author: HABB, C. J.

text:
    UNITED STATES FIDELITY & GUARANTY CO. v. HENDERSON et al.
    No. 3880.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 5, 1932.
    Rehearing Denied Nov. 2, 1932.

      Gibson & Sutton, of Amarillo, for appellant.
    Snyder, Owen & Bybrand, of Oklahoma City, Okl., W. A. Keeling,, of Austin, and W. ’ M. Lewright, of Pampa, for appellees.
   HABB, C. J.

- This case arose under the Workmen’s Com-pensatio.n Law (Rev. St. 1925, art. 8306 et seep, as amended).

Earl Dale Henderson, while working for the Empire Gas & Fuel Company, was killed, and, upon application to the Industrial Accident Board, Mrs. Gladys B. Henderson, as the widow, and Glen Dale Henderson and Earline Henderson, as the minor children of Eárl Dale Henderson, were awarded compensation for 360 weeks, one-half thereof,'after deducting attorney’s fees, was to be paid to the widow and the remaining one-half to be divided equally between the two children. The Fidelity & Guaranty Company appealed from the award of the board. The attorney who represented Mrs. Gladys B. Henderson was appointed guardian ad litem for the minors, and the case was tried to the court without a jury..

The minors alleged that prior to the year 1925 their mother, Mrs. Gladys B. Henderson, was married to one Clyde Wolf, from whom she separated in 1925; that at the time of her separation Wolf informed her that he intended to institute suit for divorce and that thereafter such suit was actually instituted in Oklahoma, and prior to the 19th day of November, 1925, she was informed that her husband, Wolf, had actually procured a divorce; .that she had confidence in her informant and relied upon such information, and thereafter, in good faith, believing that she had been divorced, entered into a common-law marriage with Earl Dale Henderson, of which said marriage said minor defendants were bom and were therefore entitled to compensation under. the Workmen’s Compensation Act. It'is further alleged that, in the event the common-law marriage should prove to be only a putative marriage, nevertheless under the laws of Texas the said minors were the lawful children and the heirs at law of their father, Earl Dale Henderson, deceased.

The appellant company contended that the existence of the marital relationship between Gladys B. Wolf and Clyde Wolf was known both to her and Earl Dale Henderson at the time of the alleged agreement between the latter to enter into the common-law marriage relation, and that said relation was, in fact, no marriage at all, but constituted only a meretricious relationship between them, and that R. S. art. 2581, which provides that the issue of marriages deemed null in law shall, nevertheless, be legitimate, has no application to the facts of this case, and does not make said minors legitimate children because the relationship entered into between their mother and Earl Dale Henderson was not entered into in good faith.

■ The trial.resulted .in a judgment in favor of the minors for the sum of $6,728.40, payable in weekly installments, and denying Mrs. Gladys B. Henderson a recovery. . ,

The court filed findings of fact and conclusions of law which are, in part, as follows: (a) That Gladys B. Wolf and Earl Dale Henderson in good faith entered into their agreement to live together as man and wife; (b) that Earl Dale Henderson was the father of the minor defendants; (c) and they were entitled to compensation for the death of their father; (d) that the burden of proving the invalidity of the purported marriage between Earl Dale Henderson and Gladys B. Wolf was on the appellant company; (e) that appellant had not discharged that burden and therefore the children were presumed to be the children of Earl Dale Henderson; (f) even though the so-called common-law marriage between Gladys Wolf and Earl Dale Henderson should be invalid, that tbe children were, nevertheless, legitimate in law, and entitled to recover compensation on account of the death of their father.

The first proposition urged by the appellant company is that, a lawful marriage having been shown between Gladys L. Henderson and Clyde Wolf which had not been dissolved by death or divorce, children subsequently born to Gladys L. Henderson are presumed to be the children of Clyde Wolf, and this presumption can only be overcome by the strongest kind of evidence showing the impotency of the husband or nonaccess of the husband to the wife at the time the children must have been conceived, and the burden of proof is on appellees herein as the parties seeking to overcome this presumption.

Related to this proposition is the second contention, the substance of which is that a prior valid marriage having been shown between Gladys L. and Clyde Wolf, and it further appearing that Gladys L. Wolf was the mother of the two minors and she having testified to these facts, she could not then testify to any fact tending to show that her children were not the children of Clyde Wolf, for the reason that the testimony of neither the father nor the mother is admissible to prove the illegitimacy of a child nor to establish any fact tending to show that the child Is illegitimate.

The record shows that she had been lawfully married to Clyde Wolf, and there is no testimony which shows or tends to show that this marriage had been dissolved by divorce or death. She sued Wolf for divorce after the death of Henderson. In the absence of good faith, hereinafter discussed, or competent proof of nonaecess, the presumption of Wolf's paternity of the minors obtains. She was an incompetent witness on the issue of nonaecess. The law is settled that the testimony of neither the father nor the mother is admissible to prove the illegitimacy of a child born to them in wedlock nor to establish any fact tending to show that the child is illegitimate. The testimony of the mother to the effect that Henderson was the father of her children and that she had not cohabited with Clyde Wolf since she left him was inadmissible under this rule.

As stated in Foote v. State, 65 Tex. Cr. R. 368, 144 S. W. 275, 276, Ann. Cas. 1916A, 1184: “The presumption of law is that a child born in lawful wedlock is legitimate, and at common law a married woman had no right to testify to acts of intercourse with another or. nonaecess of her husband on the question of bastardy or illegitimacy of her child. The reason for this, as stated in the phrase of Lord Mansfield, is based on decency, morality, and public policy, and neither husband •nor wife should be allowed to bastardize a child of the wife by showing acts of adultery on the part of the wife, or the nonaccess of the husband. The testimony is rejected, not so much from the fact that it would reveal the immoral conduct of the mother, as because of the effect it would have on the unfortunate child, who is not at fault, but who would be the chief sufferer. In regard to the testimony of the mother not being admissible, it has been clearly decided by this court in Simon v. State, 31 Tex. Cr. R. 186, 20 S. W. 399, 716, 37 Am. St. Rep. 802, in which it is held that the mother and father will not be permitted to testify to any fact which would render children born in lawful wedlock bastards.” See, also, Meyer v. State (Tex. Cr. App.) 41 S. W. 632; Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816; Schwingle v. Keifer, 105 Tex. 609, 153 S. W. 1132; 40 Cyc. 2222.

Pinkard v. Pinkard (Tex. Civ. App.) 252 S. W. 265, Moore v. Moore (Tex. Civ. App.) 299 S. W. 653, and McCulloch v. McCulloch, 69 Tex. 682, 7 S. W. 593, 5 Am. St. Rep. 96, are three civil cases which hold that declarations of the mother or father are inadmissible upon the issue of the legitimacy of their children. If their declarations are inadmissible, then upon the same basis direct testimony from either should be excluded.

The appellees’ counsel insisted that the mother’s testimony was admissible for the purpose of showing the legitimacy of her children, and the trial judge evidently accepted that view. In this there was error. The validiiy of the mother’s prior marriage with Clyde Wolf is conceded, and it is also conceded that Earl Henderson had been married pri- or to the time when he commenced to cohabit with Gladys L. Wolf. She testified that Henderson had been divorced from his first wife, ■but there is no further testimony to that effect. While a ceremonial marriage may be established by general repute, by circumstances, by the testimony of a witness, and also by hearsay, such testimony is not admissible to establish the fact of a divorce. A common-law marriage may also be established by testimony of a like kind, but the best evidence of a divorce is the decree of a court of competent jurisdiction.'

The testimony of Mrs. Wolf was inadmissible to establish the fact that Henderson had been divorced from his first wife. Even if it is conceded that Mrs. Wolf’s marriage with Clyde Wolf had been dissolved, nevertheless her relations with Henderson were necessarily meretricious because he, according to the record, was the husband of another woman at that time.

This record is teeming with incompetent and inadmissible testimony in response to questions that were leading and which assumed the existence of facts that had not been established. The fact that most of it was admitted without objection does .not .render it competent or relevant, and it gains no vitality because admitted without objection, and neither this court nor the court below could consider it in support of a judgment or to form the basis of a finding of fact in! the appellate court.

Evidence which is inherently incompetent is without probative force and whether admitted over objection or otherwise it will not support a verdict or a finding of fact nor form the basis of a finding of fact in an appellate court. This is true, for example, of hearsay evidence, or testimony which is a bare opinion or conclusion of the witness without any disclosed basis of fact. Henry v. Phillips, 105 Tex. 459, 151 S. W. 533; Austin Bros. v. Patton (Tex. Com. App.) 294 S. W. 537; Id. (Tex. Com. App.) 290 S. W. 153; Id. (Tex. Com. App.) 288 S. W. 182; Webb v. Reynolds (Tex. Com. App.) 207 S. W. 914. If the trial court considers such evidence, the appellate court is not bound by such action. Vaughn v. Vaughn (Tex. Civ. App.) 287 S. W. 687.

By its third proposition the appellant insists that under section 8a of art. 8306 of the Revised Statutes, which states who may be the beneficiaries in case of the death of an employee under the Workmen’s Compensation Act, the phrase “children of a deceased employee” are necessarily legitimate children, and illegitimate children are not recognized as beneficiaries.

This proposition must also be sustained. Sanchez v. Texas Employers’ Insurance Company (Tex. Com. App.) 51 S.W.(2d) 818; Travelers’ Insurance Company v. Peters (Tex. Civ. App.) 280 S. W. 310.

