author: JONES, C. J.

text:
    CITY OF DALLAS et al. v. JOHNSON.
    No. 11311.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 22, 1932.
    Rehearing Denied Dec. 3, 1932.

      Hugh S. Grady, W. Hughes Knight, H. P. Kucera, and A. J. Thuss, all of Dallas, for appellants.
    Hughes & Monroe and O. F. Wencker, all of Dallas, for appellee.
   JONES, C. J.

Appellee, Lee T. Johnson, instituted this suit against appellant, city of Dallas, a municipal corporation, under the provisions of article 1219, R. C. S., to set aside a special assessment levied against each of two pieces of real property owned by appellee, for the purpose of- opening, widening, and extending Olive-Phelps street from Live Oak street to Cedar Springs road. From a judgment deemed unfavorable to it, appellant has duly perfected an appeal. Briefly stated, the facts are as follows:

The record shows that all the necessary preliminary steps to make said improvement had been taken by appellant, and that all the necessary steps to create and fix a valid lien against appellee’s property, and to create a valid personal indebtedness for the amount of the special assessments, levied against his property, were likewise taken by appellant. The record also shows that this suit was filed within the statutory time allowed for instituting such suits.

Appellee’s two pieces- of property are located, respectively, on Ross avenue and Juliette street. The street that was opened and extended did not previously cross either Ross avenue or Juliette street, but the new or extended street to be opened by appellant will cross each of such streets and extend several blocks beyond them. Th§ result will be that appellee’s two pieces of property will become corner lots, one bordering on Ross avenue and the new street, and the other bordering on Juliette street and the new street. This improvement, when completed, will make Olive-Phelps, the new street, a paved street sixty feet wide, extending from Elm Street North to Cedar Springs road. Previous to the improvement, appellee’s Ross avenue property only had an outlet at its front on Ross avenue; the property, however, extended back from Ross avenue 184 feet. The Juliette street property only had an outlet on Juliette street. This street is described as a short dead-end street; the west end terminating at the west line of appellee’s property, its only outlet being a short unpaved or dirt street, east into North Pearl street, a paved street running parallel with the new street. This new street is open several blocks north, crosses McKinney avenue, a broad paved street, and connects with Cedar Springs road, another broad paved street.

The special assessment levied against ap-pellee on the Ross avenue property is in the sum of $10,370.12, and a lien is fixed on such property in such sum by a duly enacted ordinance. The special assessment levied against the Juliette street property is in the sum of $5,855.08, and a lien in this sum is likewise fixed on this piece of property. The Juliette street property will have a frontage of 80 feet on the new street, and the Ross avenue property will have a frontage of 184 feet on the new street. The Ross avenue property is ' considered business property; the Juliette street property, previous to the opening of the new street, by reason of its surroundings and the class of improvement upon it, and other properties in its immediate vicinity, was considered inferior resident property.

Appellee’s petition is full and complete in stating his. cause of action, on the theory that the special assessment levied against him on each piece of property is grossly unreasonable and greatly in excess of any special benefits received by him by reason of the opening, widening, and paving of the new street. Specific allegations are made tending to show that each of said assessments is unreasonable, excessive, confiscatory, and void. Specific allegations are also made,v alleging ap-pellee was discriminated against in the matter of making assessments. The petition forms a sufficient basis for the judgment entered.

Appellant’s answer is full and complete, and raises all the issues herein discussed, and is sufficient to have formed the basis for a judgment in its favor.

The case was tried to a jury, submitted on special issues, and a verdict returned that the Juliette street property had received no benefit from the improvement, and that the Ross avenue property had received benefits in the- sum of $500. Judgment was entered by the trial court in conformity to the jury’s findings on special issues, making no assessment against the Juliette street property, and making an assessment of $500 against the Ross avenue property and against appellee personally in such sum.

Appellant requested peremptory instruction in its favor, on the grounds that (a) the record evidence establishes a prima facie case in favor of the validity of the proceedings, and such presumption of the validity and regularity was not overcome by the evidence introduced by the plaintiff; and (b) that the levying of the assessments is a legislative right, and the action of appellant’s governing body in levying the assessment does not become a proper subject of review, unless same is arbitrary, unreasonable, or made in bad faith.

This contention requires a construction of article, 1219, R. O. S. 1925, which reads: “Any property owner against whom or whose property an assessment or reassessment has been made, may, within ten days thereafter bring suit to set aside or correct the same, or any proceeding with reference thereto on account of any error or invalidity therein, but thereafter such owner, his heirs, assigns, or successors shall be barred from such action or any defense of invalidity in such proceedings or assessment or reassessment, in any action in which the same may be brought into question.”

It is true, as contended by appellant, that the levying of taxes by a municipal corporation, even in the form of special assessments, is the exercise of legislative power, but the right to exercise such power must rest on a valid legislative enactment, delegating the right to the municipal corporation.

The power of a municipal corporation to levy special assessments against an abutting property owner, or on an owner whose property is specially benefited by a public improvement, is the exercise of a delegated power, and must be exercised in the manner prescribed by the Legislature in such grant of power. So, when such delegated power is exercised by a municipal corporation, it is subject to all the limitations placed thereon by the legislative grant. One of the limitations placed on appellant in the instant case is that a person against whom and against whose property a special assessment has been made has the right to institute a suit in a proper court within ten days “to set aside or correct, the same * * * on account of any error or invalidity therein.” Under the terms of this statute, appellee’s right to appeal to a court to review the assessment made against him is not restricted to a review only to determine whether the assessment was made arbitrarily or in bad faith, but his right is given in the broad term as to whether there existed “any error in the making of the assessment.” City of Dallas v. Wright, 120 Tex. 190, 36 S.W.(2d) 973, 975, 77 A. L. R. 709.

While in .the case of the City of Dallas v. Wright, supra, the precise question here under review was not before the Supreme Court, yet a consideration of the question under review in that ease necessarily called for a construction of the provisions of article 1219, supra, as to the jurisdiction therein conferred on the district court. It is clear from a discussion of that case, by the learned Chief Justice of our Supreme Court, that the court in which a suit of this kind is filed is not given merely the restricted jurisdiction contended for by appellant, but is clothed with complete jurisdiction to determine the same issues between the parties that existed at the time the assessments were made. This appears from the following excerpts:

“It is elementary that the statute (article 1219) prescribing a statutory method, of reviewing assessments of the character before us should be construed and interpreted in pari materia with the Constitution and the statutes conferring jurisdiction on the courts in which such suits for review must be filed. * * * So, construing and interpreting the statutes before us, we are of the opinion that in a case where an action is brought under the terms of article 1219, and the power of the district court thereby invoked, then the full power of the court, including its equity powers under the general principles of equity, may be resorted to to administer justice between the parties. * * *

“The statute under review provides an exclusive remedy under ordinary conditions to the extent that the statutory remedy of suit within the ten-day period must be followed, but when once the suit is filed within time, all the powers which the district court may properly exercise under established principles of law and equity may be invoked. This construction is clearly consistent with the Ian-' guage of article 1219 itself, under which this action was brought. It will be noted from this article that suit is authorized not alone for the purpose of determining the legality of ■ the taxation proceedings, and the resulting levy and certificate, but ‘to set aside or correct the same, or any part thereof, or any proceeding with reference thereto, on account of any error or invalidity thereof.’ ⅜ * ⅜

“Under our statute, by the filing of the suit, full and complete jurisdiction was conferred upon the court to set aside or correct all the proceedings previously had by the city. * * ⅜ ipjje necessary legal effect, therefore, of filing the suit was to suspend the proceedings previously had by the city, and .to require a trial by the district court of the issues between the parties.”

Appellant’s contention in this respect is overruled.

Appellant has properly raised and presented to this court the issue as to whether the case was properly submitted to the jury. The court defined the term “special benefits” as follows: “You are instructed that by the term ‘special benefits’ is meant such benefits as accrued specially on this property by reason of the street‘improvements in question when completed, and which are not shared in general by the whole community.”

As to the Juliette street property, the court submitted the issue as to special benefits as follows: “Do you find and believe from a preponderance of the evidence that the property in question on Juliette Street has received special benefits in enhanced value to the opening, widening and extension of Olive-Phelps street from Live Oak street to Cedar Springs street, as of this date?”

As to the Boss- avenue property, the court submitted the issue as to special benefits as follows: “Do you find and believe from a preponderance of the evidence that the property in question on Ross Avenue has received special benefits in enhanced value due to the opening, widening and extension of Olive-Pheips Street from Live Oak Street to Cedar Springs Street, as of this date?”

The undisputed evidence shows that the physical work of opening, widening, and extending Olive-Phelps street, and the placing of the properties of the plaintiff on the new street, had not been completed at the time of the trial, and that consequently the new street had never been opened for public use. Under the unfinished status of the contemplated improvements, it is urged that the restrictive terms “has received” and “as of this date,” used by the court in each of the above special issues, are erroneous. By the use of these words, the jury must confine their consideration of the special benefits which had already accrued to the property as a result of the planned but unopened street, and did not allow the jury to consider the full benefits that would accrue to the property from the finished and opened street. We are of the opinion that this criticism is well founded. At the date of the trial, there was only a “paper street” abutting on appellee’s .two pieces of property, and manifestly the full benefits that would accrue to appellee’s property, by reason of each piece of property cornering on an extended paved street sixty feet wide, had not come into existence at the time of the trial, and the manner of the submission of the issues did not permit the jury to consider benefits from the standpoint of a finished street. This full benefit will only accrue to appellee’s property after .this public improvement has been completed. Because of the incompleted status of the public improvement, the court should have submitted to the jury the question as to benefits that will accrue to appellee’s property, after the public improvement has been completed, and not what special benefits the'property has received only as of the'date of the trial. City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.(2d) 57; Louisville & N. R. Co. v. Barber, etc., Co., 197 U. S. 430, 25 S. Ct. 466, 49 L. Ed. 819; Patterson v. Williams (Tex. Civ. App.) 225 S. W. 89. The assignments of error in this respect are sustained.

