author: PELPHREY, C. J.

text:
    SHEEHAN v. TRI-STATE MOTOR CO.
    No. 2740.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1932.
    Rehearing Denied Dec. 22, 1932.
    J. U. Sweeney and J. E. Quaid, both of El Paso, for appellant.
    J. Walker Morrow, of El Paso, for appellee.
   PELPHREY, C. J.

On or about July 1, 1928, appellant, doing business in tbe name of J. P. Sbeeban & Co., purchased from appellee a ten-ton Crawler oil field wagon “E W C,” paying $1,883.87 in easb tberefor. Tbe wagon was shipped to George Berry, Pyote, Tex., a customer of appellant, who, after a trial, turned it back to appellant. Thereupon appellant tendered the wagon back to appellee who refused to receive it and refused to refund tbe purchase price.

On September 25, 1928, appellant filed this suit, alleging that appellee knew be was in the business' of selling machinery in tbe oil fields of West Texas and New -Mexico, and, with knowledge of such fact, at his instance and request, had. the wagon shipped to Berry for use in the oil fields; that appellee represented to him that the particular wagon would be satisfactory to appellee and to his customer, and was adapted to oil field purposes; that said representations were a part of the agreement and induced him to purchase the wagon; that the wagon was faithfully tried out by the customer of appellant, and found unsatisfactory and of no value for the purpose for which it was sold to appellant; that he, since learning such facts, had sought to cancel the contract and have his money returned, but that appellee had failed and refused to return same; that no consideration passed from appellee to him, thereby rendering the contract of sale utterly void.

Appellant prayed for a rescission of the contract, for a return of the money paid by him, and tendered a return of the wagon, which he alleged to be of no value, and, in the alternative, he alleged the value of the wagon to be less than $200, and tendered same in cancellation of the contract. He prayed for the recovery of $1,383.87 as damages by reason of the failure of the wagon to meet the requirements represented, and alleged that ap-pellee was indebted to him in that sum which he was withholding.

Appellee answered by a general demurrer, special, exception, a general denial, and specially pleaded that appellant and appellee were competitive dealers in oil field machinery and supplies; that appellant was as familiar with oil field equipment and particularly the equipment mentioned in appellant’s petition, as was appellee; that it did not carry the equipment in stock, but merely had the right to buy it in this locality; that appellant, being unable to purchase,1 at, that particular time, the' equipment he needed, requested and was granted permission to use the name of appellee in the purchase of the wagon mentioned in his petition under an arrangement which in effect divided the profits of the sale between appellant and appel-lee; that appellant purchased the wagon in appellee’s name from the manufacturer, having knowledge of all the information that ap-pellee had as to the character of the equipment and its adaptability for any given service; that appellee merely acted as an instrumentality or agent of appellant in the transaction, or jointly with him; that, if any defects existed in the equipment, appellant and the owner of the equipment waived the same by requesting appellee to make certain repairs thereon, and by using and damaging same after such repairs had been made; that appellee was informed and believed that, after appellant and the owner of the machine were fully acquainted with the qualities of the machine, they or the owner alone loaded thereon a 120 horse power boiler in such manner that it broke the frame and seriously damaged the equipment; that, if any impairment of the value of the machine has occurred, it was due to -the treatment accorded to It since it was repaired by appellee at appellant’s request and after he and the owner were both fully acquainted with the quality of the machine ; and that, by so using the machine, appellant and the owner ratified and confirmed the transaction complained of and waived any defects in the equipment.

A jury in response to special issues found: (1) That appellant purchased the wagon from appellee and not from the manufacturer; (2) that appellee represented to appellant that the wagon was especially adapted to oil field work; (3) that appellant believed such representation and relied thereon; (4) that the representation was a material inducement to appellant to purchase the wagon; (5) that the wagon was not fitted for yrork in the oil fields; (6) that the representation was made by ap-pellee or its agent, as an opinion or expectation and not as a statement of fact; (7) that appellee did not act as the agent of appellant in the transaction; (8) that neither Berry or Sheehan accepted and used the wagon after it was repaired; and (9) that appellant did not request appellee to repair the wagon.

Thereafter the trial court rendered judgment that appellant take nothing, and he has appealed.

Opinion.

Appellant’s brief contains thirteen propositions, in which he asserts that the court erred in rendering judgment for appellee on the verdict. In substance, his position is that, it appearing from the findings that the wagon was sold for a special purpose known to ap-pellee, and that it was not suitable therefor, he was entitled to judgment on the implied warranty arising as a matter of law that the wagon was suitable for the intended purpose, and (2) that, it appearing from the findings that appellee had represented the wagon was especially adapted for oil field purposes, that appellant believed and relied on such representation and was induced thereby to purchase the wagon, and that the wagon was not fitted for work in the oil fields, the court should have rendered judgment in his favor.

Appellee counters with the proposition that the judgment was correct because, the cause having been tried in the lower court on the theory of fraud on the part of appellee, and the jury having found that the representation complained of was not a statement of a fact, but merely the expression of opinion, there could be no fraud.

[I] That the cause was tried in the lower court on the theory of fraud on appellee’s part is apparent from the issues submitted, therefore, to entitle appellant to a judgment actionable fraud must have been shown.

The jury, it is true, found that certain representations were made, that appellant was induced by them to purchase the wagon, and that the representations were not true, but it also found that the representations were made as an opinion or expectation and not as a statement of fact. That a representation, though false, which is made only as a statement of opinion, cannot, as a general rule, constitute fraud, we think, is well settled, Starnes v. Motsinger (Tex. Civ. App.) 278 S. W. 496, and authorities there cited; and, the jury having here found that the representations were made merely as an opinion or expectation; there exists no such fraud as would entitle appellant to rescind the purchase of the wagon. It follows, therefore, that the judgment complained of was the proper judgment upon the findings.

The judgment is accordingly affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    CITY OF RAYMONDVILLE et al. v. McCANN et al.
    No. 8920.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 9, 1932.
    Rehearing Denied Dec. 14, 1932.
    R. F. Robinson, of Raymondville, for appellants.
    Hicks, Dickson, Bobbitt & Lange, of San Antonio, and A. B. Crane, Jesse G. Foster, and' S. L. Gill, all of Raymondville, for appellees.
   FLY, C. J.

This suit was instituted by J. D. McCann and Y. E. Worley against the city of Ray-mondville, its mayor and commissioners, to restrain appellants from entering into a contract with the Fairbanks-Morse Company, a certain electric light and power system. A permanent injunction was granted restraining appellants from negotiating with or entering into the proposed contract with Fairbanks-Morse & Co. The following agreement was made and entered into by the parties:

“That on or about November 5th, ,1931, the defendants individually and in their official capacity as officers of said City of Raymond-ville, entered into negotiations with Fairbanks-Morse and Company, a corporation engaged in the selling, among other things, of electric light plants. The negotiations being in respect to the proposal of entering into a contract whereby the City would bind itself in such contract with said Fairbanks-Morse and Company to authorize said Fairbanks-Morse and Company to erect, construct, install and equip a certain electric light and power system within said City of Raymond-ville, at a sum in the amount of $122,650.00 * * *.
"That thereafter, on November 26th, December 3rd, and December 10th, 1931, said City Clerk E. M. Tomme, placed an advertisement for bids in the newspapers, to-wit: The Willacy County News and the Willacy County Chronicle, both located in Raymond-ville * ⅜ *.
“It is further agreed that the City of Ray-mondville has outstanding refunding bonds in the sum of $67,000.00, which were issued for the purchase and extension of the present waterworks system, and there is no specific lien or incumbrance against said waterworks system other than the tax lien against all property in said city.”

The $122,650 was to be paid to appellees out of the net revenue of the city and to be evidenced by coupon bonds, secured by a lien on the plant and annual income, as well as $15,000 out of the net revenues of the City Water Works System, which was to be paid in seventy-two monthly payments. No lien was to be given on the waterworks or its revenues, except the $15,000 provided for. The court followed the agreement in his findings of fact in the judgment.

The provisions of law found in article 1113, Revised Statutes, provide that no funds arising from the operating of any utility plant shall be used by a city until provision is made for the full payment of debts due thereon, and, of course, there could be no appropriation of the funds of the waterworks system until provision is made for the payment of the debts against that plant. The facts in this case show that provision was made for the annual retention of the required sinking fund and interest on the amount due on the water system, and that no attempt was made to use any part of the revenues for any purpose until provision was made for payment of the outstanding indebtedness. If that provision was made, all the revenues of the waterworks system could be utilized by the city as it might deem right and proper. We cannot conceive that the evidence shows any desire to impair the power of the waterworks to pay the debt against it. The $15,000 was to be paid out of the “net revenues”; that is, the revenue remaining after providing for the sinking fund, interest, and current expenses of the plant. When that is done, the law has been complied with as embodied in articles 1111, 1112, and 1113.

In 1931 (c. 314) the Legislature enacted a law now designated as article 1118a, and it is the contention of appellees that the last-named article supersedes and takes the place of articles 1111 to 1117, and in effect repeals them. There are no words of repeal in the statute of 1931, and we do not think there is such inconsistency between them as to demand any intention to destroy the former laws.

