author: PELPHREY, Chief Justice.

text:
    LYNCH et al. v. JOHNSON et al.
    No. 2805.
    Court of Civil Appeals of Texas. El Paso.
    March 23, 1933.
    Rehearing Denied April 20, 1933.
    R. D. Blaydes, of Fort Stockton, for appellant Lynch.
    W. B. Silliman, of Fort Stockton, and Jas. Cornell and R. G. Hughes, both of San Angelo, for appellee McDonald.
    W. C. Jackson, of Fort Stockton, for appel-lee Johnson.
   PELPHREY, Chief Justice.

S. C. Johnson, on January 20, 1930, executed to W. M. Holland his note for $16,000, due ■two years after date, and also executed, for the purpose of securing the note, a deed of trust on lots 13, 14, and 15, block 22, Old Fort addition to Fort Stockton, Tex. On January 22, 1930, this note was transferred to J. A. McDonald. Interest on the note was paid by Johnson on July 30, 1930, January 20, 1931, and on July 20,1931.

There also appears to have been made the following payments: $150 on November 10, 1931, $200 on December 4, 1931, $150 on December 10, 1931, and $150 on January 10, 1932. Johnson executed to the First National Bank of Fort Stockton on June IS, 1931, a financial statement showing assets and liabilities as follows:

Included in the real estate the following properties were listed: Grand Théater, Fort Stockton, Tex., cash value $30,000, equity $20,000; Granada Theater, Alpine, Tex., cash value $30,000, equity $20,000; home, Fort Stockton, cash value $25,000, equity $25,000; three brick store buildings, Fort Stockton, cash value, $29,000, equity $29,000; three rent residences, cash value $9,500, equity, $9,500.

On June 20, 1931, he executed to the bank his renewal note for $5,500, and he and his wife, Lurline Johnson, executed a deed of trust to the bank on lots 13, 14, and 15, block 22, Old Fort addition, lots 11 and 12, block 85, Orient addition, and lot 16, block 14, Old Fort addition, all in Fort Stockton.

It was provided in the deed of trust that the lien therein given was subject to a prior lien as to lots 13, 14, and 15, block 22, in favor of J. A. McDonald.

The bank suspended operations on October 5, 1931, and F. M. Lynch was thereafter appointed receiver.

McDonald filed suit against Johnson on November 27, 1931, on the $16,000 note and to foreclose his deed of trust lien on lots 13, 14, and 15, block 22. On the same date he sued out a writ of attachment which was levied on lot 16, block 14. In his affidavit for the writ of attachment, McDonald set out that Johnson was about to dispose of his property, in whole or in part, with intent to defraud his creditor's.

On January 25, 1932, McDonald was granted permission to file an amended petition in the suit and, Johnson failing to appear, the court rendered judgment in favor of McDonald for $17,569.45, foreclosing the deed of trust lien on lots 13, 14, and 15, block 22, and the attachment lien on lot 16, block 14, ordering same seized and to be sold to satisfy any deficiency in the event the amount realized from the sale of lots 13, 14, and 15, block 22, was not sufficient to satisfy the judgment.

Prior to May 5, 1932, the receiver filed this suit against C. S. Johnson and wife, Lurline Johnson, J. A. McDonald, all of Pecos county, and Ernest Mollison of Brewster county.

On July 14, 1932, he filed his amended petition alleging the indebtedness of Johnson to the bank in the sum of $5,500 as evidenced by the note; that said note was due and unpaid and constituted a part of the assets of the bank; that the note constituted a renewal of an original indebtedness to the bank; that at the time of the creation of the original indebtedness and as an inducement to the bank to make the loan, Johnson made a financial statement and that the bank made the loan in reliance thereon; that the purpose, nature, and extent of said statement was known to all defendants and by their joint attorney, W. B. Silliman; that by reason of said financial statement and the list of properties set forth therein, Johnson impliedly warranted and guaranteed all such property as security for the loan, and thereby created an implied lien thereon in favor of the bank; that thereafter Johnson and wife executed the deed of trust in favor of the bank to secure the payment of the note; that by reason of such deed of trust lien and the implied lien created by the financial statement, the bank had and held a valid subsisting lien on all the property to secure the payment of its note; that McDonald was claiming a prior lien on lots 13, 14, and 15, block '22, and an attachment lien on lot 16, block 14, and an abstract of judgment lien on lots 11 and 12, block 85; that the attachment lien asserted was void and of no force and effect, and, if it legally existed, it was inferior to the bank’s lien; that it was effected by fraud on the legal rights of the other creditors of Johnson, because the grounds upon which the writ of attachment was sued out were false and fraudulent, and known to be so at the time they were made; that the writ was sued out without any present purpose or intention on McDonald’s part of foreclosing the lien created thereby, and that, if he had the intention of foreclosing his lien, the attachment was collusively obtained for the purpose of delaying and defrauding other creditors of Johnson in the collection of their debts.

Johnson answered by general demurrer and general denial and by cross-action against McDonald seeking to have the judgment rendered against him on January 25, 1932, set aside or that it be amended so that no execution or order of sale should issue on same as per an alleged agreement between him and McDonald.

McDonald answered by general demurrer and general denial.

Upon a trial before the court judgment was rendered that the receiver recover from Johnson $6,730.68, being the principal, interest, and attorney’s fees on the note sued upon; foreclosing the deed of trust lien of the hank against the property enumerated therein, subject to the prior lien of McDonald; that the receiver take nothing as against McDonald; and that Johnson take nothing as against McDonald on his cross-action.

Both Johnson and the receiver have appealed.

Opinion.

The receiver in his first six assignments attacks the implied findings of the trial court, which findings, in effect, are: (1) That there was no collusion, fraud, or any intent, upon the part of S. C. Johnson, or upon the part of J. A. McDonald, to delay, and/or hinder and/or defraud the creditors of S. O. Johnson ; (2) that the affidavit for the writ of attachment upon which the writ issued and the levy was made, was true; (3) that J. A. McDonald had a present intention at the time of the levy of attachment to foreclose same upon the property attached; (4) that the reasonable market value of the property covered by the deed of trust lien' which McDonald held was inadequate and of less value than the amount of McDonald’s claim at the time of the levying of the writ of attachment on lot 16, block 14; (5) that McDonald was not bound by the acts and agreements made by his agent and attorney, W. B. Silliman, with Johnson; and (6) that at the time of the levy of the writ of attachment on lot 16, block 14, and at the time of the rendition of the judgment on January 25, 1932, Johnson was solvent.

By his three remaining assignments he contends that the evidence conclusively showing that neither McDonald or his attorney had any intention to foreclose the attachment lien either at the time of the attachment levy or at the time judgment was rendered, and that the evidence conclusively showing the existence of a collusive agreement between Johnson and Silliman to defraud, and a present intention to delay and hinder other creditors of Johnson, including the receiver, the court erred in not postponing the attachment lien on lot 16, block 14, and making it subject to the deed of trust lien of the receiver.

Appellee, on the other hand, asserts that the alleged falsity of the grounds upon which the writ of attachment was procured in the suit by McDonald against Johnson does not invalidate the lien created by the levy of the writ of attachment; that the implied finding of the court that the grounds set out in the affidavit for the attachment were true, being supported by evidence, will not be set aside on appeal; that the implied finding of the court that McDonald believed his alleged grounds for attachment to be true and had probable grounds for such belief, being supported by evidence will not be disturbed on appeal; and that a debtor has a legal right to prefer one or more of his creditors.

After hearing the argument of counsel, and, after a careful study of the record before us, we have reached the conclusion that a proper disposition of this cause depends upon whether or not the evidence shows that the judgment obtained by McDonald and suffered to be taken against him by Johnson was void under the provisions of article 3996', Revised Statutes 1925. That article provides that “Every gift, conveyance, assignment, or transfer of, or charge upon, any estate real or personal, every unit commenced, or decree, judgment or execution suffered or obtained and every bond or other writing given with intent to delay, hinder or defraud creditors, purchasers, or other persons of or from what they are, or may be, lawfully entitled to, shall, as to such creditors, purchasers or other persons, their representatives or assigns, be void.”

Therefore, if the judgment obtained by McDonald on January 25, 1932, and which was suffered by Johnson to be taken against him was so obtained and suffered with the intent to delay, hinder, and defraud the other creditors of Johnson, then the judgment, as far as the attachment lien is concerned, should be reversed.

The facts upon which appellant depends to show that the judgment was had with the intent to defraud Johnson’s other creditors, are: (1) That the affidavit made by McDonald was untrue; (2) that McDonald had no present intention, at the time the attachment was levied, to foreclose same; and (3) that the reasonable market value of the property upon which McDonald had his deed of trust exceeded the amount of his claim.

McDonald, who was called as a witness by appellant, testified that he knew that Johnson owed more than his property would sell for; knew that Johnson had sold some of his property to his wife; had heard rumors that he was disposing of all his property; and that, when he made the affidavit for attachment, he believed the statement therein, that Johnson was disposing of his property with the intent to defraud his creditors.

Erom this evidence the trial judge was warranted in finding that the affidavit was honestly made'.

On the question of McDonald’s intention as to foreclosing the attachment lien, we find in the record no evidence as to any statement made by him or any action on his part evidencing any intention not to avail himself of all the rights accruing to him by virtue thereof.