Various errors are assigned on the admission, or refusal to admit, certain evidence, and some of these appear to be well taken. The court having properly admitted the testimony of appellee, to the effect that, since condemnation proceedings for the opening of the new street, the rental value of appellee’s Ross avenue property had decreased, it was error for the court to refuse to permit appellant, on cross-examination of appellee, to show that a portion of the property on which a business house had stood had been taken in condemnation and its value paid to appellee by the city, as well as payment of damages co the remainder of said property. This was proper rebuttal evidence to appellee’s said testimony in reference to the decrease in rental value of the Ross avenue property. It was error for the court, over appellant’s objection, to admit evidence that the property had’ been listed with several real estate firms who had not been able to sell same. This was not proper evidence in the issues involved in this case. It was improper to permit a witness for appellee to express his opinion that the placing of a lien upon the property, in the nature of the benefit assessment, would damage the property. The assignments of error as to these matters are sustained.

Other assignments of error, on the admission of evidence, or refusal to admit evidence, have been carefully examined and are overruled.

Various assignments of error are directed against arguments made by counsel for appellee in the closing speech to the jury. It is not legitimate argument for counsel to appeal to a juror to find for his client the same verdict that he would want a jury to find for him if his property were involved. This directs the jury to consider an element In passing on the special benefits that should not be considered. Nor is it legitimate argument for counsel to testify before the jury as to the market price of cotton, real estate, cattle, and other commodities, and, to make such testimony the basis of an appeal to a jury, that under such conditions there could accrue no special benefits to the property, though abutting on a street improvement. Courts do not take judicial knowledge of the change of the market price of various commodities, and hence the supposed facts existing with reference to the market price was entirely outside of the record. It is believed that at another trial of this case counsel will confine his argument to the record and the legitimate inferences that may be drawn therefrom, and hence other assignments of error in respect to similar arguments of counsel will not be specifically discussed. It is the duty of the trial court, without the necessity of objection by opposing counsel, to hold arguments to a jury within the record.

Eor the errors above pointed out, it is the opinion of this court that this case should be reversed and remanded, and it is so ordered.

Reversed and remanded.

On Motion for Rehearing.

In a motion for rehearing, appellee, for the first time, challenges the authority of the. judge of the Dallas county court at law No. 2 to appoint special commissioners in condemnation proceedings to assess damages, on the ground that the judge of such court is without authority to entertain condemnation proceedings; the contention being that the exercise of such power rests alone in the judge of the county court of Dallas county.

The Legislature created, by valid statutory enactments, two additional courts to function as county courts of Dallas county, specified ■the jurisdiction to be conferred upon such courts, and styled them, respectively, county court of Dallas county at law No. 1 and county court of Dallas county at law No. 2. Article 1970 — 3, R. S. 1925, declares that the county court of Dallas county at law No. 1 “shall have original and concurrent jurisdiction with the County Court of Dallas County in all matters and causes, civil and criminal, original and appellate, over which, by the general laws of the State, county courts have jurisdiction, except as provided in Section 3 of this Actand further prescribes that “this provision shall not affect jurisdictions of the commissioners court, or of the county judge of Dallas county as the presiding officer of such commissioners court, as to roads, bridges, and public highways and matters of eminent domain which are now within the jurisdiction of the commissioners court or the judge thereof.”

The matters excluded from the jurisdiction of the county court of Dallas county at law No. 1 are specifically set forth in article 1970 — 4. The exclusion does not include the matter of securing and enforcing the right of eminent domain.

The jurisdiction of the county court of Dallas county at law No. 2 is given in article 1970 —16, R. S. 1925, and provides that such court “shall have exclusive concurrent civil and criminal jurisdiction of all cases, original and appellate, over which by the laws of the State of Texas, the existing (County Court of Dallas County at Law,) of Dallas county, Texas, would have original and appellate jurisdiction. * * ⅜ ”

It appears, therefore, that the county court of Dallas county, the- county court of Dallas county at law No. 1, and the county court of Dallas county at law No. 2" have concurrent jurisdiction over all matters that are prescribed by article 1970 — 3, as the jurisdiction of the county court at law No. 1. This grant of jurisdiction includes the specific matter under review. It is also equally obvious from the statutes creating the two county courts at law for Dallas county and prescribing their jurisdiction that these courts are essentially constitutional county courts with limited jurisdiction. State v. Valentine (Tex. Civ. App.) 198 S. W. 1006.

The validity of this grant of jurisdictional power to county courts at law, including jurisdiction over the exercise of the right of eminent domain, has heretofore been passed upon and decided against appellee’s contention. Texas & N. O. R. Co. v. City of Beaumont (Tex. Civ. App.) 285 S. W. 944 (writ of error refused); Acree v. State (Tex. Civ. App.) 47 S.W.(2d) 907 (application for writ of error dismissed for want of jurisdiction). Ap-pellee’s contention in this respect is overruled.

Appellant insists, in its motion for rehearing, that we should have discussed its assignment of error in respect to the admission of evidence of appellee, to the effect that he did not agree or consent to the street improvement in question. Appellant timely objected to the admission of. this evidence on the ground that it was immaterial, irrelevant, and prejudicial to the rights of appellant. The evidence is on an immaterial issue, and its admission was error, hut we fail to see where it was prejudicial, and hence is not reversible error. .

The motion of appellee and the motion of appellant for a rehearing are overruled.


source: Caselaw Access Project

author: LATTIMORE, J.

license: Public Domain

text:
    JOHNSTON et al. v. ANDRADE.
    No. 12709.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 15, 1932.
    Rehearing Denied Dec. 3, 1932.
    Mayer & Rowe, of Fort Worth, for appellants.
    Slay & Simon, of Fort Worth, for appellee.
   LATTIMORE, J.

In December, 1929, appellee was the owner of a contract to buy’ an oil interest in some mineral land which we denominate the McKenzie contract. In January he transferred the title to such interest to appellant in a writing which gave appellant full working control of the McKenzie contract and bound appellant to pay to appellee one-half of the net profits therefrom. In February the parties to this suit were sued by the Sun Oil Company, along with the Pure Oil Company and some other parties al§o interested in the land of which the McKenzie farm was a part. This suit was anticipated by these parties in making the deal in January.

In defending that suit, appellant and ap-pellee employed, among others, E. E. Hubman as attorney. On March 8,1930, Hubman made a proposition to appellee that he (appellee) sell his undivided one-half interest in the McKenzie contract, and appellee did assign his said interest to Hubman and received Hub-man’s check therefor for $5,000. Hubman, on March 10, 1930, assigned the same to appellant. On March 13,1930, appellant settled his suit with the Sun and Pure Oil Companies ■by which he received for the McKenzie contract $70,000. Andrade thereupon sued Johnston and Hubman for fraud, alleging that they knew this, settlement was imminent and that they conspired to acquire his interest by fraud, and that “in pursuance of such fraudulent scheme the defendant, Johnson, procured the defendant, E. E. Hubman to call upon plaintiff and represent to the plaintiff that certain disinterested parties, strangers to said transaction, wanted to buy the plaintiff’s interest in said contract; and the said Hub-man did, on, towit, the Sth day of 'March, 1930, come to the office of this plaintiff in Dallas, Texas, and did represent to the plaintiff that he, the said Hubman, had a party residing in Colorado, who was willing to purchase the interest of the plaintiff in said contract and pay the plaintiff therefor the sum of $5,-000.00. That the said Hubman represented to the plaintiff at said time that said contract was involved in endless litigation; that a suit filed and then pending by the Sun Oil Company against the defendant Johnston to cancel same, was a dangerous one, and that there was very little chance to win the suit, and that said interest of plaintiff would likely he lost and the plaintiff would obtain nothing for his interest in said contract; that said Colorado parties were willing and able to take a chance on recovery, and would pay said sum for plaintiff’s said interest. The said defendant Hubman further represented that the defendant, J. P. Johnston, plaintiff’s partner in said transaction, had no interest in purchasing said interest of the plaintiff, was not an interested party and had nothing to do with said purchase, and would obtain no benefits therefrom; and the said Hubman further represented that neither the Pure Oil Company nor the Sun Oil Company were interested in acquiring said McKenzie lease, or the contract of the plaintiff, or the interest of the said McKenzie, or this plaintiff, or said Johnston, or of settling said suit, and further represented that no negotiations for settlement with the Pure Oil Company or the Sun Company were then pending; and in truth and in fact that the said Pure Oil Company and said Sun Oil Company would not settle said suit, neither would they pay anything for the interest conveyed by the said McKenzie to the said Eowler, and which was subsequently acquired by this plaintiff and conveyed to the said Johnston as hereinabove set out,” with appropriate allegations auxiliary thereto.

On submission to a jury, a verdict was on special issues and judgment thereon for plaintiff against both defendants, who appeal.

While the petition does not in so many words allege that the representations “were untrue,” it does allege at length what the true facts were and that said representations were made pursuant to a plan to obtain thereby the interest of appellee. Allegations of facts are better pleading than to allege only the conclusions to be drawn from the facts, and should control. The general demurrer was properly overruled..

Plaintiff pleaded specifically that Johnston procured Hubman to go to appellee as Johnston’s agent, and that Hubman made the representations to appellee as the agent of Johnston. True, the plaintiff names specifically only one misrepresentation that Johnston told Hubman to make, to wit, that he (Hubman) was representing some Colorado people, strangers to the deal. However, Hub-man went as a conspirator, and as an agent of an undisclosed principal, Johnston, by the instruction of the latter who authorized him to practice the named deception on Andrade, and who received the benefits of the misrepresentations and retains the same, after knowledge of same, the while denying his responsibility therefor. “It would indeed be a monstrous doctrine, to hold that a principal may speculate upon and enjoy the fruits of the frauds of his authorized agent, and incur no responsibility to the injured parties. * *’ * Such a doctrine can have no sanction in morals or law.” Wright v. Calhoun, 19 Tex. 412. That ease was one of disclosed agency. The rule is doubly sound in a case where the agent, on the order of the principal, keeps his principal undisclosed, thus preventing his being required to state what authority he had given. That some links in the chain of conspiracy by Johnston to defraud have been forged from circumstantial evidence, and in the face of a flat denial thereof by the defendants, does not weaken the finding of the jury. Jernigan v. Wainer, 12 Tex. 189. The court, therefore, was correct in allowing Andrade to testify to all of the statements pleaded as having been made by Hubman to procure the assignment of the McKenzie contract to him.