It is provided in article 1118a that no system shall be incumbered for more than $5,000, and this is pressed as a reason for restraining the execution of the contract. Under the terms of the law a contract for more than the sum named might be illegal if an in-cumbrance on the waterworks, but it could in no way have injured appellees, and they had an adequate remedy at law to have prevented any attempt to collect the extra $10,-000 contemplated to be paid, if it was an in-cumbrance on the waterworks, which may be strongly doubted. The city owned the waterworks, and after providing for sinking fund, expenses, and interest, the funds belonged to the city and could be expended by it in the manner and for the purposes deemed appropriate by the city.

The facts did not justify the issuance of the injunction, and appellees have a full and adequate remedy for any imaginary wrongs that may result from the contract. The contract will not violate any law and will not injure appellees. No taxation is intended, and the whole transaction is confined to the revenues of the system.

The judgment is reversed, and the cause remanded.


author: LATTIMORE, J.

text:
    ALEXANDER et al. v. DUNCAN.
    No. 12708.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 8, 1932.
    Rehearing Denied Nov. 12, 1932.
    Luther Hoffman and Arch Dawson, both of Wichita Falls, and Sullivan, Speer & Minor, of Denton, for appellants.
    Bullington, Humphrey & King, of Wichita Falls, for appellee.
   LATTIMORE, J.

The appellant, for himself and others, sold stock in the Alliance Milling Company to appellee. Appellee sued appellant for damages for fraud, alleged to have been perpetrated in Wichita county by appellant in the negotiation of that sale.

This is an appeal from an order denying appellant his claimed privilege to be sued in Denton county, his residence, which order rests upon the mailing by appellant to appel-lee at Wichita Ealls certain letters and financial statements.

The trial court filed findings of fact which consist of a review of the testimony. Such review gives no aid to the appellate court. The statement of facts and the briefs of counsel cover this portion of the case fully. Findings of fact are entered to furnish to this court the decision of the court on those fact issues which were contested below in the presence of the trial judge who observed the demeanor of the witnesses, heard their voices, and could best decide tbé sincerity, the kind of memory, and the truthfulness of the witness.

The entire evidence of the claimed misrepresentations, both those made in Denton county and those made in Wichita county were admitted in evidence without objection. However, we must, in our disposition of this appeal, confine the evidence to those claimed frauds which are found to have been made in Wichita county.

The appellant furnished two financial statements to appellee; the first bore date of January 31, 1930. Appellee alleges that it was mailed to him at Wichita Falls, appellant that it was delivered in person at Denton. The trial court in his findings of fact makes no decision on this issue.

At the outset we meet appellant’s contention, as set out in the second proposition in his brief, that the trial court’s finding that there was an issue of fact as to whether fraud was committed and that that fraud was committed in Wichita county, as insufficient. The language of the conclusion of law of the trial court is not as clear as we would desire, but, as we take it, that language attempts to say that there is an issue of fact as to whether any fraud was committed by the letters and financial statements, and, in addition, that the trial court finds affirmatively that such fraud was committed in Wichita county.

The venue statutes (Vernon’s Ann. Civ. St. arts. 2007, 2008), which provide for a separate pleading and hearing on the issue of venue in a suit for fraud, do not require that the court at such hearing must find the entire facts to be such as that plaintiff would, if that hearing were on the merits of the case, be entitled to judgment. Such holding would result in the defendant having the benefit of two trials without losing the right to the second, if he lost the decision on the first. It is true that the plaintiff must make out as much as a fact issue on the merits of his cause, not that the issue is to be joined and have a fact decision on such fact issue, but in order that the court would not be doing an idle thing to preserve for itself the venue of the case for trial on the merits. Beyond that he must establish finally that he is before the proper tribunal as to venue. The trial court enters his judgment as to where the cause should be tried, nothing else.

Benson v. Jones, 117 Tex. 68, 296 S.W. 865, 807, is not in conflict with the above. In that case the record “was barren” of any evidence of damages, i. e., the plaintiff did not make out a prima facie case, as the Supreme Court says: “There was no proof” of any false statement in Dallas county. This was the very crux of the venue issue. There must be evidence of fraud, rightful reliance thereon, and injury. There must be proof that the fraud was committed in the county of venue. Edmonds v. White (Tex. Civ. App.) 226 S. W. 819.

This brings us to the consideration of the first proposition: That there was no misi-representation of fact, and that, if there was, appellee did not rely on it. It is true the inducements complained - of (on venue) were those prepared by a third party, and that, as such, they were delivered to appellee, but appellant knew for himself whether they were true or false and stated he believed they were true. A disputed issue is made that appellant did not believe them true. Likewise, ap-pellee insists that he relied upon those statements. A strong case is made by appellant that appellee did not so rely. A decision on either of these issues, when disputed by sufficient evidence to make a fact issue, is not the function of the hearing on venue. We cannot say as a matter of law that appellee did not, or had no right to, rely on such statements.

We have examined each of the assignments of error. Some of those which relate to the findings of fact, not carried forward or mentioned in appellant’s brief, are well taken, but the errors there assigned are harmless in the view we have taken of the cause as above set out.

The judgment is affirmed.


author: PLY, C. J.

text:
    RINCON INV. CO. et al. v. WHITE et al.
    No. 8890.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 2, 1932.
    Rehearing Denied Dec. 14, 1932.
    John 0. North, of Corpus Christi; Andrews, Streetman, Logue & Mobley, of Houston, W. B. Moss, of Sinton, and J. L. Lockett, of Houston, for appellants.
    Sidney P. Chandler, of Corpus Christi, for appellees.
   PLY, C. J.

This suit was instituted by C. S. White and L. A. Pry against the Rincon Investment Company, a corporation domiciled in Houston, to recover certain land and $10,000. Appellant investment company filed a cross-action and an answer to the petition. Phillip Welhausen, M. C. Driscoll, and others were made parties by appellant. The cause was tried by jury on special issues, and judgment was rendered against the Rincon Investment Company and Welhausen and Driscoll, investing title to the land in White and Fry, and for $1,200 for rents, and damages in the sum of $15,000, in which the Bankers’ Mortgage Company was included. The cross-action was denied.

The jury found that the instrument executed by appellee, in form a deed, to appellant, was a mortgage, in fact given to secure a debt; that the rental value of the land for 1929 and 1930 was $1,200; that in the transaction the Rincon Investment Company was the agent of the Bankers’ Mortgage Company ; that Phillip Welhausen, appellant, and the mortgage company failed to comply with the terms of the contract between Welhausen and Rincon Investment Company; that ap-pellees did not receive any part of a check for $100,000, dated April 9, 1928; that ap-pellees were not damaged by the failure of appellants Welhausen and mortgage company to comply with their contract.

The jury also found that Phillip Welhausen represented to appellees that they were obtaining a loan from the mortgage company and the title to the land conveyed by deed to appellant would be held in trust to secure the payment of a loan, and that appellees relied upon such representation and were induced by such representations to deliver the deed to Welhausen and Driscoll. The jury found that the deed was obtained by fraud.

The statement of facts in this case is long and tedious, and a thorough scrutiny of it would consume more time than can be given to it. We shall assume that the summaries of the testimony made by appellants and appellees, considered together, contain all the salient pertinent facts in the record. In those summaries we fail to discover a single fact tending to show that the instruments, deeds on their faces, were intended to constitute a mortgage and not a full conveyance of the title to the lands. There is nothing in the contract of agency between appellant and Welhausen and Driscoll that tends to show that the deeds were intended as a mortgage. No privity of contract appears to have existed at any time between appellant and appel-lees. Tbe latter deals with Welhausen and Driscoll and possibly with the mortgage company, but not with appellant. One of the ap-pellees testified that Welhausen and Driscoll were their agents through the whole of the dealings. They were never the agents of appellant until after the completion of the .whole transaction, when they were employed to sell the land for appellant. The evidence fails to show that appellants had any knowledge of the transactions between Welhausen and ap-pellees. The issue as to appellants agreeing to an arrangement to receive a deed, which in truth and fact was to be a mortgage, was the vital issue in the case. Evidence introduced to change the nature and effect of a written instrument should be scrutinized with the greatest care, and should not be given effect without clearly establishing the desired change. No presumptions nor inferences can be indulged in favor of such testimony, as it is an invasion of the rule as to the impeachment and destruction of solemn instruments in writing by the evidence of interested and prejudiced oral testimony. The issue should have been affirmatively presented to the jury for their consideration. The agreements of Welhausen and Driscoll, made without the knowledge and consent of the Rincon Investment Company, before it purchased the land, should not determine the case against that corporation. Mr. White swore, “Mr. Wel-hausen was representing us all through the deal.” This reveals a case in which a party who neither in person, nor by agent, agreed'to changing the deed into a mortgage, is adjudged by the court to have been a party to the change. After the land had been sold to Rincon Investment Company, and it had employed Welhausen and Driscoll to sell the land, White admitted that his firm was to receive part of the commissions for the sale of the land. The testimony of White clearly established that Welhausen and Driscoll were the agents of appellees throughout the entire transaction, and they did not inform any one before they left Houston, after the deeds were executed, of any claim that they constituted a mortgage. The failure to show knowledge of or participation in any agreement as to the deeds being intended as a mortgage was brought to the attention of the court by the motion for judgment. Equity will not transform a deed into a mortgage without clear and cogent proof to that effect. Calhoun v. Lumpkin, 60 Tex. 185; Webb v. Burney, 70 Tex. 322, 7 S. W. 841.

