, and alleged:

That on December 18, 1931, it was without an official depository, and had outstanding bonds against it payable at and to the Central-Hanover National Bank & Trust Company, New York City, hereafter called the Hanover Bank. That plaintiff had certain tax money which constituted the sinking fund with which to pay said bonds as they matured and the interest as it accrued. It advised the First State Bank of Slaton, hereafter called the Slaton Bank, thereof, and of the necessity of sending the required funds to the Hanover Bank, and sought information relative to a safe and economical transmission thereof. The Slaton Bank advised plaintiff that the First National Bank of Amarillo, hereafter called the Amarillo Bank, had a correspondent bank in New York City and was the correspondent of the Slaton Bank. That the money could be deposited with it in a special account, designated “sinking fund,” and, when directed by plaintiff, transmitted to the Amarillo Bank and by it in the regular course of business sent to the Hanover Bank. The plaintiff and the Slaton Bank agreed that the tax money would be so deposited and transmitted to the Hanover Bank to pay such bonds and interest, and, relying on such agreement, plaintiff placed in the Slaton Bank a special deposit designated “sinking fund” aggregating the sum of $7,363.88.

That on December 18, 1931, under and by virtue of such arrangements, $1,233.08 was transferred to the Hanover Bank.

That on the 9th day of January, 1932, the plaintiff drew its check against said funds for the sum of $3,127.80 and the Slaton Bank drew its draft for a like amount on and forwarded it to the Amarillo Bank, with instructions to transmit said amount by- wire to the Hanover Bank. That on January 18th thereafter the plaintiff drew its check for $3,003 against said fund, and the Slaton Bank drew its draft for the same amount on and forwarded it to the Amarillo Bank, with instructions to transmit said sum by wire to the Hanover Bank. That said checks were received by the AmEfrillo Bank on January 11, 1932, and January 19, 1932, respectively, on which dates and at various times thereafter the Amarillo Bank had on hand ample funds of the Slaton Bank to pay said drafts.

That it had long been the practice and custom of the Amarillo Bank to pay drafts drawn on it by the Slaton Bank, even though such payment created an overdraft. That said banks had entered into a contract by the terms of which collateral securities of the Slaton Bank had been pledged to protect the Amarillo Bank from loss if it permitted the Slaton Bank to overdraw its account, and it was the legal and contractual duty of the Amarillo Bank on receipt of such drafts to honor them and remit the moneys to the Hanover Bank. That the Amarillo Bank failed to wire the amount of such drafts to the Hanover Bank, failed to return such drafts to the Slaton Bank until after it closed on January 28, 1932, and failed to notify the Slaton Bank or plaintiff that it would not honor such drafts.

That, if plaintiff is mistaken in its allegations that the Amarillo Bank had ample funds of the Slaton Bank to pay the drafts, or that it was under contractual obligations to pay such drafts, then it became the duty of the Amarillo Bank to promptly return the drafts either to plaintiff or the Slaton Bank or give notice of its refusal to pay. This it wholly failed to do, and such conduct was negligence, and as a proximate result thereof .plaintiff was damaged in the sum of $6,-130.S0, together with interest.

The plaintiff alleged:

That the Slaton Bank was guilty of negligence in failing, after a reasonable time and receiving no notice from the Amarillo Bank that the drafts were not paid and the money remitted to the Hanover Bank, to make inquiry and ascertain such facts. That, had it done so prior to closing its doors, plaintiff could have withdrawn its funds from the Sla-ton Bank and selected other channels to transfer the money to the Hanover Bank, and that such negligence resulted in plaintiff’s loss.

That the sinking fund deposited by plaintiff in a special account to the Slaton Bank, with .the exception of the sum of $1,233.08, remained in the control of said bank and when it failed on January 2Sth it still held such money as a trust fund, which is now in the possession of the banking commissioner as liquidating agent. That the title to said money did not pass to the hanking commissioner, but remained a trust fund in his hands, and plaintiff is entitled to a first and preference claim against such assets of the insolvent Slaton Bank for the payment of such funds. That the commissioner received and has assets of the Slaton Bank in the approximate sum of $20,000, which includes the $6,130.80 belonging to plaintiff.

.' The plaintiff also alleged that on January 25, 1932, the Slaton Bank learned that the Amarillo Bank had not paid the two drafts and remitted the money to the Hanover Bank, but gave plaintiff no notice thereof; that on said date the Slaton Bank had funds on deposit with its correspondent, the First National Bank of Lubbock, hereafter called the Lubbock Bank, and made a contract with said bank by the terms of which it was agreed tlpat said Lubbock Bank would by wire transmit the sum of $6,130.80 to the Hanover Bank to pay plaintiff’s maturing bonds and the accrued interest; that in compliance with said agreement, on the afternoon of January 25th, the. Lubbock Bank by wire instructed its New Fork correspondent to pay said sum to the Hanover Bank, but on January 26th the Lubbock Bank canceled said instructions and failed to notify the Slaton Bank or plaintiff thereof; that the Slaton Bank continued to transact its banking business in the usual manner during January 25th, 26th and 27th, and, had the Lubbock Bank in a reasonable time notified the Slaton Bank or the plaintiff that the instructions to pay had been countermanded, plaintiff could and would have protected itself before the Slaton Bank closed and ceased to function; that such conduct of the Lubbock Bank was negligence, and was the proximate cause of plaintiff’s loss of $6,-130.80.

The plaintiff further alleged:

That, by the contract between the Lubbock Bank and the Slaton Bank and the facts and circumstances pertaining to such transaction, a trust fund was created in the Lubbock Bank for the benefit of plaintiff, or, in any event, the Slaton Bank equitably assigned $6,130.80 of its funds in the Lubbock Bank to the Hanover Bank to pay plaintiff’s debt evidenced by the matured bonds and interest. That no part of said money was ever paid to the Hanover Bank by the Lubbock Bank, and plaintiff was placed in default and compelled to pay the Hanover Bank said sum with other money. That plaintiff thereby became subrogated to the rights of the Hanover Bank to said $6,130.80.

That the Lubbock Bank has $6,323.60 realized from the funds assigned by the Slaton Bank to the Hanover Bank, and plaintiff has a preference right to $6,130.80 thereof by virtue of said assignment and the trust fund character of said sum, of all of which the Lubbock Bank and the banking commissioner had notice.

Subject to its plea of privilege, the defendant Amarillo Bank answered in the consolidated case by general demurrer, general denial, and pleaded:

That at no time alleged did such defendant have sufficient funds belonging to the Slaton Bank to pay the two drafts drawn upon it, or either of them, and there was no contract binding such defendant to pay- overdrafts •drawn on it by the Slaton Bank. That the Slaton Bank had pledged certain bills receivable, aggregating several thousand dollars, to secure the payment of an indebtedness owing said defendant by the Slaton Bank, but such security was inadequate to protect it, as the Slaton Bank was, when it closed, and yet is, indebted to the defendant Amarillo Bank many thousands of dollars, and, if all the collateral pledged with this defendant as security be collected, said defendant would sustain a loss of several thousand dollars.

That the deposits made by the plaintiff in the Slaton Bank under the circumstances alleged were trust funds and plaintiff has sustained no loss. That defendant Amarillo Bank, on and-prior to January 19th, notified the Slaton Bank that said two drafts would not be paid unless sufficient funds were furnished to cover the requested remittances. That thereafter the Slaton Bank abandoned all claims against said defendant, and arranged with the Lubbock Bank to transmit the amount of said drafts to the Hanover Bank, and assigned and deposited with the Lubbock Bank sufficient funds for the specific purpose of covering the $6,130.86, and the Lubbock; Bank has said funds and is ready and able to pay to plaintiff the amount of said drafts on order of the court. That, if .defendant Amarillo Bank was negligent in any particular, which it denies, it could in >110 event be held for any loss to plaintiff that was not the proximate result of its negligence.

The Slaton Bank answered by general demurrer and general denial.

The Lubbock Bank answered by general demurrer, general denial, denied all negligence relative to the transaction between it and the Slaton Bank, but alleged that said defendant had and held the sum of $6,323.60 to the credit of the Slaton Bank, and that the banking commissioner and the school district were both claiming said sum, which amount said defendant tendered in cash into court and asked that it be allowed an attorney fee in the sum of $1,000.

The defendant banking commissioner answered by general demurrer and gen’eral denial that the arrangement between the plaintiff and the Slaton Bank constituted the Amarillo Bank plaintiff’s agent to transfer the funds to the Hanover Bank in payment of its bonds and interest, and that the Slaton Bank, having complied with such arrangement, was relieved of further liability. That the funds in the Lubbock Bank to the credit of the Slaton Bank represent collections made for the Slaton Bank, and such funds cannot be applied to plaintiff’s’ damages, if any it has sustained, by reason of the failure of the Lubbock Bank to transmit said sum to the Hanover Bank.

During the trial the plaintiff dismissed its suit based on the alleged negligence and breach of contract of the Lubbock Bank.

In response to special issues submitted by the court pertaining to the controversy between the banking commissioner and the plaintiff relative to the funds deposited in court by the Lubbock Bank, the jury found, in effect, that it was the intention of the Slaton Bank to create a fund in the Lubbock Bank to be used for the specific purpose of paying the bonded indebtedness of plaintiff to the Hanover Bank; that, when the Lubbock Bank agreed to wire $6,130.80 to the Hanover Bank, it relied on the Slaton Bank to place funds with it to pay such debt; that the Slaton Bank did place sufficient funds with the Lubbock Bank for such purpose; that the officer representing the Lubbock Bank was authorized to make such contract and agreement in behalf of the Lubbock Bank; that such arrangements were after-wards approved by the Lubbock Bank; that the Lubbock Bank agreed with the Hanover Bank to remit the moneys to New York to pay the Hanover Bank.

The.court rendered judgment in favor of the Lubbock Bank, and awarded it the sum of $250 as attorney’s fees, deducting said amount from the $6,323.60 tendered into court by the Lubbock Bank. He adjudged, that the balance of said sum, $6,073.60, be paid to the plaintiff and the claim of the banking commissioner thereto be denied.

