author: FUNDERBURK, Justice.

text:
    MINNEAPOLIS-MOLINE POWER IMPLEMENT CO. v. GATZKI et al.
    No. 1065.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 10, 1933.
    Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellant.
    Wheat & Wheat, of Seymour, for appel-lees.
   FUNDERBURK, Justice.

Minneapolis-Moline Power Implement Company brought this suit against P. Gatzki and Walter Gatzki to recover upon certain notes given by the latter for part of the purchase price of one model B combine, and to foreclose two mortgages given at different times to secure said notes. The defendants, conceding plaintiff’s right to recover, except as same might be defeated'by matters of defense alleged by them, averred that the sale of the combine to them and their execution and delivery of the note's had been procured by means of false representations made by the agents of the plaintiff, by reason whereof defendants had elected to rescind the transaction. They claimed the return of $125 paid as cash on the purchase price, and prayed for cancellation of the notes and mortgages.

The false representations, each of which were found by the jury to have been made by the agents of plaintiff, acting within the scope, or apparent scope, of their authority, and to have been untrue and relied upon by the defendants, were as follows: (1) That said combine was a good machine and would satisfactorily harvest all kinds of grain grown on defendants’ farm; (2) that high speed chain idler bearings, canvas drive sprocket bearings, real drive sprocket bearings, and sickle drive shaft bearings were roller bearings of high type; (3) that said combine would harvest from 35 to 50 acres of grain per day with a minimum trouble; (4) that said combine would be fully equipped for use, equipped with a full set of tools, and an instruction book; (5) that the motor on said combine would not heat excessively to such an extent, under proper use, as to necessitate stops in the operation of said combine.

A part of the defendants’ answer was as follows: “⅜ * * That the agent Moore came to Westover * * * and the defendants * » * told Moore that the machine for which they had contracted was wholly unsatisfactory, and not as represented to them, and that they would not pay for same, and they then and there tendered the machine to the plaintiff company at Westover through Moore and sought to rescind their contract of purchase. But Moore then on behalf of the plaintiff company, prevailed upon these defendants to keep the said machme on the promise that all defective parts would be replaced, all defects repaired, all necessary parts and equipment supplied, and the machine put in perfect working order before the next harvesting season. * * * These defendants would further show that at sometime before the start of the 1931 season, one Lee, a representative of the plaintiff company, came to them and again represented and promised to the defendants that the machine would be repaired and properly equipped before time for harvest, and that Lee told E. Gatzki that it was necessary for his company to have ‘paper’ in order to discount it and raise money, and that it was certain that his combine would be properly fixed before the season and E. Gatzki, relying upon the statements of Lee, executed the mortgage on 100 acres of wheat as described in the plaintiff’s original petition,” etc. (Italics ours.)

The appeal is from a judgment awarding defendants recovery of $125, and canceling the notes and mortgages, and denying plaintiff recovery upon the notes.

That part of the defendants’ pleading above quoted shows, as a matter of law, a waiver on the part of defendants of any right that they may have had to rescind the contract of sale because of the alleged false representations. It is thus shown that, with full knowledge of the alleged fraud, and after defendants had given notice of their election to rescind, they agreed to keep the combine and one of the defendants gave a mortgage upon 100 acres of wheat as additional security for the purchase-money notes, all in consideration of certain promises. No facts were alleged to show that these promises were fraudulent. The most that was alleged concerning them was that they were not performed. The applicable rule of law is stated in Tex. Jur., as follows: “The right to rescind a contract or to sue for damages on account of fraud may be waived when the defrauded party, with full knowledge of the imposition practiced, has entered into and executed a new agreement by which the rights of the parties are adjusted.” 20 Tex. Jur., p. 110, § 73; Thompson v. Pitts (Tex. Civ. App.) 2 S.W.(2d) 899; Spark v. Lasater (Tex. Civ. App.) 234 S. W. 717; Elliott v. Clark (Tex. Civ. App.) 172 S. W. 560; Weeks v. Stevens (Tex. Civ. App.) 155 S. W. 667; Miller v. Layne & Bowler Co. (Tex. Civ. App.) 151 S. W. 341; Damants v. B. F. Ditmar Co. (Tex. Civ. App.) 50 S.W.(2d) 926. “In such case,” says the same authority, “the defrauded party must recover on the contract made in settlement of the fraud. In other words, the fraud is not waived but the parties simply contract against it, and it is the contract that must be enforced.” Id. Dibrell v. Central National Bank (Tex. Civ. App.) 293 S. W. S74. Although by the new agreement the fraud may not have been waived, the rights of the parties with reference thereto simply having been fixed by the terms of the agreement, yet the right of rescission because of the fraud was waived. We again quote from Tex. Jur., as follows: “The authorities are uniform in holding that, if the defrauded party acquires full knowledge of the fraud and his rights in respect thereto, while the contract remains executory, and thereafter does any act in affirmance of the contract, he thereby condones the fraud and waives his right of action.” 20 Tex. Jur., p. 106, § 69; Cattlemen’s Trust Co. v. Pruett (Tex. Civ. App.) 184 S. W. 716; Kiehn v. Willmann (Tex. Civ. App.) 218 S. W. 15; Klyce v. Gundlach (Tex. Civ. App.) 193 S. W. 1092; Patterson v. McMinn (Tex. Civ. App.) 152 S. W. 223; Reed v. Holloway (Tex. Civ. App.) 127 S. W. 1189; Koppe v. Koppe, 57 Tex. Civ. App. 204, 122 S. W. 68. The “right of action” which, in such case, he waives, is that for rescission, of course, and not necessarily such as he may have for damages for the fraud. As further said in Tex. Jur., “At least, affirmance or ratification of the contract or transaction with knowledge • of the fraud, defeats the right to rescission or to defend, on the ground of fraud, against the enforcement of the contract.” 20 Tex. ■ Jur. 106. There would be no waiver of a right of action for damages for the fraud by a mere affirmance or ratification of the contract, but a new contract capable of enforcement is not only an affirmance or ratification of the original contract, but at the same time becomes the source and measure of the rights of the parties.