The rule is thus stated in Pomeroy, Eq. Jur. § 1196: “Any conveyance of land absolute on its face, without anything in its terms to indicate that it is otherwise than an absolute conveyance, and without any accompanying written defeasance, contract of repurchase, or other agreement, may, in equity, by means of extrinsic and parol evidence, be shown to be in reality a mortgage as between the original parties, and as against all those deriving title from or under the grantee, who are not bona fide purchasers for value and without notice. ⅜ * ⅜ The presumption, of course, arises that the instrument is what it purports on its face to be, an absolute conveyance of the land; to overcome this presumption, and to establish its character as a mortgage, the cases all agree that the evidence must be clear, unequivocal, and convincing, for otherwise the natural presumption will prevail.”

There were no transactions between appellant and appellees, nor any one authorized to represent them. The evidence tended to show that the investment company was an innocent purchaser for value without notice, and as such could not have the deed transformed into a mortgage because of an agreement between third parties.

The judgment will be reversed, and, in case on another trial it should be determined that the deeds were merely a mortgage to secure a debt, in order to do equity, the court must compel a payment of the debt secured by the mortgage. That is too plain for argument.

The following charge was asked by appellant and denied by the court: “At the request of counsel for defendants, Rincon Investment Company and Bankers’ Mortgage Company, you are instructed that to constitute an instrument executed in the form of a deed of conveyance to be in fact a mortgage, it must have been the intention of both the grantors and the grantees to such instrument at the. time of its execution and delivery, that the same was executed and delivered for the purpose of securing an indebtedness then and thereafter due by the grantors to the grantees.”

That charge should have been given, and therefore the fourth proposition is sustained.

It is probable that the matters complained of in the remaining propositions will not occur on another trial of the cause. There was no evidence binding appellant as to a mortgage, rents, or any other matter.

The court, after destroying the deed, pro- ' ceeded to render a judgment for damages, for which there was no justification in law or support in the evidence.

We have deemed it best to return the cause for another and proper trial, rather than to render judgment here, and consequently the judgment will be reversed, and the cause remanded.

Reversed and remanded.

On Motion for Rehearing.

In the statement that there was a cross-aetion filed by the investment company, this court was absolutely correct. There was no statement that it was aimed at or included appellees, as is insisted in the exceedingly; technical and incorrect motion for a rehearing.

If such statement had been made, it was utterly immaterial, as the cross-action was not sustained.

Great stress is placed on a statement, taken from the original petition instead of an amendment thereof, that the suit was for $10,000 and certain lands, while it was for a much larger sum and was for 4,567.94 acres and $40 in rents. In view of the fact that the case was decided against appellees on testimony not connected with the amount of money or land, and error in failing to give a special charge requested by appellants, the objections urged to the opinion on the ground of mistake are wholly vain and futile.

The court differs from appellees as to the sufficiency of testimony to sustain certain positions taken by them and no sufficient reason has been offered for a change in its position.

The motion is without merit, and is overruled.


author: O’QUINN, J.

text:
    SPRADLEY v. HALL.
    No. 2275.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 7, 1932.
    Rehearing Denied Dec. 14, 1932.
    Adams & McAlister, of Nacogdoches, for appellant.
    Bodges & Greve, of Nacogdoches, for appel-lee.
   O’QUINN, J.

This is a suit by appellee to compel appellant to open up and refrain from closing a certain portion of a community road which appellee alleges appellant has closed by erecting across said road a wire fence. It is alleged that about 300 feet of the road are obstructed. Appellee alleged that he was the owner of, and since September, 1915, has owned, 65 acres of land situated to the north of what is known as the “San Antonio road,” now highway No. 21; that at the time he purchased his land, and for many years prior thereto, there was a road leading from and by his farm southward to said San Antonio road, which was the only way of ingress and egress to his farm, and to the post office, mill, and gin, community graveyard, school house in his community and to the public markets; that said road (community) ran northwesterly from the San Antonio road by his farm and residence through a thickly settled community, and which road had been used continuously by him, his tenants, and the community generally for a period of more than ten years, in fact more than fifty years, which use gave him and the community at large an easement and prescriptive right to the use of said road, describing same by metes and bounds. It is generally alleged that the road sought to be opened was 24 feet wide, 12 feet off of each side of the adjoining landowners along the course, of the road, and generally followed the lines between adjoining tracts, south to the San Antonio road. It is alleged that appel-lee’s land lay to the north of appellant’s land, adjoining, the road being on the west side of their said tracts, and that appellant had extended his fence to the west across said road at his north and south lines touching said road, thus closing the road and preventing appellee and people of the community from using said road. Appellee had allegations of damages which it is not necessary to state, nor shall we discuss them.

Appellant answered by general demurrer, special exceptions, general denial, and specially denied that appellant had an easement in or to the road as by him claimed, but that, if any such easement ever existed, it had long been abandoned by appellee and the general public by reason of which appellee nor the general public could be heard to assert any right in or to the use of said road.

Appellant further specially answered, admitting that, at a time not definitely known to him, there was a road running frbm highway No. 21 (San Antonio road) north, as described by appellee, for a distance of some 6 miles to the Lone Star road of a width of 8 or 10 feet used by the public, but that said road had not been used for fifteen years, but, if said road had not in fact been abandoned, “then there is now1 ithe same road bed as is particularly described running from Highway No. 21 north through the defendant’s land as was originally used by the public generally going north from Highway No. 21 and that the defendant has not in any wise molested said original road as was originally laid out, if the same has not been abandoned, but that the said right-of-way, easement and rights as granted exist as was originally had, save and except someone other than defendant has run a wire fence from his west fence directly east of the old roadbed to the east boundary lines of lands owned by S. B. and R. H. Hayter, and has blockaded, stopped and cut off the use of said road that was formerly used by those that formerly traveled north from the San Antonio road to plaintiff’s land and that defendant had nothing whatever to do with the stretching, maintaining and fencing of said road as it now exists, but that by the acts of those who built and maintained said fence, as aforesaid, from defendant’s fence to I-Iayter’s fence, stopped up and closed said road that was formerly used by those residing north of Highway No. 21 to the south boundary line of 17 acres, a part of the Santiago Rabia Survey, and that if this wire fence be removed, that the road as claimed as needed by plaintiff would be accessible to plaintiff’s use and any other person desiring to go as far north as to plaintiff’s land, and that the road is open to the north boundary line of defendant’s land if said wire fence be removed, and that no act on the part of the defendant in moving his fence molested or changed the original road as laid out and established and used until 1980, as is mentioned hereinafter.”

He further answered and alleged that ap-pellee had abandoned his premises and not used same for five years, and “the abandonment of said premises and the road that leads to same has given to the defendant the right to stop said road if he so desired, but which he has not done, but'that only has he put his fence further west where it was originally when the road was first used and that the only change in said road? that has been had is that the defendant, some ten years ago, gave to and allowed as a temporary use the public residing north of Highway 21 the right to swing the road east onto defendant’s land some 25 feet in order that a bridge might be built below the junction of the two branches that was in the main road immediately east of where the temporary bridge was built, and that at the time of granting the right to build the bridge further east on defendant’s land it was especially understood and agreed that it was done for temporary relief and until the defendant desired to run his fence on the east side of the road straight, and that he did straighten his west fence, and that in straightening the same canceled the temporary permission and placed his fence so as to put the road' back to where it was originally from Highway 21 to the north bank of Bayou Botija, and that in allowing this, it was to aid those north of Highway 21 in getting in and out from the north, in that the bridges and ford on Bayous Little Judge and Botija were washed away and made inaccessible and the road was swung east only temporarily, and that it was to be moved back and placed where it originally was before permission was given to drop down and build a •bridge on defendant’s land until such time as the original road could be used, and that in the building of the defendant’s fence straight, the road is where it has always been to the north bank of Bayou Botija and this is within 39 yards of the north boundary line of the defendant’s 160 acre tract) through1 which said road runs.”

Be further answered “that all of said road as was formerly used by plaintiff and those living north of Highway 21 runs over, across and on defendant’s land from Highway 21 to 85 yards north of Bayou Botija and is not on lands of anyone else, but that the plaintiff has closed up and stopped the road north through his premises and that further on north of plaintiff’s premises the road is abandoned, stopped up, and is being cultivated and that by such acts the said road has been abandoned and partly due to the acts and conduct of the plaintiff in blocking and closing said road, but the defendant has at no time closed said road, but at the time of moving his fence westward left a space on his own lands of something like 85 to 40 feet and left the same open to his north boundary line of 160 acre tract and that in doing so the same is on the roadbed of the original road as used to the north bank of Bayou Botija, and that in running from the north bank of said bayou north 35 yards, the defendant left a space of 35 or 40 feet on his land for said road and said ground is as good as was had by the road as originally used after crossing Bayou Botija and going north east. 35 yards through defendant’s land to the south boundary line of 17 acres of the Santiago Erie and that at no time has this defendant attempted to stop up and dose the route except as stated, and that in so stopping it up for the 35 yards, it was for the interest of the defendant’s land and in doing same left as good a roadbed as that formerly had and was only moved westward at the widest part 16 feet, and this was done in order that defendant could mate his west fence line straight.”