From this judgment the appellant, banking commissioner, appealed, and challenges as error the action of the trial court in failing to sustain his general demurrer and in refusing to direct a verdict in his behalf, asserting that the testimony is insufficient to support the findings of the jury on the above issues.

The pleadings were not subject to the commissioner’s general demurrer. The state-, ment of facts consists of more than 450 pages, all of which we have carefully read, and in our opinion the testimony is amply sufficient to warrant the submission of the above issues to the jury and support their findings thereon.

The appellant commissioner also asserts that the transactions between the Sla-ton Bank and the Lubbock Bank did not impress the funds tendered into court by the Lubbock Bank with a trust in behalf of the plaintiff, nor constitute an assignment of such funds to the I-Ianover Bank for the payment of the bonds and interest due it by the Slaton independent school district.

It is conceded that the money deposited by the plaintiff in the Slaton Bank was tax-money placed in a special account and designated “sinking fund” to be used for the purpose only of discharging plaintiff’s obligations on its matured bonds and accrued, interest to the Hanover Bank. That this constituted a trust fund in the Slaton Bank is not controverted.

The transactions between the Slaton Bank and the Lubbock Bank are fully revealed by the findings of the jury, and it is admitted that the Lubbock Bank, with full knowledge of the purpose for which said fund was created, would have transferred the money to the Hanover Bank in payment of plaintiff’s debt had the banking commissioner not forbade such transmission.

“It is generally held that, money or property being delivered by one person to another for a specific purpose, such as leaving money by one with another to be deposited; in a bank or placed at interest (Allen v. Pollard, 109 Tex. 536, 212 S. W. 468), or to pay the indebtedness of the former to a third; party, the person accepting the money becomes a trustee, and such a transaction created a trust (McKee v. Lamon, 159 U. S. 317, 16 S. Ct. 11, 40 L. Ed. 165; People v. City Bank of Rochester, 96 N. Y. 32; Hall v. Marston, 17 Mass. 575; Bearce v. Fahrnow, 109 Mich. 315, 67 N. W. 318).” Sharon Grain Co. v. Farmers’ National Bank (Tex. Civ. App.) 277 S. W. 449, 451.

This holding is approved by the Texarkana-Court of Civil Appeals in Shaw, Banking Commissioner, v. Lamar County, 4 S.W.(2d) 608, in which writ of error was refused.

Under these decisions and the authorities therein cited, we are inclined to hold that the facts and circumstances disclose that the money deposited in court by the Lubbock Bank constituted a trust fund which was properly applied upon the payment of plaintiff’s debt.

However, if the funds were not held by the Lubbock Bank in trust for the benefit of the Slaton independent school district, the appel-lee herein, such fund had been assigned in due course to the Hanover Bank for a specific purpose — the payment of the matured bonds and accrued interest due by said school district to said bank. It is conceded that said funds were never transmitted to the Hanover Bank, but that said bank was paid by the school district out of other moneys. There is no contention that the school district was not subrogated to the rights of the Hanover Bank.

Chief Justice Hickman, in First State Bank & Trust Co. et al. v. First Bank of Truscott (Tex. Civ. App.) 32 S.W.(2d) 494, 496, in which a writ of error was denied, says:

“Article 5940, § 127, R. S. 1925, provides: ‘A bill of itself does not operate as an assignment of the funds in the hands of the drawee available for the payment thereof, and the drawee is not liable on the bill unless and until he accepts the same.’
“It has been correctly held that this provision ‘ of the statute does not render it incompetent for parties to create an assignment by agreement. The bill as such does not have that effect, but the right of contract is not limited by the statutory provision. Hatley v. West Texas National Bank (Tex. Com. App.) 284 S. W. 540.
“The fund having been dedicated to a specific purpose, the First National Bank had no right to apply same upon the unpaid indebtedness of Driver. Cotulla State Bank v. Herron (Tex. Civ. App.) 191 S. W. 154; Hatley v. West Texas National Bank, supra; First National Bank v. Price (Tex. Civ. App.) 262 S. W. 797; Harris County v. Campbell, 68 Tex. 22, 3 S. W. 243, 2 Am. St. Rep. 467; 7 C. J. 660.
■ “In Northern Sugar Corporation v. Thompson (C. C. A.) 13 F.(2d) 829, 832, this statement of the rule is deduced: ‘Where the depositor, at the time a deposit is made, enters into an understanding and agreement with the bank that the money deposited is for a specific purpose, and for that alone, as funds deposited to pay a particular note, draft, or check, such deposit partakes of the nature of a special deposit, thé relation between the depositor and the bank is that of principal and agent, and the title to the deposit remains in the depositor.’ ”

For additional authorities, see. Slaughter v. Bank of Texline et al. (Tex. Civ. App.) 164 S. W. 27; C. W. Hahl & Co. v. Hutcheson, Campbell & Hutcheson (Tex. Civ. App.) 196 S. W. 262; Slaughter v. First National Bank of Lamesa et al. (Tex. Civ. App.) 18 S.W.(2d) 754.

“It is not essential that a fund assigned by an order should have an actual existence at the time the order is drawn, but it is sufficient if it exists potentially.” 5 C. J. 924, § 85.

“The fund need not be actually in being, if it exists potentially — that is, if it will in due course of things arise from a contract or arrangement already made or entered into when the order is given — the order will operate as an equitable assignment of such fund as soon as it is acquired and will create an interest in it which a court of equity will enforce.” 3 Pomeroy’s Equity Jurisprudence (4th Ed.) § 1283.

The holdings of the Texas courts are in conformity with this rule. Bush et al. v. Gholson et al. (Tex. Civ. App.) 273 S. W. 703; Youngberg v. El Paso Brick Co. (Tex. Civ. App.) 155 S. W. 715.

The judgment rendered against the banking commissioner is affirmed.

In response to special issues submitted by the court pertáining to the controversy between the Slaton independent school district and the Amarillo Bank, the jury found, in substance, that the Amarillo Bank was guilty of negligence in failing to pay each of the drafts when received, and such negligence was the proximate.cause of plaintiff’s loss; that it failed to return the drafts within a reasonable time, and such failure was negligence and the proximate cause of plaintiff’s damages; that the Amarillo Bank, when it received the drafts, knew it was handling them for the Slaton district; that the Amarillo Bank, acting through its president, W. H. Fuqua, agreed with J. H. Brewer, president of the Slaton Bank, that the Amarillo Bank would pay drafts drawn upon it by the Slaton Bank, whether or not said bank had sufficient cash in the Amarillo Bank to pay such drafts.

The court overruled the plea of privilege urged by the Amarillo Bank at the conclusion of the testimony, and on these findings rendered judgment against the Amarillo Bank for the sum of $6,130.80, with interest at the rate of 6 per cent, per annum on the amount of each draft from the date of the receipt thereof, from which judgment the Amarillo Bank appealed.

The assignment of appellant Amarillo Bank contending that the court erred in overruling its plea of privilege is not tenable. Mercantile Bank & Trust Co. et al. v. Schuhart et al. (Tex. Civ. App.) 277 S. W. 1087; Id., 115 Tex. 114, 277 S. W. 621; Gilmer v. Graham (Tex. Com. App.) 52 S.W.(2d) 263.

The testimony discloses -without contradiction that the Slaton Bank was guilty of actionable negligence, and it will be noted that the Amarillo Bank alleged that the Lubbock Bank was a necessary party in cause No. 5055. The Slaton Bank and the Lubbock Bank both have their principal place of business situated in Lubbock county.

The contention of this appellant that the judgment of the court is erroneous in that it decrees the appellee a full recovery for its loss against each of the two defendants only requires a reformation of the judgment against the Amarillo Bank. The judgment expressly provides that any sum paid by either of the defendants on the judgment shall to that extent satisfy the judgment against the other defendant. Labor Bank & Trust Co. v. Adams (Tex. Civ. App.) 23 S.W.(2d) 814.

We' deem it unnecessary to discuss separately each of the assignments of error urged by the appellant Amarillo Bank.

The record discloses that the Slaton Bank had borrowed about $40,000 from the Amarillo Bank, and in a written contract pledged certain collateral to secure this appellant in the payment of said loan. This contract does not obligate this appellant to pay overdrafts drawn on it by the Slaton Bank, but provides, in effect, that such collateral shall be security if this appellant should pay any overdraft drawn on it by the Slaton Bank. While the jury found in effect that the Amarillo Bank, acting through its president, had agreed to pay overdrafts drawn on it by the Slaton Bank, such finding, if supported- by the evidence, would not be binding on this appellant.

“The President, unless specially empowered, cannot enter into contracts or agreements oh behalf of a corporation. Authority so to do may,, however, be conferred on him by the charter, by vote of the board of directors, or by the existence of such facts as constitute a public holding out and warrant the public in believing that the undertaking is within the scope of his legitimate delegated authority.” 1 Morse on Banks & Banking (6th Ed.) p. 381.

“Where it is sought to hold the bank liable, either facts must be pleaded and proved from which it may be concluded that the officer had apparent authority or express authority must be alleged and shown. The burden of proof is upon him who alleges authority ; in the absence of proof no presumption of authority will be indulged.” 6 Tex. Jur. 205.

The appellee sought to hold the bank by virtue of the authority inherent in W. H. Fuqua because of his official position. It neither pleaded nor proved that he had apparent authority or express authority to bind the bank by such agreement.

If such agreement had been made with the authority of the bank directors, under the facts disclosed by this record it would have been illegal.

“A corporation, organized and engaged in the banking business, whether under the National Bank Act [see 12 USCA § 21 et seq.] or under the laws of the State, can assume no liability without acquiring assets to offset the same. The interests not only of depositors and stockholders, but also of the public can be safeguarded only by a rigid and consistent enforcement of this salutary rule. It has been held by this court, both upon principle and upon uniform authority to that effect, that a banking corporation cannot lend its credit to another by becoming surety, indorser or guarantor for him.” People’s National Bank of Winston-Salem v. Southern States Finance Co. et al., 192 N. C. 69, 133 S. E. 415, 419, 48 A. L. R. 519. See, also, Merchants’ Bank of Valdosta v. Lyman D. Baird (C. C. A.) 160 F. 642, 17 L. R. A. (N. S.) 526.