While it is true that Johnson testified as to certain agreements between himself and Judge Silliman, yet, we find nothing in the record showing any express authorization from McDonald for the making of such agreements.

The mere employment of an attorney to bring a foreclosure suit for or to collect a debt owing to the client would not, in our opinion, carry with it any implied power to enter into an agreement to defraud other creditors of the debtor.

It follows, therefore, that the court was justified in concluding that McDonald did not bring the suit to foreclose the deed of trust and attachment liens without any intention of having any order of sale issued thereunder, and this conclusion is further substantiated by the fact that in May following the taking of the judgment an order of sale was in fact issued.

There was cofisiderable evidence introduced upon the question of the value of the property upon which McDonald had his deed of trust, but the estimates of its value are not based upon what the property would bring in cash.

McDonald, with something like $16,000 owing j;o him, having been told that his note would not be paid when due, and with knowledge that his debtor would be unable to pay, was faced with the necessity of taking the necessary steps to collect his debt.

1-Iis remedy under his deed of trust was to foreclose his lien and have the property sold. This naturally meant a sale for cash and all he would have received would have been the amount it would bring at such a sale. Under the conditions then existing, as reflected by the record, the property would have brought probably much less than the amount it might have been sold for on terms; or under normal conditions.

With these conditions confronting him we think it perfectly natural that he should have sought to subject other property of Johnson to the payment of his debt and we cannot agree that the fact that the property upon which he had a deed of trust lien could have been sold on terms for more than sufficient to pay his claim would brand his action as fraudulent.

There being no evidence in the record showing that Johnson had a meritorious defense to the suit, the court properly rendered judgment that he take nothing as against McDonald.

We have carefully studied the ease and have reached the conclusion that the facts support the implied findings of the trial court. The judgment is accordingly affirmed.


source: Caselaw Access Project

author: WALTHALL, Justice. HIGGINS, Justice.

license: Public Domain

text:
    AMERICAN FIDELITY & CASUALTY CO. et al. v. WINDHAM.
    No. 2807.
    Court of Civil Appeals of Texas. El Paso.
    April 6, 1933.
    Rehearing Denied April 27, 1933.
    John H. Awtry, of Dallas, and B. A. Carter and Collins, Jackson & Snodgrass, all of San Angelo, for appellants.
    B. F. Howell, of Rankin, and Kerr & Gayer, of San Angelo, for appellee.
   WALTHALL, Justice.

Appellants prosecute this appeal from an ■order of the district court of Upton county overruling their separate pleas of privilege to be sued in the county of their residence.

Appellee, O. D. Windham, as next friend of his minor daughter, Noreen Windham, sued the American Fidelity & Casualty Company, the Oil Field Bus Lines, A. L. Mahaf-fay, and P. R. Yeal in the district court of Upton county for damages for personal injuries to said minor.

The appellee dismissed his suit as to the Oil Field Bus Lines and P. R. Yeal, and we will briefly state the matters at issue as between appellants and appellee.

Appellee’s petition represents that he resides in Upton county; that the American Fidelity & Casualty Company is a foreign insurance corporation, duly incorporated, etc., and doing business in this state, “having as its agent and upon whom process may he served herein, B. A. Carter, who resides in Tom Green County, Texas”; that A. L. Mahaffay resides in Tom Green county, Tex., operating and doing business under the name of Oil Field Bus Lines; that on July 12, 1931, Oil Field Bus Lines and Mahaffay and each of them, motor carriers running and operating automobile busses on the public highways in Texas for hire, having obtained certificate of public convenience and necessity from the railroad commission of Texas, did, prior to said time, file with the railroad commission a bond and insurance policy, viz., American Fidelity & Casualty Company, as obligor, providing that said obligor would pay all judgments which might be recovered against the motor carrier based on claims for loss or damage from personal injuries, and loss of and injury to property occurring during the term of such bond and policy, and arising out of the actual operation of such busses; that on the date aforesaid such policy and bond were in force, and said motor carriers were then and there operating such motorbus under said certificate of necessity and convenience; whereby said insurance defendant became obligated to pay plaintiff the stated amount of her damages.

Appellee then, at length, in effect, states that on July 12, 1931, .on a public street in the city of Rankin, in Upton county, a collision occurred between a motorbus then being operated under said certificate of necessity and convenience and permit, and a Ford coupé automobile driven by Mrs. Borger, in which collision the injury complained of to the minor child occurred. The petition states in detail the manner of driving and handling the motorbus at the time of the collision with the Ford coupé, and the circumstances attending, to which appellee assigns negligence.

Appellants Mahaffay and American Fidelity & Casualty Company each filed a separate verified plea of privilege. Each plea is in the usual form of such pleas and to which, as to form, no objection is made. Mahaffay states that at no time was he a resident of Upton county, but that at all such times he resided and still resides in Tom Green county, and that no exception to exclusive venue in the county of his residence provided by law exists in this cause as to him. Mahaffay in his said plea denied that the Oil Field Bus Lines was a corporation or had its office or principal place of business at McCamey in Upton county, and at San Angelo in Tom Green county, and that such allegations were fraudulently made to sustain venue in Up ton county; that he (Mahaffay) is not and never was local agent for any such corporation. Mahaffay’s said plea states that appellee’s allegations purporting to state a cause of action against the American Fidelity & Casualty Company are fraudulently made for the purpose of conferring and sustaining venue in this cause in Upton county; that appellee well knew that no cause of action existed against said company; that said petition does not allege a cause of action against said company; and that said company is not a necessary or proper party to said suit under the allegations of said petition, and that said company is fraudulently joined herein to sustain venue in Upton county. Appellant Mahaffay prays that his plea be sustained and this cause be transferred to Tom Green county.

The American Fidelity & Casualty Company’s verified plea is formal and sufficient in form as a plea; states that at no time was it a resident of Upton county; that at all times it was a foreign corporation under the laws of the state of Virginia “with its principal office and place of business in such state and with B. A. Garter of San Angelo, Texas, as its local agent in Tom Green County, Texas, said County being the nearest County in the State of Texas in which said defendant has a local agent to the said Upton County, Texas, the County in which this suit is filed, and that no exception to exclusive venue in the County of one’s residence provided by law exists in said cause.”

Appellee filed a controverting affidavit to the pleas of privilege. The affidavit is lengthy and we need not state its verbiage. Omitting all reference to the Oil Field Bus Lines and P. R. Veal (dismissed), the affidavit claims venue as to the American Fidelity & Casualty Company under subdivisions Nos. 3 and 4 of article 1995 of our statute. Also that the suit is based upon a trespass by reason of the collision of the automobile bus with the Ford coupé, committed by appellants against 'plaintiff in Upton county, venue is conferred upon appellants by subdivision 9 of article 1995, a special exception to the general rule of venue.

Also venue is claimed under the facts under subdivisions Nos. 23, 27, 28, and 29a of said statute, the last-named subdivision being an amendment to article 1995 by the 40th Legislature (1st called Sess.) c. 72, § 2 (Vernon’s Ann. Civ. St. art. 1995, § 29a).

The court heard evidence on the pleas and overruled each of them, from which action appellants prosecute this appeal.

Opinion.

Without quoting the evidence, the following uncontroverted facts are shown and which seem to be pertinent to the questions presented:

Appellee and the injured infant, Noreen Windham, for whom the suit is brought, reside in Upton county where the accident in which the injury to the infant and loss occurred.

The American Fidelity & Casualty Company is a private foreign corporation authorized to do business in this state, and which corporation, prior to the injury to the infant, Noreen Windham, had issued a policy of insurance against loss imposed by law, arising or resulting from claims for damages for bodily injury by reason of the ownership, maintenance, or use of certain motor vehicles enumerated, and which policy as to this controversy included the motorbus involved in this controversy, and embraces the bodily injury, damages, and loss to the infant, Noreen Windham.

The appellants’ policy of insurance offered in evidence, and upon which this suit against appellant is based, is lengthy, contains many qualifications, limitations, and exceptions, and we state of its provisions only enough to make applicable to appellants the issue of venue, and in doing so we assume, without so holding, that the appellant casualty company was a necessary or proper party to the suit.

Appellant A. L. Mahaffay, at the time of the circumstances involved here, was the owner and through his employees, in the name of the Oil Field Bus Lines, was operating the motorbus which collided with the Ford coupé in the. accident in which the infant Noreen was injured, and which collision occurred on a public street in Rankin in Upton county.

We think the plea is sufficient in its statement and the evidence sufficient to designate and show that the American Fidelity & Casualty Company, at all the times involved in this suit, had its offices and place of business and its local agent, not in Upton county, but in Tom Green county.

Appellee’s petition alleges, and the evidence shows, that Mahaffay resided in Tom Green county.

If the venue of the suit is maintainable in Upton county, we think it must be under some one or more of the exceptions to the general venue statute, providing that no person who. is an inhabitant of this state shall be sued out of the county in which he has his domicile.

There is nothing in the evidence that suggests the application of subdivision No. 3 of the venue statute, as suggested in the contesting affidavit, that is, that either of the appellants is a nonresident, or that the residence of either is unknown. While the appellant corporation is foreign in its organization, it was authorized to do business in this state, and in venue parlance is considered a resident of this state.