He further answered “that said right of way of the road as once used, if not abandoned, is now open and in the condition it was when originally used to the north bank of Bayou Botija and that Mill Branch and Pearl Branch or Little Judge and Botija are in the same position now to said road as when, originally laid out, but not- at the time defendant gave temporary use to place a bridge east of the junction of said branches and with the understanding that when the defendant desired to straighten his fence that the road would be where it was always placed and is now on the same roadbed as it was when originally used before abandonment to the north bank of Bayou Botija and that the right-of-way left north of said bayou is as good as that'which was used and as near, except the distance of changing the road running N. E. from a point on the north bank of said Bayou Botija to a width of 16 feet over a distance of 35 yards, and that it> was moved westward in order to build a straight fence and there is now a way open and all that is needed is to bridge Little Judge and Botija as they were originally bridged.”

He further answered “that said road that was originally used and as claimed for now! by plaintiff is wholly on defendant’s land and 40i feet east of the E. B. line of the Oombs Survey and that the right-of-way of said road as originally used was 8 feet and that the defendant now asks that said right-of-way, if not abandoned, be moved westward on his west boundary line of the Neill and that he give 6 feet and that 6 feet be taken off the Oombs, as it is unfair for the defendant to have to donate all of the right-of-way through his premises, but that the same should be placed on the line and that the defendant here now tenders to the plaintiff 6 feet off of the west boundary line of the 160 acre tract to be used as a right-of-way for a road if it be desired by plaintiff and those associated with him, as. the defendant charges, and verily believes that the plaintiff is not desirous of opening up a road, but that he is being encouraged, aided and abetted in a scheme to worry and harass this defendant when in truth and in fact the plaintiff wants no road, as if he does he could secure one from the northeast corner of his land to the Lone Star Road, within 350 or 400 yards of said Lone Star Road and over territory much better and more accessible to his use, in that in the traveling of the right-of-way as now sought to be opened after being abandoned, if it were opened, the plaintiff would have to travel down a very steep hill for 100 yards, bridge two bayous and dig down the dump approaching Highway 21, when if he opened up the road from the northeast comer would have a level roadbed, no bridges to build and into a good, substantial road, and a mile nearer to Nacogdoches than ithe one he is seeking to have opened, and that the plaintiff is not in good faith seeking to open up said old road that has been abandoned, but is bowing to and catering to others for the purpose of harassing, worrying and annoying defendant, as in the opening up of ithe road from plaintiff's premises east to the Lone Star Road, would be cheaper, easier and a mile nearer.” •

He further answered “that plaintiff dobs not seek to open up said road as was originally had and laid out, but seeks to open up only a portion of it, and that the portion he seeks to open is not as accessible as that leading north and that if any has to be opened, then defendant says that that portion of the old road that was formerly traveled from plaintiff’s premises north is more accessible to the plaintiff and would be easier maintained, and plaintiff knows this, but in pursuance to a plan to worry and harass defendant, has sought to inconvenience himself by asking that the south end of the road, long abandoned, be opened, and that the plaintiff is not in good faith asking that said road be opened.”

He further pleaded “that if it is found that said plaintiff needs the road south, then defendant here now tenders the right-of-way to said road 6 feet off of his land, as may be used by the plaintiff, being 34 feet east of his west fence, but that only in the event that the same is ascertained by the court to be of more advantage to the plaintiff then the right-of-ways east and ¡north from plaintiff’s land.”

The court overruled appellant’s general and special demurrers, and at the close of the evidence instructed the jury to return a verdict in, favor of appellee and against the appellant, which they did, and judgment was accordingly entered establishing the right of appellee to the use of the road and commanding appellant to remove the obstructions from the road and to refrain from obstructing same in the future.

The case is before us on appeal.

Appellant contends that the case is one of boundary. ' We do not think so. Appellee sued for the opening of a road that he alleged appellant had obstructed by erecting wire fences across it. He described the road by metes and bounds, alleged its early establishment in years long gone by, the use of same, by the general public and particularly himself and his tenants, and its obstruction by appellant. We have set out rather at length the answer of defendant, appellant, that his contentions, denials, and admissions might be fully understood. It is our opinion that there are but two questions necessary to be determined, namely, first, was the road in question legally established either by dedication or by prescription? and, second, if so established, has its use been abandoned?

The undisputed evidence shows that, at the time the road was established (some forty or fifty years before the trial of this suit), the vicinity through which it ran was thickly settled, and the owners of adjoining tracts of land agreed to the establishing of the road along the lines of and between their various tracts of land in order that there would be a community Toad through the settlement south to the San Antonio road (anciently called the King’s Highway), now highway 21, which road gave an outlet to the town of Nacogdoches on the east and the village of Douglas on the west, and on to other points. This community road was 24 feet wide, supposed to be half on either side of the dividing lines of the adjoining owners. The owners of land along this road acquiesced in the establishment of the road and its location in the manner stated, and joined with the general public in, its use. The road was necessary for the general public, and was by it used to go to the schoolhouse, the cotton gin- and mill in the community, the graveyard, and to go to town and to the post office, and over which to convey produce to the markets. This road was so used and was kept up by the community for many years, and was open to the public until it was obstructed by appellant placing a wire fence across it at his. north and south ends of his tract in about 1930.

These facts show an easement by dedication. In the language of one of the witnesses: “ * * * The neighbors all got together and the fences were se£ back and the lines drawn, and I don’t remember now about surveying it out, but I was there, just a little boy, possibly' ten or eleven years old, and was there when ■we got a team and dragged it out and my father and his boys helped open the road up.”

This witness testified that at the time of the trial he was nearly sixty-three years old. It is well settled that dedication may be shown by words and acts of the persons owning the land on and over which the road is established. The acts of the neighbors getting together and setting back their fences along their adjacent lines, thus creating space for the road and grading and making same usable, indisputably shows a dedication of the way, and it is not disputed but that they and the public generally at once accepted the dedication and way and continuously used same for many years — in fact up to the time appellant obstructed same by erecting wire fences across it at the points where his north and south line touched the road, and this suit and the testimony of persons owning lands abutting the road clearly evidences the fact that the road is still desired for public use. We do not understand that appellant disputes or in any way questions the fact that the road was established on the ground and in the manner and for the use as above stated, but contends that the road was to be in fact on and along the dividing lines of the adjoining surveys, and seeks to show that the road was not in fact exactly on the dividing line between him and the owner on his west. Upon this is based his contention that the issue is one of boundary. As before stated, the issue is not one of boundary, but is whether the road was in fact laid out, and its location agreed to by the adjoining land owners, and the road opened, and its use accepted by the public. All these facts appearing without dispute, then the true location of the road, as first established, dedicated, and used, is decisive, for wherever it was located controls. The evidence clearly shows the original roadbed now as when opened and during its use. That being true, unless its use has been abandoned, appellant cannot obstruct it.

If it could be said that the roadway was not dedicated by the acts of the landowners, as above stated, then, in any event, the easement was acquired by prescription. The long use (forty to fifty years) of the road by the public, which use was known to the owners of the lands over which it passed, and Which use was fully acquiesced in by said owners, established the easement and road by prescription, and appellant could not interfere with such use or obstruct said easement. Money v. Aiken (Tex. Civ. App.) 256 S. W. 641.

We think abandonment is not shown. This suit, together with the testimony of adjoining landowners and persons who have used the road, unmistakably evidences the desire for the continued use of same. But it is insisted that the questions discussed were questions of fact, and should have been submitted to the jury, and the court’s refusal to do so was reversible error. That they were questions of fact is true, but, where the evidence is such that but one reasonable conclusion can be drawn from it, then it is for the court to determine. As we have stated, the establishment of the road, its dedication to the use of the public, its acceptance and use by the public, are without dispute, and we think all the evidence goes to show that the road has not been abandoned. So, there being no dispute as to the facts determining the issues, there was no question of fact to be submitted to the jury, for matters without dispute should not be submitted for the jury’s finding.

Appellant’s pleadings admit, and the evidence shows, that he moved his fence west and across the road, but it is insisted that he did so only to make his fence line straight, and that he did not do so for the purpose of destroying the road or materially obstructing or impeding the use of same, and that there is left sufficient space for the public to travel outside of and around his fence. This is no defense to appellee’s suit to open the road as it/ existed before. Appellant’s answer and tbe evidence show that he moved his fence west and placed it on his west line — that this dosed the road as then laid out and used. The space left by him out of the 24 feet originally composing the road was estimated at from 8 to 12 feet. This had not been cleared or graded. This makes it obvious that the use of the road — the easement — had been and was materially interfered with. This he could not lawfully do. _ Gillett v. Van Horne (Tex. Civ. App.) 36 S.W.(2d) 305. If it could be said that there was reasonably sufficient space left, which when properly cleared and graded would permit of ordinary travel, still this would be immaterial, for that was not the question upon which a proper determination of the rights of the parties depends. The decisive question is, Was the easement so affected? and, to say the least of it, the undisputed evidence shows 50 per cent, or more of the easement destroyed.

Prom what we have said it follows that the judgment should be affirmed, and it is so ordered.

Affirmed.


author: HADD, C. J.

text:
    WHITE et ux. v. LUBBOCK SANITARIUM CO. et al.
    No. 3915.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 16, 1932.
    Rehearing Denied Dee. 14, 1932.
    W. C. Jackson, of Ft. Stockton, for appellants.
    Alfred M. Scott, of Dubbock, for appellees.
   HADD, C. J.