This also disposes, for the same reasons, of the complaint that testimony was insufficient to show Hubman’s agency. The second, third, tenth, and eleventh assignments are therefore overruled, and this also disposes of the issue of want of pleading as grounds for the 4, 5, 6, 7, 8, 9, 13, and 14 assignments of error.

The court did not submit to the jury the issue of the falsity of the representations alleged except as to whether negotiations with ¡the Pure Oil Company were in progress on March 8, 1930. As to the fact that Hubman misrepresented who his principal was, and that he represented that the McKenzie contract was involved in endless litigation, they were undisputably false, and the latter, a matter of opinion, is found by the jury not to have been made in good faith. Hence the refusal to submit the issue of their falsity was proper. It was error to refuse to submit to the jury the issue of falsity of the representations inquired about in question eight. This error was harmless in view of the establishment as untrue of other representations. Assignments 4, 5, 6, 7, 8, and 9 are overruled.

Aside from the question of whether the pleading alleges properly or the charge submits fully the misrepresentations and their legal subsidiaries, we think the case should be affirmed in this: It is undisputed that Johnston held the legal title to the McKenzie contract, half of it in trust for Andrade. Hub-man was their attorney. Appellants, each, therefore, owed appellee the duty to fully disclose the situation to Andrade. The latter was' not required to prove affirmative misrepresentation. It is enough that the jury have found on sufficient evidence that Johnston and his agent, Hubman, withheld facts from An-drade which, if he had known such facts, would have altered his willingness to sell at $5,000. The verdict finds that Hubman knew negotiations were pending with the Pure Oil Company to settle for a large sum of money; that he was not acting for a principal, stranger to the McKenzie contract; that he did not disclose these facts to appellee;, that had Andrade known the full facts, he would not have sold for $5,000. This was an actionable breach of a fiduciary relation.

There was ample evidence that negotiations with the Pure Oil Company were pending on March 8, 1930. Assignment 13 is overruled.

The judgment of the trial court is affirmed.


author: CONNER, O. J.

text:
    MRS. BAIRD’S BAKERY v. DAVIS.
    No. 12717.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 15, 1932.
    Bryan, Stone, Wade & Agerton and O. W. Fannin, all of Fort Worth, and C. T. Gettys, of Decatur, for appellant.
    Taylor, Muse & Taylor, of Wichita Falls, and Burch & Woodruff, of Decatur, for ap-pellee.
   CONNER, O. J.

This suit was instituted by N. G. Davis against Mrs. Baird’s Bakery, a corporation of which Mrs. Baird was president. The plaintiff alleged thát about the 14th day of September, 1928, he was driving from Bowie to Fort Worth in a Studebaker automobile owned by him at the-time and accompanied by his daughter, Dura Dean Davis; that, while driving upon the public highway, he came to a narrow or one-way bridge, and, after having driven thereon, he met a Graham truck belonging to the Baird Bakery being driven by one Y. M. Pope, the agent, servant, or employee of the defendant ; that after having advanced at least one-half or two-thirds of the way across the bridge, said Pope .drove thereon at a. rate of speed of 15 miles an hour, with full knowledge of the fact that plaintiff was advancing and knowing that a collision would occur, and which in fact did occur by reason of the negligence of said Pope in driving the truck onto the bridge while plaintiff was advancing thereon. Plaintiff alleged that he, in the exercise of due care and when he saw the driver of the truck who was driving onto the bridge, began immediately to apply the brakes on his car to avoid the collision, but was unable to do so.

As a result of the collision alleged, it was charged that the car was practically destroyed and his daughter injured in the particulars set forth in the petition; and he prayed for damages in the total sum of $1,-504.

The case was submitted to a jury on special issues. Issue No. 1 is in the following terms: “Was the defendant negligent in driving onto the bridge in question at the time, alleged in plaintiff’s petition, if he did drive onto said bridge? Answer yes or no.”

To this issue the jury answered “Yes.”

Other findings are to the effect that such negligence was- the proximate cause of plaintiff’s damages. The findings of damages were in specific amounts to the plaintiff’s car and for loss of time in its use; for transportation of his daughter to Harris’ Hospital; for the amount paid Dr. Clark of Bowie for treatment of his daughter; and the amount paid by the plaintiff to Harris’ Hospital for medical attention, hospital bills, nurse’s hire, etc., aggregating, as shown in the court’s judgment, the total sum of $314.50. .Prom this judgment the defendant has duly prosecuted this appeal.

Error is assigned to the refusal of the court to give a peremptory instruction. Under this assignment it is insisted that there was no proof that the truck belonged to the defendant or that the driver was the agent or employee of defendant or at the time was engaged in the discharge of his duties as such agent. The testimony relating to this issue was that given by plaintiff. He testified that; “On the front of the truck, on the front of the cab I guess you would call it, was ‘Mrs. Baird’s Bakery’. That was all that was on the truck.”

At another place in his testimony he stated that the sign on the truck was “Mrs. Baird’s.” This is.all the testimony relating to the subject.

A familiar rule 'of evidence generally speaking is that the failure of a party to an action to testify raises a strong presumption against him in many cases, and this is especially true where he fails or • refuses to testify and disclose a fact exclusively within his knowledge and presumptively not in the knowledge of'his opposing antagonist. See 17 Texas Jurisprudence, p. 308, § 88, and authorities there cited.

The jury -are authorized to draw all lawful conclusions from facts proven in the effort to arrive at a verdict, and, when it is considered that designation of- the names shown upon commercial trucks are familiar and generally indicate ownership, and when it is further considered that the truck at the time was being driven during business hours and in trade territory, and also that the defendant, in whose breast rests the actual knowledge of the truck’s ownership and its mission,-refuses to testify, deny, or disprove the legitimate inferences to be drawn from the name and signs shown, we are not prepared to say that prima facie evidence at least was not presented, and hence the court was required to submit the issue to the.jury -and properly refused the peremptory instruction.

In the case of Globe Laundry v. McLean, 19 S.W.(2d) 94, it was‘held by the Beaumont Court of Civil Appeals that testimony that defendant’s insignia was printed on the truck striking the plaintiff, when uncontradicted and unexplained by defendant, was sufficient to raise the inference that defendant owned the truck and that it was being operated by one of its servants in the ordinary discharge of his employment, gee, also, Rosenthal Dry Goods Co. v. Hillebrandt (Tex. Civ. App.) 299 S. W. 665; Oil Belt Power Co. v. Touchstone (Tex. Civ. App.) 266 S. W. 432, loc. cit. 440; Barron v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 36 S.W.(2d) 464, loc. cit. 467.

What we have said renders it -apparent that issue No. 1, hereinbefore quoted, was on the weight of the evidence and objectionable upon this ground. By referring to the issue it will be seen that the court assumes that the truck belonged to the defendant. The ownership of the car was a material issue and the case having been submitted to the jury, the determination was for the jury uninfluenced by the court’s opinion.

The plaintiff’s testimony relating to the element of his damage is to the effect that he “paid” Dr. Clark of Bowie for treating the injuries to his daughter, “$25”; “$48” to Harris Hospital for hospital bills and nurse’s hire; and “$5” for transportation to Harris Hospital. There was no testimony whatever showing or tending to show that the services thus paid for were reasonable, and the several special issues embodying these special charges were objected to on the ground that there was no proof that the charges made and services performed were reasonable and there are no findings that they .were so. Nor was it alleged or proven that plaintiff’s daughter was a minor, dependent upon him, or that plaintiff was otherwise liable for charges made on her account for hospital fees, etc. The familiar rule relating to the subject is thus stated! in 13 Texas Jurisprudence, p. 468, § 272:

“In a proper case the court may authorize the jury, in awarding damages, to consider reasonable charges or expenses incurred or paid by the plaintiff for medical, surgical, hospital or nursing services and for medicines. To justify an instruction on this subject, such expenses must be claimed in the petition, and the evidence must show not only that expenses were incurred or paid, and the amount thereof, hut also that they were reasonable and necessary in view of the nature of the injury and the attending circumstances.”

We conclude that the judgment below must be reversed and the cause remanded for another trial.


author: BAUGH, J.

text:
    C. & S. SPORTING GOODS CO., Inc., v. BRADY INDEPENDENT SCHOOL DIST. No. 7735.
    Court of Civil Appeals of Texas. Austin.
    Nov. 23, 1932.
    Rehearing Denied Dec. 14, 1932.
    Emmett "Shelton and Smith, Brownlee" & Goldsmith, all of Austin, for appellant.
    Ben H. Powell, John A. Rauhut, and Hart, Patterson & Hart, all of Austin, for appellee.
   BAUGH, J.

Appellant sued appellee in the county court of Travis county, Tex., for a balance of $951.-44, due for merchandise consisting of athletic materials and equipment purchased from it by R. L. Williams, principal and athletic coach of Brady High School, and furnished during the years 1929 to 1931. Appellee filed its plea of privilege to be sued in McCulloch county, which was duly controverted, the issue of venue tried, appellee’s plea of privilege sustained after a jury trial upon the issues raised, and the case ordered transferred to McCulloch county, from which judgment this appeal is prosecuted.

Appellant’s suit was based upon two lists of merchandise, one consisting of a written order for football materials, signed by Williams as principal and coach, on June 2,1929, payable at Austin, Tex.; and the other an itemized verified open account for various and sundry athletic materials and equipment ordered by Williams from appellant. Appellant controverted said plea, alleging that said debt was in part at least upon a written obligation performable in Travis county; that said materials and equipment were necessary in teaching physical education ih said school, which was required by law; that said Williams had implied authority, if not express authority, to purchase same for that purpose as agent of appellee; and that, by accepting and using same for the purposes for which they were purchased, appellee ratified and adopted the contract in question, thereby giving venue in Travis county.