Whatever reference is made in the pleading or evidence to the “Oil Field Bus Lines,” if a party to the suit at all, it was dismissed from the suit. The “Oil Field Bus Lines” seems to have been used by Mahaffay as a name under which he operated his bus lines.

Appellee made his original petition a part of his contesting affidavit, and referred to the offense and trespass therein alleged as conferring venue in Upton county under subdivision No. 9 of the venue statute. That subdivision provides that “a suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.”

The crime, offense, or trespass referred to is the excessive rate of speed at which the motorbus was being driven on one of the public streets in Rankin at the time of the accident. The court made no finding of fact, but the evidence would justify a finding that at the time of the accident the motorbus was being operated at a rate of speed of more than thirty miles an hour and probably otherwise negligently operated. The trespass as used in the subdivision quoted has been construed as embracing “some wrongful act committed, and not merely a tort resulting from the negligent omission to perform a duty”; that is, an active negligence, as distinguished from a passive negligence, must be shown to constitute the trespass. Wettermark v. Campbell, 93 Tex. 517, 56 S. W. 331; Hill v. Kimball, 76 Tex. 210, 13 S. W. 59, 7 L. R. A. 618; Winslow v. Gentry (Tex. Civ. App.) 151 S. W. 260. Under the above rule it has been held that suit may be brought in the county where the injury occurred against whoever negligently drives an automobile whereby another is run over and injured. Campbell et al. v. Wylie et al. (Tex. Civ. App.) 212 S. W. 980 (writ refused); Rounds et al. v. Marler et al. (Tex. Civ. App.) 50 S.W.(2d) 382.

We think the record shows no error in overruling Mahaffay’s plea of privilege.

Appellee, by several counter propositions, submits, in effect, that the suit is maintainable against American Fidelity & Casualty Company because the company is a foreign insurance corporation, is an accident insurance company, and the suit is on its policy and in the county where the loss occurred. As suggested, appellant corporation is foreign in its organization, the suit is against the corporation on its insurance policy, and in the county where the cause of action occurred.

The first question presented in discussing the casualty company’s plea seems to be: Where the pleading and the evidence is sufficient, under subdivision 9 of article 1995, to fix the venue as to Mahaffay, the beneficiary, in Upton county, does it follow that the venue as to the casualty company also properly lies in Upton county under subdivision 27?

Without discussing the provisions of the policy, the pleading thereon, nor whether appellant casualty company is a proper or necessary party to the suit, the question is not raised by the casualty company in its plea, and its answer to the suit is not before us. We assume, for the purpose of the plea, that the company is properly in the suit with its beneficiary. Subdivision 27 provides that foreign corporations doing business in this state may be sued in any county where the cause of action or any part thereof accrued.

The cause of action, as we view it, occurred by reason of the offense and trespass, and such having been shown and the trespass having occurred in Upton county, we see no reason why the venue of the suit would not lie in that county under the subdivision quoted. The active, wrongful trespass, negligently committed, not a mere tort, is the basic fact, the whole foundation of the action. As we view it such trespass, not only was the basis of the action, but the place where it accrued fixed the venue of the suit as to foreign corporations, by reason of the statute. As applied to a cause of action and used in the past tense, as in the statute, “accrued” means commenced, due, and payable. 1 O. J. pp. 732 and 733. The application we made of it is that the trespass having been shown and it having accrued in Upton county, the appellant being a foreign corporation the venue would be in that county.

Now, such may not be the rule as to other obligors, sureties, or policies of companies not foreign corporations, or foreign organizations enumerated in subdivision 27.

We are not unmindful of the fact that the suit against the appellant corporation is on its policy contract; but we are not in this proceeding trying the suit, but are trying to determine the proper county in which the suit may properly be tried, and, as we understand it, we are not concerned in this proceeding whether the appellant is properly joined as a party in the suit. The issue as to parties arises on the trial. Whether properly or improperly in the suit, appellant is a party thereto.

We- think the court properly decided the issue of venue.

The case is affirmed.

HIGGINS, Justice.

I concur in the result.


author: SELLERS, Justice. LEVY, Justice.

text:
    REEVES FURNITURE CO. v. SIMMS et al.
    No. 4295.
    Court of Civil Appeals of Texas. Texarkana.
    March 8, 1933.
    Rehearing Denied March 23, 1933.
    King, Mahaffey, Wheeler & Bryson, of Tex-arkana, for appellant.
    Crumpton & Crumpton, of Texarkana, for appellees.
   SELLERS, Justice.

On April 1, 1926, and for a great number of years prior thereto, James H. Simms and his brother A. L. Simms were the owners of a certain three-story brick building in the city of Texarkana in which Reeves Furniture Company, a corporation, was conducting a furniture business. Reeves Furniture Company had been in the building since 1914, either as lessee from Simms brothers or as sub-lessee from the J. C. Penny Company with Simms brothers’ consent. The J. C. Penny Company’s lease with Simms -brothers under which Reeves Furniture Company occupied the building expired on April 1, 1926. On or about this date Reeves Furniture Company, through its president, Mrs. Reeves, and its secretary, W. H. Riley, negotiated with Simms brothers for a lease on this building. The terms of this lease were agreed upon, according to the testimony of James H. Simms and the lease contract introduced in evidence, to be for a term of five years from April 1, 1926, to March 30, 1931, at a stipulated rental of $350 per month to be paid in advance. It was agreed between the parties that the contract was to be in writing and signed by both parties in duplicate. The lease agreement was reduced to writing and signed by Simms brothers on May 4, 1926, and forwarded to Reeves Furniture Company through the mail for its signature. Mrs. Reeves, president of Reeves Furniture Company, testified that she received the contract through the mail and refused to execute it on the part of Reeves Furniture Company, for the reason that the term of years expressed in the contract was not that agreed upon. She testified that the agreement was for a three-year lease and not for five years. She further testified that she placed both the original and copy of the lease in the safe of the Reeves Furniture Company to wait until James H. Simms, with whom she had negotiated with reference to the lease, came in, so she could discuss the matter with him. Nothing further was mentioned about the contract until the early part of 1930, when Reeves Furniture Company notified Simms brothers that it expected to vacate the building on June 15,1930. Reeves Furniture Company paid rents during all this time at the rate of $350 per month in accordance with the provisions of the contract furnished it. On June 18, 1930, the Reeves Furniture Company vacated the building, paying all the rent due under the contract up to this date. James H. Simms, after receiving the notice of the intention of Reeves Furniture Company to vacate the building, called at the Reeves Furniture Company and requested a copy of the contract which was given him, but it was unsigned by Reeves Furniture Company. Simms brothers also notified Reeves Furniture Company before it vacated the building that they would expect it to pay rent on the building until the expiration of the full five years provided for in the lease contract.

Simms brothers brought this suit on April 24, 1931, upon the written lease contract to recover rents for the building as per the contract from the date Reeves Furniture Company vacated the building to the expiration of the term provided for in the lease; the amount of damages sought to be recovered being $3,290. Reeves Furniture Company’s defense to the suit is that the lease contract was in violation of the statute of frauds and unenforceable. This defense was raised both by demurrer and special answer. The case was trie'd to a jury, and over objection of both parties the court submitted to the jury two issues, the first of which inquired of the jury whether the parties prior to April 1, 1926, entered into an oral agreement for the lease of the premises in question wherein the parties both understood and agreed on the same length of time the said agreement was to be in force, to which inquiry the jury answered “Yes.” And in answer to the second issue the jury found the lease agreement was to run for a term of five years. Upon this verdict of the jury the court entered judgment for Simms brothers for the full amount of the damages sued for, and Reeves Furniture Company has duly prosecuted this appeal.

We doubt if there was an issue made by the evidence to be submitted to the jury. The undisputed evidence showed that the parties did agree upon all the essential terms of the lease contract, unless it was on the length of time the lease was to run. The lease agreement under the evidence was to be reduced to writing and signed by both parties. ’ It was reduced to writing and provided for a term of five years. Both the original and copy were signed by Simms brothers, the ap-pellees, and was delivered to Reeves Furniture Company, the appellant, immediately thereafter, and both copies were retained by it for about four years without another word being said between the parties with reference to the lease. Apparently the lease was not thought of any more by either of the parties until about three years after it was received by the appellant, when one of the officers took it out of the safe to see just when it would expire. This officer thought it w-as for a period of three years and found it provided for a term of five years instead. But it was not then mentioned to appellees by any of the officers of appellant company, but appellant continued to occupy the building another year and until it gave appellees notice of its intention to vacate the building before the contract was mentioned between the parties. Notwithstanding Mrs. Reeves, appellant’s president, testified that the lease was not executed by appellant because the term as therein expressed was not that agreed upon by the parties, we are of the opinion that the evidence sufficiently establishes a contract in writing as binding upon both parties as fully as it would have been if it had been executed by appellant and a copy thereof returned to appellees. A contract is classed as a written contract when all its terms are in writing and the instrument signed by one party is orally accepted by the other party. Johnson v. Turnstall (Tex. Com. App.) 25 S."W.(2d) 828.

We do not, however, understand that the appellant in this case questions the above holding. It is the appellant’s contention, and invoked as a complete defense, that, although the contract is binding as a written contract, yet as it was not signed by appellant, who is the lessee, the contract of lease comes within subdivision 4 of article 3995 of the Revised Statutes of this state and is therefore unenforceable. The section of the article so invoked provides:

“Art. 3995. No action shall be brought in. any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized: * * *
“4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year,” etc.