The appellee company, domiciled in Dub-bock county, filed this suit against White and wife in the county court of that county upon a written contract signed by the wife only, which recites that her address is Pt. Stockton, Tex., that she is a married woman, and was admitted as a patient in the sanitarium April 8, 1929, and was discharged May 20, 1929. The instrument upon which the suit is based contains the further recitals: “Pinan-cial arrangements to be made with husband,” and further: “I agree to settle all bills pertaining to the above named patient in a satisfactory manner at Dubbock, Texas, before said patient leaves the sanitarium. I agree to pay ten per cent, interest on unpaid balance if any from date until paid and if this account is placed in the hands of a collector or an attorney for collection, I agree to pay a reasonable collection fee for same. I will settle the sanitarium and nurse fees. Check. And the doctors fee. Cheek. [Signed] Mrs. Annie White.”

The appellants filed their plea of privilege to be sued in Pecos county, the county of their residence. This was controverted, and the record shows that the total bill for medical services, medicine, etc., was for $448. That several payments had been made, reducing it to $403, for which amount Mrs. White, on May 20, 1929, gave the appellee company her check on the First National Bank of Pt. Stockton. *

The trial judge found that the account was for necessaries, and the courts so hold. 13 R. O. L. 1208, 1284 ; 30 C. J. 603, 610. The record discloses that she entered the sanitarium to be treated for a cancerous condition of her nose; that the services rendered were reasonable, and the evidence therefore sustains the finding of the court. While White and his wife resided at Pt. Stockton, the account being for necessaries for the wife, for which she in writing agreed to pay in Dub-bock county, the suit was maintainable there under R. S. art. 1984, which provides that the husband and wife shall be jointly sued for all debts contracted by the wife for necessaries furnished'herself, etc. R. S. art 1995, subd. 5, provides that, if a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile. To this article of the statute the Fortieth Legislature, First Called Sess., p. 197, c. 72, § 2 (Vernon’s Ann. Civ. St. art. 1995, subd. 29a), enacted this amendment: “29a. Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

These articles of the statute authorize the filing of the suit in Lubbock county, provided the sanitarium company was authorized to file the suit against Mrs. White in that county for necessaries upon her written promise to pay at Lubbock. It is held that both the husband and wife are personally, jointly, and severally liable for necessaries furnished under the provisions of R. S. art. 1984, supra, and article 4623. Euchey v. Adam Schaaf, Inc. (Tex. Civ. App.) 7 S.W. (2d) 168; Lee v. Hall Music Co., 119 Tex. 547, 35 S.W. (2d) 685; Fallin v. Williamson Cadillac Co. (Tex. Civ. App.) 40 S.W.(2d) 243; Whitney Hardware Co. v. McMahan, 111 Tex. 242, 231 S.W. 694.

We think the court correctly overruled the plea of privilege, and the judgment is affirmed.


text:
    THAXTON et al. v. WHITESIDES.
    No. 12727.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 29, 1932.
    Taylor, Muse & Taylor, of Wichita Falls, and Donley Suddath, of Henrietta, for appellants.
    Frank Bunting, of Henrietta, for appellee.
   LATTIMORE, J.

Appellee, alleging himself the holder in due course of two notes, executed foy G. C. and L. C. Thaxton, sued them thereon. Appellants pleaded misjoinder of parties ⅛ that the notes were executed by them to the order of Mrs. Bennie Williams, who had indorsed one of the notes to appellee as collateral security for the debt to appellee of her deceased husband, J. 0. Williams, administration on whose estate was then pending. Mrs. Williams, who was not sued, had leased a pasture of some two hundred acres from appel-lee. The pasture was a part of a larger tract all under one fence. She in turn leased the entire larger tract to appellants, receiving those notes in payment therefor, and indorsing them to appellee, one without condition for her lease hire, the other as the above-stated collateral.

Thereafter, the remainder of the tract being claimed by its owners, the appellants and Mrs. Williams relieved each other by agreement of the sublease, and the agent of ap-pellee, being apprised of this, approached Mr. Suddath, agent for Mrs. Williams, and demanded to see the lease his client had made to Mrs. Williams. “What do you want with it?” asked Suddath. “You have turned the land back and I want the contract back,” replied Bunting. Thereupon Suddath delivered the lease contract document back to appellant’s agent, who thereupon leased the land to Johnson.

The holder of a note pledged as collateral may sue in his own name for the full amount thereof, and, collecting it, pay the pledgor’s debt to himself, and hold the balance in trust for his pledgor. Bruyere v. Liberty Nat. Bank of Waco (Tex. Civ. App.) 262 S. W. 844. This authority is given the pledgee by the pledgor by such pledge. Article 5935, § 51, Rev. Statutes. It is no concern of the obligor on the pledged note concerning such excess. However, it is the right to such obligor to interplead such pledgor if desirable that the judgment may be res ad-judicata of the pledgor. This duty is not on appellee. It is on appellants.

If there be a defense available to the maker of the note against such pledgor, then the pledgee, if a holder in due course, can only recover of such maker of the note to the extent of the pledge which must be established by appellee. Appellant may require, if the equities permit, that other security be first exhausted, but this last, however, is defensive pleading. It is not incumbent on ap-pellee to negate in his original petition the existence of facts which are not inferable from his petition. These matters are not pleaded by appellants by way of abatement or misjoinder, nor do they make Mrs. Williams a party other than to complain that plaintiff has not done so.

Appellants pleaded that the notes pleaded “do not bear the true facts as actually existed and therefore plead non est factum as to said notes.” The statutes set out the requisites of the plea (article 2010, subd. 8, Rev. Statutes of 1925) for the pleading which lawyers name “non est factum,” and the above is not a compliance with it. No better illustration of the resultant evasion of the oath required could be offered than the above, where the sole substance of the contention of “non est factum” was that one of the notes was in fact a pledge and not so pleaded by plaintiff. See Parr v. Johnston, 15 Tex. 294.

Appellant pleaded that G. G. Thaxton was an accommodation indorser and as to him such notes were without' consideration, that the consideration had failed as to all defendants, and that the various parties had by agreement rescinded or terminated the lease and sublease.

There was abundant evidence, though not undisputed, to sustain the contention of appellee that he was a holder in due course of these notes, but evidence is undisputed that appellants were not liable on them to Mrs. Williams. Consequently, it became necessary at the conclusion of the evidence to decide how much was the pledge for which one of the notes was delivered to Mr. Bunting and to limit the recovery on that note, if any, to such pledge. The court submitted to the jury the question whether or not the surrender of the lease writing was “with the understanding that it terminated the agreement'between the parties.” The jury answered “Yes.” We are at a loss to know what meaning attaches to this answer. Understanding of whom? If only Suddath, it decides nothing. If “terminated,” as distinguished from “rescinded,” then a question arises of value of the use of the land up to such termination. The burden was upon appellants to establish rescission or termination and on appellee to establish the value of Such use to that date in case of a termination. Moreover, if “terminated” in the sense of “vacated” by Mrs. Williams, evidence of the amount of the rent received for the property during the remainder of the term is admissible to minimize damages, but the burden of such proof is on appellants.

That the accommodating party receives no consideration from the holder of the note, not the aecommodatee, is of no importance, if there is consideration to the accommodated party or if the holder is in due course. No issue on this matter arose on the evidence produced unless Whitesides was found not to be a holder in due course.

Our labors have been increased by citation by appellants of various cases which do not so appear and by appellee’s failure to file briefs.

The cause is reversed and remanded.


author: BAROUS, J:

text:
    UNIVERSAL AUTOMOBILE INS. CO. v. CULBERSON et al.
    No. 1281.
    Court of Civil Appeals of Texas. Waco.
    Nov. 10, 1932.
    Rehearing Denied Dec. 15, 1932.
    See, also, 51 S.W.(2d) 1071.
    T. R. Mears, of Gatesville, and McClellan, Lincoln & Williams, of Waco, for appellant.
    R. B. Cross and Robt. W. Brown, both of Gatesville, for appellees.
   BAROUS, J:

In March, 1930, appellant issued an automobile accident insurance policy payable to appellee Culberson, under the terms of which it agreed to pay damages not to exceed $5,000 to any one person, or $10,000 as the result of any one accident for bodily injuries to persons riding in appellee’s' car, and agreed to investigate all accidents covered by the policy and employ attorneys to represent Culberson in all suits brought and pay all judgments rendered against Culberson not to exceed the limit provided for in the policy, and, in addition, to pay all costs and expenses incurred by Culberson in defending the suits. The policy further provided that, if any accident occurred, the assured, Culberson, would give immediate written notice thereof to appellant, and, in case suit was filed, would, upon request of appellant, aid in effecting a settlement and in securing information and evidence and prosecute appeals and at all times render all possible co-operation and assistance, and would not assume any liability or incur any expense or settle any claim without appellant’s written consent. The policy further provided, “No suit or action on the policy * * * shall be sustainable in any court of law or equity unless the assured shall have fully complied with all the requirements hereof.” Shortly after the policy was issued, while Culberson’s daughter was driving the car, she had an accident in which appellee Miss Witt, a passenger therein, was injured. Miss Witt instituted suit in cause No. 4330 in the district court of Coryell county to recover about $5,700 alleged damages. Appellant was notified thereof, and through its attorneys filed answer for Culberson, took depositions, and made preparations for trial. When, th'e cause was .called for trial, Miss Witt dismissed same. Thereafter at a subsequent term of court Miss Witt instituted suit in Coryell county against Culberson and appellant jointly for $25,000 damages. Appellant filed pleas of abatement, claiming it was improperly joined by Miss Witt in said suit. The trial court overruled these pleas and set the cause for trial for August 3d during the following term of court. Appellant also filed answer for Culberson. A controversy arose between Culberson and appellant as to the kind of defense to make to Miss Witt’s joint cause of action against them, and appellant notified Culberson on July 24th that their interests would conflict and that it would not represent him in said litigation, and suggested to him that, if he desired attorneys to represent him, he must employ counsel of his own choosing. Culberson then employed counsel to represent him, and said counsel filed answer. On August 1st, two days before the case was set for trial, Miss Witt dismissed her suit as against appellant and elected to prosecute same against Culberson only. Appellant then notified Culberson that, since it was no longer a defendant in the case, it would assume and take over the defense of Miss Witt’s suit, provided Culberson would permit and would co-operate with it. Culberson then refused to permit appellant to take charge of the defense of said suit, and refused to permit the company to represent him in any way.