To this controverting plea the appellee specially answered, and, amongst other things, not only denied giving any authority to Williams to make such purchases, but alleged that its board of trustees had expressly instructed him not to make such purchases on the account of the school district; that the sales were not made to the school district, but to oth'er persons who were acting without authority, orders, or direction of appellee. It further answered that such supplies and equipment were not reasonably necessary in the conduct of the school, and that, if the board of trustees had undertaken to purchase same, such contract would have been ultra vires; and even if not ultra vires, it was such a purchase as involved the judgment and discretion of the board itself, and therefore not delegable to an agent. Consequently, that in no event could Williams have made a contract binding upon the school district.

The only issue here presented is that of venue. As to the itemized account, apart from the written order, against a plea of privilege, of course venue would not lie in Travis county. If, however, appellant had a written contract as to a part of its debt, performable in Travis county, in order to prevent a multiplicity of suits, it could properly maintain venue in Travis county as to all of said indebtedness. Middlebrook v. David Bradley Mfg. Co., 86 Tex. 706, 26 S. W. 935; Warner v. Gohlman, Lester & Co., 117 Tex. 145, 298 S. W. 890; Grayburg Oil Co. v. Piland (Tex. Civ. App.) 300 S. W. 666; Stevens v. Willson, 120 Tex. 584, 39 S.W.(2d) 1088. We are relegated, therefore, to the single question of whether appellant showed a valid contract with appellee covering the football materials and equipment performable in Travis county. This we think it failed to do.

The contract, or written order made out on appellant’s forms, was not signed by any trustee of the school, the parties charged by law with the management of the school and the purchase of the supplies necessary for its operation, but by R. L. Williams in his capacity as principal and coach. The consignee of the order was designated as “Brady Hi,” but this was obviously a matter of convenience in shipping and bookkeeping and adds nothing to the liability of the appellee on the contract itself. The “buyer” designated in the caption of the written order was “Red” Williams, and not the appellee. Appellee’s liability on such contract depends, therefore, on the question, first, whether Williams was authorized to make such purchase for and on behalf of-the school district; or, second, whether the trustees, after such purchase if unauthorized, had ratified and adopted his purchase by knowingly keeping and using the equipment, and that it was reasonably necessary and proper in teaching physical education in the school.

It is now settled that where a written contract is made by an agent, a plea of privilege and controverting plea challenges the authority of the agent to make such contract and imposes the burden upon the plaintiff to show that the contract was in fact that of the principal and that the agent had authority to execute it. Ray v. W. W. Kimball Co. (Tex. Civ. App.) 207 S. W. 351; Bledsoe v. Barber (Tex. Civ. App.) 220 S. W. 369; Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.(2d) 824; Pavlidis v. Bishop & Babcock Sales Co. (Tex. Civ. App.) 41 S.W.(2d) 294. Plaintiff, in order to retain venue in the county where suit is filed in such case, must bring himself clearly within the exception to the venue statute relied upon. In the instant case not only was the order not signed by ap-pellee as such, but the jury found, and the evidence conclusively showed, that Williams was not authorized by the school board to make such purchases on its behalf.

The only question remaining which we deem essential to a decision of the issue of venue is whether the board of trustees thereafter ratified and adopted Williams’ contract. This issue was submitted to the jury who found, that it did not. While it is true, we think, that the issue was not properly presented to the jury, and was subject to the criticism lodged against it by appellant, as was question No. 3 involving the same issue, we have read carefully the entire statement of facts, and have reached the conclusion that the trial court could have properly instructed a verdict on that issue. Nowhere did Williams testify that the board authorized the purchase of the football equipment. Part of it was paid for by the students themselves. Other payments were made by the athletic council, a distinct and separate -body from the school board, and from funds derived from ■admission fees charged for games with other schools, all of which were played outside of Brady or upon grounds in Brady owned by the city and not under the control of the school district. The school superintendent and all members of the school board who testified stated that they did not know that Williams had purchased such equipment for the school, but understood that the matter was being handled through private subscriptions and through the athletic council. We find no evidence that the board of trustees accepted the equipment with knowledge of the source from which it came. Certainly there was no clear showing by appellant of ratification by appellee of the written order for football equipment as would make prima facie a binding obligation on the school district to pay for it. Such showing, in the light of what we have already said, was necessary to sustain venue elsewhere than in appellee’s own county. Since, under this state of the record, the court could not properly have entered any other order, the errors in the charge complained of became immaterial. Fant v. Sullivan (Tex. Civ. App.) 152 S. W. 515; 3 Tex. Jur., 1246, 1254, and cases there cited.

No judgment was entered, of course, upon the merits. The conclusion reached on the venue issue renders it unnecessary for us to determine the other issues presented upon the appeal, e. g., whether such equipment was reasonably necessary in the conduct of the school under the law requiring physical education to be taught; and, if so, whether all or only a part of it was necessary; whether such purchases, as to the open account sued upon, if authorized or ratified by the school board, were ultra vires; or what bearing custom among the schools, if such existed, to purchase such equipment out of the school funds of the district, would have upon appellee’s liability. The case was not fully developed along these lines on the trial of the. plea of privilege and we pretermit a discussion of them here. Having concluded that as to the written order, the only item on which appellant could assert venue in Travis county, it failed to prima facie establish such a binding obligation on appellee as to maintain the suit where filed, the trial court properly granted a change of venue on the issues made, his judgment is affirmed.


text:
    NOWLIN et ux. v. WM. CAMERON & Co., Inc. et al.
    No. 12695.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 1, 1932.
    Rehearing Denied Oct. 29, 1932.
    Wm. F. Young, of Fort Worth, for appellants.
    Slay & Simon, Lassiter, Harrison & Pearson, Charles Kassel, and H. J. Zimmerman, all of Fort Worth, for appellees.
   LATTIMORE, J.

H. B. Nowlin in 1913 owned lot 12, block 33, Tureman’s subdivision of Jennings south addition to the city of Fort Worth, and in that year erected a two-story brick building on it; the first floor being used as a drug store and the second floor being several living apartments. Appellant was a druggist by profession, and occupied the ground floor, under the name of Nowlin’s Pharmacy, as a business homestead. In 1926 appellant built another building on the back of said lot 12, and also acquired lot 13 and built on it an apartment house, and executed a mechanic’s lien covering both lots to obtain the erection of such improvements last named, the balance on which in 1927 was $13,000.

In this situation, in November, 1927, appellant, needing additional money, consulted his attorney as to what of his assets were available as security, and was advised that lot 12 was hi? business homestead, and a mortgage of it for such purpose was forbidden by the Constitution of Texas, but that he could organize a bona fide corporation to own and operate the drug business with himself (Now-lin) as manager, and thereby strip himself of any business homestead, but particularly cautioned appellant, that the entire transfer must be a bona fide transaction.

Accordingly, on November 16, 1927, the Nowlin Drug Company was chartered by the state of Texas on application of appellant and others. Mr. Nowlin and his wife transferred their entire drug stock and fixtures to the corporation, placed the name of the corporation on one of the windows of the store, and received the corporate stock therefor. Mrs. Nowlin testified that she understood the entire transaction and its effect. Appellant’s stock was thereafter pledged to a bank to secure a note and now remains so. Nowlin conducted tlie business in tlie drug store, and also received at that place the rents from his various tenants.

On December 13, 1927, appellant made application to the State Reserve Life Insurance Company for a loan of $18,000, $13,000 of which was to 'take up the old loan. The application answered numerous questions, among which the following:,

“Q. Is any part of this property now or was it ever your residence or business homestead? No.
“If so, explain fully. Homestead elsewhere. Business (drug) Incorporated.
“My business homestead is — have none (drug business incorporated).’'
And again:
“Q. Material, age and condition? * * * Corner store occupied by owner as drug store, other store occupied by tenant.”

Nowlin testified that the entire proceeding was in good faith, and that thereafter he believed and claimed through the entire making of the insurance company loan, which was consummated on December 12, 1927, that the drug business belonged to the corporation. The note of the insurance company was purchased by Ed H. Lysaght.

This is a suit by Wm. Cameron & Co. and others to foreclose a mechanic’s lien on both lots hereinafter described, in which suit numerous lien claimants were made parties. The defendant Nowlin pleaded that the property was his business homestead at the time the loan was made by the State Reserve Life Insurance Company, and that, to the extent that the mortgage secured money not for purchase money or improvements, same was invalid.

We believe the evidence does not raise any question that the corporation was merely a cloak for fraud. All the testimony is that it was bona fide and thaj; appellant intended and believed that the corporation owned the business. Moreover, if it were otherwise, the courts would be asked to tear aside “the veil of corporate entity” for the benefit of the perpetrator of that fraud, an extent to which the latter doctrine has not yet within our knowledge been extended. A separate legal person therefore owned the drug business after November 16, 1927, and appellant worked for it.

A business homestead depends inter alia on the husband using the same as a place to exercise the calling or business of the head of the family. Const, art. 16, § 51. That Mr. Nowlin continued to be physically present in the store conducting the business of another (the corporation) is not of itself a compliance with the above. Nowlin’s business was that of a druggist. He ceased doing that business for himself. That he collected rents on the premises begs the question. Alexander v. Lovitt, 95 Tex. 661, 69 S. W. 68; Sanger v. Hicks, 22 Tex. Civ. App. 473, 56 S. W. 775, writ denied.

Dr. Hickman, a member of the board of the insurance company, knew of the incorporation of the business immediately before the loan was made, and the contradiction of the answers to the application, as above stated, were apparent. ’ But it is plain that any investigation, whether in fact made or not, would have disclosed that Mr. Nowlin was in good faith and the corporation was bona fide. Appellant says so without equivocation.