“A common-law marriage as that term is now understood in this state is one not celebrated according to the prescribed forms of statute law, but one which arises from the agreement between capable contracting parties to become husband and wife, followed by an actual assumption of that relation; in other words, it is the agreement of capable parties together with cohabitation as man and wife. It will be observed that here, as in the case of statutory marriage, the parties must be competent and there must be no impediment by reason of statute or otherwise forbidding the marriage. Where parties assume the marital relations, each knowing of an impediment preventing a valid marriage between them, the union is not'a marriage at all, but the relation is merely meretricious, the parties are not husband and wife.” Speer’s Law of Marital Rights, page 32, § 28.

The record showing that both Henderson and Gladys L. Wolf had been previously married, neither was capable of contracting a second marriage, either ceremonial or common law, in the absence of proof showing the death of their respective spouses or a dissolution by divorce proceedings. The only testimony showing a dissolution of Henderson’s prior valid marriage is the statement by Mrs. Gladys Wolf, which must necessarily be hearsay. There is no testimony in this record which tends to show that Earl Dale Henderson and Gladys L. Wolf entered into their alleged marital relationship in good faith. They both knew that they were married to other parties from whom they had not been divorced, and, so far as the record shows, their spouses were each alive. She testified that she told Henderson that she had been previously married and told him all the facts concerning her marriage to Wolf, and she further stated that the only information she had as to whether or not Wolf had obtained a divorce was his threat to obtain one when she abandoned him and a letter she had received from her friend, Mrs. Tus-sig, which stated that the writer had heard that Wolf was going to get a divorce. As an illustration of the utter poverty of the testi-' mony and its incompetency and inadmissibility, we quote from the statement of facts as follows a part of her direct testimony in response to questions propounded by her attorney:

“Q. Did you or not tell Mr. Henderson pri- or to Nov. 19, 1925, [when their relationship commenced] that Mr. Wolf had gotten a divorce? Is not it a fact that you told him he had gotten a divorce?
“Mr. Gibson, Attorney for Appellant: I think that counsel is violating the rules. He is not only asking a leading question but I' think he is doing it deliberately and I object to the question as certainly being leading.
“The Court: Don’t lead the witness. Ask her what she told him.
“Mr. Lewright: All right.
“Q. Mr. Gibson asked you whether or not you told Mr. Henderson the full facts; that is, the facts you have detailed here before the Court. Did you ever have occasion to go into all of this rigmarole with Mr. Henderson? A. Not all that. Nothing like that, of course not.
“Q. When you married Mr. Henderson, as far as you know, did he think you were a single woman and entitled to enter into the marriage relations with him? A. Of course he felt that way.
“Mr. Gibson: She testified directly contrary to that and the question is entirely leading and I think is improper.
“The Court: Don’t lead the witness.
“Mr. Gibson: That calls for a conclusion of the witness and we offer that objection to it.
“The Court: To a certain extent it does. You can answer that yes or no.
“A. Well, he knew I had been married, of course.”

It is generally proper for a witness or a party .to state what they know or believe or thought or testify to their motives or intentions, but a witness is not permitted to testify as to the belief, feelings, knowledge, or intentions of another party. McClory v. Schneider (Tex. Civ. App.) 51 S.W.(2d) 738; C., R. I. & T. Ry. v. Long, 26 Tex. Civ. App. 601, 65 S. W. 882; Robertson v. Gourley, 84 Tex. 575, 19 S. W. 1006. A witness may testify as to statements or conduct which manifest the knowledge, motive, or belief of another party, but, when 'Mrs. Wolf testified that Henderson felt when he began to cohabit with her that she was a single woman and entitled to enter into the marriage relations with him, the testimony should have been excluded, and the objection that the question called for a conclusion should have been sustained, but the court permitted her to state what he knew and believed and felt.

This question is followed by Mr. Lewright, who said:

“Q. I did not ask you that. Listen to my question. As far as you know on November 19,1925, when you and Mr. Henderson agreed to live together as man and wife, did Mr. Henderson think you were a single woman and able to marry? A. Sure he did.
“Mr. Gibson: We object to that, if the Court please, as being responsive to a leading question and also being the conclusion of the witness.

“The Court: To a certain extent, yes.

“Mr. Gibson: And for the further reason that she has testified that E. D. Henderson knew that she had been married and that she had told him all the facts and that she had merely been told that he was going to get a divorce.
“Mr. Lewright: I don’t think that she testified that she told him everything. That may mean a whole lot. That is the reason I asked the preliminary question whether she ever had occasion to sit down there with this man and go over it with him, because it seemed unreasonable to me that any man, under the circumstances, would sit there and discuss that kind of a thing—
“Mr. Gibson (interrupting): I am objecting to this manner of argument before the witness.
“The Court: Gentlemen, this is before the Court, but I am going to let the answer stay in there.
“Mr. Gibson: Exception.”
The record shows that the court did permit the answer and based his finding upon it.

The examination proceeded further as follows:

“Q. (by Mr. Lewright): All right, before November 19, 1925; did you not tell Mr. Henderson that you had gotten a divorce or that you thought you had gotten a divorce? A. Well, I thought the divorce had been gotten.”

The record shows that the only ground upon which she could have thought that Wolf had obtained a divorce decree was her former statement that he said he would sue her for a divorce and her testimony as to the contents of an unproduced letter from Mrs. Tus-sig. Th<3 letter was not in evidence, and her testimony based upon it was hearsay of the rankest kind. Even if she ever received such a letter from' Mrs. Tussig, stating that Wolf was going to get a divorce, her testimony was secondary evidence, Mrs. Tussig’s statement was hearsay, and her source of information not being disclosed was -hearsay two degrees removed, and we cannot believe that she thought that any divorce had been granted to Wolf. It is a case of where the wish was father to the thought. After her statement that she thought the divorce had been granted, her counsel asked her this question:

“Q. As far as you know, did he believe you? A. Well, yes he did, he believed it.” .
Based upon the authorities cited above, this was improper testimony.
“Q. Did he ask you to make any investigation? A. No, sir, he did not.
“Q. Was there any discussion between you as to whether or not you should make an investigation or as far as you know did he rely upon your statement? A. He relied on my statements.
“Q. Did you or not tell him of your conversation with Mrs. Tussig that she had been informed that Mr. Wolf had gotten a divorce from you?
“Mr. Gibson: We object to that as being a misstatement of any fact brought out in this-testimony. ' ■
“Mr. Lewright: I believe she said she heard he had got a divorce.
“A. That is all I said.-
“The Court: Don’t lead the witness.
“Q. (by Mr. Lewright): 'Did you or not tell Mr. Henderson — and if this is leading I don’t know how to ask it — did you- or not tell Mr. Henderson what this lady you say told you? A. Yes, I did.
“Q. Did he know that, before November 19, 1925, and on Nov. 19, 1925? A. He most certainly did. He did know it. Mr. Henderson was a man who knew pretty well what he was doing.
“The Court: Just answer the question.
“A. My husband is not here to defend us. You all understand that. •
“Q. You stated on Nov. 19, 1925, the time that you and Mr. Henderson had agreed to become husband and wife, that Mr. Henderson thought you were a single woman and able to contract a marriage with him? A. I did.
“Q. What made him think that so far as you know? A. Prom what I told him.
“Q. All right, what did you tell him? A. I told him that my friend told me that he was going to get a divorce.
“Q. You are getting excited. Your friend did not say that.
“Mr. Gibson: If the Court please, I object—
“Mr. Lewright (interrupting): I will ask her in a few minutes. Let her get her nerves back together.
“Mr. Gibson: I am objecting to his way of examining the witness and disputing the witness.
“The Court: It casts no reflection whatever upon you or your husband, Mrs. Henderson, but it is for the purpose of finding what the facts are.
“Q. (by Mr. Lewright): You have testified that your husband Clyde Wolf told you at the time you separated that he was going to get a divorce and then you testified that you received a letter from this lady in which she said she had heard that he had got a divorce.
• “Mr. Gibson: I appeal to the reporter’s notes as there has been no such testimony as that by Mrs. Henderson.
“The Court: Let him finish this question.
“Q. (by Mr. Lewright): What did you hear from the lady that you say wrote you the letter? What did she tell you? A. She stated that she had heard—Of course, Mr. Lewright, she did not say how she heard it.
“Q. What did she say that she heard?
“The Court: Just tell what this lady told you.
• “A. That Mr. Wolf was going to get a divorce; she did not know; she had heard it.
“Q. I thought she stated that she heard that he had got it. You say that the lady wrote you that she had heard Mr. Wolf was going to get it? A. Yes.
“Q. And not that he had got it. A. No.
“Q. Did you tell Mr. Henderson that? A. I did.”

It appears from her cross-examination and re-cross-examination that the only information Henderson had at the time he entered into the criminal relations with Mrs. Wolf was received from her, and, notwithstanding the grilling through which she passed, she finally testified that Mrs. Tussig told her that Wolf was going to get a divorce,, and under such circumstances there can be no good faith on the part of either Henderson or Mrs. Wolf. Their relations which resulted in the birth of the two children were criminal, if the record before us is to be believed. It is true that, if their relations were meretricious in the beginning, that they subsequently might have entered into a common-law marriage, provided there was no impediment and they were capable of contracting such a marriage, but, under the 'record before us, showing an utter absence of good faith and the existence of impediments preventing a valid common-law marriage, their cohabitation was illegal, and the children, unfortunately, are illegitimate, and cannot recover in this action.

A putative marriage is one which has been contracted in good faith and in ignorance of some existing impediment on the part of at least one of the contracting parties. Throe circumstances must concur to constitute this species of marriage: (1) There must be bona fides. At least one of the parties must have been ignorant of the impediment, not only at the time of the marriage, but must also have continued ignorant of it during his or her life. (2) The marriage must be duly solemnized. (3) The marriage must have been considered lawful in the estimation of the parties or of that party who alleges the bona fides.