The appellee alleged that on January 11, 1932, and January 19, 1932, respectively, the dates on which the drafts were received, the appellant bank had on hand ample funds of the Slaton Bank to pay said drafts. It was incumbent upon appellee not only to allege such fact, but to substantiate it by proof and secure a finding of'the jury thereon. First State Bank of Hughes Springs v. Sanford et al. (Tex. Civ. App.) 255 S. W. 644; International-Great Northern Railway Co. v. Casey (Tex. Com. App.) 46 S.W.(2d) 669. The payment of other items for the Slaton Bank which resulted in an increase of its overdraft with this appellant would not change this rule. The testimony shows without contradiction that the. Slaton Bank did not at any of the material dates have funds with this appellant for paying either of said drafts,- and that, if the Amarillo Bank realizes the full amount on the securities pledged, it will sustain a loss of approximately $24,000.

The finding that the Amarillo Bank knew that the drafts were for appellee’s benefit is sustained by the testimony, and therefore said bank became the agent of the school district. Tilman County Bank of Grandfield, Okl., v. Behringer, 113 Tex. 415, 257 S. W. 206, 36 A. L. R. 1302; Garver et al. v. Howard, 113 Tex. 371, 257 S. W. 209.

The testimony is conclusive that no notice was given appellee of the failure of this appellant to present or pay the drafts until February 2, 1932. This constituted negligence, for which the Amarillo Bank was liable, only for such damages as were sustained by appellee as the proximate result of such nfegligenee; Citizens’ National Bank of Waxahachie v. First National Bank of Gorman (Tex. Civ. App.) 260 S. W. 219; Jefferson County Savings Bank v. John C. Hendrix, 147 Ala. 670, 39 So. 295, 1 L. R. A. (N. S.) 246; Northwestern National Bank v. People’s State Bank, 109 Kan. 506, 200 P. 278, 19 A. L. R. 551.

’’The Lubbock Bank'was allowed to retain out of tbe $6,323.60 which it tendered into court the sum of $250 for attorney’s fees, thereby reducing the $6,130.80 assigned to the Hanover Bank for the payment of appellee’s bonds and interest to the sum of $6,073.60.

•Neither the appellee nor the banking com-Aidsioner complains of the payment of the attorney fee out of the moneys tendered into feburt, and this appellant cannot be held therefor. ' ■

“Unless provided for ,by statute, or by contract between the parties, the attorneys’ fees incurred by a party to litigation are not recoverable against his adversary, either in an .action in tort or a suit upon, a "contract, except by way of punitive damages upon allegations of fraud, imposition, or malicious conduct. 13 Tex. Jur. § 101, p. 197; Houston Production Co. v. Taylor (Tex. Civ. App.) 33 S.W.(2d) 202 (writ refused).” Mathis v. Wherry (Tex. Civ. App.) 45 S.W.(2d) 700, 702.

. The Amarillo Bank is liable for the interest at the rate of 6 per cent, per annum from January 11, 1932, on the amount of the first draft, and for'interest at 6 per cent, per an-ifium from January 19, 1932, on the second draft. '

“Jt is now the settled law of Texas that where damages, whether described as arising ex contractu or ex delicto, are established as of a definite time, and the amount is determined by fixed rules of evidence pnd known standards of value, interest is recoverable from the date of the accrual of the cause of action as compensation for the detention of the Sum thus duel” 13 Tex. Jur. 253, § 142.

o The judgment against this appellant is reformed so as to limit appellee’s recovery to intereát as above stated, and as so reformed is affirmed.


source: Caselaw Access Project

author: MARTIN, Justice.

license: Public Domain

text:
    WINEINGER v. KAY.
    No. 3991.
    Court of Civil Appeals of Texas. Amarillo.
    March 29, 1933.
    F. A. Cooper, of Amarillo, for appellant.
    Morgan, Culton, Morgan & Britain, of Amarillo, for appellee.
   MARTIN, Justice.

Appellee sued the Imperial Chevrolet Company, a Texas corporation, Mrs. Lottie Wine-inger, its president, and Hazel Wineinger, its secretary, for the breach of a contract. He alleged that he was employed by the above-named parties at $35 per week,. “with an express agreement by defendants, jointly and severally, that upon the termination of plaintiff’s services with the defendant Imperial Chevrolet Company for any reason, the defendants would repurchase from plaintiff his five shares of the capital stock of the defendant Imperial Chevrolet Company and pay him therefor in cash the book value thereof, and in any event the reasonable value thereof, which plaintiff says was the book value thereof as of the date of the termination of such employment, payment to be made upon the termination of such services.” During the .trial he dismissed the corporation and Miss Hazel Wineinger and proceeded to trial against Mrs. Lottie Wineinger alone.

In response to special issues the jury found, in substance and effect, that Miss Hazel Wine-inger did sell to the appellee the five shares of stock described by him in his pleadings; that in doing so she acted as the agent of Mrs. Lottie Wineinger; that she had the authority to sell the stock, as well as to bind Mrs. Lottie Wineinger to repurchase said stock at its book value. Special issue No. 3, with the explanatory charge accompanying same, was as follows:

“Special Issue No. 3. What was the book value of said five shares of stock at the time the employment of plaintiff terminated, in July, 1931?
“In answering Special Issue Number Three above, you should determine the value of the stock in question from the reasonable actual value of the assets of the Imperial Chevrolet Company on the date mentioned in said sper cial issue, if such reasonable actual value has been established by the evidence, and deduct therefrom the liabilities of said company at that time; and in this connection you may consider the contingent liabilities -to whatever amount in your opinion, according to the evidence, they might become the actual liabilities of said company.”

The jury answered all issues favorable to appellee, the answer to special issue No. 8 being that the book value of said five shares was $750 at the time the employment of plaintiff terminated in July, 1931.

Questions pertaining to alleged improper argument and jury misconduct will not be discussed, in view of the fact that these will not likely again occur.

The insufficiency of the evidence to support the jury’s answer to said special issue No. 3 is properly presented here, and in our opinion is the only question necessary to decide.

There is a difference of opinion between counsel for the respective parties as to the exact meaning of the term “book value” as used in the pleading and in the court’s charge. Whatever may be the correct general definition of this term, the respective parties to this appeal appear to have impliedly agreed in the trial court to its meaning under the particular facts of this case. The court’s interpretation thereof is quoted in the explanatory charge above. Evidence for the appellant followed this theory and no objection of any kind by appellee appears in the record. He apparently acquiesced therein.

There are authorities which sustain the trial court’s view. In Steeg v. Leopold Weil Bldg. & Imp. Co., 126 La. 101, 52 So. 232, 235, it is said: “And by ‘book value’ we understand, not any arbitrary or fictitious value that may be entered on the books of the company, but the value as predicated upon thfe market value of the assets of the company, after deducting its liabilities.” Such term is defined in 9 C. J. p. 138, as follows: “As applied to corporation stock, the value is predicated on the market value of the assets of the company, after deducting its liabilities,” Other authorities give a somewhat different definition, but we do not pause here to discuss or attempt to distinguish these for the reason that we need look no further than the interpretation placed on this term by the parties themselves and which was embodied in the court’s charge already quoted.

The only affirmative evidence of the book value of the stock in question introduced by appellee was a financial statement made by the local corporation to the General Motors Acceptance Corporation. This showed its net assets on June 30,1931, to be $11,333.08. The corporation’s bookkeeper testified, however, in detail to the value of the various items making up the total of assets and to the fact that an arbitrary value was placed on many of such items without regard to their actual value. For instance, that the value of used cars taken in trades was posted on the books at the price paid for them, without regard to their actual or reasonable value. The bookkeeper further testified, in part:

“Q. Your fixed assets for $6,042.24, you testified they are not worth over $500.00? A. For quick sale, I doubt if you could get that.
“Q. Are you still trying to collect these notes that you said were without any value? A. Certainly.
“Q. And you expect to collect most of them? A. I don’t expect to collect $25.00 worth.
“Q. Even though conditions change and business comes back to normal? A. There is about $90.00 or $100.00 worth of notes and accounts I expect to collect if business comes back. There is about $1,800.00 or $2,000.00 I don’t expect to collect. * * *
“Q. What? A. In 1931' the Company was not as substantial as it was in May of 1928 on account of the contingent liability and the general business conditions that existed.
“Q. How much difference do you think there was in the value of the assets, including all the assets? How much do you think the assets were worth at the time Mr. Kay left there? A. Well, we tried to sell the company and we were unable to do so.
"Q. That is because there was no market. What was it worth in your judgment? A. With the contingent liability hanging over our head?
“Q. Yes; just like it was. A. There was no worth to it.
“Q. It is your testimony, under oath, this stock wasn’t worth anything when Mr. Kay left there? A. If we had to trade out for what the contingent liability was against the company, you could not find a purchaser, and that is what the market value would be determined by.”

No attempt was made to contradict her testimony ; no evidence of any kind was offered to show what, if any, contingent liabilities amounted, in fact, to actual liabilities. The contingent liabilities arising from indorsement of notes by the local corporation to the General Motors Acceptance Corporation amounted to $11,000 or $12,000. These Were admittedly not included- in the financial statement introduced by appellee and already referred to. Deducting this item alone from the net assets would leave the corporation bankrupt and this without regard to the loss in other assets. Whether all or none of these contingent liabilities could properly be deducted from the assets remains unproven. The burden was on appellee to prove the book value of the stock under the court’s charge. The un-contradicted evidence is that the corporation could not be sold for anything due primarily to these contingent liabilities.