The cause proceeded to trial before the! court without a jury, and resulted in judgment being rendered in favor of Miss Witt against Culberson for $10,536.88 and costs. Thereafter Culberson instituted this suit against appellant to recover the total amount of said judgment, together with $750 attorney’s fees and interest and costs. Miss Witt intervened in this cause, asking judgment against the company for $5,536.88.

Appellant answered the suit and plea of intervention with very voluminous pleadings, contending, in effect, that Miss Witt could not be properly joined here as plaintiff or inter-vener. It further contended that it was not liable to either Culberson or Miss Witt because of the failure of Culberson to co-operate with it in the defense of the suit brought by Miss Witt and because of Culberson’s failure to permit it to defend said cause. Appellant alleged certain affirmative defenses which it claimed it was entitled to urge against the right of Miss Witt to recover and which it alleged would ¡have defeated her recovery against Culberson if he had properly urged same. Culberson’s contention was and is that appellant is liable for the total amount of the judgment because prior to the time the original judgment was rendered he had an offer to settle the entire claim for $4,500, and that, through the negligence and refusal of appellant to settle same, she obtained the larger judgment against it. The trial court overruled the pleas in abatement, and, in response ■to exceptions urged by appellees, struck out all of appellant’s answer which raised the issue or question of the validity or binding effect of the judgment rendered in favor of Miss Witt against Culberson or that prevented Miss Witt from recovering from appellant the $5,000, together with her doctor bill, interest, and expenses, and only permitted that portion of the answer of appellant to remain which raised the question as to whether appellant was negligent in failing to settle the claim of Miss Witt for $4,500 prior to the time the judgment was rendered. That- issue was submitted to the jury, and it found appellant was negligent, and the court entered judgment against appellant in favor of Miss Witt for $5,178.30 and in favor of Culberson against appellant for $6,452.96.

Opinion.

Appellant contends that the trial court erroneously struck all of his defensive matters relative to the judgment as rendered in favor of Miss Witt against Culberson and its binding effect upon it. We sustain this contention. Under the provisions of the policy, Culberson was obligated to co-operate with appellant in preventing any judgment being rendered against him in the suit brought by Miss Witt. If, as a matter of fact, as was alleged by appellant, Culberson failed and refused to render any co-operation and failed and refused to permit appellant to make any defense, and took a position antagonistic and 'hurtful to appellant, and thereby prevented appellant from making an orderly and legal defense to the suit brought by Miss Witt against Culberson, same constituted such a breach of the contract as would prevent a recovery thereon. Edward Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271, 160 N. E. 367, 72 A. L. R. 1443, and notes and authorities thereunder1. Whether Culberson was guilty of the acts and conduct charged against him by appellant, were issues of-fact. The right of appellant to have the co-operation and support on the part of Culberson in the defense of any suit brought for alleged damages covered by said policy was a valuable right, and constituted a valuable consideration passing to appellant for the issuance thereof, and Culberson could not as a matter of law deliberately and willfully fail, and refuse to comply with said provisions and then require appellant to pay any judgment that might be rendered against him.

Appellees contend that, if the trial court erroneously struck out the pleadings of appellant, it was harmless error, for the reason that appellant was permitted to introduce all, of its testimony on said issues. While the record reveals the fact that a large amount of testimony was offered relating to the issues ■raised by the pleadings that had been stricken out, evidently the trial court admitted said testimony only for the purpose of enabling the jury to determine the answer it would give to the issue submitted. This is clearly manifest since the trial court only submitted the one issue to the jury and in its rulings on exceptions, as well as on the admissibility of evidence, it stated that no other issue would be submitted to the jury for its determination.

Appellant’s contention that Miss Witt was improperly permitted to intervene in the suit is, we think, without merit. If, as a matter of law, she has a valid binding judgment against Culberson for which appellant is liable, she could bring an independent suit or could intervene in the suit which he (Culber-son) brought. Pickens v. Seaton (Tex. Civ. App.) 51 S.W.(2d) 1050, and authorities there cited.

We also overrule appellant’s contention that appellee Culberson could not maintain a suit against it until and unless he had paid the judgment rendered against him in favor of Miss Witt. If Miss Witt has obtained a valid judgment against Culberson and if appellant -was permitted to and did undertake the defense of the suit brought by Miss Witt, then it was not necessary for him to pay said judgment before instituting the suit against appellant. American Indemnity Co. v. Fellbaum (Tex. Civ. App.) 225 S. W. 873; Id., 114 Tex. 127, 263 S. W. 908, 37 A. L. R. 633; General Accident Fire & Life Assur. Corp. v. Butler’s Ice Cream Factory (Tex. Civ. App.) 291 S. W. 674; Id. (Tex. Com. App.) 5 S.W.(2d) 976. If the claim of Miss Witt could have been settled for less than the amount called for in the policy prior to the time the judgment was rendered, and if appellant, with knowledge of said fact, negligently failed and refused to settle said claim, then it would be liable to Culberson for the total amount of the judgment recovered by Miss Witt, and he would not be required to actually pay same before bringing suit. Stowers Furniture Co. v. American Indemnity Co. (Tex. Com. App.) 15 S.W.(2d) 544, 545.

For the errors indicated, the judgment of the trial court is reversed, and the cause remanded.


author: GALLAGHER, C. J.

text:
    KLUCK v. SPITZER et al.
    No. 1275.
    Court of Civil Appeals of Texas. Waco.
    Nov. 3, 1932.
    Rehearing Denied Dec. 22, 1932.
    John McNamara and J. W. Spivey, both of Waco, for appellant.
    Cecil R. Glass and Bartlett, Carter & Rice, all of Marlin, for appellees.
   GALLAGHER, C. J.

A clear understanding of the issues involved in this suit will be facilitated by a brief statement of the transactions out of which the same arose. J. S. Watson and wife, on the 10th day of January, 1919, conveyed to L. A. Bletsch two adjoining tracts of land, one of which will be hereinafter designated as the 50-acre tract and the other as the 20-acre tract. In consideration of such transfer, said L. A. Bletsch executed and delivered to appellant, Gus Kluck, his promissory note of even date with the deed for the sum of $1,500, payable on January 10,1922, and also executed and delivered to appellee Peter Jund his promissory note of even date with the deed for the sum of $3,500, payable on January 10, 1924. The vendor’s lien was expressly retained to secure both said notes. Said L. A. Bletsch thereafter sold and conveyed both said tracts of land to Rudolph Sonntag, and he assumed the payment of both said notes. Said Sonntag thereafter sold and conveyed both said tracts to M. A. Bletsch and J. J. Thompson, who also assumed the payment of both said notes. Said M. A. Bletsch and said Thompson thereafter sold and conveyed the 50-acre tract to said Rudolph Sonntag, and he assumed the payment of both- said notes. Said Sonntag thereafter sold and conveyed said 50-aere tract to O. O. Spitzer, who assumed the payment of both said notes. Said Spitzer thereafter, on December 27,1930, sold and conveyed said 50-acre tract to appellant, Gus Kluck. Appellees all contended that a part of the consideration for said last recited conveyance was the cancellation by Kluek of his $1,500 note as aforesaid and the agreement on his part to pay off and satisfy the $3,500 note held against both said tracts by appellee Jund. No such recital was contained in said deed. Appellant’s $1,500 note had theretofore been duly extended to mature, and it did mature on January 1, 1927. Ap-pellee Jund’s $3,500 note had been theretofore extended to mature, and it did mature, on January 10, 1930.