When all of the illegal and inadmissible evidence in this case has been eliminated, it is clear that there is no proof of either a putative or common-law marriage. As shown by the foregoing summary of the court’s findings, the holding is that a common-law marriage existed. This being true, the amount awarded should have been one-half to Mrs. Wolf, and the decree should have divided the other half equally between the minors. As stated, Mrs. Wolf was denied any recovery, and the whole amount of compensation claimed under the policy was decreed to the children. This judgment is contrary to the findings and conclusions, and is not supported by the facts, and is therefore erroneous upon that ground..

We deem it unnecessary to discuss the other propositions urged, since the judgment must be reversed,, and the cause remanded for another trial.

Reversed and remanded.


source: Caselaw Access Project

author: MARTIN, J.

license: Public Domain

text:
    FLETCHER et al. v. ELY et al.
    No. 3879.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 5, 1932.
    Rehearing Denied Oct. 25, 1932.
    Yickers & Campbell, of Lubbock, for appellants.
    Jaimes Y. Allred, Atty. Gen., T. S. Christopher and J. A. Stanford, Jr., Asst. Attys. Gen., and L. L. King and O. O. Broughton, both of Childress, for appellees.
   MARTIN, J.

In January,' 1930, appellants presented their petition to the district court of Chil-dress county, asking that the appellees, as members of the commissioners’ court of said county, and also the members of the state highway commission, be temporarily restrained from expending certain bond money upon any road building project save and except state highway No. 4, as it existed on December 21, 1927, and praying on final trial for a permanent injunction. The relief prayed for was denied and a general demurrer to said petition sustained. An appeal was taken to .this court, and the judgment of the lower court affirmed, which is reported in 26 S.W. (2d) 444, 446. A writ of error was thereafter granted, and upon a final hearing the judgments of the Court of Civil Appeals and the district court were reversed, and the cause remanded; the opinion by the Supreme Court Commission being reported in (Tex. Sup.) 39 S.W.(2d) 32, 34. These are referred to for a statement of the nature of this case except as we may find it necessary to make additions thereto.

This cause was transferred by agreement .to Lubbock county, where a trial was had before the court on its merits and upon the same petition originally presented to the district court of Childress county, and judgment was there rendered denying the relief prayed for. The trial was upon an agreed statement of facts brought forward in the record.

The disposition of this case on the former appeal turned largely upon a construction of the pre-election order of the commissioners’ court of Childress county as shown by the concluding paragraph of Judge Randolph’s opinion, as follows: "As stated above, the only points of control named in the order of the commissioners’- court, as shown by the petition, were the north and south boundary lines of Childress county. Therefore, the state highway commission and the federal bureau of roads had, as between those boundaries, full discretion to locate or relocate the highways, and such discretion was not abrogated by the fact that the voters were induced to believe that the money would be expended upon highway No. 4, as it'then existed.”

The cases of Singeltary v. Heathman (Tex. Civ. App.) 300 S. W. 242, and Quisenberry v. Mitchell, 116 Tex. 378, 292 S. W. 160, 163, appear to have been given controlling effect in the decision reached.

It is again here contended by appellees that, since the only control points named in the order of the commissioners’ court were the two points above mentioned, with no specifications as to the intermediate route, therefore appellees were at liberty to use the proceeds of the bond money between these points upon any route selected by them, and particularly did they have a right to use it as they were threatening to do, and that such use of it constituted a substantial compliance with said order.

The Heathman Case, supra, and the instant case were written on by the same judge, who to oh occasion to explain the difference between the two cases. A verbatim copy of the order of the commissioners’ court in controversy is shown in the opinion of Judge Randolph, reported in (Tex. Civ. App.) 26 -S.W.(2d) 444. If the order of the commissioners’ court is to be given the broad legal effect claimed for it by appellees, it would have effectually disposed of the question before the Supreme Court. Its reversal constituted an implied holding against such legal construction under our interpretation of the opinion.

Judge Short in his opinion states the issue of this case in the following language: “The plaintiffs in error merely contended that neither the state highway commission, nor the commissioners’ court, under the alleged facts of this case, have the authority to divert the proceeds from the sale of the bonds from being expended on Highway No. 4, as it existed on the date of the election, where it appears that no part of said proceeds were intended to be so used.”

In the solution of the final question to be determined herein, we may proceed upon the hypothesis that the following propositions, directly or indirectly involved therein, are well settled:

(1) That any commissioners’ court in Texas is within its legal rights in annexing a condition in its pre-election orders which fixes the exact purpose for which the bond money constituting the proceeds of a bond issue submitted to a vote is to be used. Moore v. Coffman, 109 Tex. 93, 200 S. W. 374.

(2) That, in the absence of a definite Identification of the specific road to be paved, a discretion exists in the commissioners’ court as to which of two or more routes may be followed betv'een control points named in the pre-election orders, which discretion, however, may be and is surrendered when in response to a referendum, under a proper order of submission, the particular route and road to be paved is identified and named. Brown v. Preston County Court, 78 W. Va. 644, 90 S. E. 166, 167; Wright v. Allen (Tex. Civ. App.) 257 S. W. 980.

(3) That, when the voters thus speak, the proceeds of the bond issue ara “earmarked” with the character of a trust fund which may not be diverted to another purpose or project, and any such attempt will be enjoined by a court of equity. The result thus obtained has been referred to as having the binding effect and force of a contract. Black v. Strength, 112 Tex. 188, 246 S. W. 79; 19 R. C. L. pp. 1163, 1164; Roane County Court v. O’Brien, 95 W. Va. 32, 122 S. E. 352, 355.

(4) It is a cardinal rule of construction of instruments that the Intent of the parties to same- is the dominant ruling factor and that they should always be construed in the light of the circumstances surrounding the parties at the time of their making. 12 C. J. .pp. 542, 1301; St. Louis, B. & M. Ry. Co. v. Hicks (Tex. Civ. App.) 158 S. W. 192.

We have here for decision in the light of the above legal principles only the question, as we view it, of whether or not the facts and circumstances of this record show that the proceeds of the bond issue in question were to bei used to pave state highway No. 4 as it existed on the ground at the time of the aforesaid election. We are met at the threshold of a solution of this question with the pre-election order already referred to, which is very general and somewhat vague in its description of the road to be paved. We repeat it here.

“Be it ordered by the commissioners’ court of Childress County, Texas, that, in the event bonds are voted in the amount of $650,000.00 for the purpose of constructing, maintaining and operating macadamized, graveled, or paved roads and turnpikes, or in aid thereof; and issued, that the proceeds from the sale of the bonds be used for the following specific purposes:

“State Highway Number Five over its entire length in Childress County, from the Hardeman County Line on the East to the Hall County Line on the West shall be constructed of concrete, its equivalent or a higher grade material, and shall pass through the town of Kirkland, Texas, over the length of Cleveland Street; through the town of Carey, and the City of Childress.

“State Highway Number Four over its entire length in Childress County, from the Col-lingsworth County line on the North to the Cottle County Line on the South shall be constructed of concrete, its equivalent or a higher grade material.” -

Keeping in mind that we are endeavoring here to arrive at the intention of all parties-with respect to the road to be paved, as gathered from the face of the above order interpreted in the light of the surrounding circumstances of the parties at the time it was made, we make note of the following facts agreed to by the parties and reproduced in the record as part of the agreed statement of facts:

“That at and previous to the time of the election, and at and previous to the date of the bond order and collateral order herein quoted, there existed a well-defined highway through Childress County which was known to the pubuc generally as Highway No. 4, and that the same had been marked with Highway markers under the direction of the Highway Department, and that said road had been improved by the expenditure of a portion of a previous bond .issue, said improvements costing approximately $70,000.00, which said sum was derived from the local county bond issue, and by being matched by State and Federal aid, and that said road had been and is now by the State Highway Commission maintained and generally used by the public, and that some twenty concrete culverts have been built on the Highway No. 4, under the direction of the Highway Department, and that both the State and Federal Government participated in the improvement and maintenance of Highway No. 4.
“That at the time of the bond election, to-wit: on December 21,1927, and at the time of the entry of the collateral order quoted in paragraph 4 hereof, that State Highway No. 4 was a part of a highway extending across the State of Texas from Canada to Del Rio, Texas. That the said highway passed through the county of Childress, and over its entire length in Childress County, from the Collingsworth County line on the north to the Cottle County line on the south; that said highway was and had been a Federal aided, State designated highway, pursuant to the State and Federal Highway Acts, and passed through the town of Childress. * * *
“That the $650,000.00 voted in bonds was to be used to pave the two State designated highways in Childress County, one of which was Highway 4, and that part of said highway which, as already indicated herein, is involved in this controversy, and that State Highway No. 4 was to be paved over its entire length in Childress County from the Col-lingsworth County line on the north to the Cottle County line on the south, and that said highway was to be paved with concrete or its equivalent, or a higher grade of material. That it was contemplated at the time of the bond election that said bond issue would be supplemented with State and Federal aid. * * #
“That the said Highway Department has layed [laid] out a new route or location as shown on the attached plat for Highway No. 4 from a point just south of the town of Chil-dress north to the Collingsworth County line, substantially paralleling the old location of Highway No. 4, but varying in distance from a few yards to an average of two miles; that when the Commissioners’ Court of Childress County agreed to the new location as layed [laid] out by the Highway Department of Texas and as approved by the Federal Bureau of Roads, that they did so to meet the requirements of said State Highway Department and the Federal Bureau of Roads in order to secure State and Federal aid in the construction of said road.
“That said relocated road passes along the west side of the corporate limits of the town of Childress, and about one hundred yards west of the city limits, but crosses State Highway No. 5 to the west, serving the town of Childress with a pavement into town. That when so served the road from the north into the town of Childress all the way over the pavement represents .57 miles the shorter route from the county line to the courthouse m Childress at Main and Ave. F, such distance arrived at by Resident Engineer Bacon by Auto measurement of old Highway No. 4, but that the proposed new Highway No. 4 misses the town of Childress.
“That said Highway No. 4 through Chil-dress County was prior to and at the time of the bond election order, and at the time of the colláteral order quoted herein, a Federal aided, State designated highway, and that the Federal Bureau of Roads has at all times since this controversy arose followed the recommendation of the Highway Department of Texas as to the new location, and in this sense has refused to approve the old location as it existed on the ground at the time of said orders, as has also the State Highway Department,' but that both the State Highway Department and the Federal Bureau of Roads have approved the new location from a point just south of the town of Ohildress north to the Collingsworth County line. * * *
“That some months after the election issuance and sale of the bonds a new. railroad from Childress northwesterly across Chil-dress County from Childress to Pampa was projected, right of way procured, and is now* under construction; that the same is a part of the Burlington system, and leaves the main line of the Burlington road in the western portion of Childress and goes northwesterly across the county an average of two miles distant from the old Highway No. 4; that the new proposed Highway No. 4 parallels and substantially follows the railroad.
“That the plaintiff and those similarly situated relied upon the collateral order quoted in paragraph 4 hereof in voting for the bond issue. It is agreed that at two previous bond elections, when no such collateral order as was entered and quoted herein, was made, that said bond elections failed. That the collateral order of the court was entered as appears from the face thereof for the purpose of advising the voters where the money would be spent.”