The excellent brief of appellant cites a number of eases where the transaction attempting to strip the property of its homestead character was only colorable. Medlenka v. Downing, 59 Tex. 32; Bayless v. Guthrie (Tex. Com. App.) 235 S. W. 843; Ainsworth v. Dorsey (Tex. Civ. App.) 191 S. W. 594. But we believe that the learned trial judge correctly decided that the undisputed testimony in this case shows that the transfer was not merely colorable.

Counsel for appellant argues those cases where the husband has made an untrue declaration of abandonment, or designation, listing of which beyond the clarion language of Texas L. & L. Co. v. Blalock, 76 Tex. 85, 13 S. W. 12, is unnecessary, ’and says that this holding will open the way for embarrassed homestead owners to use the homestead to raise funds in defiance of the Constitution. Be that as it may, the courts have not yet gone to the extreme of making a family keep a homestead when they wish to dispose of it, and that it is sold to a corporation does not change the situation. Appellant and his wife made no untrue designation or declarations of abandonment, but say from the beginning and on trial that each of the statements made and acts done were true and intended to have the legal effect they did have.

The remainder of this discussion may be avoided by reference to Mayfield v. First State Bank (Tex. Civ. App.) 19 S.W.(2d) 454, the opinion of which, under syllabus 1, we approve.

We have examined each of the assignments of error, and they are overruled. The judgment is affirmed.


author: CONNER, C. J.

text:
    COMMERCE TRUST CO. et al. v. BEST et al.
    No. 12707.
    Court of Civil Appeals of Texas. Fort Worth.
    June 25, 1932.
    Rehearing Denied Oct. 1, 1932.
    Terrell, Davis, Hall & Clemens, of San Antonio, for appellants.
    C. T. Gettys,- of Decatur, for appellees.
   CONNER, C. J.

This appeal is by the Commerce Trust Company and the California State Life Insurance Company from a judgment in favor of P. K. Best, assessing penalties against the trust company and crediting Best's obligation for borrowed money certain interest payments made by Best alleged to constitute usury. There are other parties to the suit as tried and disposed of, and the proceedings as a whole more or less complicated; but the parties to the suit other than those named above have not appealed or made complaint of the judgment, and we therefore, in the interest of brevity, omit the lengthy and clear statement of the case presented by counsel for appellants, and confine our statement to such parts of the evidence and proceedings as we think sufficient to an understanding of a disposition of the appeal.

The pleadings and evidence show without dispute that appellee Best on or about May 12, 1921, secured a ten-year loan of $9,500 and executed therefor notes stipulating interest at the rate of 6 per cent, per annum from date until paid. The interest was payable annually and secured by coupon notes. Of these there were ten, each for $540, maturing December 1, 1922 to 1930, inclusive. To secure the original and coupon notes, a trust deed, with defaulting provision therein as hereinafter set out, was executed covering some 400 acres of Best’s land. The trust company was a party to and became the owner of the loan obligations, but later assigned the same to the California State Life Insurance Company. During the pendency of the obligation, Best paid a number of the interest coupon notes, after which on, to wit, November 13, 1926, he filed this suit, alleging the loan contract to be .usurious and seeking to recover. the penalty prescribed by the statute for all interest payments not barred by limitation and to have interest payments made which were barred credited upon the original obligation.

The defendants denied that the contract was usurious, claiming that by the terms of the contract the interest on the loan for its full term amounted to no more than 9 per cent, per annum; but the trial resulted in a judgment in favor of Best against the Commerce Trust Company for the sum of $4,229.-40, together with interest from the date of the judgment, August 6, 1931, at the rate of 6 per cent, per annum, and judgment in Best’s favor against the California State Life Insurance Company as penalties in the sum of $2,160, which the court automatically credited on the principal sum of $9,000, giving the insurance company, however, judgment for the remainder due upon the principal obligation in the sum of $4,283.89, with interest thereon at the rate of 6 per cent, per annum, with foreclosure decree on Best’s property. The judgment also disposed of other parties not thought necessary to mention.

From the judgment so rendered the defendants CommerceJTrust Company and the California State Life Insurance Company excepted and have duly prosecuted this appeal. Appellee Best, however, has not appealed from the judgment against him in favor of the Commerce Farm Credit Company, the California State Life Insurance Company, and the Decatur National Bank and E. P. Gibson. It is also to be noted that the appeal of the California ¡State Life Insurance Company was dismissed on its. own motion by this court on the 7th day of May, last. It is therefore apparent that there is only left for our determination the questions which relate to the relative rights of the Commerce Trust Company and the appellee Best. We accordingly address ourselves to those questions alone.

The question first presented in appellant’s brief under its first proposition is to the effect that where a loan is made for a period of ten years, the interest in part evidenced by coupon notes payable in a period less than the term of the loan, the balance of the interest being payable annually for the term of the loan, no usury results from a stipulation contained in the deed of trust authorizing the holder, at its option, on default in the payment of the notes, to declare all due and foreclose the lien securing the same, and more particularly is this true when no exercise of the option to mature was made during the period of a loan that has now matured. In support of this proposition appellants cite the case of Dugan v. Lewis, 79 Tex. 247, 14 S. W. 1024, 12 L. R. A. 93, 23 Am. St Rep. 332, and numerous other cases.

Section 11 of article 16 of our State Constitution provides that: “All contracts for a greater rate of interest than ten per cent per annum shall be deemed usurious, and the first legislature after this amendment is adopted shall provide appropriate pains and penalties to prevent the same. * * * ”

In obedience to the mandate of the Constitution, the Legislature provided in article 5069, Rev. Statutes, that: “ ‘Interest’ is the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money: ‘legal interest’ is that interest which is allowed by law when the parties to a contract have not agreed upon any particular rate of interest; and ‘conventional interest’ is that interest which is agreed upon and fixed by the parties to a written contract, not to exceed ten per cent per annum. ‘Usury’ is interest in excess of the amount allowed by law; all contracts for usury are contrary to public policy and shall be void.”

Article 5073 provides in part that: “Within two years after the time that a greater rate of interest than ten per cent shall have been received or collected upon any contract, the person paying the same or his legal representative may by an action of debt recover double the amount of such interest from the person, firm or corporation receiving the same. ⅜ * ⅜ ”

The notes for $9,000 and for $500 and the interest coupon notes and trust deeds securing -the payment of these obligations were all executed contemporaneously and were parts of a single transaction. Construing them together as' a whole, we are unable to distinguish this case from that of Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.(2d) 282, 285.

The trust deed executed to secure the payment of the notes and coupons under consideration specifically provides, among other things, that: “ * * * If default shall be made in the payment of said notes, or any of them, or any installment of interest thereon, when due, or in case of the breach of any of the agreements or covenants herein mentioned, then the said trustee, or his successor in this trust shall be, and is hereby authorized and empowered, when requested to do so by the holder of said notes, or any of them, after such default, to sell the said property (the property described in the trust deed) in whole or in lots or parcels as to him shall seem, most expedient, at public auction for cash, * *• * and after such sale to make to the purchaser or purchasers thereof a good and sufficient deed in fee simple to the premises sold * * * and the trustee shall apply the proceeds of said sale as follows: Eirst: to the payment of all necessary costs and expenses incident to the execution of said trust, including a commission of five per cent upon the amount of the proceeds of sale to the trustee as his compensation. Second: to the payment of the said notes then unpaid, including principal and such interest and attorney’s fees provided in said notes as shall have accrued, and all taxes, assessments, insurance premiums or other advancements made as provided for herein, with interest thereon (it being understood and agreed that when default shall be made in the payment of said notes, or any of them, or any part thereof, when due, or of any installment of interest thereon, said notes shall become at once due and payable at the opinion of the holders thereof). * ⅜ * **

The clauses of the trust deed quoted, if not identical with the clauses of the trust deed considered in the Shropshire Case, are at least substantially the same. Indeed, appellants in their briefs in one place say: “The default clauses contained in the deed of trust introduced in this ease are similar to such clauses' in the Shropshire Oase.”

While the case of Dugan v. Lewis, 79 Tex. 247, 14 S. W. 1024, 12 L. R. A. 93, 23 Am. St. Rep. 332, and other cases cited in behalf of appellants, may seem to support their contention, yet the decision in the Shropshire Case, opinion written by Mr. Justice Greenwood in which the Dugan Case and numerous other authorities were carefully reviewed, is in conflict, the conclusion reached in the Shropshire Case being indicated by' the following quotation from that opinion: “A clear statement of the law which governs our decision is made in 27 Ruling Case Law, at § 24, on pages 223 and 224, in these words: ‘To constitute usury, it is of course essential that an excess of the legal maximum be exacted in consideration of the loan or forbearance. By this is meant an excess of the maximum prescribed by statute. Though there is authority to the contrary, it does not seem requisite that an excess be payable in any event. On the contrary a contract is usurious when there is any contingency by which the lender may get more than the lawful rate of interest, whether it is so apparent that it becomes the duty of the court to so declare, or whether it is a case in which it is necessary that the jury should find the facts. Usury, it is considered, does not depend on the question whether the lender actually gets more than the legal rate of interest or not; but on whether there was a purpose in his mind to make more than legal interest for the use of money, and whether, by the terms of the transaction, and the means used to effect the loan, he may by its enforcement be enabled to get more than the legal rate.’ ”

Looking to the contract under consideration, it appears that the aggregate amount of interest at the rate specified in the contract-for the entire term of the loan is a definite fixed sum. If the right of the debtor to retain the loan for the entire loan period was likewise secured and fixed, usury would not be deducible from the contract; but it is apparent that when effect be given, as must be done, to the right of the lender to accelerate or advance the due date of the obligation to pay the loan, then the rate of interest as fixed in the contract will automatically be increased to- a rate of interest designated in the constitution as void. If void, then any interest paid on the contradi amounts to usury under the statutes and subjects the person receiving the same to the penalties prescribed. The due date of the loan in question had not matured at the dates of the interest payments made by Best or of the institution of this suit, although it had so matured at the date of the trial. But we do not think such circumstances will alter the proper effect to be given to the fact that the contract under consideration is usurious and that the borrower from time to time actually paid thereon interest as shown in the record. Appellants’ first, second, and third propositions are accordingly overruled.