The courts of this state hare applied this statute in many various cases, but withal we find one well-defined rule announced which we think clearly has the effect to take the present case out of the provisions of this statute. The rule is announced by Tex. Jur. vol. 20, p. 322, § 112, that the statute may not be invoked where a contract has been fully executed by one of the parties thereto. When the contract involved was reduced to writing, signed and delivered by appellees to the appellant, it was from that moment in all respects binding upon appellees, and therefore an executed contract on their part. And for this reason we hold that the statute could not apply. This rule was especially applied to a lease where the lessee did not sign the lease, by the Commission of Appeals of this state in the case of Texas & Pacific Coal & Oil Co. v. 'Patton, 240 S. W. 303. Judge Gallagher in this opinion has this to say: “The lease contract, when duly executed and delivered by defendants in error, vested in plaintiff in error all the rights granted thereby. As to them it was an executed contract. Where a contract is executed on one side and nothing remains but the payment of the consideration, this may be recovered, notwithstanding the statute.”

Appellees in their suit seek here to recover all the balance of the consideration for the lease. No contention is made that appellees did not fully comply with their part of the contract, and therefore we are unable to agree with appellant that the contract sued upon comes within the provisions of the statute of frauds.

The judgment of the trial court is affirmed.

LEVY, Justice.

I agree to the disposition of the appeal, hut in the view here stated: That the instrument in writing here sued upon by the plaintiff having been delivered and in legal effect accepted by the defendant, it is enforceable as a contract for the lease of real estate for a longer term than one year, notwithstanding the defendant’s failure to sign it. A lease, if delivered and accepted by the lessee, need- be signed only by the lessor to be valid in a suit against the lessee for partial failure to perform. The statute of frauds, as quoted in the opinion above, provides that no action shall be brought to charge any person “upon any contract for the sale of real estate, or the lease thereof for a longer term than one year,” unless such contract (1) “be in writing” and (2) “signed by the party to be charged therewith.” It is thought that the words, “the party to be charged therewith,” as used, means and is intended to mean that the one who is to be held to liability upon an agreement to sell or to lease his land is the party that must sign the writing. The lessee by accepting the lease of real estate becomes bound to the extent of the covenants to be by him performed, which is the payment of the rents, but he does not create or grant nor pass any right of possession and use of land. The lessor is the one who lets the possession and the right of use of the land. A lease not only ere-ates the relation of landlord and tenant, but is a contract for possession of land for a determinate time. The statute of frauds, as applicable to real estate, was passed in the purpose and principle of preventing the divestiture of any right in or possession of real estate upon loose and dubious testimony. It is a statute in protection of the owner of the land.


author: GALLAGHER, Cliief Justice.

text:
    SCHLEMMER et al. v. BOARD OF TRUSTEES OF LIMESTONE COUNTY et al.
    No. 1304.
    Court of Civil Appeals of Texas. Waco.
    March 23, 1933.
    Rehearing Denied April 20, 1933.
    P. M. Fitzpatrick and W. V. Dunnam, both of Waco, for appellants.
    J. E. & B. L. Bradley and Mr. & Mrs. C. S. Bradley, all of Groesbeck, for appellees.
   GALLAGHER, Cliief Justice.

This suit was instituted by O. F. Schlemmer and eighteen others, appellants herein, against the county board of trustees of Limestone county, consisting of J. M. Patterson and others, in their official and also in their respective individual capacities, and the trustees of Ben Hur rural high school district No. 11 of Limestone county, consisting of Jess Robertson and others, in their corporate and also in their respective individual capacities, appellees herein, for injunctive relief inquiring the said hoard óf trustees to set aside and vacate a certain order theretofore made by them refusing to transfer certain territory from said Ben Hur rural high school district No. 11 of Limestone county to Otto common school district No. 70 of Falls county, and further requiring said board to enter an order so transferring said territory and to make and enter all other and further orders necessary or proper in the premises, and restraining the trustees of the Ben Hur district from exercising, or attempting to exercise, any control over said territory.

The territory sought to be detached from the Ben Hur district and attached to the Otto district consists of 2,230 acres, lies wholly in Falls county, and is contiguous to said Otto district. Such territory constitutes less than one-tenth of the whole territory embraced in the Ben Hur district. The county hoard of trustees of Falls county has made an order approving the petition and requesting the county board of trustees of Limestone county to grant the same. The trustees of the Otto district have agreed to accept said territory and to approve the annexation thereof to their district. Appellants constitute a majority of the qualified voters in the territory sought to be detached from the Ben Hur and annexed to said Otto district. There is no contention that said petition was not in proper form nor that the procedure followed in preparing and presenting the same to the board of trustees of Limestone county was not in every respect regular and proper. Appellants, as reasons for seeking the transfer of said territory, showed that the same was much nearer the Otto school than the Ben Hur school; that roads and highways leading to the Otto school were in better condition than those leading to the Ben Hur school, and that all said territory was situated in Falls county.

Appellants presented said petition to the county board of trustees of Limestone county in session. The same was duly considered by said board and refused by unanimous vote thereof.

Appellants thereafter instituted this suit. The same came on for trial, and the law and'facts were submitted to the court, and judgment rendered that appellants take nothing and that the defendants go thence with their costs.

Opinion.

Appellants assail .the judgment of the court by assignments of error in which they contend that the provisions of section 1 of chapter 47 of the Acts of the 41st Legislature, First Called Session (Vernon’s Ann. Civ. St. art. 2742f, § 1), are mandatory, and that the court erred in not awarding the relief sought by them herein. No other question is presented in this appeal. Said section provides for transfer of territory from one school district to another contiguous school district on petition of a majority of the qualified voters residing in the territory sought to be transferred. Since the sufficiency of appellants’ petition is not questioned and the regularity of the procedure employed is not assailed, we need quote only so much of said section as bears on the issue.of whether affirmative exercise of the authority conferred thereby on the county hoard on presentation of a proper petition is mandatory or merely permissive. We therefore quote from said section as follows: “In each county of this State the County Board of Trustees shall have the authority, when duly petitioned as herein provided, to detach from and annex to any school district territory contiguous to. the common boundary line of the two districts. * * * Upon receipt of the said petition, duly signed, * * * the County Board of Trustees shall pass an order transferring the'said territory and redefining the boundaries of the districts affected by said transfer. * * * ”

Appellants’ contention is predicated primarily on the use of the word “shall” £n the last sentence of the excerpt above quoted. That said word is so employed is not conclusive as disclosing the legislative intent in the passage of said act. The intent of a law is the essence of the law, and is to be gained from the entire context. The words “may” and “shall” are not infrequently used interchangeably in -legislative acts. They are to be given that meaning which will -best express the legislative intent. Hess & Skinner Engineering Co. v. Turney, 109 Tex. 208, 203 S. W. 593, 594, pars. 3 and 4; Davis v. State, 75 Tex. 420, 12 S. W. 957, 902; Burton v. McGuire (Tex. Civ. App.) 3 S.W.(2d) 576, 583, par. 15, affirmed (Tex. Com. App.) 41 S.W.(2d) 238. This precise issue was involved incidentally in the decision of the case of Prosper Independent School District v. Collin County School Trustees (Tex. Civ. App.) 51 S.W.(2d) 748, 751. We quote therefrom as follows: “It will be noted that authority is lodged in the county board of trustees to transfer territory, contiguous to two school districts, from one to -another, under certain enumerated conditions, Generally, the lodging of authority in any designated board or forum candes with it the right of such board or forum to determine whether a proper case has arisen for the exercise of such power. So, in the instant case, we think the county seho.ol board is vested with a discretion to determine whether the power given it by section shall be exercised in any given ease. The clause of section 1, declaring that the county board of trustees shall pass an order transferring said territory, prescribes the manner in which the county board of trustees is to make known its judgment in the matter; that is, that it must be by an order duly passed and entered in the minutes of the county school trustees, and does not mean that all discretion is taken from such trustees when a statutory petition for annexation is presented.”

Application for writ of error to review said judgment was granted by the Supreme Court and the judgment of the trial court affirmed, but the particular point here under consideration was not discussed in the opinion. The last sentence of the above-quoted excerpt requires the board of county trustees, in passing an order of transfer thereunder, to redefine the boundaries of the districts affected. Said provision was considered in the case of Barber v. County Board of Trustees (Tex. Civ. App.) 48 S.W.(2d) 319, 320, and there held not to be mandatory. See, also, in this connection, Lakeview Common School District v. County School Board of Trustees of San Saba County (Tex. Civ. App.) 38 S.W.(2d) 598, 599, pars. 1 and 2. In deference to said authorities, we hold that the county board of trustees of Limestone county, in acting upon appellants’ petition, were invested with discretion to grant or refuse the same as they might deem proper and just. Appellants do not contend that, if the exercise of the authority conveyed by said section was merely discretionary, the county school board of Limestone county abused its discretion in refusing their petition nor that the trial court erred in denying them the relief sought.

The judgment of the trial court is affirmed.


author: WALTHALL, Justice.

text:
    WHITE v. SIBLEY.
    No. 2792.
    Court of Civil Appeals of Texas. El Paso.
    March 2, 1933.
    Rehearing Denied April 20, 1933.
    J. E. McKenzie, of El Paso (on appeal only), Howell Johnson and W. C. Jackson, both of Fort Stockton, for .plaintiff in error.