The exact location of the road between the north and south lines of Childress county was not described further than the above. In determining the exact location of highway No. 4 as it existed on and prior to the date of the election, there would seem to toe no doubt of our right to here give application to the ancient maxim, “Id certum est quod certum reddi potest.” This has been many times applied in determining the identity of grants in deeds vaguely described. 18 C. J. 180; Harris v. Iglehart, 52 Tex. Civ. App. 6, 113 S. W. 170; Dunn v. Taylor (Tex. Civ. App.) 107 S. W. 952; Lohff v. Germer, 37 Tex. 578; Roberts v. Hart (Tex. Civ. App.) 165 S. W. 473. That it could be made certain by proof is beyond question.

There existed at the time of the election and previous thereto a jilainly marked “Federal aided and State designated highway pursuant to the State and Federal Highway Acts” through Childress county, known to the public as highway No. 4, that had been improved by the expenditure of a portion of previous bond issues, said improvements costing approximately $70,000, and was “matched” by state and federal aid. Thus $fis case clearly differentiates itself from Quisenberry v. Mitchell, 116 Tex. 37S, 292 S. W. 160, 163, relied on by appellees. In that opinion it is 'expressly stated by Judge Harvey: “The particular location of state highway 24 on ■the ground between any two of the intermediate points of control had not been made.”

In the instant case, highway No. 4 had been definitely located and legally designated as a state highway from one end of Childress county to the other. It further appears that the state and federal governments were so well satisfied with its location that they had “matched” the amount of a previous bond issue by Childress county to improve this identical road. There was nothing as .in the Quisenberry Case shown in this record .that would put the voters on notice whiph, upon inquiry, would have revealed to them the intention of the state highway department and commissioners’ court to change, the route of highway No. 4. ' On the contrary, such an inquiry would have revealed an apparent satisfaction by these with the old location as shown by the fact that they had spent many thousands of dollars in money to help improve it, and, we think, it will be presumed that they were then satisfied with its location under such circumstances. Any other conclusion would convict them of gross in- ’ competency in handling public funds. The qualified property tax paying voters of Chil-dress county, it is agreed, had twice before repudiated a bond issue to pave roads, but when, and only when, the order in question was passed for the purpose of advising'the voters on what roads same would be expended, their consent was obtained at the polis for the expenditure of the bond money in ’ controversy. Only one conclusion can be drawn as to what was in the minds of the voters of Childress county when the election was held, and that is that highway No. 4 as it then existed would be paved and not some other route, which, so far as this record shows, was never laid out until months after the election was held. What was in the minds of the commissioners’ court when they passed the order in question, viewed in the light of all the surrounding circumstances and keeping specially in mind that the voters had theretofore refused to grant to the commissioners’ court any discretion in spending this money as allowed by law? Could it be said that they secretly intended to spend the money upon another and different road than state highway No. 4 and wrote a vague order that they might be free to carry such unlawful purpose into effect? We decline under the recited circumstances to make a finding which comports with fraud rather than fair dealing. This is our duty as we understand the authorities, though we do not mean to' imply that there is any evidence of bad faith on the part of anybody shown in this record, but do hold that, in case of a doubtful construction or intention and two contrary inferences are deducible from a given state of facts, that conclusion will be drawn .which comports with honesty and fair dealing, rather than with fraud and deceit. 13 C. J. 540. Believing that only one reasonable inference can be drawn from this record and that is that all parties to the transactions at and preceding the election in question intended that the proceeds of the bond issue should be used.-.on state highway No. 4 as it then existed, the only remaining question is whether or not the funds are about to be diverted to another and different purpose. This involves a finding as to whether the road proposed to he laid out for a distance of 27 miles from Childress north constitutes a substantial compliance with the pre-election order. The old road went through the town of Ohildress north to the Collingsworth county line, along which resided many residents. The new route misses entirely the town of Childress, though it is connected with it by paved highway No. 5. It enters Collingsworth county two miles west of where state highway No. 4 entered as it existed in December, 1927. The proposed new road nowhere touches the old highway. The differences are described more fully in the former opinions, to which we refer.

The law does not require a literal performance, but there must be left to the parties substantially the benefits expected. If the changes have not materially detracted from these benefits, there has been a substantial compliance. Mo. P. R. R. Co. v. Tygard, 84 Mo. 263, 54 Am. Rep. 97; St. L., M. & S. E. R. Co. v. Houck, 120 Mo. App. 634, 97 S. W. 963. It is difficult to find precedents for the construction of a given contract, as each one turns on the meaning of its own language and the circumstances under which it was made. For a further discussion of this question, see Crow v. Clay County, 196 Mo. 234, 95 S. W. 369; Tobey v. Moore, 130 Mass. 448; Rothenberger v. Glick, 22 Ind. App. 288, 52 N. E. 811; Soohan v. Philadelphia, 33 Pa. 9.

Believing that the use of the bond money upon the new road constitutes an unlawful diversion thereof and that such new construction would not be a substantial compliance with the will of the voters as expressed at the election in question, it follows that in our opinion the trial court was in error in entering judgment denying the relief prayed for. Our view as to the paving of the new road not constituting a substantial compliance with the contract is somewhat strengthened by the fact that the Supreme Court Commission reversed this case for a trial upon its merits. This would seem to have been entirely unnecessary if we are wrong in this view, since the pleadings before it described the difference in the two roads in their essential details practically as the proof here shows them to have been.

The facts of this ease are undisputed, and, believing that appellants herein were entitled to a permanent injunction against appellees as prayed for, such judgment will be accordingly so rendered.

Reversed and rendered.

HALL, C. X, not sitting.


author: WALTHALL, J.

text:
    CITY OF EL PASO v. TEXAS & P. RY. CO.
    No. 2720.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 20, 1932.
    Rehearing Denied Nov. 10, 1932.
    J. H. McBroom, City Atty., and Frank B. Clayton, Asst. City Atty., both of El Paso, for appellant.
    Touchstone, Wight, Gormley & Price, of Dallas, and S. N.' Russell, of El Paso, for ap-pellee. ,. .
   WALTHALL, J.

The city of El Paso, Tex., brought this suit against the Texas & Pacific Railway Company to recover a certain balance of taxes, penalties, and interest, alleged to be due by the defendant railway company and delinquent for the years 1925, 1926,1927, and 1928, totaling $16,354.09.

The record shows that the defendant company had rendered its properties for taxation during each of the years involved in the controversy for a total assessed valuation of $477,480, which sum included nothing for the value of the matter involved in the suit, that is, for the value of what the plaintiff, city of El Paso, alleges to be an ad valorem tax for each of the several years stated, but, to distinguish the taxes sued for from the ad valorem taxes rendered and paid for by the defendant company, the taxes sued for might be further designated and described as the| value of the franchise or right which the defendant company had by permission of the city of El Paso through ordinances granting the right of use in such parts or portions of the public streets of the city of El Paso upon which the defendant company’s railroad tracks might be laid and its trains operated, and upon which defendant’s tracks were laid and its trains operated, and which the city of El Paso submits to be a part of defendant company’s right of way and. roadbed when so used, under article 7168 of the Revised Statutes of this state, and subject to an ad valorem taxation by the city of El Paso.

The city of El Paso’s petition is quite lengthy, and we state only such of it as seems pertinent to the point at issue in this suit.

The defendant company and the board of equalization of the city of El Paso agreed upon the tangible value of the property of the company, and fixed same at $477,400, and for which same was rendered, excluding, however, the question of whether or not the parts of the city streets occupied by the company and upon which its railroad tracks are laid by permission under city ordinances were subject to an ad valorem tax.

The city of El Paso claimed that the parts of its streets occupied and used by the company and upon which it had laid its tracks and over which it ran its trains by permission of the city ordinances were taxable by the city, and the board of equalization, over the company’s protest, assessed against the company an additional valuation each year of $164,400, as the value of the rights of the company to occupy the streets of the city as alleged.

The defendant company has paid the city the taxes for each of the years on all, of its property subject to an ad valorem tax except that embraced in this suit, as above stated.

The defendant company submits in its answer as a sufficient defense to the city’s claim that the rights conferred by city ordinances on the railway company to use certain streets in the city amount to and are parts of defendant’s intangible assets, and are and were not subject to an ad valorem tax under article 7168 of our Civil Statutes, such right and use not being a right of way or roadbed within the contemplation of said article of the statute.