It will be seen by reference to the statement of the case that the Commerce Trust Company transferred the loan obligations under consideration to the California State Life Insurance Company and in the judgment the court credited the main obligation with the aggregate amount of all interest payments made that had been barred by the two-year statute of limitation, and in appellant’s fourth proposition it is insisted, in effect, that this was erroneous in that the statute (article 5073) prescribes the remedy for making usurious payments and that this remedy is exclusive. The case of Sugg v. Smith, 205 S. W. 363, 374, by the Amarillo Court of Civil Appeals, is in opposition to such view; but we need not definitely discuss or determine the question presented by the fourth -proposition, in view of the fact that the California State Life Insurance Company alone was the defendant whose claim was abated in any degree by the application of the credits given for unbarred interest payments, and that company has abandoned its appeal and now makes no complaint of the decree of the court below in that respect.

The judgment rendered against the appellant Commerce Trust Company included penalties for several interest payments not barred by limitation which the Commerce Trust Company had collected and transmitted to the California State Life Insurance Company after that company’s acquisition of the notes in controversy, and appellant insists, under the fifth proposition, that the statutory penalties for receiving and collecting usurious interest are recoverable only from- the person, firm, or corporation actually receiving and appropriating the same, and hence that the court erred in adjudging penalties against it for a number of the interest notes collected and received by the Commerce Trust Company that were by that company transmitted to the California State Life Insurance Company, which, by assignment, had theretofore become the owner of the obligations. We are pointed to no evidence that appellee Best had notice of the transfer of the notes in question to the California State Life Insurance Company at the time of his payment of interest for which the court adjudged the penalty against the Commerce Trust Company. Under such circumstances it was held, by the Amarillo Court of Civil Appeals in the case of Commerce Farm Credit Co. v. Ferguson, 47 S.W.(2d) 879, that a collecting agent was liable for the penalty in receiving the usurious interest although it was later transmitted to the principal. Moreover, while the plaintiffs’ allegation that the Commerce Trust Company and the Commerce Farm Credit Company were partners was denied, yet it is undisputed in the record that the Commerce Trust Company became a party -to the usurious contract inasmuch as it was made the payee in at least some of the coupon interest notes and also acted, in part at least, as a collecting agent for the California State Life Insurance Company. We think the Commerce Trust Company must therefore be held to be in the position of, and liable as, a tort-feasor. The statutes impose the penalty against those who shall have received or collected usurious interest. The Commerce Trust Company undoubtedly collected and received the interest for which penalties were assessed against it and had notice of the usurious character of the contract under which such collections were made, and it must be held liable for the penalties. The person who knowingly demands and receives as a collecting agent the usurious interest mates himself a' party to the offense for which the statutes impose a penalty and subjects himself to that penalty as a joint tort-feasor, and, as such, liable either jointly or severally.

The contention presented under the sixth proposition, to the effect that the California State Life Insurance Company was not liable on the ground that it was an innocent purchaser for value without notice, we think has been sufficiently answered by what we have said in addition to the fact of the dismissal of its appeal.

Nor can we apply the doctrine invoked in appellant’s seventh and eighth propositions, to the effect that an intention knowingly to contract for usury is an essential element, and hence that the parties defendant in this case are not chargeable because of a failure to establish such element. No issue of ambiguity or mutual mistake was tendered by the defendants, and it must certainly be held that they intended to provide for and bring about the particular results required by the legal meaning of the terms used in the contract in which they were made parties and beneficiaries.

There is a final contention under the ninth proposition, to the effect that the contract which we have held to be usurious under the ruling in the Shropshire Case was written in view of the decision of our Supreme Court in the case of Dugan v. Lewis, 79 Tex. 247, 14 S. W. 1024, 12 L. R. A. 93, 23 Am. St. Rep. 332, which, it is insisted, is in direct conflict with ■the Shropshire Case and has been the rule of decision for thirty years, thus establishing a rule of property in this state upon which the defendants in this case were and are entitled to rely, and that therefore the judgment against the defendants from which they appeal operates as a denial of due process of law repugnant to the federal and state Constitutions. In answer to the contention so made, we think we need only say that the opinion in the Shropshire Case, to which we have heretofore referred a number of times, was evidently prepared with great care and deliberation after a review of the authorities relating to the subject, including a special discussion of the decision in Dugan v. Lewis, which was held not to be an authoritative contradiction of what was said by Judge Greenwood in the Shropshire Case.

We feel no hesitation in following the opinion as written by Judge Greenwood; and hence in -accord therewith the judgment below as against the Commerce Trust Company will be affirmed in all things, but will be left undisturbed in all other respects as to all other defendants.

On Motion for Rehearing.

The appellant Commerce Trust Company, supported by the decision of .the Dallas Trust & Savings Bank v. Brown, 48 S.W.(2d) 1044, by the Texarkana Court of Civil Appeals, in which a writ of error was refused, earnestly contends that we erred in rendering judgment against it for the interest payments made by appellee Best on December 1, 1925 and Í926. But as stated in our original opinion, the appellant trust company was a party to and became the owner of the usurious contract in question, and under the decision of the case of Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.(2d) 282, by the Supreme Court, the appellant trust company must be held to have known that the contract was usurious. While the transfer by the trust company of the original obligation to the California Insurance Company was placed of record, it does not affirmatively appear that the coupon interest notes in question were recorded or that Best had actual knowledge of the transfer. It further appears that prior to the due date of these notes the Commerce Trust Company notified Best of the due dates thereof and requested payment. Best, in accordance with the terms of these notes, paid the interest and transmitted it to the trust company in exact accord with the terms of the notes and in obedience to the request.

Under such circumstances, if the Texas decision by Chief Justice Wilson is not distinguishable from the one before us, we think we must bring ourselves in conflict therewith and hold that the trust company, legally knowing at all times involved that the interest demanded and received from Best constituted usury under the law, cannot be relieved of the penalty of the statute merely because, in obedience to an obligation going to the California Life Insurance Company, it transmitted to that company the two payments in question. So believing, we think our original conclusion holding the trust company liable as a tort-feasor must be upheld.

In 1 Corpus Juris, p. 1022, title Actions, § 146, the text states: “It has been held that an action to recover a statutory penalty is in contract and not in tort; but it is ordinarily held that, although technically and formally in contract, debt being the usual form of action, such action is substantially in tort.”

In Chaffee v. U. S., 18 Wall. 516, 21 L. Ed. 908, and as stated in 21 R. C. L. p. 222, title Penalties, § 15, it is said: “An action to recover a penalty, though in form ex contractu, is in truth and in fact founded on a tort. Therefore in an action against several it is not necessary to establish a joint liability, hut it is sufficient if the liability of any of the defendants be shown. Judgment may be entered against them and in favor of the others, whose complicity in the offense for which the penalty is prescribed is not proved, precisely as though the action were in form as well as in substance ex delicto.”

It is said in 30 Cyc. p. 1350, title Penalties, that: “Where a penalty is imposed on an offense which several may and. do jointly commit, the wrongdoers may be sued either jointly or severally.”

While a writ of error was refused in Dallas Trust & Savings Bank v. Brown, hy the Tex-arkana Court of Civil Appeals, above cited, it does not appear'that the question here discussed was brought to the attention of the Supreme Court; and we conclude upon the authorities cited and upon principle that we correctly held the appellant trust company liable for the penalties we have discussed and that were adjudged against it, and that the motion for rehearing should be overruled.


author: BLAIR, J.

text:
    WELCH v. UNITED STATES FIDELITY & GUARANTY CO.
    No. 7789.
    Court of Civil Appeals of Texas. Austin.
    Nov. 23, 1932.
    Rehearing Denied Dec. 14, 1932.
    Smith & Smith, of Anson, for appellant.
    Wilkinson & Wilkinson, of Brownwood, and Seay, Seay, Malone & Lipscomb, of Dallas, for appellee.
   BLAIR, J.

Appellant filed this suit as an appeal from the action of the Industrial Accident Board refusing to grant his application for additional compensation for injury. Omitting formal parts, the order of the board refusing the application reads as follows:

“This is to advise you that the above mentioned case has been cancelled from, our docket of set cases, same having be'en set for February 24th, 1931.
“This action is taken on account of failure of attorneys representing claimant to file competent evidence of additional disability.”

The case was tried to a jury on special issues, and all issues were answered favorably to appellant, but the trial court refused his motion for judgment based thereon, because of sustaining appellee’s plea to the jurisdiction of the court to hear and determine appel-lee’s case on appeal. The court made findings of fact and concluded as follows:

(1) That it was manifest from the order quoted above that the Industrial Accident Board had not exercised its jurisdiction to hear and determine appellant’s application for additional compensation upon its merits, and had made no final appealable award thereon.
(2)That appellant having entered into a compromise settlement of his claim with the defendant, and the amount agreed to having been paid by appellee to appellant, and such settlement having been approved by the Industrial Accident Board, “as is implied from a letter written by the Board to appellant’s attorney on December 6,1930,” and there having been no allegation or proof of fraud, accident, or mistake in the making of said settlement, in absence of which the board had no jurisdiction to set aside its former order approving the compromise settlement.

With respect to the first conclusion, we think the judgment of the trial court is erroneous. The letter which constituted the order of the board shows clearly that the board had duly considered appellant’s claim for additional compensation, but determined from the evidence adduced before it that appellant was not entitled to the relief which he sought. This letter constituted the final order of the Industrial Accident Board upon the cause, in that it effectively denied appellant any relief on his application. In any event, the board having considered the application and having denied appellant any relief whatsoever because of incompetent proof, the action of the board is as final as can be made, and there w'as no alternative left appellant but to appeal. This holding is sustained by Oilmen’s Reciprocal Ass’n v. Harris, 116 Tex. 247, 288 S. W. 809; Southern Casualty Co. v. Todd (Tex. Com. App.) 29 S.W.(2d) 973; Lumbermen’s Reciprocal Ass’n v. Day (Tex. Com. App.) 17 S.W.(2d) 1043.