      W. Á. Hadden, of Fort Stockton, for defendant in error.
   WALTHALL, Justice.

On July 3,1931, D. J. Sibley filed suit in the justice court of Pecos county against W. D. Murray on a claim of indebtedness of $135, and on said day, in said suit, Sibley procured and had served on A. E. White a writ of garnishment.

On the 6th day of July, 1931, A. E. White answered said garnishment in effect that he was not indebted to Murray and was not in possession pf any effects belonging to Murray and did not know of any person who was indebted to Murray, and stated that he had employed an attorney to file his answer at a reasonable cost to him of $10 and asked to be discharged.

On July 23, 1931, .Sibley filed a controverting affidavit to White’s answer to the effect that said answer was incorrect in that on or about June 14, 1931, said garnishee White purchased in bulk from Murray all of his goods’, wares, and merchandise, paying therefor about $2,900. That said transaction was not in the regular course of business but was in bulk and that neither Murray nor White complied with the Bulk Sales Haw, and that by reason thereof White held said goods in his hands or had disposed of same, or a part thereof, and that he was indebted and held said goods in trust for said Murray and Murray’s creditors.

In the justice court Sibley recovered judgment against Murray for $135, and was refused judgment against White. From that judgment Sibley duly prosecuted an appeal to the county court of Pecos county.

In the county court White further answered as garnishee to Sibley’s controverting affidavit to the effect that plaintiff did not have any lien on the Murray stock of merchandise when the writ was issued and served and that plaintiff could not recover a personal judgment against garnishee; that the Bulk Sales Law was only to protect persons engaged in general merchandising and plaintiff’s claim was not within the province of the law, but was a claim for rental of a store house.

The garnishment case went to trial in the county court on November 18, 1931, before the court without a jury, resulting in a judgment in favor of Sibley against White as garnishee, in the sum of $135 and costs.

On January 20, 1932, White filed his motion to set aside and hold for naught the judgment rendered; the court entertained the motion, heard evidence thereon, and overruled the motion, and White brings the case to this court by writ of error.

Opinion.

Plaintiff in error White presents two propositions :

First: The county court was withoiit jurisdiction in the case for the reason that “the record shows that W. G. Murray owed more than $1,000.00 and that the stock of merchandise taken over by the plaintiff in error without a compliance of the Bulk Sales Law, was of greater value than $1,000.00.”

The proposition is without merit.

A creditor may have his judgment against the garnishee for the amount of his debt regardless of the amount of the indebtedness of the debtor or the value of the merchandise taken over from the debtor, the amount Murray owed, nor the value of the merchandise taken over being jurisdictional. A creditor may not, however, have a judgment against a garnishee for an amount in excess of the amount the garnishee owes the debtor, or the value of the property of the debtor in the hands of the garnishee.

The second proposition is: “In a suit against plaintiff in error for taking possession of a stock of merchandise without complying with the Bulk Sales Law, which were owned by W. G. Murray, all the creditors of the said W. G. Murray at the time possession of' the said stock of goods was taken over by plaintiff in error were proper and necessary parties and it was error not to make them parties to the suit.”

There is no pleading of defendant Murray, nor of the garnishee White, nor of the plaintiff Sibley that in any way suggests that there are creditors of Murray other than Sibley. Neither is there evidence in the record that there are creditors of Murray who are entitled to share in the property conveyed by Murray to White.

In the absence of any pleading and evidence that there are creditors of Murray other than Sibley, we may not presume that there are other creditors so as to make applicable plaintiff’s second proposition.

In view of the record presented here we think Sibley was entitled to a personal judgment against the garnishee. The evidence is undisputed that Murray had transferred his merchandise in bulk; that White had come in possession of the merchandise in bulk; that the Bulk Sales Law (Rev. St. 1925, arts. 4001-4003) had not been complied with; that Sibley was a judgment creditor of Murray; that the value of the merchandise was in exeess of Sibley’s judgment. It was in the power of the garnishee to show by his answer to the garnishment and by evidence whether he had the goods or any part of them, but as said by Judge Huff, speaking for the Amarillo Court in Gerlach Mercantile. Co. v. Hughes-Bozarth-Anderson Co. (Tex. Civ. App.) 189 S. W. 784, 789, “he remained silent when he was called upon to speak.” In that case and other cases there referred to it is well established that where the pleading- and the evidence show a transfer of goods in violation of the Bulk Sales Law, and that such goods have come into possession of such garnishee, and th'e garnishee , answers that he did not have the goods, the court had sufficient ground for the inference that the garnishee had disposed of the goods, especially in the absence of evidence to the contrary.

There is only one other matter we need refer to. Plaintiff in error hi his motion to set aside the judgment shows to the court that there are other creditors of Murray who will make the same claim as Sibley, and that if Sibley has any claim against him as garnishee it is only jointly with other creditors, etc.

The motion is in no sense a pleading in the ease. The garnishee in the motion makes no suggestion of a change in' his former answer in garnishment; he. does not say in effect that he has the goods and tenders them for disposition among or for the benefit of the creditors. The creditors’ claims could not ■be jointly held against the garnishee except as to the goods in his possession as trustee. It might be, had the garnishee in his motion said to the court, in effect, that he had been mistaken as to his relation to the goods, that he was the trustee and not the owner, that he then desired to answer differently as to Sibley and the other creditors, and had so-answered, different issues would have been presented, and, if not too late in the trial of his case, the court might have granted the motion. However, it was not error to overrule the motion. But with the same issues as here, with creditors brought in, if such could be done, nothing would have been accomplished ; there would be no property to share and no joint interest between creditors.

No reversible error is shown, and the case is affirmed.

On Motion for Rehearing.

Plaintiff in error suggests several grounds of error in the disposition we make of the case. We think to discuss only one or two of such grounds, believing as we do, that the matters not directly discussed are incidental to and depend upon the correctness of the disposition we make of the matters discussed.

Plaintiff in error submits that i-t w’as fundamental error to affirm the case for a personal judgment against the ’ garnishee White, his only liability being that of a' receiver.

• If we understand the contention made it is, in effect, that Sibley's cause of action as to White could be maintained only by a proceeding by application of Sibley as a creditor making White- receiver of the property for the benefit of all of Murray’s creditors, and proceeding against him as such receiver, and that in no event could a personal judgment be properly rendered against him.

Under our present Bulk Sales Act as amended in 1915' (Rev. St. 1925, arts. 4001-4003) Sibley could have proceeded against White, as suggested in plaintiff in error’s motion, as provided in the statute, and as so clearly stated by Judge German in Gardner v. Goodner Wholesale Grocery Co., 113 Tex. 423, 256 S. W. 911, 912, by making application to a court of competent jurisdiction containing allegations of the material facts as to the transaction involved, etc., have the receivership declared, have the matter adjudicated as between the purchaser White and the Murray creditors, as in an ordinary receivership proceeding, but Sibley elected not to do so, but did-elect to proceed by garnishment as he had the right to do.

Plaintiff in error refers us to the case of Gardner v. Goodner Wholesale Grocery Company, supra, as sustaining his position. It will be noted that in that case appellee did not proceed by garnishment but undertook to proceed 'against Gardner as trustee as provided by the amendment of March 23,1915 (Acts 1915, c. 114), to the Bulk Sales Act, providing that “any purchaser or transferee who shall not conform to the provisions of this Act shall, upon application of any of- the creditors of the seller or transferor, become a receiver and be held accountable to such creditors for all goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale or transfer.” In the Gardner v. Goodner Wholesale Grocery Company Case, the court was not discussing a garnishment proceeding under the Bulk Sales Law, but was discussing the other or additional remedy of the 1915 amendment as made by the pleadings in that case. ' The court, however, in that case took occasion to say that “the statute as now written was not intended to do -away with proceedings by garnishment or other process, but was intended to furnish an additional remedy, more direct, effective, and equitable to the various creditors, if more than one,” evidently leaving it to the creditor to proceed by garnishment if he so desired.

The court also held: “It is now a universally recognized rule of law that a trustee who disposes of or converts to his own use trust property, placing it beyond the reach of the creditors, will be held personally liable therefor.”

We think we need not discuss nor inject into this garnishment proceeding what, would have been proper had the proceeding been other than garnishment as was the Gardner Case. To us the confusion in appellant’s contentions seems to arise from his efforts to apply the proceedings of one remedy to that of the other.-

We' have not been able to see, in this proceeding, there being no property in the hands of the court to dispose of for the benefit of the creditors, any benefit to either party to have the creditors of Murray brought in and prove their claims, or have an accounting. There is no property to share with the creditors, the property having been converted by appellant. Such proceeding, under such circumstances, would be disappointing, and confusing to all in the absence of property to dispose of and share proportionally alike to the creditors.

For reasons stated we think the motion should he overruled and it is so ordered.


author: JOHNSON, Chief Justice.

text:
    ATTAWAY et al. v. TEAGUE.
    No. 4316.
    Court of Civil Appeals of Texas. Texarkana.
    March 30, 1933.
    Nat W. Brooks and Brady P. Gentry, both of Tyler, for appellants.
    McCart, Curtis & McCart, A. L. Camp, and John Nisbet, all of Fort Worth, for appel-lee.
   JOHNSON, Chief Justice.