The defendant company makes the further contention that, if said easement or franchise were subject to an ad valorem tax by the city, the method of arriving at such valuation of such easements for taxation purposes was such that a fair valuation of such rights could not be obtained.

The case was tried to the court without a jury, and judgment was entered in favor of the defendant, from which the city prosecutes this appeal.

Opinion.

The trial court made the following findings of fact:

“Findings of Fact.
“I. For the years 1925,1926,1927 and 1928, the property of the defendant was assessed by the city, as ‘2.77 miles of main line, etc., at $229,931.00 per mile.’ In arriving at this valuation the City, as an element thereof, valued the right of defendant railroad to operate its trains, and maintain its tracks over and through certain specific streets and alleys of the City, at the sum of $164,400.00. When the taxes were due for the years in question, defendant tendered to the city an amount in payment thereof, less the taxes on the value to the extent of $164,400.00, which as aforesaid, was contended by the City to represent the value of said right of way.
“II. The ordinances levying city taxes uner1 which plaintiff seeks to collect the taxes herein, were duly and legally passed and were, and are, in all respects, valid and legal ordinances.
“III. It is undisputed that if said element of value was properly taxable and properly assessed, that for the year 1925 the defendant owes $3,109.07 taxes and $1,400.05 penalty and interest, making a total of $4,509.12; for the year 1926, $3,103.48 taxes and $1,087.33 penalty and interest, making a total of $4,-190.81; for the year 1927, $3,188.40 taxes and $798.10 penalty and interest, making a total of $3,986.50; for the year 1928, $3,188.40 taxes and penalty and interest in the amount of $479.26, making a total of $3,667.66.
“IV. The value of the right of way, that is the easement arising by virtue of the franchises granted by the city of El Paso, was valued for the purpose of taxation in relation to the abutting land on either side of the street. The value per square foot of the right of way, that is the street, was taken at fifty percent of the value per square foot of said abutting land. The value of the abutting property was estimated upon the basis of its market value. There is and was, no actual nor logical relationship between the value of the street as land held in fee, and the value of defendant’s franchises or easements. The standard used by the assessing authorities could not reflect in any fair degree of approximation the true value of the right they sought to tax.
“V. The assessing officers of the City endeavored, in good faith, in all the assessments in question, to arrive at a fair valuation of the property sought to be taxed.”

There is no dispute as to findings 1, 2, 3, and 5. We will later in the opinion discuss the propositions as to the fourth finding.

The plaintiff city’s first two propositions submit: That portion of a public street within an incorporated city occupied by the tracks and superstructures of a railway, and used by a railway for the operation of its trains, constitutes part of the railway’s “right of way,” and a part) of the railway’s “roadbed” within the meaning of article 7168, Revised Civil Statutes 1925, and is taxable as such by such incorporated city.

The defendant company denies that the portion of the public street within an incorporated city occupied by the tracks and superstructure of a railway for the operation of its trains constitutes part of the railway’s “right of way” or “roadbed,” and submits that the right granted by the city to so occupy the street constitutes intangible assets of the railway company, and can' be taxed only as such, and only as provided by the statutes dealing with the taxation of the intangible assets of a railroad company.

Article 1175 of the Revised Civil Statutes, under title 28, referring to cities, towns, and villages, and enumerating certain powers of cities, and which article has been adopted as part of the charter of the city of El Paso, provides by the eighth subdivision of said article as follows: “To provide for the mode and method of assessing taxes, both real and personal, against any person and corporation, including the right to assess the franchise of any public corporation using and occupying the public streets or grounds of the city, separately from the tangible property of such corporation.”

Article 7168, Revised Civil Statutes, under title 122, referring to taxation, provides:

“Every railroad corporation in this State shall deliver a sworn statement, on or before the thirtieth day of April of each year, to the assessor of each county and incorporated city or town, into or through which any part of their road may run or in which they own or are in possession of real estate, a classified list of all real estate owned by or in possession of said company in said county, town or city, specifying:
“1. The whole number of acres of land, lot or lots, exclusive of their right of way and depot grounds, owned, possessed or appropriated for their use, with a valuation affixed' to the same.
“2. The whole length of the railroad and the value thereof per mile, which valuation shall include right of way, roadbed, superstructure, depots and grounds upon which said depots' are situated, and all shops and fixtures of every kind used in operating said road.
“3. All personal property of whatsoever kind or character, except the rolling stock belonging to the company or in their possession in each respective county, listing and describing the said personal property in the same manner as is now required of citizens of this State.”

It will be observed that the article provides that there shall be rendered to the city assessor “the whole length of the railroad and the value thereof per mile, which valuation shall include right of way, roadbed, superstructure, depots and grounds upon which said depots are situated, and all shops and fixtures of every kind used in operating said road.”

The question presented, under the above findings of the court, in view of the articles of the statutes copied above, seems to be: Is the right given by the' city of El Paso to the defendant company to lay its railroad tracks upon the streets of the city, and to operate its trains thereon, and, when the company has accepted, to act upon such right and has laid its tracks'upon the streets and operated its trains upon the streets, the grant of such franchise of a tangible, corporeal right, a property right, as distinguished from an intangible incorporeal asset, and not taxable by the city. If such right given by the city to the defendant company is a franchise of a tangible right, a property right, the -first article quoted above provides for the mode and method of its assessments for taxation by the city. If the grant by the city of such franchise is a taxable right by the city, not bein'g elsewhere included in any property right, it must be found in defendant’s “using and occupying the public streets or grounds of the city,” as provided in said article 1175, subd. 8. The only way defendant uses and occupies the public streets of the city, as involved in this controversy, is by its right of way or roadbed used in operating said road.

Article 7168 provides for the rendition to the assessor of the city a classified list of all real estate owned or possessed by it, specifying “the value thereof per mile, which valuation shall include right of way, roadbed” used in operating said road.

The above two statutes we think indicate clearly the purpose of the Legislature to provide for the assessment for taxation of the “franchise” of the defendant in its use made of the public streets, and to fix the value thereof per mile of its right of way used in operating its road. The expressions used in the quoted statutes of “right of way” and “roadbed” in the connection in which they are used necessarily mean and are used to describe the strips of land which the defendant company in the exercise of its franchise, has taken in the public streets upon which it has laid its railroad tracks, and laid its material in place. The above statutes being specific in relation to the manner and method of taxation of the properties specified, the general statutes would be inapplicable, and it was so held in State v. St. Louis & S. W. Ry. Co., 43 Tex. Civ. App. 533, 96 S. W. 69.

We think the views above expressed are sustained by the above-quoted statutes. See, also, Western Union Telegraph Co. v. City of Houston (Tex. Civ. App.) 192 S. W. 577, and cases cited. It is there said that there can be no question that a franchise granted by the city of Houston to the telegraph company to use its streets for the erection of its lines is a species of property taxable as such.

In Eigg v. L. & N. R. R. Co., 116 Ky. 135, 75 S. W. 269, 270, the Supreme Court of Kentucky said: “It is not the intangible right to use it, but the strip of land which the railroad company appropriates for its use, and upon which it builds its roadbed, is its right of way.”

The case of South Nashville St. R. Co. v. Morrow, Trustee, by the Supreme Court of Tennessee, 87 Tenn. 406, 11 S. W. 348, 349, 2 L. R. A. 853, is in point in which it is said: “The right of way in the streets of Nashville is an easement in realty, and is assessable as realty,” and refers to Desty, on Taxation, and cited cases. See, also, Kansas City, M. & O. R. Co. of Texas v. City of Sweetwater, 104 Tex. 329, 137 S. W. 1117; Galveston & W. R. R. Co. v. City of Galveston (Tex. Civ. App.) 155 S. W. 273.

The court found that the ordinances levying city taxes under which the city seeks to collect the taxes were duly and legally passed, and were and are in all respects valid and legal ordinances; and found that, if said element of valué was properly assessed, for each of the several years the taxes, penalties, and interest would be as stated in the finding. The court further found that the assessing officers of the city endeavored,' in good faith, in all the assessments in question, to arrive at a fair valuation of the property-sought to be taxed. The court, however, as in the fourth finding of fact as copied above, found fault with the method of arriving at the value of the right of way, for the purpose of taxation, and so found that the standard used by the assessing authorities did not reflect in any fair degree of approximation the true value of the right they sought to tax.

From the findings made the court concluded (a) that the easement, arising by virtue of the franchises granted by the city over its streets and alleys, does not constitute part of the right of way within the meaning of, subdivision 2 of article 7168; (b) that, if said easement was taxable, the method of arriving at such valuation for taxation was such that a fair valuation thereof could not be obtained, and so adjudged that the city take nothing by its suit.

We have discussed the question embraced in the first part of the court’s conclusion. The second part of the conclusion was evidently arrived at by reason of the court’s fourth finding.

Conceding that the court’s fourth finding is supported by the evidence, and that the true valuation of the right of way could not be arrived at by the method used, the record shows that the values sued for were the values arrived at and fixed by the board of equalization. From the view we take of the question, we need nqt discuss the city’s method of arriving at tlie taxable value of the right of way. Article 7212, R. C. S., after prescribing the powers and duties of the board of equalization in fixing the valuation of property for taxation, provides that the action of the board in fixing such value shall be final. It is settled in this state that the board of equalization is a legal body, and its valuation of property is final and conclusive, in the absence of abuse of discretion, and can be attacked only directly through the adjudication of a court possessed with power to inquire into the justice of the valuation. Zachry v. City of Uvalde (Tex. Civ. App.) 24 S.W.(2d) 517, affirmed (Tex. Com. App.) 42 S.W.(2d) 417. Here the court finds “it is undisputed that if said element of value was properly taxable and properly assessed for the years involved,” the defendant owes “the amount sued for, thus eliminating any question of proper valuation.”