In the case of Succession of Warren, 162 La. 649, 110 So. 891, the court permitted the entire contingent liabilities to be deducted from the assets under the particular facts of that case. In this case the court authorized a reduction by whatever amount of the contingent liabilities the jury might find would become actual. But, as pointed out above, no evidence was introduced by which a jury could make such calculation.

What has been said we think demonstrates that the jury’s finding that the stock in question had a book value of $750 was without sufficient evidence to support it under the theory on which the case was tried.

Since this case must be reversed) we call attention to another phase of same not raised by appellant.

Without any pleadings alleging agency and authority, appellee proved that the daughter of appellant sold the stock for appellant to appellee and bound her to repurchase it at its book value. We gravely doubt that such authority may be implied from a mere agency to sell stock, as a repurchase agreement would not seem to be a necessary or usual incident of the mere power to sell. The finding that such authority existed seems to rest in this record upon such implication only. We mention this in view of another trial, without expressly passing on it.

Reversed and remanded.


author: GALLAGHER, Chief Justice.

text:
    BELL v. ROGERS et al.
    No. 1340.
    Court of Civil Appeals of Texas. Waco.
    March 9, 1933.
    Rehearing Denied April 13, 1933.
    S. J. T. Smith, of Waco, for plaintiff in error.
    Tom P. Scott and J. W. Spivey, both of Waco, for defendants in error.
   GALLAGHER, Chief Justice.

Plaintiff in error, Lynch Bell, hereinafter called plaintiff, instituted this suit in the district court against defendants in error, G. B. Rogers and J. W. Spivey, hereinafter called defendants, and for cause of action alleged that theretofore, on December 2, 1931, said court entered a judgment in cause No. 27648, entitled Isla Bell Barrett et al. v. Lynch Bell et al., by the terms of which judgment the sum of $77.45 out of rents and revenues collected by the said Spivey as receiver during the pendency of said suit, and paid by him into the registry of the court, was set aside and ordered paid to Joe H. Bell. Plaintiff further alleged that said Joe H. Bell was never served with process in said cause; that he never employed nor authorized any attorney to represent him therein and that the court never appointed an attorney to represent him; that he did not even know of the pendency of said suit nor of the order directing the payment of said sum of money to him as a party thereto, as aforesaid. Plaintiff further alleged that said Joe H. Bell, on March 14, 1927, for a valuable consideration, sold and conveyed to him all his right, title, interest, and estate in and to the premises from which said rents were derived; that he as grantee in said deed thereupon became entitled to receive any and all rents to which said Joe H. Bell would have been entitled had he remained the owner of such interest in said property. Plaintiff further alleged that he was not present at the time the court heard the receiver’s report and made the order apportioning the rents collected by such receiver and directing that the sum of $77.45 thereof be paid to said Joe JET. Bell. Plaintiff further alleged that the defendant G. B. Rogers received and receipted for said sum of $77.45 so set apart to Joe H. Bell, and that he was not authorized to do so by either said Joe H. Bell or himself. Plaintiff prayed that the judgment so complained of be set aside and held for naught; that the court enter a reformed and corrected judgment awarding to him the said sum of $77.45 previously awarded to said Joe H. Bell; that he have judgment against said Rogers therefor and that the said Rogers be required to pay the same back into the registry of the court. No relief against the receiver Spivey was asked. Both defendants answered by general demurrer, and defendant Spivey specially denied that he had anything to do with the division of the rents collected and paid into court by him. The court heard defendants’ general demurrers, sustained the same, and dismissed the cause. Plaintiff sued out a writ of error -to this court.

Opinion..

Plaintiff presents a single assign ment. He contends therein that -his petition showed affirmatively that the trial court erred in making and entering the order and judgment awarding the sum of $77.45 out of rents collected to Joe H. Bell and directing the payment thereof to him, and further erred in refusing to reopen said judgment, to hear the testimony, and to grant him adequate relief. The transcript filed by plaintiff herein contains a copy of the final judgment in said original cause No. 27,648, as aforesaid, in which the court determined and declared the several interests of the respective parties in the tract of land from which rents were collected by said receiver, appointed commissioners, and directed them to partition the same in kind. The court therein ordered defendant Spivey as receiver in said cause to file his final report of collections made, within thirty days from the date thereof, and to pay such collections into court. The court in said judgment awarded to Joe H. Bell an undivided one-sixth interest in an undivided one-half of said land, and an undivided one-sixth interest in all rents collected and paid into court by the receiver as aforesaid. Said judgment was rendered on the 24th day of August, 1931, at the regular July term of the court. The transcript also contains a further order of the court in which was incorporated the final report of the receiver herein. The court in said order discharged the receiver and apportioned the funds paid into court by him among the several parties declared in the original judgment to be entitled to receive the same,- among whom was said Joe H. Bell, to whom the said sum of $77.45 was apportioned as aforesaid. Since these respective judgments are presented by plaintiff in his transcript, we have decided to consider the same in connection with the allegations in his original petition and as explanatory thereof, without pausing to determine whether they constitute any part of the record in this cause. The last of said judgments is the one described by plaintiff in his petition, and the term at which it was made and entered had adjourned when such petition was filed. The original judgment rendered on the 24th day of August as aforesaid recited that all the parties thereto had been duly and legally cited and had appeared therein by person or by attorney. It disposed of all the parties and issues involved. It awarded to Joe H. Bell, one of the parties thereto, a specific interest in the land and in the rents collected therefrom. It was therefore final in form and its recitals imported validity. Hanrick v. Hanrick, 110 Tex. 59, et seq., 173 S. W. 211, 214 S. W. 321; Levy v. Roper, 113 Tex. 356, 256 S. W. 251, 253, par. 2. Said judgment could therefore be set aside at a subsequent term only in a direct proceeding. Aetna Ins. Co. v. Dancer (Tex. Com. App.) 215 S. W. 962, 963, par. 2, and authorities there cited; First Nat. Bank v. Eox (Tex. Sup.) 39 S.W.(2d) 1085, 1086, par. 3. We do not understand plaintiff to contend that this is such a suit. We therefore will not discuss the sufficiency of his petition to entitle him to maintain such a suit.

Plaintiff apparently relies for authority to maintain this action on articles 2228 and 2229 of our Revised Statutes. Both said articles apparently contemplate a proceeding in the nature of a motion in the original suit. We do not think, however, that plaintiff’s rights should be abridged because he has brought this action in the form of a separate suit. The first of said articles provides, in substance, that mistakes in the record of any judgment or decree may be amended by the judge in open court according to the truth or justice of the case, after notice of the application therefor has been given to the parties interested in such judgment or decree. Clearly, Joe H. Bell, to whom said sum was awarded out of the rents collected, was interested in the judgment so awarding the same and should have been made a party to this suit and served with notice or citation herein. Neither he nor any of the other persons to whom like- amounts were awarded were made parties hereto. Said article, however, authorizes the proceeding therein prescribed only when there has been a mistake in the record of the judgment, by reason of which it does not correctly reflect the judgment actually pronounced by the court. It authorizes the correction of a clerical but not a judicial error. Coleman v. Zapp, 105 Tex. 491, 493, et seq., 151 S. W. 1040; O’Neil v. Norton (Tex. Com. App.) 33 S.W.(2d) 733, 734, pars. 1 and 2; Jones v. Bass (Tex. Com. App.) 49 S.W.(2d) 723, 724, par. 3; Montgomery v. Huff (Tex. Civ. App.) 11 S.W.(2d) 237, 241, par. 8 (writ refused), and authorities there cited; Pring v. Pratt (Tex. Civ. App.) 1 S.W.(2d) 441, 445, pars. 1 and 2; Cannon v. Cannon (Tex. Civ. App.) 43 S.W.(2d) 134, 135, par. 2. Plain-tiJjE’s allegations show that he made the alleged purchase of the interest of Joe H. Bell in the property involved in the former suit, dijring the pendency of the same. He nowhere alleged that he, by proper pleading or otherwise, ever asserted in said cause the ownership of the interest formerly held in s,aid property by his vendor. He merely contended that the act of the court awarding Joe H. Bell his proportionate part of said rents was a mistake and that the court should have awarded the same to him. The award Of said interest of $77.45 in the rents to said Joe H. Bell and the direction contained in the judgment to pay the same to him involved the exercise of judicial discretion and authority. Coleman v. Zapp, supra. Relief against s^ch an error is not within the purview of said article. The authority conferred by the second of the articles so relied on is also confined to the correction of mistakes in the entry of judgments, as distinguished from their rendition. Missouri-Pacific Ry. Co. v. Haynes, 82 Tex. 448, 452 et seq., 18 S. W. 605.

Plaintiff having sought a so-called correction of the judgment and his petition being insufficient on its face to justify such relief, the action of the trial court in sustaining demurrers thereto was proper, and its judgment is affirmed.


author: SMITH, Justice.

text:
    AMERICAN STATE BANK & TRUST CO. v. JOHNSTON et al.
    No. 9027.
    Court of Civil Appeals of Texas. San Antonio.
    March 15, 1933.
    Rehearing Denied April 12, 1933.
    Montgomery, Hall & Taylor, of Edinburg, and West & Hightower, of Brownsville, for appellant.
    Brown & Bader, of Edinburg, and Robert E. Kirkpatrick, of Mercedes, for appellees.
   SMITH, Justice.

On December 12, 1918, Fred U. Johnston and wife, Francisca Hinajosa Johnston, executed their promissory note for the sum of $8,000, payable to A. D. Struthers, and to secure the payment of same executed their deed of trust upon 677.16 acres-of land in the Wells Ranch, and 363 acres in the Panehita Ranch, all in Hidalgo county. In said deed of trust the grantors designated two certain lots in the city of Mercedes as their homestead, and expressly represented that the mortgaged premises constituted no part of their homestead. This note and deed of trust were transferred by Struthers to the First National Bank of Lyford, which in turn transferred them to the Western Dife Insurance Company.