This suit was instituted on April 30, 1931, by appellees L. A. Bletsch, Rudolph Sonntag, M. A. Bletsch, J. J. Thompson, and O. O. Spitzer, against appellant, Gus Kluck, and appellee Peter Jund. They alleged, in substance, that by the transactions aforesaid.the $1,500 note held by appellant, Kluek, had been satisfied and discharged, and that he had, by his. alleged assumption of the $3,500 note held by said Jund, become principal obligor thereon, and that they had become sureties only for the payment thereof; that said note constituted a lien upon the 20-acre tract then held by said M. A. Bletsch and J. J. Thompson as aforesaid. They demanded in their petition that Jund, by cross-action or otherwise, bring suit for the collection of his said note and the enforcement of the lien, and, in event he failed to do so to the next term of the district court of said county, that they be released from further liability for the payment of said note. Jund, by cross-action filed,in this cause, sought recovery on said note for the amount thereof, with interest and attorney’s fees as stipulated therein, and for a foreclosure of his lien on both said tracts of land to enforce the payment of such recovery. Kluck denied that he agreed as a part of the consideration to cancel his $1,500 note or to pay the $3,500 note held by Jund. He sought recovery on his note for the full amount thereof, with foreclosure of lien on both said tracts of land to enforce any recovery awarded him, and prayed for an equitable adjustment of rights between him and Jund. Said pleading was filed December 7, 1931. Appellees L. A. Bletsch and others, original plaintiffs herein, pleaded the statute of limitation of four years (Rev. St. 1925, art. 5527) in bar of recovery on the $1,500 note sued on by appellant. Appellees M. A. Bletsch and Thompson alleged that they were the owners of the 20-acre tract; that Jund’s lien covered both tracts, and asked that the 50-acre tract be sold and the proceeds thereof applied to the satisfaction of Jund’s debt before any sale of the 20-acre tract.

The case came on for trial before a jury on the 7th day of December, 1931. The several conveyances above recited were introduced in evidence, and the assumption by each successive vendee or vendees, to and including Spitzer, was shown. The $3,500 note held by Jund and the extension of time of payment thereof, as above recited, were introduced ⅛ evidence. The testimony disclosed that the; transfer of the 50-acre tract from Spit-zer to Kluck was negotiated by and consummated through one Somervell as agent and attorney in fact for Kluck. While he was being examined with reference to the consideration for said conveyance, some issue as to the admissibility of his testimony was raised, and.-the jury was retired by the court. In the absence of the jury, he testified that he never had any intention or purpose of denying Jund’s lien on the 50-acre tract; that Jund’s lien covered both the 50-acre tract and the 20-acre tract, and that he intended that Jund should assert his lien against both tracts; that he told Kluck that he would have to pay the Jund claim, and that Kluck was always ready to do so when Jund “cleared the 20 acres in addition to the 50.” Based on said statement, the several parties ,b,egan negotiations for the settlement of all controversies between them and the entering of an agreed judgment in the case. Such agreement was perfected, a notation thereof made on the docket of the court, and the jury discharged. No judgment was entered of record at that term of court.

Appellee Jund, on the 13th day of January, 1932, a't the next succeeding term of court, filed herein a pleading which he termed his supplemental answer and cross-action. He alleged that a full settlement of all the matters in controversy between the parties had been agreed upon, and stated the terms of such agreement in detail. He further alleged that the court made a notation of the agreed judgment on his docket; that appellant had failed and refused to carry out his part of such agreement, and asked that the court enter nunc pro tunc the judgment agreed upon in open court at the.time. Appellees L. A. Bletsch and others, original plaintiffs, also filed a supplemental pleading in substantially the same terms. Appellant filed a general denial. A hearing was had thereon on the 15th day of January, 1932. Testimony was introduced with reference to the terms of the agreement for settlement and for entry of judgment. The court also stated his recollection of what transpired in open court at that time. At the conclusion of the hearing, the court ordered a judgment entered as of December 9, 1931, that appellee Peter Jund recover against appellant, Kluck, the sum of $3,780.50, with interest'from date of judgment at the rate of 6 per cent, per annum and all costs of suit, that he have foreclosure of his lien on both said tracts of land to secure the same against appellant and all the other appellees, with order of sale to enforce the same, and that he have execution against appellant for any deficiency remaining after sale thereunder. All further relief sought by said Jund was expressly denied. The court further ordered therein that L. A. Bletsch and others, original plaintiffs in the cause, recover of Kluck their costs, including an additional sum of $50 as attorney’s fees. This appeal is prosecuted by Kluck alone.

Opinion.

Appellant assails the sufficiency of the evidence to authorize the trial court to render said judgment nunc pro tunc, and contends in that connection that said judgment differs materially from the judgment actually rendered by the court at the time the trial was interrupted and the jury dischárged. Mr. 01-torf, who represented appellant at the trial, but who did not represent him on the motion to enter judgment nunc pro tunc, testified that he actively participated in negotiations resulting in the agreement for settlement and for the entry of judgment on such agreement by the court. The terms of the agreement, according to the testimony of said witness, were that appellee Jund would remit all accrued interest on his debt except for one year, and'would also remit all attorney’s fees; that appellant would take title to both said tracts of land and pay therefor to Jund the amount so agreed upon, and that he would also pay all costs of court, and would include therein tlie sum of $50 to be turned over to plaintiffs’ attorney as a fee; that appellant might, in lieu of such payment to Jund, execute to him his promissory note for the sum so agreed upon, with interest at the rate of 6 per cent., to he payable at appellant’s election on or before any number of years not to exceed five, and to be secured by ordinary deed of trust on both said tracts of land; that plaintiffs were all to be released from liability on the $3,500 note held by Jund and also on the $1,500 note held by appellant, but that M. A. Bletsch and Thompson, in whom the title to the 20-acre tract was then vested, would convey the same to appellant. The testimony of said witness further disclosed that there was probably a recorded abstract of judgment which might affect the title to the 20-aere tract, and that, in event a release of the same could not be secured, it might be necessary, in order to clear the title, to have the same sold under judgment of court enforcing the original vendor’s lien; that, to meet such contingency, all the parties agreed that judgment should.be rendered by the court in favor of appellee Jund against appellant for the agreed amount of his debt, for costs as above stated, and for foreclosure of lien on both said tracts; and that appellant take nothing against the .parties plaintiff except such foreclosure. Said witness further testified that said agreement was stated to the court; that the court asked, in substance, whether same should be recited to and taken down by the court stenographer, and the witness stated that everybody understood it. The stenographer, at the instance of Mr. Rice, who represented Jund, made the following notation: “Agreed judgment for Peter Jund for his debt, principal, interest and attorney’s fees, and for foreclosure of his vendor’s lien on .the 70.3 acres of land described in plaintiffs’ pleadings.” The court thereupon entered on his docket the following: “Judgment for cross plaintiff, Peter Jund, for his debt, principal, interest and attorney’s fees, and for foreclosure of his vendor’s lien on the 70.3 acres of land described in plaintiffs’ petition.” The court also stated on his own recollection, in substance, that the agreement as testified to by Mr. Oltorf was stated in open court, that a record of the same by the court stenographer was waived and judgment rendered thereon, to be entered in event such agreement could not be effectuated by the voluntary acts of the parties. Appellant introduced in evidence a tentative draft of judgment prepared shortly thereafter by Mr. Rice, attorney for Jund. Said draft differed from the terms of the agreement as testified by Mr. Oltorf in that the recovery awarded Jund was for the full amount of his debt, unpaid interest, and attorney’s fees, amounting in the aggregate to $4,468.46, and provided that the same should be satisfied out of the proceeds of the sale of the two tracts of land, and made no provision for a deficiency execution against any one. Said draft further failed to provide that the sum of $50 should be taxed as costs and paid to plaintiffs’ attorney. Mr. Rice testified in that connection that the same was a rough draft of judgment; that he submitted it to the other counsel for consideration, and the same was never approved. Appellee Jund failed and refused to carry out said agrepr' ment notwithstanding performance was ten-, dered by all the other parties to the suit. Mr. Oltorf then declined to further represent him in the case, and he appeared and resisted the entry of judgment by other and different counsel.

The findings of the court and his action in entering judgment in this case solve any apparent conflict in the testimony in favor of such action. Hines v. Kansas City Life Ins, Co. (Tex. Civ. App.) 260 S. W. 688, 690, par. 2, and authorities there cited.- The court was not restricted in determining the nature and terms of the agreement for judgment entered into in open court, to the recitals in the notation made by him upon his docket. He had a right to hear testimony on the issue and also to be guided in whole or in part by his personal recollection of the transaction. Leon & H. Blum v. Neilson, 59 Tex. 378, 380; Ft. Worth & D. C. Ry. Co. v. Roberts, 98 Tes. 42, 81 S. W. 25, 26, 27, and authorities there cited; State v. Larkin, 41 Tex. Civ. App. 253, 90 S. W. 912, 916, bottom first column .(writ refused), and authorities there cited. We think the trial .court correctly held that tjie contractual features of the agreement made in open court were severable from the term's of the judgment there agreed to be entered in event such agreement was not or could not be' executed by the voluntary acts of the parties. Every essential element of the judgment actually entered by the court was contained in said agreement. The entry by the court upon his docket shows that judgment was actually rendered thereon. Vagueness or inaccuracy in the terms of such entry could be corrected or omissions therefrom supplied by the court from the testimony adduced and from his own recollection of the transaction. The law favors an amicable adjustment of differences between litigants and a speedy termination of litigation. Elliott v. Shaffer (Tex. Civ. App.) 41 S.W.(2d) 686, par. 1. The court properly ordered the judgment agreed upon by the parties and rendered in- open court at the prior term entered of record nunc pro tunc.