We have concluded that the court was in error in holding that the property involved in the controversy was not taxable by the city, and the judgment based thereon that the plaintiff recover nothing by its suit. The case is reversed and judgment here entered that the city of El Paso recover of defendant railway company for the total amount sued, with interest from the date of said judgment.


author: BAUGH, J.

text:
    REILLY et al. v. BIRMINGHAM et ux.
    No. 7711.
    Court of Civil Appeals of Texas. Austin.
    July 13, 1932.
    On Rehearing Sept 28, 1932.

    Theodore E. Simmang, of San Antonio, for appellants.
    Page & Powell, of Bastrop, for appellees.

       October 5, 1932, former judgment set aside, trial court’s judgment reformed in accordance with re-mittitur filed by appellees, and, as so reformed, it -is affirmed; costs of appeal taxed against appellees.

   BAUGH, J.

E. A. Reilly and “Trapshooter” Reilly Oil & Royalties Company, a joint-stock company, were in 1930 operating certain oil' wells in Bastrop county about two miles from what is designated as Birmingham Lake, located on lands owned by appellees. On May 1, 1930, appellants entered into a written contract with appellees whereby the latter agreed, subject to the conditions set forth therein, to furnish water to the former from said lake to operate said wells for a period of three years at a monthly rate of $75, payable in advance. Appellants used and paid for such water for a period of seven months, and then repudiated the contract; whereupon appellees brought this suit for. damages. Trial was to the court without a jury, and judgment rendered in favor of Birminghám on June 26, 1931, for $1,-870.50, from which Reilly and the oil company have appealed.. .Further pertinent facts will be stated in discussing the issues presented.

The first contention made by appellants, based upon the first eight assignments of error, assert error of the trial court in overruling defendants’ (appellants here) exceptions to plaintiffs’ pleadings. The action of the trial court in this respect is shown only by bills of exception. Nowhere in the judgment, nor in any order of the court shown in the transcript, does it appear what action the trial court took upon such special exceptions.

It is now well settled that action of the trial court upon exceptions to the pleadings, not entered of record, but brought to the appellate court only by bills of exception, cannot be reviewed on appeal. Daniel v. Daniel (Tex. Civ. App.) 128 S. W. 469 (writ ref.); Garcia v: Yzaguirre (Tex. Com. App.) 213 S. W. 236; Cannon v. Hathaway (Tex. Giv. App.) 12 S.W.(2d) 618; Ineeda Laundry v. Newton (Tex. Giv. App.) 33 S.W.(2d) 208; Waxahachie Nat’l Bank v. Hanes (Tex. Civ. App.) 50 S.W. (2d) 424; 3 Tex. Jur. 444.

The next issue relates to the measure of damages. While not properly presented, we think it is sufficiently raised to entitle it to consideration. There is no merit in the contention that appellees could recover only on quantum meruit. Appellees could have recovered on that basis; but such was not the basis of their suit. When appellants repudiated the contract, appellees had their election of any one of three remedies. See 6 R. O. L. 1032. They elected to treat the contract as at an end, and sued for damages for breach of same in its entirety. While the contract provided that it was to run for a period of three years, there was no express promise to pay $75 per month for that period of time. It was obvious that both parties to it anticipated that it might be sooner terminated by either of them. Section 3 of said contract provided:

“3. This agreement shall be for a period of three years from date hereof. First party shall have the right to discontinue the purchase of water from the second party and to ' terminate this contract upon its abandonment of operation of all of the said wells now being operated by first party on the lease aforesaid prior to the expiration date set forth above, upon giving ten days written notice to party of the second part. And this contract shall also terminate upon the sale or assignment of the said wells prior to the expiration date set forth above. Second party shall have the right to discontinue the sale of water to the first party and to terminate this contract before the expiration date set forth above should said second party at any time deem the supply of water in said lake to be insufficient to fulfill the needs of said first party under the terms of this contract and also to fulfill the needs of Atlantic Oil Producing Company of Dallas, Texas, under its contract of recent date with said second party, and also to fulfill the needs of said second party and their tenants for domestic purposes and for the watering of live stock which may be pastured upon the Birmingham Ranch (upon which is situated said Birmingham Lake).and the adjoining ranch known as the Trigg Ranch, second party expressly reserving the right to protect their needs as aforesaid and the needs of the said Trigg Ranch, and the needs of the said Atlantic Oil Producing Company in preference to supplying first party under this contract, which is made subject to the same. Should such condition arise second party shall give first party ten days written notice before terminating this contract and cutting off first party’s supply of water.”

The first party named in the contract was “Trapshooter” Reilly Oil & Royalties Company, and the second party was Birmingham. While the evidence was sufficient to show that appellees had adequate water in the lake to supply appellants’ needs under the contract up to the time of the trial, the contract yet had approximately two years to run. It may be admitted that, if the Birminghams had made no reservations in the contract, but that the oil company had reserved the right to terminate it upon the conditions named, i. e., abandonment or sale of their wells, and had then repudiated the contract in toto before the happening of any such conditions, such oil company could not set up such conditions as mere possibilities against its own breach and defeat appellees’ right of recovery. But appellees can recover only such damages for breach as were or should have been in reasonable contemplation of the parties at the time the contract was made. And it is incumbent upon them to prove their damages with reasonable certainty. The rule as to future, speculative, remote, or contingent damages flowing from a breach of contract is that it “only applies to such damages as are not the certain result of the breach, and not to such as are the certain result, but uncertain in amount.” Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 51 S. Ct. 248, 75 L. Ed. 544; Nat’l Bank of Cleburne v. M. M. Pittman Roller Mill (Tex. Com. App.) 265 S. W. 1024, 1025, 36 A. L. R. 1405. Such rule, however, applies to the right to recover at all; and does not minimize the rule that, the right of recovery being admitted, the amount of the recovery must be proven with a reasonable degree of certainty. Not only was there no evidence that appellees could or would have available in said lake sufficient water to supply appellants’ needs, a doubt and uncertainty which they expressly recognized in the contract, but the named contingencies and conditions imposed by appel-lees which not only authorized, but in effect required, them to terminate the contract, were such as in their very nature rendered them impossible of ascertainment with any reasonable degree of certainty. Any of the conditions imposed in the contract by each of the parties to it might occur at any time during the period of the contract yet to run that would terminate it, and absolve both parties from any further liability under it. See Pollack v. Pollack (Tex. Com. App.) 39 S.W.(2d) 853; Id. (Tex. Com. App.) 46 S.W.(2d) 292; Dunbar v. Dunbar, 190 U. S. 340, 23 S. Ct. 757, 47 L. Ed. 1084. Certainly a contingency which cannot be determined with any reasonable degree of certainty cannot be made the basis for a definite amount of damages. Clearly the contract sued upon was not an absolute agreement on the part of appellees to furnish water to appellants for a period of three years; but to furnish it only subject to the conditions and limitations in the contract. Appellees could not recover for water to be furnished for the remainder of the contract period without even a prima facie showing that they could or would so furnish it to appellants. The judgment, therefore, in so far as it awards damages accruing or to accrue subsequent to the time of the trial, is erroneous.

The other matters complained of as to the admission of evidence and refusal to appellants of the right to cross-examine the witness Birmingham are not presented by any bill of exception, in absence of which we cannot consider the trial court’s action thereon. Clement v. Rainey (Tex. Civ. App.) 50 S.W.(2d) 359.

There is nothing in the record to show that any plea of privilege was filed, or, if so, what action was had thereon. In any event, the action was upon a contract performable in Bas-trop county and venue properly obtained in that county.

Eor the error pointed out, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.'

On Motion for Rehearing.

Appellees in an able motion for rehearing earnestly insist that, appellant having arbitrarily breached the contract, it was incumbent upon it, in order to relieve itself from liability for the full term of the contract, to plead and prove any or all conditions stipulated in the contract which would excuse it for its breach. As a general proposition, that is true, and undoubtedly applies to all conditions in the contract which would relieve appellant as against a full performance by it. However, several conditions were reserved in the contract for the express benefit of appellee Birmingham which would, if they occurred, relieve him from any further performance of the contract, regardless of the contingencies inserted for the benefit of appellant. The conditions inserted for the benefit of Birmingham and for his protection were conditions with which appellant had nothing to do and over which it had no control. The same rule which would require appellant to negative the conditions which would excuse it for a breach would, we think, require Birmingham, as a condition precedent to his recovery for water to be furnished during the remaining two years of the contract period, to show that he could furnish the water he contracted to furnish. This he did not undertake to do.

Nor does the rule that damages, certain to result from breach of contract, but merely .uncertain in amount, may be recovered, apply here. The amount of the damages so long as Birmingham could furnish appellant water during the contract period was definite and certain. If and when he was unable to supply the water contracted for, the damage ceased entirely. Based upon the contingencies reserved for the protection of appellee, therefore, the uncertainty was not as to the amount of the damage; but, if the supply did run short, the uncertainty then became one as to whether any further damages at all would accrue to appellee. Clearly, we think, appellee could not recover, under the conditions he reserved himself in the contract for his own benefit, for three years’ supply of water without some reasonable showing that he could furnish the water during that period.

From the record as presented, appellee was entitled to recover for the water contracted for up to the date of the trial. Ap-pellee has asked permission, in case his motion in other respects is overruled, to file a remittitur of the difference between the amount recovered and the amount due under the contract up to the date of the trial. If appellee desires to file such remittitur within ten days from this date, as so remitted the judgment of the trial court will be affirmed. Otherwise it will be reversed, and the cause remanded for another trial.

Granted in part and in part overruled.


author: . JACKSON, J.

text:
    DOWNING et al. v. SOUTHWESTERN DRUG CORPORATION.
    No. 3877.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 28, 1932.
    Rehearing Denied Nov. 2, 1932.