On March 31, 1923, the Johnstons executed a new note, for $12,000, to the Western Dife Insurance Company, renewed the deed of trust upon the same land, with the same homestead designation and representation, and on October 1, 1924, executed to said insurance company a new note, for $15,000, secured in like manner, but omitting any homestead designation. On May 2, 1925, the payee assigned said note and deed of trust to the Royal Union Dife Insurance Company, which on August 30, 1926, assigned them to "Wimer-Richardson & Company, which in turn on December 13, 19-27, assigned them to the Edinburg State Bank & Trust Company.

On November 16, 1928, the Johnstons executed new notes for $10,238.32, $15,562.50, and $1,347.93, respectively, to the Edinburg State Bank & Trust Company, and secured the same by a renewal of the existing deed of trust, in which it w£.s declared that the property formed no part of the grantors’ homestead and was not exempt from forced sale, and on March 22, 1930, executed a consolidated renewal note to said bank and trust company for $26,497, and secured the same by a renewed deed of trust. Said bank and trust company assigned the note and deed of trust to American State Bank & Trust Company- on October 18, 1930'.

On December 2,1930, the land was sold under the provisions of the deed of trust by a substitute trustee, and was bought in by the cestui que trust, American State Bank & Trust Company, which afterwards brought this action in trespass to try title against the Johnstons to recover title and possession of all of said lands.

The Johnstons disclaimed as to all of said lands except a specifically described 200 acres of the tract conveyed out of the Panchita Ranch, which they claimed was their homestead, and had been all the while. Upon a jury trial the court rendered judgment in favor of the Johnstons’ claim of homestead exemption, and the bank and trust company has appealed.

The case is a very difficult one. Upon one hand, its determination may result in the perpetration of a fraud upon good faith creditors, under the cloak of the homestead exemption afforded by the Constitution (article 16, § 56); whereas, on the other hand, its determination may conceivably effectuate a fraud upon that exemption.

The Panchita Ranch seems to have belonged to the ancestors of Francisca Hina josa Johnston, and when the latter married Fred L. Johnston, in 1896, the young couple set up their home on that ranch, and have maintained it as their homestead ever since, unless they effectually abandoned it as such by reason of the transactions involved in this suit. At the time they moved onto the ranch a small “dug well,” “two or three small fields” (about 12 acres in all), and “a few little jacals” constituted the improvements thereon. A “jacal is a thatched-roof house, with wooden walls — walls made out of mud and timber.” The young couple made their home in the jacals. They cleared more land, put in two more wells and a windmill, and built a larger jacal, in which their three children were born. Later, apparently in 1909, they built a more pretentious frame house, but it was destroyed by fire in 1916, and they were relegated to the jacals, which still suffice as their dwelling place.

In the meantime, in 1906, appellees purchased two residence lots in the town of Mercedes, a few miles from the ranch, and in 1909 built a five-room dwelling house thereon, which they completely furnished and equipped as a home, and still maintain as such. The record does not seem to show when the family first began'to make their residence in this house, but does show that they lived therein during the school term beginning in 1915, and through every school year thereafter. Mr. Johnston spent most of his time on the ranch, and Mrs. Johnston and the children spent the week-ends, in good weather, and the time between school terms, at the ranch. For several months in the early part of the year in which the original deed of trust was executed, Johnston had worked for the federal government as labor foreman in a camp at Mercedes, but otherwise spent most of his time at the ranch, where he was engaged in farming and stock-raising. Such was the situation in which appellees executed the first deed of trust in which they represented that the ranch property covered by the deed of trust lien constituted no part of their homestead; and in which they designated the Mercedes property as their homestead.

Struthers, appellees’ creditor and the beneficiary of the deed of trust lien,' was fully aware of all the facts recited above; he kne^v the general fact that appellees maintained the two residences, that they resided in the Mercedes place during the nine months of each year while their children were in school, and the remainder of the time in the ranch house. Struthers was often at both places., to confer with Johnston; going' in search of the latter and not finding him at the ranch, he would find him at the Mercedes place, ahá vice versa. Their relations were apparently very close, at least in a business way, as Struthers appears to have financed all Johnston’s operations. In this way the latter became indebted to the former in the sum Of 88,000, and when Struthers pressed appellees for some sort of settlement the latter executed their note for the amount of the debt, and thereupon, apparently reluctantly, but none the less expressly, elected in said deed of trust between the Mercedes and ranch residences and in such election designated the former their homestead, and expressly represented that the mortgaged premises constituted no part of their homestead. The evidence seems to show that the designated property was of greater value than the ranch home. And the evidence further shows that thereafter appellees repeatedly mortgaged the ranch place to secure the increasing debt, leaving the designated homestead free of in-cumbrance.

So, when in 1923 the first note matured, and appellees had been wiped out by flood and storm, Struthers advanced them $3,000 in cash to tide them over the resulting depression, taking their note to cover renewal of the old debt, and the new as well, securing it by renewal of the deed of trust, which carried a reiteration of the designation of the Mercedes property as the homestead.

It is established by the record that in each instance appellees were loth to designate the Mercedes place as their homestead, and repudiate the ranch as such homestead, and ap-pellees stress this. fact in support of their claim that that designation was ineffectual and not binding upon them. We think, however, that such reluctance emphasizes rather than weakens the force of that designation, for it shows appellees surely realized the force and solemn effect of their act of designation. They do not defend the suit upon the ground that they elected under duress or that they were deceived into it; they negative such defenses by asserting that they so elected deliberately, albeit with much reluctance., It may have been, no doubt was indeed, a grave choice, a solemn election, but it was deliberately exercised with full realization of its effect.

We are therefore relegated to the controlling question: Do the facts present a situation of ambiguity in which appellees could rationally and reasonably say and maintain that the Mercedes place, or the ranch property, either, was their homestead ? Was their relation to both in everyday life such that they could reasonably say either was their homestead? If so, then their election of the one,’ being specific and deliberate, was binding upon them, and left them free to execute a valid and enforceable mortgage upon the other. Parrish v. Hawes, 95 Tex. 185, 66 S. W. 209, 211; Carstens v. Landrum (Tex. Com. App.) 17 S.W.(2d) 803.

We have concluded, after some hesitation in deference to the rulings of the trial court, that appellees are bound by their election, and are now estopped to claim the ranch property as their homestead in the faeei of the deliberate election of the town property for that purpose, since the evidence shows indubitably that prior to and at the time of and subsequent to their election they did in fact put the town property to the ordinary uses of a homestead; the family actually residing therein, day and night, more than half the time. It was a more valuable place than the ranch home, the latter apparently a mere shack. It was better furnished as a home, was equipped with all modem city improvements, such as gas, lights, water, sanitary fixtures and facilities, whereas, the ranch property had none of these conveniences.

It is true the family spent all their summers at the ranch house, and many of their week-ends there at other times; most of Mr. Johnston’s activities were on the ranch, although not all of them, by any means, for, in addition to his farm and stock operations on the ranch, he conducted some sort of real estate commission business, which he advertised on a large signboard set up in the front yard of the town house, directing all.interested to “inquire within.” From all the facts stated it does seem obvious that appellees could claim and enforce the homestead exemption upon either the town or the ranch place. Surely, after they elected and designated the town property as their homestead in the manner shown, they could have claimed and enforced the exemption thereon against all the world, under the facts disclosed in this record. The language of Judge Williams in the case first cited above seems precisely applicable here when he said:

“It may happen that families, the heads of which own more than one place suitable for a residence, will reside sometimes upon one and sometimes upon another, in such way that either serves to meet all the purposes of the home. No question of exemption or of power to mortgage or alienate may 'have ever arisen to make it necessary for them to select the place which will be claimed and held as the home. Upon this state of facts alone, no court could say, as matter of law, which one of the places thus used constitutes: the homestead to which the constitutional protection is given; nor could persons dealing with the owner of the property. To determine the question thus arising, something more than mere use would have to appear. In such cases we see no reason why the husband and wife, if not the husband alone, would not have the absolute right, when occasion arises, to determine.by selection the place to be held and protected as the homestead ; nor why, after having selected and designated one of the places, and mortgaged another to a lender acting upon the faith of the selection, they should not be estopped, as to him, from claiming the mortgaged property as exempt.
“Under this view, the provisions of the mortgage and the statements in the other paper, called the ‘designation,’ would amount to such an election, — nothing having been previously done to impress definitely upon the Live Oak street property exclusively the homestead character, — and these facts thus present a question of estoppel. Or, if it were held that, the use of both places being sufficient for homestead purposes, the mere intention of the owners to hold the one or the other as their homestead would give it character as such, an estoppel might arise from their misrepresentation of their intent. The intention could only be definitely known to and disclosed by themselves; and, if- facts had not transpired which certainly made one of the places their homestead under the law, persons dealing with them would naturally rely and act upon their statements as to its existence in such way as to estop them from afterwards disputing the truth of the representations made.” Parrish v. Hawes, supra.

Appellees rely largely upon the decision of this court in City Central Bank v. Byrne, 47 S.W.(2d) 432. But the situation of the family in that case was quite different, for there the place designated as the homestead was not in any sort of use for that purpose, was unfurnished, dismantled, and uninhabitable, and the family were actually residing in their farm home, where they had resided ever since marriage, except for necessary short intervals while the children were in school at Tilden, Wentz, or Three Rivers. There the use of the ranch home was exclusive except during the intervals mentioned; in this case ev.er since 1915 the family have spent most of the time in the Mercedes residence, which they furnished comfortably and equipped fully with all the comforts of a modern home. The family’s occupancy and use of neither the ranch home nor the town home has been exclusive, but has been indiscriminate, rather, so that until they chose to elect between the two they could invoke the homestead exemption upon either with equal reason and effect. But under the authorities cited they can claim but one exemption, and when they elected and designated the Mercedes home and declared they claimed no exemption upon the other, and by that conduct obtained an advantage over their creditor, they are es-topped to repudiate that election or dispute the truth of their representation. And when appellees obtained renewed and increasing credit upon the same or reiterated designations and representations, and the situations of the parties remained substantially the same, we see no reason why their original liability should not he extended along with the debt and lien. The foregoing conclusions seem to settle the appeal, requiring reversal.