Jesse Attaway, Brady P. Gentry, and Nat W. Brooks are the owners, in undivided interests, of 25 acres of valuable land located in the oil field of Smith county, Tex. Jimmie Attaway is the duly appointed, qualified, and acting guardian of the estate of Jesse At-taway, non compos mentis, which guardianship proceedings are pending in the probate court of Van Zandt county, Tex. Jimmie Attaway as such guardian, jointly with Gentry and Brooks, entered into a contract with George A. Teague whereby they agreed to convey to Teague an oil and gas lease interest in the land for the consideration and under the stipulations expressed in the contract, providing for the drilling of a well. Teague failed to perform, and by its terms the contract, because of Teague’s forfeiture, terminated. Subsequent to his forfeiture and after he had abandoned any intention (according to findings of the jury) to perform the contract, Teague executed his affidavit and attached to it a copy of the contract and caused them to be recorded in the deed records of Smith county. In the affidavit Teague states, in substance, that the contract is being executed by him; warns all parties who interfere with or delay him that they will be compelled to respond in damages to him; and further states therein that he is having the affidavit and copy of the contract placed of record for the purpose of giving notice to all persons who might otherwise become interested in the property. This suit was filed by Jimmie Attaway as guardian of the estate of Jesse Attaway, and by Brady P. Gentry and Nat W. Brooks, plaintiffs, in the district court of Smith county to cancel of record the affidavit and contract, to quiet plaintiffs’ title, and to remove all cloud cast thereon by reason thereof. Defendant, George A. Teague, answered denying the forfeiture of the contract, and by his cross-action sought judgment decreeing a conveyance of- the leasehold interest in the land to him, and in the alternative for $100,000 damage. The case was tried to a jury; their answers to all the issues are in favor of plaintiffs and against defendant. The defendant filed a motion to set aside the verdict of the jury and for new trial; and to dismiss the case for want of jurisdiction, asserting that exclusive jurisdiction to try the case was vested in the probate court of Van Zandt county. Plaintiffs filed their motion to the court to render judgment for plaintiffs and against defendant upon the findings of the . jury. The court rendered judgment as follows:

“On March 25th, 1932, said motions came on for hearing, with all parties present by attorneys. After hearing said motions and arguments thereon, the Court is of the opinion and finds, and concludes; that if this court has jurisdiction of this cause, defendant’s motion for new trial should be in all things overruled; and plaintiffs’ plea for judgment for the plaintiffs, and against the defendant on his cross action and plea in re-convention herein, should be granted, and such judgment rendered. But the court concludes as matter of law, this court is without jurisdiction in this cause, but that the issues made by the plaintiffs’ pleadings herein can only be determined by the Probate Court of Van Zandt County, Texas; and that because of want of jurisdiction of the cause of action alleged by plaintiffs herein this Court has no jurisdiction to determine the issues presented by defendant’s cross action and plea in reconvention herein; and that because of such want of jurisdiction, the verdict of the jury should be disregarded and held for naught, and judgment be rendered herein, notwithstanding the verdict, dismissing this cause for want of jurisdiction of this Court herein.
“It is therefore ordered and decreed by the Oourt that the verdict of the jury herein be disregarded' and held for naught, and notwithstanding said verdict, this cause, together with defendant’s cross action and plea in reeonvention, be and the same is hereby dismissed at the costs of the plaintiffs, and that the defendant recover of the plaintiffs, jointly and severally, all costs expended by him herein, for which let execution .issue.”

In so far as the suit was by and against Jimmie Attaway as guardian of the estate of Jesse Attaway, it affected an estate which was being administered by guardianship under the jurisdiction of the probate court of Van Zandt county, the court in which such guardianship proceedings were pending; and the jurisdiction of the probate court in the administration of estates is generally expressed as being “exclusive jurisdiction.” However, many questions arise affecting the securing, protection, and preservation of the estate, of which the probate jurisdiction of the county court is inadequate to grant proper relief. In such cases resort must be had to the district court, especially when such questions involve the determination of title to real estate. Slavin v. Greever (Tex. Civ. App.) 209 S. W. 479; United States Fidelity & Guaranty Co. v. Hall (Tex. Civ. App.) 173 S. W. 892; 11 Tex. Jur. § 56, pp. 784, 785. Upon his appointment and qualification, the guardian is authorized to institute suits for such purposes. No special permit or order of the probate court is required; the power is given him by statute, article 1981, R. S., which provides that he may institute suits “for title or possession of lands, or for any right attached to, or growing out of the same, or for injury or damage done thereto.” With this authority specially granted him, and charged with the corresponding duty to possess, protect, and preserve the estate, and the district court having exclusive jurisdiction to remove cloud from title or decree specific conveyance, the guardian would not be denied the right to resort to that cburt, which alone has jurisdiction to grant complete relief.

The judgment of the trial court dismissing the case is reversed, and judgment is here rendered in favor of appellants, Jimmie B. Attaway as guardian of the estate of Jesse Attaway, Brady P. Gentry, and Nat W. Brooks, and against appellee, George A. Teague, canceling of record the affidavit of George A. Teague and attached copy of the contract entered into between appellants and appellee; that appellee, George A. Teague, recover nothing by reason of his cross-action; and that appellants recover of appel-lee all cost in this court and the court below.


author: JACKSON, Justice.

text:
    NORM CO. v. CITY DRUG STORES.
    No. 3952.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 25, 1933.
    Rehearing Denied April 19, 1933.

      R. H. Beville, of Amarillo, for appellant.
    Kimbrough & Boyce, of Amarillo, for ap-pellee.
   JACKSON, Justice.

The appellant instituted this suit in the county court at law of Potter county to recover a judgment against appellee for $208.

The appellant alleges that by the terms of a written contract appellee ordered to be forwarded each month four or five mats for a period of one year to be used for certain advertising purposes. That appellant agreed and was ready at all times to comply with the contract and immediately began to furnish the advertising service, but the appellee refused to receive the mats and, without assigning any reason therefor, gave written notice that it had decided not to accept the services and cancel the contract. That, among other things, the contract provided: “Neither party shall be held responsible for any provision not embodied in writing herein and this contract is not subject to cancellation.”

A copy of the contract dated August 23, 1928, is attached to and made a part of appellant’s petition and, in effect, provided that appellant would furnish fifty-two mats, four or five each month, for a period of one year, to be used in advertising appellee’s drug business in the newspapers and other media of Amarillo, Tex. That the consideration therefor was the sum of $20S, payable $52 in thirty days and $15 on the 1st of each month thereafter, so long as the agreement or any renewal thereof was in effect.

The appellee answered by demurrers, exceptions, general denial, and pleaded that it was induced to execute the instrument by appellant’s fraudulent representations and promises, which were believed and relied upon, and but for which it would not have signed the instrument. That appellant represented that its advertising service was exclusive, individual, and unique, and included individual attention to each of its clients and was furnished to but one business in each town or community. That the conditions of such town or community were investigated, the hind of advertising which should be used determined, that a survey and analysis of the population and business conditions of Amarillo would be made to learn the various classes of people, school teachers, physicians, railroad employees, professional and other business residents, the number thereof, and the general business conditions prevailing, and such survey would be furnished to appellee to enable it to decide what merchandise to advertise and the class of advertising that should be done. That appellee advised appellant that it did not want any so-called “canned” advertising and was informed that the service offered and furnished by appellant was not of that character and that from time to time the service would be changed to serve the particular needs of appellee.' That such representations and promises were false, made without any intention of being kept, and for the sole purpose of inducing appellee to sign the written instrument. That the advertising service which appellant offered was not individual and exclusive service, but consisted of printed forms and cuts made in large quantities and constituted what is known as “canned” or “form” advertising. That appellant made no investigation, survey, or report as it promised, for all of which appellee asks that the agreement be canceled.

By supplemental petition the appellant filed numerous exceptions to appellee’s answer and also pleaded a general denial.

In response to special issues submitted by the court the jury found, in effect, that appellant represented to appellee at the time the written order was signed that the advertising service to be furnished was not “canned” advertising; represented and agreed to furnish surveys and analyses showing the classes of people in Amarillo, the number thereof, and the business conditions prevailing therein, for use in the advertising; that the representations were material, made for the purpose of inducing the appellee to execute the contract, were relied on, and induced appellee to sign the contract, and such representations were false and not intended to be carried out by appellant at the time they were made.

On these findings the court entered judgment against appellant, canceled the contract, and the judgment is before us for review.

The appellant presents as error the action of the court in overruling its exceptions to appellee’s answer because it fails to state any fact that would constitute fraud, but alleged only general conclusions and promises to be performed in the future.

The exceptions directed to appellee’s answer'were, in effect, that the allegations were insufficient to state any defense, were not verified, showed no false representations of present or existing facts, and asserted only conclusions and promises which contradicted the plain terms of the written contract, and oral testimony thereof was not admissible. Against these exceptions the allegations were not too general or uncertain, a verification of the allegations of fraud is not required, and appellee pleaded that appellant represented that the advertising service which it furnished was not “canned.” This was a representation of a present and existing condition. Appellee also alleged that appellant did not intend to perform the representations at the time they were made. “In order for a promise to constitute fraud, it is necessary that it should have been made with the intent at the time that it would not be performed and with the intention, design and purpose of deceiving. In other words, a promise made with a preconceived intention not to perform may amount to actual fraud if the misrepresentation is material and is relied on by the other par|y to his injury.” 20 Tex. Jur. 33, § 16. See, also, Higginbotham-Bartlett Co. v. Powell et al. (Tex. Civ. App.) 270 S. W. 193.