      Hamilton, Fitzgerald & Grundy, of Memphis, for appellants.'
    James O. Cade, of Amarillo, for appellee.
   . JACKSON, J.

This is an appeal from the judgment of the district court of Potter county, overruling the separate pleas of privilege urged by the appellants.

The record, so far- as necessary to a disposition of this appeal, discloses that the Southwestern Drug Corporation, incorporated under the laws of the state of Texas, instituted this suit in the district court of Pot-tér county, Tex., bn a promissory note dated January 26, 1931, and payable to plaintiff on demand at Amarillo, Tex., against J. C. Downing and I-I. P. Hemphill, said to reside in Hall county, Tex., and alleged to constitute the firm or copartnership of the City Drug Store at Newlin, Tex.

The defendants each filed his separate plea of privilege to be sued in Hall county, the county of his residence, and specially denied that the note sued on by the plaintiff was payable at Amarillo, Tex., asserting that the note' was payable at Newlin in Hall county, Tex.

In due time the plaintiff filed its controverting affidavit, stating that its suit was on a certain promissory note dated January 26, 1931, for the sum of $530.31, and payable to the plaintiff at Amarillo, .Tex., in Potter county. That it had sued each of the defendants on said note and that plaintiff does not claim any relief other than for a recovery on said note, refers to its original petition, and sets out the note in htec verba.

On the trial of the plea of privilege the plaintiff introduced a letter dated January 26, 1931, which is as. follows:

• “City Drug Store
“J. O. Downing . Fred Hemphill
“Drugs and Drug -Sundries,
Newlin, Tex., Jan. 26, 1931. “Mr. M. W. West,
“Amarillo, Texas.
“Dear Mr. West:
“We are enclosing herewith a Demand Note for our balance of $530.31. We-assure you that we will make payments.along as fast as we can on this note.
“Trusting that this will be satisfactory, we are,
“lours very truly, ”
“City Drug' Store
“[Signed] J. O. Downing.”

The note sued on was also introduced in evi-. dence, which reads as follows:

“$530.31. Newlin, Texas, Jan. 26,1931. On demand days after date, for'value received, I, we, or either of us promise to pay to the or-' der of Southwestern Drug Corporation, at Amarillo, Five Hundred Thirty and 31/100 Dollars, at their office, Amarillo, Texas, with interest at the rate of ten per cent, per annum,-from maturity until paid and ten per cent, attorney fee if placed in the hands of an attorney for collection; and the sureties and endorsers hereby waive protest, notice of protest,' and notice of non-payment hereof, and’ guarantee the payment of this note at maturity or any time thereafter, and consent that the time may be extended without notice thereof.
“City Drug Store
“By [Signed] J. C. Downing.”
“Due-19 — ”

The record further shows without contradiction that the plaintiff received the above letter and the above note in due course through the mails at the same time. That the defendants were partners and doing business under the name of City Drug Store at Newlin, Tex. Some other correspondence and exhibits were introduced which we consider it unnecessary to set out.

The court found that plaintiff’s suit was on a promissory note .executed by the City Drug Store, a copartnership composed of J. C. Downing and H. F. Hemphill, dated January 26, 1931, and payable to plaintiff at Amarillo, Tex.

The appellants present as error the action of the trial court in overruling their respective pleas of privilege: (a) Because the allegations in the controverting affidavit were not sufficient to authorize the court to find that the defendants were partners and as such executed the note in their partnership name; and (b) because the evidence was insufficient to show the execution of the note by the defendants or either of them in the partnership name so as to make it a binding obligation upon them.

There was no exception, either general or special, to the allegations of the controverting affidavit which, " if insufficient, could have been amended. Duvall v. Boyer (Tex. Civ. App.) 35 S.W.(2d) 181. And in the absence of such exception all reasonable in-tendments must be presumed in aid of the pleading. Southern Casualty Company v. Morgan (Tex. Com. App.) 16 S.W.(2d) 533.

We are of the opinion that in the state of this record the allegations in the controverting affidavit, with the references therein made to the original petition, were sufficient to support the judgment of the court.-

Ño objection is urged in this court to the testimony offered, which shows without controversy that the defendants were a firm or copartnership doing 'business at Newlin, Tex.; under the name of City Drug Store. That the appellee, through its authorized agent M. W. West, received the note in controversy through the mail inclosed in a letter executed by the name City Drug Store by J. C. Downing. That the letter is of even date with the note, describes a demand note for the exact amount for which the note was given, and assures appellee that “we will ónáke payments along as fast as we can on this note.” This, together with the other correspondence and documents introduced, in our opinion was sufficient to authorize the court to find that the note was executed by the City Drug Store, a copartnership composed of the defendants, and that it was payable to plaintiff at Amarillo, Tex.

The judgment is affirmed.


author: HICKMAN, C. J.

text:
    YOUNG v. KANSAS CITY, M. & O. RY. CO.
    No. 992.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 7, 1932.
    Rehearing Denied Oct. 28, 1932.
    Harry R. Bondies, of Sweetwater, for appellant.
    Douthit, Mays & Perkins, of Sweetwater, for appellee.
   HICKMAN, C. J.

By this suit appellant sought damages against appellee arising out of an alleged slanderous statement made by certain officials of the appellee concerning him. The case was submitted to a jury on one special issue only, which issue was as follows: “Did A. V. Davis, on the occasion in question, utter the language attributed to him in plaintiff’s petition?” To this issue the jury answered “No,” and judgment was rendered in favor of appellee.

Appellant’s brief contains two assignments of error. One of these assignments challenges the sufficiency of the evidence to support the answer of the jury to the special ’issue submitted. We do not think it necessary to write at length upon this assignment. There was positive evidence of probative force in the record supporting this answer, and it would be a usurpation by the court of the functions of the jury for us to overturn it.

The ■ other assignment complains of alleged improper argument on the part of one of the appellee’s attorneys. The bill of exceptions preserving the matter recites that one of appellee’s attorneys, in argument to the jury, “charged and said this was a pretended, fictitious and make-believe suit; that it was in the making and brewing before the facts upon which it is based had transpired, and that, if the defendant was an individual like Felton Graham, (a juror), and not a corporation, the’’ suit would not have been brought.” No objection was made to this argument during the trial of the case, and the matter was called to the court’s attention for the first time in appellant’s motion for a new trial. This argument may have been improper, although we entertain doubts as to this, but, even if so, appellant lost his right to assign same as error by his failure to preserve a timely exception thereto. The general rule is that objection to improper argument of counsel in presenting a ease to the jury should be made at the trial, and not presented for the first time in a motion for a new trial. There are recent decisions, including some by this court, Hewitt v. Buchanan (Tex. Civ. App.) 4 S.W.(2d) 169; Nicholson v. Nicholson (Tex. Civ. App.) 22 S.W.(2d) 514, holding that improper argument, injecting into the case matters foreign thereto, which are highly inflammatory and prejudicial, may, in a proper case, be complained of on appeal, although objection was urged thereto for the first time in a motion for new trial, 3 Tex. Jur. § 147, pp. 222-224. The argument above quoted does not iall within the exception.

There appearing no reversible error in this record, the judgment of the trial court is affirmed.

On Motion for Rehearing.

The motion presents a very able argument in support of the contention that the cause should be reversed and remanded, notwithstanding the fact that objection to the argument claimed to have been improper was made for the first time on motion for rehearing. A review of the question has confirmed us in the belief that our original holding was correct. .The opinion of Judge Speer in Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765, must be considered in connection with the later opinion by the same author in Davis v. Hill (Tex. Com. App.) 208 S. W. 526. The latter case is authority for our holding in the original opinion. .

The motion for rehearing will be overruled.


author: JONES, C. J.

text:
    BRINKLEY v. STATE.
    No. 11243.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 1, 1932.
    Rehearing Denied Oct. 29, 1932.
    See, also (Tex. Civ. App.) 49 S.W.(2d) 516.
    Jed C. Adams, of Dallas, for appellant.
    Wm. McCraw, Dist. Atty., and S. L. Lewis, Asst. Dist. Atty., both of Dallas, for the State.
   JONES, C. J.

A suit was instituted May 27, 1931, by the state of Texas, on the relation of William Me-Craw, criminal district attorney of Dallas county, against Dr. John R. Brinkley, to cancel a license to practice medicine, issued to him in 1919, by the Texas State Board of Medical Examiners. The suit was instituted on the request of Dr. T. J. Crowe, a resident of Dallas county, and secretary of the Texas State Board of Medical Examiners. The only allegation in the petition as to the residence of Dr. John R. Brinkley is that when such residence was last known it was at Milford, Gary county, Kan., though the petition prays that “defendant be cited to appear and answer herein.” Citation was issued to Val Verde county, Tex., and served on Dr. Brinkley, June 24, 1931, by the sheriff of • said county.

To this suit appellant, John R. Brinkley, seasonably filed a plea of privilege, alleging his residence to be in Val Verde county, and denying that any exception exists that would permit appellee to sue him in Dallas county. This plea of privilege was sufficient in form to present to the court the issue of venue of the suit. Appellee seasonably filed its controverting affidavit, in effect denying that appellant is a resident of Val Verde county, or of any other county in the state, and alleging that his only legal residence was in Milford, Gary county, Kan., at the time of filing of the suit, and that appellant is a nonresident and subject to be sued in Dallas county, the residence of the secretary of the Texas State Board of Medical Examiners, at whose request the suit is instituted. Before the hearing on the plea of privilege, appelleé filed an amended petition, the record not disclosing that leave was first obtained to do so, and also filed an amended controverting affidavit, after leave was obtained to do so. The court, however, refused to consider the amended controverting affidavit and appellee has duly filed a cross-assignment of error, challenging the correctness of such ruling.