The judgment of the trial court is affirmed.


author: COBBS, J.

text:
    PETROLEUM CASUALTY CO. v. WEBB.
    No. 8877.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 19, 1932.
    Rehearing Denied Dec. 14, 1932.
    K. W. Gilmore, of Houston, for appellant.
    Hertzberg & Kercheville, of San Antonio, for appellee.
   COBBS, J.

This is an appeal from an award of the Industrial Accident Board. The claimant, William C. Webb, filed with the Industrial Accident Board, on March 28, 1931, notice of injury and claim for compensation, alleging that he received an injury on the 10th day of October, 1930, in Bee county, Tex., while working as an employee of the Humble Pipe Line Company, and on the 15th day of June, 1931, the Industrial Accident Board assumed jurisdiction of said claim, and made an award in favor of claimant and against appellant in an amount, including hospitalization and doctors’ bills, in excess of $500. Petroleum Casualty Company, the insurer, before the expiration of 20 days from the date thereof, filed its application before said board to reopen said award and have the same corrected on the ground that the evidence and proof offered before said board did not show' that the claimant had sustained personal injury such as was and is compensable under the Workmen’s Compensation Law of this state, and on the 24th day of June, 1931, the board passed its order refusing to reopen the same. Appellant gave notice of appeal, both from the board’s original award and the board’s order refusing to reopen said case. In compliance with said notice, appellant filed a suit in the district court of Bee county on the 16th day of July, 1931, under cause No. 5049, appealing from said award.

The major part of the original allegation of appellant is that the plaintiff is an insurance corporation, chartered for the purpose of writing among other kinds of insurance, what is commonly known as compensation insurance for employees of the Humble Pipe Line Company; that on the 27th day of March, 1931, defendant gave notice of injury to the Industrial Accident Board, and on the same date filed with said board claim for compensation for the injury alleged and claiming that he was an employee of the Humble Pipe Line Company, and received an injury while engaged in the course of his employment on the 10th day of October, 1930; that thereafter, on the 15th day of June, 1931, the Industrial Accident Board assumed jurisdiction of said claim, and entered its final award in favor of defendant and against plaintiff in an amount in excess of $500, including hospitalization and doctors’ bills; that the defendant claimed to have received said injury in Bee county, Tex., while in the course of his employment with the Humble Pipe Line Company; and that, said claim being for more than $500 and said injury being alleged to have occurred in Bee county, Tex., the said district court had jurisdiction thereof.

In his answer defendant stated that he was formerly an employee of the Humble Pipe Line Company, as a laborer at Pettus, Bee county, Tes., and while so engaged the defendant was injured and sustained an injury resulting Immediately and directly in a hernia; that the Humble Pipe Line Company, the employer of defendant, was at that time a subscriber to the Employers’ Liability Law through 'and by virtue of a policy of compensation insurance carried with the Petroleum Casualty Company, plaintiff herein.

The appellee, William C. Webb, the defendant below, raised the question of jurisdiction in three different ways:

“First: He pleaded to the jurisdiction of the court demanding that the plaintiff’s pleadings have attached thereto, or that certified copies be filed among the papers in the case showing, first, that a claim was filed before the Industrial Accident Board; second, that an award was made by the Board; and third, that notice of intention not to abide by the award was given within twenty days by plaintiff herein.
“Second: The appellee raised the same questions by special exception to plaintiff’s petition.
“Third: The appellee raised the same question also by motion to require the appellant, Petroleum Casualty Company, to file certified copies of the proceedings before the Industrial Accident Board in the ease of William C. Webb, employee of the Humble Pipe Line Company, including copy of claim for compensation, and award made by the Board, and notice by the Petroleum Casualty Company of intention to a.ppeal therefrom; said motion, praying that plaintiff be required to file said copies and records either before the trial commenced, or immediately thereafter, and before the appellee should be required to offer proof or evidence of his claim for compensation.
“All of this was done before defendant announced ready for trial and all three questions were considered and decided at the same time by the court, that is, the plea to the jurisdiction, the special exception, and the motion to require filing of records to show jurisdiction of the court, to which action of the court, the appellant refused to comply with, by refusing to file a certified copy of the claim for compensation. In other words, it was not merely a failure to file it, but a challenge to the trial court’s authority to require the filing or attaching to the petition of the claim for compensation which resulted in the Board’s award, granting that such a claim was ever filed; and the record here, speaking through the decree, the bill of exceptions, etc., shows a direct and emphatic refusal to file it.
'“Since all of the steps essential to the jurisdiction of the Industrial Accident Board and the trial court were not shown, as is required in cases to set aside awards made by the Board, there was nothing for the trial court to do but to dismiss the case, as a result of sustaining said plea to the jurisdiction, special exception and motion to require filing ,of the claim.”

An important point of distinction to be kept in mind is this: There is a distinction in some of the decisions between cases filed to enforce an award of the Accident Board and those filed to set aside an award. Our Supreme Court in Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, by Chief Justice Cureton, recognizes this distinction, and that case is really decisive of this case.

This question was settled in the early case of Hood v. Texas Employers’ Insurance Association (Tex. Civ. App.) 260 S. W. 243, 245, and referred to and approved by the later Supreme Court case of Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084. We quote verbatim from a portion of the opinion, also quoted in the Supreme Court’s decision with approval, viz.:

“The jurisdiction of the trial court to hear and determine appellant’s suit depended on the following prerequisite proceedings which should have been properly alleged and supported by the requisite evidence:
“(a) That proper application for compensation on account of the injury alleged to have been received was made to the Industrial Accident Board;
“(b) That final award was made thereon by said board;
“(c) The giving of notice of the intention not to abide by the award within 20 days from date of. same, and the filing of proper suit within 20 days from the date of service of such notice — all being jurisdictional facts and essential to concur before jurisdiction would attach. Article 5246—44, Yernon’s Ann. Civ. St. Supp. 1918; Bettie Harris et al. v. Texas Employers’ Insurance Ass’n (Tex. Civ. App.) 257 S. W. 998; Georgia Casualty Company v. Ward (Tex. Civ. App.) 220 S. W. 380; [Employers’] Indemnity Corporation v. Woods (Tex. Civ. App.) 230 S. W. 461, in which last case it was held that—
“ ‘No intendments can be indulged in favor of such jurisdiction, but the record itself must disclose the facts which authorize it to act, and it must appear that the jurisdiction thus assumed is within the limits of the legislative grant.’ ”

The latest authority is Federal Surety Company v. Jetton, 44 S.W.(2d) 923, 925, by Commission of Appeals, which is a suit to set aside an award of the board. Justice Sharp there holds: “The rights and remedies given by the Workmen’s Compensation Act are purely statutory; the statutory provisions as to both are mandatory and exclusive, and must be complied with in all respects; and such compliance is necessary to the exercise of jurisdiction by the first and all succeeding agencies,! including the county where the injury occurred, where suit to set aside the award müst be brought. Each step toward maturity of compensation claim from time of injury to the final adjudication is a mandatory requirement necessary to the exercise of jurisdiction by each agency provided for by this statute. Application for compensation, final award, timely notice of intention not to abide by the award, and timely suit must concur before jurisdiction of suit to vacate the award attaches. Suit in the proper court to set aside an award of the Industrial Accident Board suspends such award, and its subject-matter is thereby withdrawn from the board and from all courts except the one in which the suit' is brought. Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084.” Also, note Casualty Reciprocal Exchange v. Stephens (Tex. Com. App.) 45 S.W.(2d) 143.

It would be necessary to show jurisdiction of the trial court-and the Court of Civil Appeals would be compelled to require that the plaintiff’s petition be shown, because, if the trial court did not have jurisdiction, then the Court of Civil Appeals would not have jurisdiction. So in this procedure, if the Accident Board does not have jurisdiction of the matter passed oh, the reviewing trial court would not have jurisdiction. In this particular case, where the matter of jurisdiction was called specially to the attention of the district court, as to a particular matter, viz. the filing of claim, etc., and filed pleadings testing this -particular point and requiring allegations and proof thereon, which was met by a point-blank refusal by the plaintiff, there was nothing left to do but to dismiss on account of failure to affirmatively show jurisdiction, on a point which has been declared by all of our courts as an “essential requirement” of jurisdiction.

Appellant may have confused this case with that of one where the suit is to “enforce” an award which has not -been appealed from. In the latter case, the statute (article 8307, § 5a) provides exactly what shall be alleged and proven, and it amounts to a suit on a judgment which is final and not appealed from. The award in that instance, just like a final judgment, would impórt verity, and jurisdiction would be presumed, and it would not be necessary to go back of the judgment or award in suing to enforce it. On the contrary, a suit to set aside an award appealed from is similar - to setting aside a- judgment on appeal, and .in such cases it is necessary for the transcript to show the. original petition or claim because the judgment is not final and no presumption of jurisdiction then obtains. In a- suit on a judgment of a court, or an award of the Industrial Accident- Board which is final and not appealed from, whether the court or board had jurisdiction to render same would be a defensive matter, to be taken advantage of by the defendant (unless it appears void on its face), but in appellate procedure, whether from an award of the Accident Board or from a judgment of a court, it is necessary for the plaintiff affirmatively to show jurisdiction, and no presumption of jurisdiction obtains.

We have adopted, largely, appellee’s brief and affirm the judgment of the lower court.