The appellant assails as erroneous the use of the words “canned advertising” in special issue No. 1 submitted by the court, because such term is unintelligible and has no meaning.

The testimony discloses that “canned advertising” is a common expression among advertisers and means .a general advertising service applicable equally to any one at any place engaged in the same line of business, but does not mean or include personal or exclusive advertising prepared for a particular person, firm, or corporation for use at a certain place. This assignment is overruled.

The appellant’s contention that the court assumed in his charge that no contract had been entered into by the parties is without merit.

The special issue requested by appellant and refused by the court, if raised by the record, was covered by the issues submitted by the court in his main charge.

Appellant assigns as error the action of the court in admitting testimony offered by appellee relative to the false and fraudulent representations that were alleged to have been made to induce it to enter into the contract, because such testimony contradicted the terms of the written instrument and was not admissible. “The rule admitting parol evidence of a collateral agreement is especially applicable where such agreement constituted a part of the consideration of the written agreement or operated as an inducement for entering into it.” 22 C. J. 1253. See, also, Waybourn v. Spurlock (Tex. Civ. App.) 281 S. W. 587; Southern Surety Co. et al. v. Adams, 119 Tex. 489, 34 S.W.(2d) 789.

Under these authorities the testimony was admissible, and the fact that the contract stipulated that neither party would be held responsible for any provision not in the writing, and that the contract was not subject to cancellation, would not change the rule. “Pa-rol evidence is admissible under proper allegations to show that the execution of an instrument was induced by fraud; and this is true although the contract recites that it embodies the entire agreement between the parties and that there are no verbal understandings or agreements not incorporated therein or provides that any verbal agreements or representations shall be void.” 17 Tex. Jur. 836, § 739.

The findings of the jury are sufficiently supported by the testimony, and the judgment is affirmed.


author: GRAVES, Justice.-

text:
    UVALDE ROCK ASPHALT CO. v. WARREN et al.

    No. 9819.
    Court of Civil Appeals of Texas. Galveston.
    March 9, 1933.
    Rehearing Denied April 13, 1933.

      W. H. Graham, of Houston, for appellant.
    Stewart & DeLange and Albert J. DeLange, all of Houston, for appellees.

      Writ of er ror granted.

   GRAVES, Justice.-

This appeal is from a general judgment of the court below, sitting without a jury, refusing appellant any relief against any of the appellees in a suit whereby it sought a personal judgment against appellee Mrs. May Warren for the $585 amount of paving certificate No. 172, of date June 25 of 1930, issued by the city of Houston to appellant as for the proportionate costs of pavement it had completed on Fannin street in front of her property, together also with the foreclosure against herself, her husband, and the loan company appellee, of its asserted superior statutory and contract liens against her property, alleged to have inured to it by virtue of its having done such paving.

The property affected was 65 feet on Fan-nin street by 125 feet on Arbor place in the city of Houston, was the separate property of Mrs. Warren, and prior to 1925 constituted in toto the actual and occupied homestead of Mr. and Mrs. Warren; their residence thereon fronting upon the Fannin street side. Thereafter, about 1925, the Warrens built a rent house upon the other or east end of their homestead tract of 65 by 125 feet, which new house they faced north on Arbor place and rented to tenants from time to time, at all times, however, retaining in themselves the control of the whole original homestead tract, as well as continuing to directly use for themselves, in connection with their continuing home on the Fannin street front, all of the entire 65 by 125 foot tract, except such rental tenure as they thus granted on the new house and the land upon which it was built, inclusive of appurtenant means of access thereto.

The paving certificate declared upon was issued pursuant to a written petition for such paving filed with the city council of Houston on or prior to November 16 of 1927, which, it was alleged, Mrs. Warren had signed along with more than 51 per cent, of the owners of the front-feet property abutting on Fannin street, and that all requirements of the city charter relative to the initiation of such paving, its completion, and the proper issuance of the declared-upon certificate in pursuance thereof, were alleged; wherefore, it was especially asserted, the statutory lien in such cases made and provided had arisen in appellant’s favor, not only against Mrs. Warren but against her husband and the appellee loan company as well, and that personal liability against Mrs. Warren alone had also, by virtue of such proceedings, arisen in its favor for the amount sued for.

Appellant, by way of what it terms an accumulative lien to that alleged under the paving certificate, also declared upon a contract or mechanic’s lien as having arisen by virtue of a written agreement of date October 28 of 1929, between it and appellees May E. and John K. Warren, whereby, it was charged, she further in that manner not only hound herself to pay the amount of the paving assessment, hut also fastened in its favor a mechanic’s, builder’s, and materialman’s lien upon the whole of her property as security therefor.

It was further averred that the appellee loan association was asserting some sort of a lien upon the property, but that it was inferior to the liens so claimed by appellant, hence did not stand in the way of its prayed-for foreclosure thereof.

A subsidiary claim was that, in any event, the rented house on the east end of the whole tract — together with at least the land on which it was situated — had in 1925 been segregated from the balance and abandoned as a part of the Warrens’ homestead, if it had ever before been such.

In answer, the appellees made common cause 'in denying that appellant had any cause of action against any one of them either for a personal liability or a lien of any character against any part of the whole tract involved, for the reasons, among others, that the entire place had in 1922 become and ever since then remained the homestead of the two Warrens as husband and wife, and subject as such during all that time to prior and superior .vendor’s and other kinds of liens then fastened upon it in favor of the appellee loan company; that no proper steps had ever been taken to make appellant’s claimed paving assessment and contract liens valid upon any portion of such property against any one of them; and particularly that the asserted contract lien of October 28 of 1929 was invalid and void because the property ¿t that time constituted the homestead of the two Warrens, and such purported contract had neither been duly signed, executed, and acknowledged by either of them, nor had their claimed acknowledgments been legally taken thereto, in that the notary public who assumed to act in that behalf, Mr. M. B. Hardin, was disqualified to act in any such capacity because at the time he was the representative of the appellant charged with the duty of procuring the contract itself, and therefore was merely its alter ego and was undertaking to act for it in reference thereto; that in no event had either the rented house, or the ground upon which it was built, ever become subject to the asserted paving lien, because, while the appellees neither had ever abandoned it as part of their homestead, nor had at any time intended to do so, still, if any. such isolation or segregation of it from the balance of the homestead tract as was asserted had occurred, it by that process lost any character as abutting the street paved, Eannin, since it at all times abutted Arbor place only.

No findings of fact or law were either requested or filed below; hence the judgment there rendered must be affirmed, if the record presents and supports any theory upon which that may properly be done.

This court, after a careful consideration of the cause, concludes that the learned trial court was correct in so refusing any recovery.

The evidence justifies, if it does not compel, at least these conclusions:

1. The entire tract, continuously until this trial from and after its purchase by Mrs. Warren in 1922, constituted the homestead of herself and husband, with the possible exception of the rent house at the east end with its supporting terrain and means of ingress and egress, after its erection in 1925, incumbered all the while by an existing vendor’s lien in favor of the appellee loan company, which throughout that whole time constituted a prior and superior charge to all others here claimed against it; wherefore the paving assessment and certificate gave rise to no such tax nor other lien, as could prevail against it. City of Wichita Falls v. Williams (1930), 119 Tex. 163, 26 S.W.(2d) 910, 79 A. L. R. 704; Higgins v. Bordages (1895) 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770; Barnett v. Eureka Paving Co. (Com. App. Sec. B, 1921) 234 S. W. 1081; R. S. article 1091, and Vernon’s Ann. Civ. St. art. 1105b, § 8.

2. The alleged contract of October 28, 1929, the acknowledgments to which Mr. M. B. Hardin essayed to take, was invalid and created no lien, because he was indisputably shown to be nothing short of the alter ego of his corporate principal in the entire enterprise of this paving as affecting the portion of Fannin street abutting the Warren homestead, inclusive of the procuring and making of the agreement itself with relation thereto this paper purported to reflect, hence was disqualified from performing valid notarial acts in connection therewith. 1 Corpus Juris, § 110 et seq., p. 802 and following; Rothschild v. Daugher (1892) 85 Tex. 332, 20 S. W. 142, 16 L. R. A. 719, 34 Am. St. Rep. 811; Sample v. Irwin (1876) 45 Tex. 567; Brown v. Moore (1873) 38 Tex. 646; Miles v. Kelley (Austin 1897) 16 Tex. Civ. App. 147, 40 S. W. 599; Workman’s Mutual Aid Ass’n v. Monroe (Tex. Civ. App. Austin 1899) 53 S. W. 1029, writ denied, 93 Tex. 698, 55 S. W. xv, no op.; Hamilton County Development Company v. Sullivan (Tex. Civ. App. Austin 1920) 220 S. W. 116; Vauter v. Greenwood (Tex. Civ. App. Fort Worth 1919) 212 S. W. 269; Silcock v. Baker (San Antonio 1901) 25 Tex. Civ. App. 508, 61 S. W. 939; Bexar Bldg. & Loan Ass’n v. Heady (San Antonio 1899) 21 Tex. Civ. App. 154, 50 S. W. 1079, 57 S. W. 583.