The trial court also erred in its second conclusion that, since a compromise settlement had been entered into and the settlement approved by the Industrial Accident Board, and since there was no allegation or proof of fraud, accident, or mistake in making the settlement, the appellant was barred from fur.ther right of action on said claim. This conclusion was based upon the finding of the trial court on the hearing of the plea to the jurisdiction after the verdict of the jury on special issues had been rendered, that the Industrial Accident Board had approved the settlement agreement, “as is implied from a letter written by the Board to (appellant’s) attorney on Dec. 6, 1930.” This letter is copied in the court’s findings of fact, and which, omitting formal parts, reads as follows:

“In re: N-16617, John Welch vs. Texas Brick Co.
“This will acknowledge receipt of notice of injury, and written application for compensation in the above styled case. Inasmuch as John Welch on July 28th, 1930, executed a compensation settlement receipt acknowledging the payment to him by The United States Eidelity & Guaranty Co. of the sum of $17.78, which, together with previous payments of compensation, amounted to $100.82 and represented nine weeks and five days disability as a result of injuries sustained on May 8th, 1928, it will be necessary for you to file late competent medical evidence showing that his disability extended beyond the period covered by said receipt. Upon the receipt of such evidence, the Board will be glad to reopen this claim, and give same further consideration.”

There is nothing in this letter to indicate that the board had approved the settlement agreement; but, to the contrary, it merely recites that such agreement had been filed with it, and then instructs the attorney to present competent proof of disability extending beyond the period covered by the receipt acknowledging payment of compensation under the agreement. This procedure was in accordance with the rule announced in the case of Texas Employers’ Ins. Ass’n v. Knouff (Tex. Civ. App.) 271 S. W. 633 (writ of error refused), as follows: “A compromise agreement under the act is in the nature of an accord, and a settlement thereunder in the nature of a satisfaction thereof. The jurisdiction of the Board over such compromise agreements and settlements is specially conferred by the terms of the act, and its approval made necessary to the validity of any agreement between the parties with reference thereto. Workmen’s Compensation Act, pt. 2, § 12 [Rev. St. 1925, art. 8307, § 12]. An accord not fully executed may be set aside or rejected by the party entitled to receive satisfaction thereof. In such cases the original right of action remains, and what has been paid or delivered is allowed in diminution of the amount claimed.”

This was the theory upon which appellant pleaded and tried his ease and obtained his verdict. Appellee pleaded this compromise settlement as a defense to appellant’s suit, but did not request that any issue thereon be submitted to the jury; and appellant in its motion for judgment gave credit for the amount be had been paid under the settlement agreement. The burden was upon ap-pellee to establish this defense, and to establish upon the plea to the jurisdiction that the compromise settlement had been approved by the board. This it clearly failed to do, and the trial court should have granted appellant’s motion for judgment based upon the jury’s verdict.

We are also of the opinion that, since appellee failed to request the submission of the issue to the jury as to whether the board had approved the compromise settlement, ap-pellee thereby waived this defense; and for this reason it cannot ra-ise the question on a plea in abatement or to the jurisdiction of the court after the verdict of the jury, except possibly on the showing that the issue had been proved as a matter of law, which is not the case here.

It is our duty to render the judgment the trial court should have rendered upon the jury’s verdict. We therefore render the judgment set out and prayed for in appellant’s motion for judgment as shown at page 16 of the transcript.

The judgment of the trial court is reversed, and judgment is here rendered for appellant.

Reversed and rendered.

On Motion for Rehearing.

On motion for rehearing, appellee contends that appellant’s petition failed to allege what amount of money was involved in his claim before the board, and that the district court therefore had no jurisdiction to pass upon the ease. The petition alleged the average weekly wage of appellant, that he was 75 per cent, permanently disabled, and that he had filed his claim with the board. Absent a special exception, these allegations were sufficient under the rule announced in the cases of Travelers’ Ins. Co. v. Peters et al. (Tex. Com. App.) 17 S.W.(2d) 457, and Texas Employers’ Ins. Ass’n v. Finney (Tex. Civ. App.) 45 S.W.(2d) 298.

The motion is overruled.

Overruled.


author: BAROUS, J.

text:
    TIDAL OIL CO. et al. v. GRAYS et al.
    Nos. 1374, 1375.
    Court of Civil Appeals of Texas. Waco.
    Nov. 17, 1932.
    Rehearing Denied Dec. 22, 1932.
    Thompson, Mitchell, Thompson & Young, of St. Louis, Mo., Hiner & Pannill, of Fort Worth, Witt, Terrell & Witt, of Waco, Y. P. Broome, of Tulsa, Oil., and Allen & Morton, of Fort Worth, for appellants.
    Tom P. Scott and Carlton Smith, both of Waco, and Joe Ingraham, of Fort Worth, for appellees.
   BAROUS, J.

Appellees Mary Jane Grays and Josie Nichols instituted this suit in the district court of McLennan county for partition of 140 acres of land in Gregg county. They named as defendants Will Roy of Oklahoma, alleged to own ⅜8 interest in the land, Henry Jones and Henry Porter of Navarro county, alleged to own each ⅛6 interest, Rastus Williams, Boston Moore, Jonah Moore, Graminer Moore, Ill-lie Moore Bell, of Gregg county, each1 alleged to own y7 interest, C. B. Bell and Jim Bell of Gregg county, each alleged to own ⅛ interest, and Annie Bell Crockett of Smith county, alleged to own ½8 interest, and Alice Hayes Jefferson of McLennan county, alleged to own ¾9 interest, and alleged that Mary Jane Grays owned a ⅛¾ interest, and appellee Josie Nichols a ¾9 interest. They alleged that the Tidal Oil Company, a corporation, and Shell Petroleum Corporation claimed ownership of an oil lease on all of the property, and had drilled a number of producing wells on the premises, and were taking the oil therefrom and disposing of same without accounting to appel-lees for their pro rata part thereof. They alleged that a number of other parties living in various counties in the state and other states in the Union and other parties whose residences were unknown to them were claiming some interest in the property. They alleged that Arma Lee Greer of McLennan county was also claiming some interest in the property. They asked for a receiver to be appointed to take charge of the property and operate the producing oil wells during the penden-cy of the suit and on final hearing for judgment for partition of the land and for. judgment against the oil companies for the value of the oil which had been taken from the premises.

The Tidal Oil Company and Shell Petroleum Corporation each filed pleas of privilege, and subject thereto filed a contest to the appointment of a receiver. None of the other defendants was served with any notice of the pendency of the suit. The statement of facts shows that the notice on the hearing for a receivership was served on Boston Moore, Jonah Moore, Lillie Moore Bell, Ruben Bell, Susie Bell Jones, James Jones, Grammer Moore, and Jim Bell. It was not served on O. B. Bell because he was dead. None of the other numerous defendants had any notice of the application for the appointment of a receiver. By agreement of attorneys representing the oil companies, who are appellants, and the attorneys representing the appellees, who were plaintiffs in the trial court, the trial court heard the pleas of privilege and the application for the appointment of a receiver at the same time. The trial court overruled each of the pleas of privilege filed by the oil companies, and then appointed a receiver to take •charge of the property, together with the eight producing oil wells located thereon, with power to control and operate the oil wells and manage and control the production of oil, and market and sell same for the best cash price obtainable and employ such labor as he deemed necessary in the operation of said oil wells. Bach of the oil companies has prosecuted appeals from the order overruling their respective pleas of privilege as well as the order appointing a receiver.

Appellants contend that their pleas of privilege should have been sustained, on the theory that the suit, in effect, was one in trespass to try title to land in Gregg county. Appellees Mary Jane Grays and Josie Nichols, who were plaintiffs in the trial court, in their controverting affidavits, contended that the district court in McLennan county had jurisdiction to try the case, on the theory that it was a partition suit and that one of the defendants, namely, Alice Hayes Jefferson, who they alleged owned a ¾9 interest therein, lived in Mc-Lennan county, and that, under subdivision 13, article 1995, said court had jurisdiction.

In their petition appellees, who were plaintiffs in the trial court, alleged that the parties named by them as plaintiffs and defendants owned the entire tract of land. On the trial no effort was made by them to show that the parties named in the petition were the owners of the entire tract of land or that other parties not named did not own an interest therein. The petition alleged that O. B. Bell owned a ½s ‘interest therein. The sheriff’s return, which plaintiffs introduced in evidence on the hearing on the pleas of privilege, recited that C. B. Bell was deceased. As to who inherited his interest, the record is silent. Appel-lees, who were plaintiffs below, offered evidence tending to show that they owned an undivided ⅜8 interest in the property, and that the defendant Alice Hayes Jefferson owned an undivided ⅝9 interest therein, but no proof was offered to show who, if any one, owned the remaining interest in the land in controversy.

The law is well settled that, where a plea of privilege is filed, the plaintiff in the trial court must at least establish by evidence a prima facie showing that the trial court has jurisdiction to hear and determine the case by virtue of some exception contained in the venue statute. Southwestern Surgical Supply Co. v. Scarborough (Tex. Civ. App.) 15 S.W. (2d) 65, and authorities there cited. The law is also well settled that a partition suit for land cannot be maintained in any court until and unless all of the joint owners thereof are made parties, either plaintiff or defendant. Maxwell’s Unknown Heirs v. Bolding (Tex. Civ. App.) 11 S.W.(2d) 814, and authorities there cited. It therefore became necessary, in order to show that the district court of McLen-nan county had jurisdiction of this case, for appellees to show that they had made all joint owners of the property in question parties, either plaintiff or defendant, and, since the evidence fails to show this fact, the trial court erroneously overruled the pleas of privilege.