Appellant has raised numerous related or incidental questions, but as they should and probably will be obviated upon another trial, we see no occasion to prolong this opinion, already too long, in order to discuss them. It should be said, however, that we sustain, in the abstract, the contentions made by appellant in his propositions 1, 2, 5, 6, 7, S, 9. The application of those contentions in this case must, of course, depend upon the evidence upon another trial. We conclude that these holdings have the effect of overruling appellees’ cross-assignments of error, and it is so ordered.

The judgment is reversed, and the cause remanded.


author: BOND, Justice.

text:
    TRAIL v. HARPER et al.
    No. 11165.
    Court of Civil Appeals of Texas. Dallas.
    March 18, 1933.
    Ross Huffmaster, of Kaufman, for appellant.
    G. O. Crisp, of Kaufman, for appellees.
   BOND, Justice.

J. P. Trail, as plaintiff, filed a suit in á justice court of Kaufman county against Luther Harper and Johnnie Holmes, as defendants, on a promissory note in the sum of $85, with interest and attorney fee, and for a foreclosure of a mortgage lien on personal property of the alleged aggregate value of $75, and caused to be sequestrated one automobile and two mules, part of the property described in the mortgage. The defendant Luther Harper answered and filed a cross-action against the plaintiff for damages, in the sum of $287.65, growing out of an alleged conversion of property by the plaintiff, and defendant Holmes answered and by way of cross-action sought judgment for title to and possession uf the tvvo mules involved in the suit. On trial in the justice court, judgment was rendered against the plaintiff that he recover nothing against defendants on his note and mortgage, and that defendant Harper recover on his cross-action the sum of $287.65, and the defendant Holmes for the title and possession of the two mules. Plaintiff appealed to the county court of Kaufman county.

While the case was thus pending in the county court, defendant Harper brought an original suit against plaintiff, J, P. Trail, in the county court for the identical cause or demand as was declared upon in his cross-action filed in the justice court. In limine, the cause of Luther Harper against J. P. Trail was consolidated with the appealed cause of J. P. Trail against Luther Harpei and Johnnie Holmes, and, as consolidated, the case was tried to a jury, and, on favorable answers to issues submitted, judgment was rendered in favor of Luther Harper against J. P. Trail for the sum of $202.10 damages, with interest and costs of suit. Trail appealed'.

Appellant contends on this appeal that the trial court erred in consolidating the causes over his objection, his justice court suit being one on appeal, the issues and- the parties are fixed and confined to those made by the pleadings in the justice court; that the justice court was without jurisdiction to determine the cross-action, as the amount in controversy exceeded the "jurisdictional amount of said court, and on appeal the county court is without jurisdiction.

It has been uniformly and consistently held by the courts of this state that, in cases removed from the justice court to .the county court by appeal, the county court may in no event render judgment in such cases for an amount not originally cognizable in the court from which the appeal is taken. The jurisdiction of the justice courts is as general and exclusive over the subjects committed to them by the Constitution as that of the district and county courts within their province, and it is committed to them the exercise of “'Original jurisdiction in civil matters of all cases where the amount in controversy is two hundred dollars, or less, exclusive of interest, of which exclusive original jurisdiction is not given to the district or county courts.” Article 2885, R. S. 1925. The appellate jurisdiction of the county court cannot exceed in amount the jurisdiction of the justice court. Texas & N. O. R. Co. v. Coleman (Tex. Civ. App.) 185 S. W. 1053, and authorities therein cited.

By the order of consolidation, over the objection of appellant, the appellate jurisdiction of the county court was made to exceed that of the justice court, and thereby appellant was forced to litigate his liquidated demand, note and mortgage,' of which the justice court and the county court on appeal did have jurisdiction, with appellee Harper’s claim, founded in tort, not alleged as growing out of or incident to plaintiff’s cause of action, and clearly beyond the amount cognizable in the justice court, and, as a consequence, in excess of the appellate jurisdiction of the county court.

The justice court not having jurisdiction of the cross-action for $287.65, the county court had none, and neither by way of an amendment or by a consolidation could ap-pellee Harper confer jurisdiction upon the court. The appeal affected only such issues over which the justice court had jurisdiction, that is, plaintiff’s demand and appellee Holmes’ counterclaim for the mules in litigation. The appealed ease-and the case consolidated with it involved neither the same parties nor the same subject-matter, and the issues and parties are therefore foreign to each other. It improper to join an action on appeal from a justice court to the county court, where the cause must be tried de novo and necessarily only involving the same issues and the same parties, with an original cause of action filed in the county court involving different issues and different parties.

The action of the trial court, in consolidating appellee Harper’s suit, filed in the county court with appellant’s appealed justice court case, was error, causing the necessity of our action in reversing and remanding this cause.

Reversed and remanded.


author: WALKER, Chief Justice.

text:
    WAITZ et al. v. UVALDE ROCK ASPHALT CO.
    No. 2342.
    Court of Civil Appeals of Texas. Beaumont.
    March 9, 1933.
    Denman, Franklin & Denman and, Henry E. Vemor, all of San Antonio, for appellants.

      Kampmann & Burney, of San Antonio, for appellee.
   WALKER, Chief Justice.

This was a suit in trespass to try title filed in the district court of Bexar county by ap-pellee, Uvalde Rock Asphalt Company, against appellant George W. Waitz to recover lots 15, 16, 17, and 18, block 1624, in the city of San Antonio. Appellant Waitz answered by plea of not guilty and by special plea im-pleading his warrantor Louis A. Guessaz. The pleadings of appellee, raised the additional issues that it held title to the lots in controversy under a judgment against appellant Louis A. Guessaz, foreclosing a paving lien against the property, issued to it by the city of San Antonio; that after the foreclosure sale it entered into a settlement agreement with appellant Waitz, whereby for $250 it was to deed him the lots in controversy by quitclaim deed and release its foreclosure judgment and its paving lien; that it prepared the necessary papers to effectuate the agreement, which appellant Waitz got possession of without its consent and put of record, without paying the $250; the prayer was for the cancellation of the quitclaim deed and releases executed by it in favor of appellant Waitz and their removal from the deed records of Bexar county, and for recovery of the lots in controversy, with accumulated rents. The pleadings of appellants consisted of: (a) An extended “motion for rule for costs,” plea of misjoinder of causes of action, special denial against appellee’s plea of settlement, special .plea that appellee, under its plea of settlement, was entitled only to judgment for $250, plea of payment of part of the $250, pleas of not guilty and general denial; their prayer was for the title and recovery of the property as against the claim of ap-pellee. The jury found issues invalidating the settlement agreement and canceling the quitclaim deed and release papers executed by appellee to appellant Waitz and damages in its favor for $1,200 for rent. Under their plea of not guilty, the court permitted appellants to offer proof that the property was the homestead of appellant Louis A. Guessaz at the time the city of San Antonio issued the paving certificates against it; this issue was summitted to the jury and found in. favor of appellants. No fact issue found by the jury is controverted by this appeal, except appellee says that appellants’ pleadings were insufficient to present the issue of homestead. The court refused to enter judgment for either party on the jury’s verdict, but entered judgment non obstante veredicto for appellee for the title and possession of the property. It is the contention of appellants, defendants below, that judgment should have been entered in their favor, on the verdict and the undisputed facts, for the title and possession of the lots in controversy.

Opinion.

The judgment in Uvalde Rock Asphalt Company v. Louis A. Guessaz, under which appellee claims the property through a sheriff’s deed at foreclosure sale, contains the following recitations of fact:

“No. B-22234. In the District Court, 73rd Judicial District; Bexar County, Texas.
“Uvalde Rock Asphalt Company versus L. A. Guessaz.
“On this, the 6th day of June, A. D. 1923, came on to be heard the above styled and numbered cause, and plaintiff appearing by its attorneys, and said defendant, L. A. Gues-saz, having been duly cited by publication, according to law, appearing by his attorney, appointed by this Court, all matters of fact as well as of law were submitted to the Court,” etc.

Appellants made no attack upon this judgment by their pleadings, but upon the trial sought to introduce the affidavit for service by publication, the citation by publication and its return, the order appointing counsel to represent the defendant, etc., on the theory that certain irregularities in these instruments rendered the judgment void. All this evidence was properly excluded as constituting a collateral attack upon the judgment. Griggs v. Montgomery (Tex. Civ. App.) 22 S.W.(2d) 688; Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Levy v. Roper, 113 Tex. 356, 256 S. W. 251; Harrison v. Orr (Tex. Com. App.) 296 S. W. 871; Gibbs v. Scales, 54 Tex. Civ. App. 96, 118 S. W. 188; Davis v. Robinson, 70 Tex. 394, 7 S. W. 749; Sloan v. Thompson, 4 Tex. Civ. App. 419, 23 S. W. 613. Eor a statement of the legal propositions, construing appellants’ pleading as a collateral attack upon the judgment in issue, see Garza v. Kenedy (Tex. Com. App.) 299 S. W. 231; Burton v. McGuire (Tex. Civ. App.) 3 S.W.(2d) 576, affirmed by Supreme Court, 41 S.W.(2d) 238.

The following are the controlling facts, affecting the foreclosure judgment of appellee against appellant Louis A. Guessaz: The only defendant in that case was appellant Louis A. Guessaz, in his individual capacity; at the time the suit was instituted, Mrs. Guessaz was dead, and he had qualified as community administrator of their community estate; the title to the property was in his name and his wife’s name; she left surviving her as heir to her interest in the community her son, appellant Louis A. Guessaz, Jr.; ap-pellee, as plaintiff, was visited with notice of all these facts at the time it instituted its foreclosure suit; the property was the homestead of appellant Louis A. Guessaz at the time the assessment certificates were issued against' it by the city of San Antonio, and continued his homestead until he sold it to appellant Waitz, which was after the foreclosure suit.was instituted; appellee had no notice of the sale to Waitz until after its foreclosure sale against Louis A. Guessaz. There was no evidence that appellee ever filed lis pendens notice of the filing of its foreclosure suit, nor was there any evidence that appellant Waitz had notice of the pendency of the foreclosure suit at any time before the rendition of final judgment therein, nor that, he paid value for the property. On this statement of the facts, we announce the following conclusions of law, which deny appellants’ additional assignments and propositions of error.