3. No parts of the rented premises— that is, the rent house, the ground on which it rested, nor the appurtenant driveway thereto—while made up of small strips of all three lots comprising the whole property of Mrs. Warren, ever at any time abutted Fan-nin street, but do and have at all times since the construction of the rent house in 1925 abutted wholly upon Arbor place to the north of the property which runs practically at right angles with Fannin street; so that, while this court does not deem it necessary to pass upon appellant’s contention that this much of the property became abandoned as a part of the homestead and does not do so, it seems clear that it is not subject to the assessment lien claimed, because of the fact that, when considered apart from the balance of the whole property, it does not in any sense abut Fannin street; the claimed assessment lien cannot therefore attach to it, because, by the express provisions of the Houston city charter as well as the general law on the subject, such paving assessments can only create statutory liens thereon on abutting property. Charter of City of Houston, art. 4-a, §§ 5-a, 9, 10, and 14; El Paso Bitulithic Company v. Neill (Tex. Civ. App. El Paso 1924) 266 S. W. 593; Smith Brothers v. Lucas (Tex. Civ. App. Dallas 1928) 15 S.W.(2d) 27; Panhandle Construction Co. v. Sikes (Tex. Civ. App. Amarillo 1931) 42 S.W.(2d) 113; City of El Paso v. Mundy Bros. (1892) 85 Tex. 316, 20 S. W. 140; 44 C. J. § 2917, p. 546, also § 2918, p. 547.

While there are many questions raised and discussed in the briefs of the parties, it is deemed unnecessary to discuss them in detail, since these conclusions determine the merits of the appeal; the judgment of the trial court will therefore be affirmed.

Affirmed.


author: SEBLERS, Justice.

text:
    GUARANTY MORTGAGE CO. v. HENDRICKS.
    No. 4315.
    Court of Civil Appeals of Texas. Texarkana.
    April 10, 1933.
    Rehearing Denied April 20, 1933.
    Geo. T. Burgess, of Dallas, for áppellant.
    McKinney & Berry, of Cooper, for appellee.
   SEBLERS, Justice.

On March 29, 1910, the qualified voters of the city of Cooper at an election held for the purpose adopted the provisions of the state paving law, such law now being chapter 9, title 28, R. C. S. 1925 (article 1086 et seq.). Acting under the authority of this law the city commission of the city of Cooper by ordinance determined to pave certain streets within its limits, upon one of which the property involved in this suit abuts, and levied an assessment against the owners of abutting property for their proportionate part of the cost of such improvements. The city through its governing body entered into a contract with the Oliver Construction Company to do the paving and improving of said streets and agreed therein to pay its part of such cost in the following manner:

“Said improvements shall be made and constructed in further accordance with, and under the terms and provisions of the ordinances and proceedings of the City of Cooper, Texas, relating thereto, and the City hereby agrees to make payments to the contractor for the proportion of the cost thereof to be paid by it under the terms of the said proceedings on estimates to be issued by the Engineer, and approved by the Board of Commissioners of said City, all in the manner and at the time provided in said ordinances and proceedings, and in the said specifications, the amounts to be paid by the City shall be paid in interest-bearing warrants, known as ‘city of Cooper paving warrants, series 1928.’ dated the 29th day of March, 1928, in denomination of five hundred dollars ($500.00) each, and not exceeding fifteen thousand dollars ($15,000.00), due and payable, serially, 1929 to 1948, inclusive, and bearing interest at the rate of six per cent (6%) per annum, payable the 1st day of April, 1929, and thereafter semi-annually, and the City hereby agrees to levy for the current year, and annually thereafter, an ad valorem tax on all taxable property therein sufficient to pay the interest on said warrants and provide a sinking fund sufficient to pay the principal thereof at maturity.”

The warrants were duly issued and a tax levied to cover the interest on 'the warrants and to create a fund for the purpose of paying the principal of said warrants when they should become due. On July 12, 1930, after due notice had been given, the city proceeding under article 1095 sought to correct the mistakes and invalidity in the original assessment by reassessing the property owners for their proportionate part of the cost of the improvements.

This suit is upon a special assessment certificate 'for one-third of the sum of $884.16 issued by the city of Cooper to Oliver Construction Company against the property of A. H. Kennamer, the certificate also providing for a lien against said property. J. D. Hendricks, the plaintiff in the trial court, alleged that he was the owner and holder of the certificate and sought judgment for his debt for foreclosure of the lien securing the same against the defendant A. H. Kennamer and Guaranty Mortgage Company. The defendant Kenna-mer made no answer, but Guaranty Mortgage Company answered that it was the owner of the land involved and denied that plaintiff had any valid lien against the same. The trial before the court without a jury resulted in a judgment for plaintiff against defendant Kennamer for the sum of $476.08 and foreclosing the lien against the property involved and decreeing such lien superior to any claim of the defendant Guaranty Mortgage Company to the property. Prom this judgment the defendant Guaranty Mortgage Company has duly prosecuted this appeal.

Appellant’s first assignment of error asserts that the contract entered into between the city of Cooper and Oliver Construction Company is void on its face in that the contract shows that the consideration to he paid by the city for its proportionate part of the cost was not from available funds as required by article 1087 of R. S. 1925; but that payment was to be made by resorting to taxation and that such method could not be construed as coming within the purview of said article. No attack was made upon the legality of the warrants, or the tax levy made by the city to take care of the warrants as they matured. The sole contention, as we understand it, is that such method could not be construed as constituting “available funds” under the statute. This assignment must be overruled. The identical question was before the San Antonio Court of Civil Appeals in the case of Clark v. W. L. Pearson & Co. (Tex. Civ. App.) 26 S.W.(2d) 382, and it was there held that funds thus raised constituted available funds as contemplated by the statute.

Appellant’s second, seventh, and eighth assignments of error raise the question of the sufficiency of the notice given of the hearing on the reassessment. Article 1093 provides for the notice to be given before an assessment for any part of the cost of such improvement against the property owners can be made. It provides: “* * * Such notice shall be by advertisement inserted at least three times in some newspaper published in the city, town or village where such tax is sought to be levied, if there be such a paper there, if not, then in the nearest to said city, town or village, of general circulation in the county in which said city is located, the first publication to be made at least ten days before the date of the hearing. The governing body may provide for additional notice cumulative of notice by advertisement.”

Article 1098 provides for notice.on reassessment. The requirements are: “No such assessment or reassessment, shall be made without at least ten days written notice and an opportunity to be heard on such question of special benefits given to the owner or owners of such abutting property. Such notice may be served either personally or by publication in some newspaper of general circulation, published in said city or town; and the governing body of any such city or town shall have power to provide for all procedure, rules and regulations necessary or proper for such notice and hearing and to levy, assess and collect such, assessment or reassessment.”

Paragraph six of the ■ ordinance determining the necessity for reassessment provides: “The City Clerk of the City of Cooper, Texas, is hereby directed to give notice to the owners of said parcels of abutting property and to all others in any wise interested therein at the time, place and purpose of such hearing, and of all said matters and things ■by causing, a substantial copy of this ordinance to be published at least three times in a newspaper published in and of general circulation in the City of Cooper, Texas, the first of which publications shall be made at least ten (10) days before the date fixed for such hearing, and by such publication all owners of 'said parcels of property, whether named herein or not and whether the property be correctly described herein or not, as well as all others in any wise interested in any such property or to be affected by any of said matters shall be and are duly notified. * * * ”

On October 8, 1931, W. D. Hart, the publisher of the Cooper Review, made his affidavit in which he stated that the notice was only published twice, to wit: June 20 and June 27, 1930. On the trial of this case the court, over appellant’s objection, permitted the witness W. D. Hart to testify that his affidavit made October 8, 1931, was an error in that the notice was in fact published three times as required, and also permitted-the introduction of the respective issues of the Cooper Review containing such notices.

We think the statutes and ordinances referred to are too-clear to permit of any doubt the method by which notice in such hearings shall be given and that appellant and all other interested parties are required to take notice of such provisions. Neither do we think there was error by the court in permitting the evidence of W. D. Hart that his affidavit was in error and that the notice was in fact actually published as required. It is the fact that the required notice was actually given that authorizes the city commission to hold the hearing and make the assessment, and not that the publisher’s affidavit show such notice to have been given. Appellant’s contention to the contrary is, it would seem, based upon the provision of article 1105b, Vernon’s Ann. Civ. St., which is an alternative statute passed by the 40th Legislature .(1st Called Sess. c. 106), effective September 5, 1927, and which this record shows was never invoked in these proceedings, and is therefore not applicable. Simms et al. v. O. L. Crigler Co. (Tex. Civ. App.) 47 S.W.(2d) 686. And we do not construe the provisions of that article. This also disposes of appellant’s third assignment of error which undertakes to invoke the provision of article 1105b. Appellant’s other assignments will not be considered for reason that they present matters of irregularity which might be waived .by the property owner affected and the right to urge them are lost unless an appropriate suit is filed by the complaining party within twenty days after final action of the city commission, making the reassessment. Simms v. City of Mount Pleasant et al. (Tex. Civ. App.) 12 S.W.(2d) 833. And this, as affirmatively appears, was not done.

Finding no error in the record, the judg- . ment of the trial court is affirmed.