That portion of appellees’ suit which seeks to prevent the appellant oil companies from extracting oil from the land or which seeks a judgment against them for the value of the oil that has been taken therefrom, standing alone, would not give the district court of McLennan county jurisdiction under the testimony as offered on the hearing on the pleas of privilege. Subdivision 14 of article 1995, Revised Statutes, provides that a suit to prevent waste of land shall be brought in the county where the land is located, and ohr courts have held that the extracting of oil from land is a waste thereof. Walter v. Hammonds (Tex. Civ. App.) 42 S.W.(2d) 1084.

Appellees having failed to establish a pri-ma facie showing that all of the joint owners of the real estate sought to be partitioned were parties to the suit, the trial court erroneously overruled appellees’ pleas of privilege, and this necessitates a reversal of that portion of said judgment.

Our Supreme Court has uniformly held Ithat the trial court has no power to enter any order except one transferring the cause until it has passed upon a plea of privilege when same has been properly filed. Craig v. Pittman & Harrison (Tex. Civ. App.) 234 S. W. 1112; Id. (Tex. Com. App.) 250 S. W. 667; Galbraith v. Bishop (Tex. Com. App.) 287 S. W. 1087; Watson Co. v. Cobb Grain Co. (Tex. Com. App.) 292 S. W. 174; Texas-Louisiana Power Co. v. Wells (Tex. Com. App.) 48 S.W. (2d) 978. Wlietlier in any event tlie trial court would be authorized or empowered to appoint a receiver prior to the filing of a plea of privilege, or whether the appointment of a receiver made prior to the time a plea of privilege is filed becomes of no force or effect upon the filing of a plea of privilege, we do not determine. In the case at bar, appellees asked the court to give the defendants ten days’ notice to appear and show, cause why a receiver should not be appointed. A large number of the defendants were not notified of said hearing, and, before the trial court acted upon appellees’ motion for the appointment of a receiver, he heard and overruled appellants’ pleas of privilege. Since we hold that the trial court’s action in overruling appellants’ pleas of privilege was erroneous, under the authorities above cited it follows that the order of the trial court in this ease appointing a receiver to take charge of the land and oil wells located thereon was also erroneous.

The judgments of the trial court overruling appellants’ plea of privilege and appointing the receiver are reversed, and the cause remanded.


author: SMITH, J.

text:
    SIMMONS et ux. v. EAKIN.
    No. 8904.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 16, 1932.
    Rehearing Denied Dec. 14, 1932.
    Griffin, Kimbrough & Cox, of McAllen, for appellants.
    L. J. Polk, of Pharr, for appellee.
   SMITH, J.

The land involved was owned by R. F. Cook until he made an alleged parol sale thereof to B. S. Simmons in August, 1929, in settlement of a pre-existing debt he owed Simmons. No deed was made until November 19,1930.

In the meantime, on November 5, 1930, however, the land was seized under writ of attachment issued in behalf of J. E. Eakin in a suit upon a judgment previously obtained by him against Cook in a federal court in Arkansas, in which state all the parties, Cook, Simmons, and Eakin, reside.

Simmons intervened in the present suit, claiming ownership of the land under said pa-rol sale. But Eakin recovered judgment upon his claim against Cook and for foreclosure of his attachment lien against Simmons, who has appealed.

Both Cook and Simmons testified clearly and positively that, because Cook was unable to pay his debt of $4,000 to Simmons, he offered to convey the land involved to the latter to satisfy that debt, and that the latter agreed, albeit reluctantly, thereto; that Simmons thereupon assumed dominion over the premises, and at his own expense built new and repaired old houses thereon, planted the land to citrus trees, paid that and the next years’ taxes thereon (amounting to $1,300 per year).

It was agreed between the two at the time that upon their return to their homes in Ar-tensas Cook would make and deliver Ms deed conveying the premises to Simmons. But the matter was allowed to run along, unattended to; the parties being friendly. In fact, Cook’s wife is Simmons’ daughter. The deed did not pass, as stated, until the parties were spurred to attention thereto by the filing of this suit and the seizure of the premises under attachment. The foregoing facts were testified to by both Simmons and Cook in consonance. But the jury, obviously skeptical, found that the minds of. the principals did not meet upon the contract alleged.

It appears that one Phillips has cultivated these premises for the past ten or twelve years, first, as a tenant of Cook up to the time of the parol sale, and thereafter as a tenant of Simmons. The evidence raises an issue of fact as to whether Phillips took actual farming orders from Cook or from Simmons during the crop season immediately following the sale; that is, from September, 1929, to September, 1930. But it is undisputed that Simmons nevertheless at once took over control of the premises and, through Phillips, made the improvements thereon, as stated.

Now it transpired that upon the trial appellants offered the testimony of Phillips to the effect that he was a witness to the negotiations between Cook and Simmons, heard their discussion of and final agreement upon the alleged' parol sale, in substantial accordance with appellants’ allegations. But the trial court excluded the proffered testimony, upon appellee’s objections that it was “irrelevant, immaterial, incompetent, hearsay and self-serving.” In this we think the court erred materially. The contract rests upon the words of Simmons and Cook uttered at the time of the agreement, in the absence of ap-pellee. Proof of those utterances may be made without violating the hearsay rule. As a part of the res gestee it is substantive evidence of a crucial fact, and is not subject to the objections advanced by appellee. 3 Jones, Ev. p. 2014, § 1091; Rupert v. Swindle (Tex. Civ. App.) 212 S. W. 507; Sullivan v. Pant, 51 Tex. Civ. App. 6, 110 S. W. 507; Sparks v. De Bord (Tex. Civ. App.) 110 S. W. 757. This holding may appear to be in conflict with certain language used by this writer in the opinion in Earnhardt Development Co. v. Ray (Tex. Civ. App.) 51 S.W.(2d) 732. That language was not decisive in that case, however, but was dictum, and without authority.

It is urged by appellee that the exclusion of this testimony was not prejudicial to appellants, but we think it may have been highly so. The testimony of the parties to the parol sale was not disputed, circumstantially or otherwise. It is possible that, had the proffered testimony of Phillips been admitted, the jury would have resolved the first and controlling issue in favor of appellants. The exclusion of that testimony, under the peculiar facts of the case, therefore constituted reversible error.

Appellee makes the point that in no event could appellant have prevailed below, because, it is contended, appellee had no notice of the alleged parol sale, or knowledge of facts sufficient to put him upon inquiry which if pursued would have led to actual notice of appellant’s ownership of the land prior to its seizure under the writ of attachment.

It is true that no .deed evidencing the sale had been made or recorded, and that appellee had had no actual notice of the sale. But appellant claims to have ,been in possession through Phillips, a tenant of Cook, upon the premises up to the time of the sale, but who thenceforth attorned to appellant. Such possession, if proven, was sufficient to put appel-lee upon inquiry, which in this case apparently would have led to the true facts of ownership. In short, the settled rule in Texas is that possession, either in person or by tenant, is equivalent to registration. Mainwar-ring v. Templeman, 51 Tex. 205; Watkins v. Edwards, 23 Tex. 443. Of course,- the facts of possession must be determined by the jury in jury cases.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellee vigorously questions the conclusion of this court that the evidence raised an issue of fact as to appellants’ possession during the crop year of September, 1929, to September, 1930. We adhere to that conclusion, however.

The evidence is that, when the parol sale was made in August, 1929, appellant was too engrossed in his affairs in Arkansas to permit his assumption of immediate direction of the actual farming operations on the premises in Hidalgo county, and for that reason he turned those operations for that year over to Cook and Phillips for “what they could make out of it,” while at the same time directing Phillips to proceed forthwith in appellant’s behalf towards planting the land to fruit trees and -making other improvements thereon. By these means appellant assumed full dominion over the premises, for Cook’s and Phillip’s farming operations for that year were with appellant’s permission and under his direction, and so far as those operations went, amounted to possession by appellant. And it seems to be conceded, as it appears conclusively from the record, that the arrangement with Cook and Phillips ended, with the crop year, on September 1, 1930, whereas the attachment lien here asserted by appellee was not created until November 5,1930.

It is perfectly obvious from the record, assuming the foregoing facts of possession to be true, that the parol sale here asserted was accompanied by full payment of consideration, possession, substantial improvements, and payment of taxes. Tbe statute of frauds exacts nothing more.

Appellee’s motion for rehearing isl overruled.


author: HICKMAN, C. J.

text:
    CLEMENTS et ux. v. MURPHY.
    No. 1091.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 9, 1932.
    J. Lee Oearley and J. D. Barker, both of Cisco, for appellants.
    M. E. Lawrence, of Eastland, for appellee.
   HICKMAN, C. J.

The appeal is from an order overruling a motion to dissolve a temporary injunction. The statement of facts consists of a little more than one page and discloses that Murphy was the owner of a tract of land in East-land county, upon which Clements and wife had been tenants for several years; that the rental which had been paid during recent years was $300 annually; that in the fall of 1931 the parties made an oral contract for the rental of the land during the year 1932 for $300; and that said sum had not been paid on the date of the hearing and no note executed therefor. Prior to the filing of the motion to dissolve the injunction the trial judge, in chambers, in an ex parte proceeding had issued his fiat directing the clerk forthwith to issue a writ of mandatory injunction commanding appellants to vacate the premises within twenty days.

The injunction must be dissolved for at least two reasons: (1) The appellee had an adequate remedy at law. The suit involved possession of real estate held by appellants as tenants of appellee and should have been brought either in the justice court under the forcible entry and detainer statutes, or in the district court in the form of trespass to try title, in which latter action a writ of sequestration could have been procured. (2) The order granting the mandatory injunction did not specify that the appellee should make bond in any sum. In article 4648, R. S. 1925, it is provided: “The judge shall also specify in such order the amount of the bond to be given by the applicant as a prerequisite to the issuance of the writ.”

This provision is mandatory. Ex parte Coward, 110 Tex. 587, 222 S. W. 531; Holland, etc., v. Linscome (Tex. Civ. App.) 37 S. W.(2d) 268, and the many authorities there cited.

The judgment of the court below will be reversed, and judgment here rendered dissolving the injunction.