(a) Since appellant Louis A. Guessaz did not plead the issue of homestead in the foreclosure suit, and it was not pleaded for him by the attorney appointed by the court to represent him therein, the judgment against him foreclosing the paving lien was a bar to his homestead claim as against the collateral attack made upon that judgment by the pleadings in this case. Shonaker v. Citizens’ Loan & Investment Co. (Tex. Civ. App.) 8 S.W.(2d) 566, 567; Baxter v. Dear, 24 Tex. 17, 76 Am. Dec. 89; Gehret v. Hetkes (Tex. Com. App.) 36 S.W.(2d) 700.

(b) It is not controverted that the property was the community property of Louis A. Guessaz and his wife, though the deed was executed to them jointly, and that the debt sued upon was a community debt. It is the law that judgment in a suit against the surviving spouse individually, foreclosing liens on property belonging to the community estate, is valid and binding against the estate and all persons claiming as heirs of the deceased spouse. Barrett v. Eastham, 28 Tex. Civ. App. 189, 67 S. W. 198; Id. (Tex. Civ. App.) 86 S. W. 1057; Duberry v. Texas Life Insurance Co. (Tex. Civ. App.) 279 S. W. 285; Levy v. Moody & Co. (Tex. Civ. App.) 87 S. W. 205; Speer on Marital Relations (3d Ed.) p. 852.

(c) Appellant Louis A. Guessaz had a perfect defense against the paving lien had it been pleaded in the foreclosure suit. Holding under Louis A. Guessaz, appellant Waitz had the right to plead the same defense. Ap-Xiellant Waitz now asserts that he was an innocent purchaser against the claim of appellant under the foreclosure judgment, and, as an innocent purchaser, had the right to raise the homestead issue in this case, and on that issue was entitled to judgment for the lots in controversy. A complete answer to this contention is to say that he failed to raise in his behalf the issue of innocent purchaser. The failure of appellee to file lis pendens notice or otherwise notify appellant Waitz of the pendency of its foreclosure suit was an immaterial issue, provided he knew that the suit was pending. It was his burden to show affirmatively that he did not know that fact, and also that he paid value for the property. Sabra Benn v. Security Realty & Development Co. (Tex. Civ. App.) 54 S.W.(2d) 146; Ater v. Knight (Tex. Civ. App.) 218 S. W. 648; Johns v. Wear (Tex. Civ. App.) 230 S. W. 1008; Miller v. Poulter (Tex. Civ. App.) 189 S. W. 105, at page 107; Beavers v. Baker, 58 Tex. Civ. App. 35, 124 S. W. 450; Heisig v. Vaughan & Gardner (Tex. Civ. App.) 15 S.W.(2d) 113; Uvalde Company v. Tribble (Tex. Civ. App.) 292 S. W. 932; Wilkerson v. Ward (Tex. Civ. App.) 137 S. W. 158.

(d) On the facts of this case, it was not error for the court to disregard the verdict of the jury and render judgment in favor of appellee non obstante veredicto. This procedure is authorized by article 2211, R. S. 1925, as amended Acts 1931, 42d Legislature, p. 119, chapter 77, § 1 (Vernon’s Ann. Civ. St. art. 2211), where a directed verdict would have been proper, and, upon the undisputed facts in this case appellee was entitled to an instructed verdict.

Affirmed.


text:
    DAVE LEHR, Inc., v. BROWN et al.
    No. 1316.
    Court of Civil Appeals of Texas. Waco.
    March 9, 1933.
    Rehearing Denied April 13, 1933.

      Cunningham, Moursund, Johnson, Rogers & Slatton, of San Antonio, for appellant.
    Perry J. Lewis, H. C. Carter, Randolph L. Carter, and Champe G. Carter, all of San Antonio, for appellees.
   GALLAGHER, Chief Justice.

This appeal is prosecuted from a judgment of the district court awarding appellees, Jimmie Brown, a minor, suing herein by next friend, and his parents, W. P. Brown and Margaret Brown, recoveries against appellant, Dave Lehr, Inc., of damages for injuries sustained by said Jimmie Brown as a result of his being struck by a motortruck while attempting to cross a public street in the city of San Antonio. The only assignments of error presented by appellant assail the sufficiency of the evidence to show legal liability on its part for the negligent operation of said truck, and the admissibility of certain testimony on such issue. The several findings of the jury on the issues of negligence on the part of the driver of the truck proximately causing the injuries sustained by the boy, the absence of contributory negligence on his part, and the amount of the damages awarded, not being in any way questioned, these phases of the case need not be either recited or discussed.

Appellees alleged that Jimmie Brown, the injured boy, while crossing a public street in said city, was negligently run down and struck by an automobile truck which was being operated by appellant through an employee. Appellant answered said charge by general denial. The case was tried to a jury. The testimony introduced showed that the truck which hit and injured the boy belonged to and was being driven by a Mexican named Mariano Valderramo and was loaded with sand belonging to appellant, which was being transported for delivery at a specified point. Appellant, at the close of the evidence, requested a peremptory charge instructing the jury to return a verdict in its favor, which was refused. The only issue bearing on appellant’s legal liability for negligence on the part of the driver of the truck which struck the boy and the answer of the jury thereto were as follows; “At the time of the accident in question, was the truck driver, Mariano Valderramo, an employee of the defendant, Dave Lehr, Incorporated?” Answer: “Yes.”

The court, in connection with said issue, gave the following instruction defining the word “employee” and explaining its application: “In this connection, you are instructed that an employee is a person in the service of another under any contract of hire, express or implied, oral or written, whereby the master retains or exercises the right of control in directing, not merely the end sought to be accomplished, but also the means and details of its accomplishment, not merely what shall be done but how it shall be done.”

Appellant’s only objection thereto was too general to require consideration by the court. Chase Bag Co. v. Longoria (Tex. Civ. App.) 45 S.W.(2d) 242, 244, pars. 4 to 6, inclusive, and authorities there cited; Baker Co. v. Turpin (Tex. Civ. App.) 53 S.W.(2d) 154, 156, pars. 4 and 5. Neither the.accuracy nor the sufficiency of said definition is questioned in this appeal. Appellee did not request the submission of any issue with, reference to the legal relation existing at the time of the accident between it and the driver of the truck. The court rendered judgment on the verdict, awarding the injured boy a recovery in the sum of $5,000, and his parents in the sum of $1,500 against appellant, in accordance with the findings of the jury assessing the amount of damages sustained by them, respectively. Appellant filed motion for new trial, and, upon the overruling of the same, perfected this appeal.

Opinion.

Appellant presents a group of assignments in which it contends that the testimony in this case established as a matter of law that Valderramo, the driver of the truck, at the time of the accident was an independent contractor, and not its employee. Appellant was a dealer in sand, gravel, cement, and other commodities. 1-Iis place of business was contiguous or near to a railway delivery switch. He received the commodities aforesaid in cars, had the same loaded into trucks therefrom, and delivered by such trucks to purchasers at points agreed upon between them. The employment of the truckman Valderramo was according to the usual if not exclusive custom of conducting that branch of appellant’s business. He owned his truck and maintained and operated it himself. Appellant was at the time of the accident engaged in delivering sand 'to a purchaser. It, through its agent or manager, employed said Valderramo to assist in making such deliveries. He used his own truck, loaded it, operated it to the place of delivery, and there unloaded it, all by himself. He was furnished by appellant a ticket with each load, which he was required to have signed on delivery and to return to it. For such services he was paid a stipulated price per load, based on the distance the same was hauled. The agreement between appellant and Valderra-mo under which he was working at the time did not specify that he should render continuous service, nor that he should continue to render such service for any particular length of time. He did, however, except for a few hours immediately succeeding the accident, work under his agreement with appellant exclusively and continuously for about three weeks. He was told by Mitchell, appellant’s representative, to be at its place of business at 7 o’clock in the morning, and was usually told, about 5 or 6 o’clock in the afternoon, that appellant would not have any more hauling that day, and that he might go. Mitchell gave him a ticket, told him what to haul, the particular car from which the load was to be taken, and where to deliver the same. Mitchell also gave him instructions with reference to the amount to be hauled in each particular load, and saw that such instructions were) followed. Mitchell also instructed him, in event of an accident, to report the same to appellant’s office. Mitchell also instructed him to drive slowly and carefuEy, and claimed the right to discontinue his services in event he violated such instructions. Valderramo testified in general terms that Mitchell told him how to do his work, and that he obeyed such orders. There was testimony that truck drivers were expected and required to comply with the customs of the business. They were sometimes called upon for service at night. They were required to haul such material as was designated by Mitchell. They were instructed to travel the nearest route and to make prompt delivery, to obey all traffic laws, tp drive slowly in passing schools and churches, to observe slow and stop signs, and to give proper signals when turning corners. Such instructions were given frequently, and they were required to obey the same. When they disobeyed they were warned or “fired,” as appellant might elect. Truck drivers were instructed not to overload or underload their trucks. If they spilled material in loading or on the street their services were considered unsatisfactory and appellant could discharge them. Sometimes they were required to collect the price of a load upon delivery and to return such collection to appellant. They were paid on the agreed basis for loads actually hauled, each Saturday. The amount due each driver was entered on a Est or instrument called a pay roll, and they were required to sign the same at the time of payment. The termination of the relation between them and appellant was termed a discharge. Appellant claimed the right under the terms of their employment to direct and control them as aforesaid, and did do so. The foregoing is a mere summary of the testimony bearing on the issue of appellant’s right to control drivers in the discharge of their duties and the extent to which it exercised such control.