A hearing was had on the issue joined by the plea of privilege and the original controverting affidavit. At the conclusion of such hearing the court overruled the plea of privilege and entered j'udgment retaining venue of the suit. The appeal has been duly perfected to this court. There is no conflict in the evidence on any material issue. This evidence establishes the fact that John R. Brinkley, in January, 1932, was a resident of Milford, Kan., and maintained a hospital at such place, in which he gave medical treatment to patients; that early in 1932 he made different trips to the state of Texas, and into Mexico, for the purpose of selecting a site to establish; just across the border in Mexieo, a radio broadcasting station; that on March 10,1932, he had selected Villa Ouna, in Mexico, on the opposite bank of the Rio Grande river from the city of Del Rio, in Val Verde county, Tex., for such location; that at this time he stopped at a hotel in Del Rio, registering from Milford, Kan.; that it was his intention at once to begin the construction of the radio broadcasting station in Villa Ouna, and an operating room or studio in Del Rio, from which messages would be sent from Del Rio, Tex., over the broadcasting station; that in pursuance of this intention, in April, 1932, appellant brought his family (consisting of himself, his wife, and a son) to Del Rio, registering at a hotel as being from Milford, Kan.; that the family lived at this hotel for approximately two weeks, when they moved into a rented and partly furnished residence in the city of Del Rio; and that he intended to reside at said place for an indefinite period of time, for the purpose of operating the broadcasting station.

The evidence further shows that work was begun in a very short time on the broadcasting station, and work also was begun on the studio in the rented residence. This work was supervised by' appellant. During this' time and before the filing of the suit, appellant made about four business trips into the state of Kansas, but returned each time to the residence as soon as he had completed the business. Since the completion of the broadcasting station, which was after the filing of this suit, he remained at his residence in Del Rio, and from his studio in such city used his broadcasting station. His introduction to the radio audience was made by himself as “Dr. John R. Brinkley of Milford, Kansas.” Appellant has invested a large sum of. money in the broadcasting station in Mexico, and also in his studio at his Del Rio residence. His hospital in Milford, Kan., was leased to another physician, who treats the patients there, after appellant began to reside in Del Rio. Appellant expects to continue, for an indefinite period of time, his voting residence in Milford, Kan., and a business residence in Del Rio, Tex.

The original petition, as against a general demurrer, states a cause of action and states the same cause of action alleged in the amended petition. The original controverting affidavit raises the only question involved on the issue of venue, and hence we hold that, though appellee had a right to amend its controverting affidavit, it has suffered no injury by the ruling of the court, and hence the error is harmless.

This evidence being undisputed on any material fact, the appeal presents only a question of law as to its legal effect. If the legal effect of this evidence be to establish the fact that appellant was a nonresident of this state at the time the suit was filed, then the judgment denying the plea of privilege was correctly entered; on the other hand, if the ' legal effect of this evidence be to establish the fact that on such date appellant was a resident of Val Verde county, Tex., under the venue statutes of this state, then the judgment is erroneous.

We are of the opinion that, under the rule of law announced in this state, as to what constitutes a residence under our venue statutes, this evidence conclusively shows that appellant had established a residence in the city of Del Rio, Val Verde county, Tex. This conclusion,' on the facts of the instant case, necessarily follows from the opinion of our Supreme Court in Taylor v. Wilson, 99 Tex. 651, 93 S. W. 109; hence, on the authority of that ease, which has always been followed in this state, we reverse the judgment of the lower court and here render judgment in favor of appellant, granting the plea of privilege, and directing this cause to be transferred to the district court of Val Verde county, Tex. The following additional cases are believed to be in point: Pearson v. West, 97 Tex. 238, 77 S. W. 944; Gilmer v. Graham (Tex. Civ. App.) 26 S.W.(2d) 687; Johnson v. State (Tex. Civ. App.) 267 S. W. 1057.

Reversed and rendered.


author: HIGGINS, J.

text:
    WEST TEXAS CONST. CO. v. WHITEFIELD et al.
    No. 2735.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 20, 1932.
    Rehearing Denied Nov. 10, 1932.
    Mart W. Reeves and Goggans & Ritchie, all of Dallas, for appellant.
    Sam K. Wasaff, of Midland, for appellees.
   HIGGINS, J.

Appellant brought this suit against B. F. Whitefield and wife, and Mary Erickson, a feme sole, to recover upon a paving certificate issued by the city of Midland to cover the pro rata cost of paving a parcel of land upon Illinois avenue in said city, and for foreclosure of lien upon said land.

The instrument certifies that, by virtud of an ordinance and other proceedings of the •city council of the city of Midland, Tex., passed on the 12th day of November, 1929, there was levied an assessment in the sum of $1,240.95 against the property (describing same) and against the true owner thereof, who is B. F. Whitefield. It was'payable in •six Installments, with the usual accelerating maturity clause. It bears interest from June 30,1930, at the rate of 8 per cent, per annum, payable annually, and provides for a reasonable attorney’s fee.

Defendants in their answer set. up that the assessment was in excess of the special benefit to the property and its owner and in excess of the enhanced value of the lot. Other matters were set up in the answer, but no point with respect thereto was made by appellee in the court below nor here relied upon as justifying affirmance.

The case was submitted upon two issues, briefly stated, as follows:

(1) What amount was the lot enhanced in value by the paving?

(2) What is a reasonable attorney’s fee to be allowed plaintiff for prosecuting the suit?

To both of these issues the jury answered “None,” and judgment was rendered for the defendants.

. Whitefield testified he objected to the paving and filed a written notice to that effect with the city, but did not remember whether he ever appeared before the city council or not. He further testified the paving did not enhance the value of the lot.

The certificate in question was issued under the provisions of an Act of the 40th Leg. (1927) 1st C. S., c. 106, p. 489 (Vernon's Ann. Giv. St. art. 1105b).

Section 6 of that act (Vernon’s Ann. Giv. St. art. 1105b, § 6), provides: “If any such certificate shall recite substantially that the proceedings with reference to making the improvements therein referred to have' been regularly had in compliance with the law and that all prerequisites to the fixing of the assessment lien against the property described in said certificate and the personal liability of the owner or owners thereof have been performed, same shall be prima facie evidence of all the matters recited in said certificate, and no further proof thereof shall be required.”

The certificate contains such recital. Section 9 of the act (Vernon’s Ann. Civ. St. art. 1105b, § 9) provides for notice to and hearing of parties interested in the proposed improvement, and further provides: “Anyone owning or claiming any property assessed, or any interest therein, or any railway, street railway, or interurban assessed or any interest therein, who shall desire to contest any such assessment on account of the amount thereof, or any inaccuracy, irregularity, invalidity, or insufficiency of the proceedings or contract with reference thereto, or with reference to such improvements, or on account of any matter or thing not in the discretion of the governing body, shall have the right to appeal therefrom and from such hearing by instituting suit for that purpose in any court having jurisdiction within fifteen (15) days from the time such assessment is levied; and anyone who shall fail to institute such suit within such time shall he held to have waived every matter which might have been taken advantage of at such hearing, and shall be barred and estopped from in any manner contésting or questioning such assessment, the amount, accuracy, validity, regularity and sufficiency thereof, and of the proceedings and contract, with reference thereto and with reference to such improvements for or on account of any matter whatsoever. And the only defense to any such assessment in any suit to enforce the same shall be that the notice of hearing was not published or did not contain the substance of one or more of the requisites therefor herein prescribed, or that the assessments exceed the amount of the estimate, and no words or acts of any officer or employee of the city, or member of any governing body of the city, other than the action of the governing body shown in its written proceedings and records shall in any way affect the force and effect of the provisions of this Act.”

It is not shown that any of the defendants filed suit as required by the last-quoted portion of the law, and, in the absence of such showing, they are by the terms of the law barred and estopped from now contesting any special benefit to and enhancement in the value of the lot against which the certificate was issued. Herring v. City of Mexia (Tex. Civ. App.) 290 S. W. 792; Scanlan v. Gulf Bitulithic Co. (Tex. Civ. App.) 27 S.W.(2d) 877; Id. (Tex. Com. App.) 44 S. W.(2d) 967; Dillon v. Whitley (Tex. Civ. App.) 210 S. W. 329; City of Corsicana v. Mills (Tex. Civ. App.) 235 S. W. 220; Elmendorf v. City of San Antonio (Tex. Civ. App.) 223 S. W. 631; Jones v. City of Houston (Tex. Civ. App.) 188 S. W. 688.

Appellees say these cases are not in point because they protested the paving. But there is nothing in the statute which substitutes a protest for suit within fifteen days after the assessment is levied.

Upon the issue of attorney’s fees, evidence was offered by both sides, but upon the oral argument in this court appellant waived its claim for such fee.

Upon the undisputed facts, plaintiff was entitled to judgment for the amount of the certificate with interest and foreclosure.

Accordingly, the judgment is reversed, and will be here rendered in favor of appellant against B. F. Whitefield for $1,240.95, with interest from June 30, 1930, at the rate of 8 per cent, per annum, payable annually, until date of judgment, Elmendorf v. City of San Antonio (Tex. Civ. App.) 223 S.W. 631, and against all defendants for foreclosure of lien upon the lot described in the petition.

Reversed and rendered.

Supplemental Opinion,

Upon the authority of Elmendorf v. City of San Antonio (Tex. Oiv. App.) 223 S. W. 631, we were of the opinion the judgment should bear interest at the rate of 6 per cent, per annum.

Appellant has informally called to our attention the ruling of the Commission of Appeals in Fenstermaker v. City of San Antonio, 290 S. W. 532, from which it follows the judgment should bear interest from its date at the rate of 8 per cent, per annum.

The judgment will he corrected in that respect.