The rule for distinguishing between the relation of employer and employee, and employer and independent contractor, has been variously expressed by our courts. The ultimate test prescribed in such rule, however expressed, is the extent of the control which the employer has the right to exercise over the conduct of the party, and the mode and manner of doing the work he has engaged to perform. The extent of control actually exercised in a given case by an employer is properly considered in determining his right to do so. King v. Galloway (Tex. Com. App.) 284 S. W. 942, 943 et seq., and authorities there cited; Texas Employers’ Ins. Ass’n v. Owen (Tex. Com. App.) 298 S. W. 542, 543, par. 1; McElrath v. Dixon (Tex. Civ. App.) 49 S.W.(2d) 995, 998, pars. 13 and 14. See In re Murray, 130 Me. 181, 154 A. 352, 75 A. L. R., page 720 et seq. and note, page 726 et seq. Whether the relation in a given case is that of employer and employee, or employer and independent contractor, is usually, and especially upon conflicting or indefinite and inconclusive evidence, a question of fact to be determined by the court or jury trying the case. Texas Employers' Ins. Ass’n v. Owen (Tex. Com. App.) 298 S. W. 542, 543, pars. 2 and 3; El Paso Laundry Co. v. Gonzales (Tex. Civ. App.) 36 S.W.(2d) 793, 795, par. 5; Dr. Pepper Bottling Co. v. Rainboldt (Tex. Civ. App.) 40 S.W.(2d) 827, 829, par. 1; J. W. Zempter Const. Co. v. Rodgers (Tex. Civ. App.) 45 S.W.(2d) 763, 766, par. 1; McElrath v. Dixon (Tex. Civ. App.) 49 S.W.(2d) 995, 998, pars. 13 to 15, inclusive; Maryland Casualty Co. v. Donnelly (Tex. Civ. App.) 50 S.W.(2d) 388, 390, pars. 2 and 3. The testimony in this ease does not show with such certainty that reasonable minds cannot differ as to the effect thereof, that' Valder-ramo was at the time of the accident employed by appellant as an independent contractor and not as a mere employee. The court therefore properly submitted the character of his employment to the jury for determination, and we are bound by their finding.

Appellant presents four separate propositions in which it complains of the action of the court in admitting in evidence over its objection certain testimony of the witness Valderramo, Said testimony was read from an oral deposition of the witness. Appellant filed written objections to certain questions and answers contained therein, including those made the basis of its said propositions, which questions and answers were as follows:

“Q. During the time that you were driving there, state whether or not there was any man that you took instructions from or that was your boss? A. Tes, Mr. Mitchell was the boss.
“Q. Who was your boss? A. Mr. Mitchell. He was the one that give me the tickets, you see, and I was to do whatever — I just was to do whatever he told me. * * *
“Q. In doing all the work you did there; state whether or not you were subject to the instructions or orders of Mr.-Mitchell? A. What is that you mean?
“Q. I say, in doing all the work you did there, state whether or not you were under the orders-of Mr. Mitchell? A. Yes, Sir. * * *
“State whether or not Mr. Mitchell controlled and directed the way in which you did your work. A. He told me which way I do my work.
“Q. Yes? A. Yes, Sir.”

Appellant’s objection to each of said questions and the introduction in evidence of the answer made thereto was, in substance, that such question was leading and suggestive. Said objections were seasonably filed and hearing thereon postponed by agreement to the next succeeding term of court. No further action was taken until the case was called for trial nearly a year thereafter. Appellant then presented said objections, and the court overruled the same. The court qualified each of appellant’s bills of exception by an indorsement stating that appellant’s objections were not presented nor determined at the term to which the hearing thereof was so -postponed, nor for several terms thereafter. Apparently the action of the court in overruling the same was predicated in part at least on such delay and the provision of the statute inhibiting the same. Said provision is as follows: “Such objection shall be made and determined at the first term of the court after the deposition has been filed, and not thereafter.” Revised Statutes, art. 3765.

Appellee contends in this connection that appellant’s failure to present said objections at the term of court to which consideration of the same was continued was a violation of the terms of the article so quoted and constituted a waiver of such objections. Appellee’s contention is not without support in the authorities. In the case of Ellis v. Lewis, 45 Tex. Civ. App. 248, 100 S. W. 189, 191, the court said: “The requirement of the statute that objection to the form and manner of taking depositions must be made before the trial of the case begins, and must be passed upon at the first term of the court after the deposition is filed is a just and reasonable requirement and one which should be strictly enforced.”

See, also, Waters Pierce Oil Co. v. Davis, 24 Tex. Civ. App. 508, 60 S. W. 453, 458; Schaff v. Beale (Tex. Civ. App.) 250 S. W. 757, 759, par. 5. Our Supreme Court has held that a question is not necessarily leading because it admits of a direct affirmative or negative answer, but that to make it objectionable, when but a single fact is sought to be elicited, it must also suggest the desired answer; International & G. N. Ry. Co. v. Dalwigh, 92 Tex. 655, 657, 51 S. W. 500; Lott v. King, 79 Tex. 292, 299, 15 S. W. 231; Galveston, H. & S. A. Ry. Co. v. Cody, 20 Tex. Civ. App. 520, 50 S. W. 135, 137, par. 8, writ refused 92 Tex. 632, 51 S. W. 329. The witness was admittedly an unlettered Mexican and his answers disclose that his understanding of the English language and his ability to express himself therein were somewhat limited. In such cases a very wide discretion is allowed the trial judge in permitting questions which might in other cases be considered leading or suggestive in form. 40 Cyc., p. 2429, par. (B); Campbell v. Fisher (Tex. Civ. App.) 24 S. W. 661, 663, par. 2, and authorities there cited; Pecos & N. T. Ry. Co. v. Gray (Tex. Civ. App.) 145 S. W. 728, 733, par. 8; Norton v. Lea (Tex. Civ. App.) 170 S. W. 267, 268, 269, par. 6; Ætna Life Ins. Co. v. Casper (Tex. Civ. App.) 11 S.W.(2d) 594, 599, par, 3; Hensley v. Waco Drug Co., (Tex. Civ. App.) 18 S.W.(2d) 778, 781, par. 3. Appellee contends that substantially the same testimony was elicited from said witness in response to other questions, to which no objection was urged. Such contention is sustained by the record. Error, if any, in admitting testimony over objection is harmless when substantially the same testimony is introduced without objection. Hall v. Ray (Tex. Civ. App.) 179 S. W. 1135, 1138, par. 4; Steele Co. v. Dover (Tex. Civ. App.) 170 S. W. 809, 813, par. 10; C. W. Hahl Co. v. Cunningham & Hardy (Tex. Civ. App.) 246 S. W. 108, 109, par. 6; Maryland Casualty Co. v. Allen (Tex. Civ. App.) 22 S.W.(2d) 329, 330, par. 2. We conclude therefore that the action of the court in admitting the testimony above set out over appellant’s objection, that same was elicited by questions that were leading and suggestive, does not constitute reversible error.

Appellant also objected to said answers of the witness when offered in evidence on the ground that they constituted merely his opinions and conclusions, which objection was overruled. The substance of said answers was that appellant’s representative Mitchell was the “boss,” or man from whom the witness took instructions; that witness was to do whatever Mitchell told him to do; that Mitchell told him how to do his work and controlled the way .in which his truck was loaded, and had a right to do so. The contract or agreement between appellant and witness was verbal and apparently wholly informal. Appellant wanted a truckman to haul and deliver material at a stipulated price. Witness wanted to haul the same, and the price offered was satisfactory. Mitchell then put him to work, gave him a ticket, told him what material to haul, how much to haul, where to get the same, and where to deliver i-t. Mitchell further instructed him to get his ticket signed by the purchaser as evidence of the receipt of the load and return such ticket to him. This course was pursued with reference to each successive load. All this was shown by testimony admitted without objection, and was merely the recital of the manner in which appellant’s business was conducted. There being apparently no agreement in detail between appellant and the witness with reference to such matters, the exercise by appellant, through its representative Mitchell, of such control and the acquiescence therein of the witness and the other truckmen so employed, constituted, by mutual assent of the parties, the measure of authority on the part of appellant and the corresponding duty on the part of the truckmen, including said witness. Appellees contend in this connection that under the circumstances shown the testimony of the witness that Mitchell had a right to control and direct him in such matters was the statement of a fact and not a mere conclusion. Such contention is not without support in the authorities. Ætna Life Ins. Co. v. Casper (Tex. Civ. App.) 11 S.W.(2d) 594, 599, par. 4; Keen & Woolf Oil Co. v. Fulenwider (Tex. Civ. App.) 284 S. W. 322, 325, par. 4; Bayliss v. Raney (Tex. Civ. App.) 273 S. W. 932, 934, par. 4; Farmers’ Mill & Elevator Co. v. Hodges (Tex. Civ. App.) 248 S. W. 72, 76, par. 7, reversed on other grounds (Com. App.) 260 S. W. 166; Schebesta v. Stewart (Tex. Civ. App.) 37 S.W.(2d) 781, 784, par. 3. The authority actually exercised by appellant over the manner in which the witness performed the tasks undertaken by him and his voluntary submission to such authority were shown by the testimony as a whole. The witness was familiar with all the facts and had himself testified in detail with reference thereto. If his testimony with reference to appellant’s authority to exercise control in the matters specified were only a conclusion, it does not necessarily follow that the admission thereof was improper or constituted reversible error. It is not every opinion or conclusion of the ordinary witness which ought to be excluded. Where the opinion or conclusion offered is a mere shorthand rendering of the facts, the same can be given in evidence, subject to cross-examination as to the facts on which it is based. Moore v. Moore (Tex. Civ. App.) 299 S. W. 653, 654, par. 5, and authorities there cited; Fort Worth & D. C. Ry. Co. v. Kidwell (Tex. Civ. App.) 249 S. W. 303, 305, par. 1, and authorities there cited; Exporters’ & Traders’ Compress & Warehouse Co. v. Shaw (Tex. Civ. App.) 20 S.W.(2d) 248, 252, pars. 10 to 12, inclusive, and authorities there cited.

The judgment of the trial court is affirmed.