Erom the conclusions stated, it results that all the questions presented upon this appeal relative to fraud or warranties, or the manner of submitting issues in reference thereto, are immaterial. It appears upon the face of the record that the issues found by the jury and the judgment of the court in conformity thereto have reference exclusively to a cause of action which the pleadings affirmatively show had been waived, and therefore did not exist,

In view of another trial we call attention to the fact that, as bearing upon the existence of the new contract which we have held was a waiver of any right of rescission, the defendants offered in evidence a letter, as follows:

“Westover, Texas, 4/30/31
“Mr. E. Gatzki, Westover, Texas.
“Dear Sir: This is to advise you that, having this day been furnished with crop mortgage covering 100 acres of wheat as additional security for payment of your combine notes, this company will, before the 1931 harvest, repair and put in good condition your Model B combine, and, if necessary, furnish service man when beginning to operate said next harvest.
“Yours truly,
“M. S. Lee.”

It would thus appear that the new contract was in writing and consisted of the mortgage and above letter. While the contract on its face appears to be between Lee and E. Gatzki, the statement of facts shows that it was ratified by the plaintiff, and the record further suggests, if it does not compel the inference, that E. Gatzki was acting for Walter Gatzki as well as himself. If the agreement of plaintiffs to “repair and put in good condition” said combine “before the 1931 harvest” was breached, and by reason whereof the defendants sustained damages, we see no reason why the defendants may not recoup such damages as an offset to their liability upon the notes.

For the reasons given, it is our opinion, that the judgment of the court below must be reversed and the cause remanded, which is accordingly so ordered.


source: Caselaw Access Project

author: JACKSON, Justice.

license: Public Domain

text:
    AGRICULTURAL BOND & CREDIT CO. v. ALDERSON.
    No. 3972.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 22, 1933.
    James M. Kernan, of Amarillo, for appellant.
    W. W. Kirli, of Plainview, for appellee.
   JACKSON, Justice.

The appellant instituted this suit in the county court at law of Potter county to recover a balance of $804.28 evidenced by two conditional sales contracts given, for certain machinery, by appellee and transferred and assigned to appellant for a valuable consideration in due course of trade.

The appellant alleged that appellee was a resident of Hale county and the sum sued for was secured by a valid mortgage lien on one Gleamer-Baldwin combine and one deep-furrow drill with tractor hitch and press wheels; that the mortgage provided that in the event appellee failed to pay said indebtedness as it matured appellant was entitled to immediate possession of su.ch machinery; that the appellee had defaulted in payment and refused on demand to deliver possession of the machinery; that appellant feared that defendant would materially injure said machinery if left in his possession, setting out in detail the reason for such fear; that the machinery was exposed to the weather and depreciating in value and. was probably insufficient to discharge the indebtedness and ap-pellee was without financial means to secure appellant in the collection of its debt; that the contract provided for attorneys'’ fees and stipulated that, if it was necessary to file suit thereon, appellee waived the right to remove any legal action from the court originally acquiring jurisdiction.

The appellant prayed that appellee be cited, a receiver be appointed with power to protect the machinery and the value thereof, and that on a final hearing it have judgment for the sum of $804.28, with foreclosure of its lien on said machinery and an order of sale thereof for the payment of its debt.

The court on an ex parte hearing appointed J. Y. Crews of Hale county as receiver and directed that he take immediate possession of the property on giving bond in the sum of $750, and enjoined the appellee and his agents from interfering with said property. J. Y. Crews gave the bond and took the oath as receiver.

The appellee in due time and proper form *' filed his plea of privilege to be sued in Hale county where he resided.

The appellant filed its controverting affidavit, and, upon a hearing, the court transferred the cause to the district court of 1-Iale county, Tex., from which judgment this appeal is prosecuted.

The jurisdiction of the county court at law of Potter county is not attacked, but it will be noted that the appellant in its petition makes no affirmative allegation of the value of the property on which it sought to foreclose its lien and such failure constitutes fundamental error. Richardson v. Renfro Hardware Co. (Tex. Civ. App.) 33 S.W.(2d) 466, and authorities cited. In a suit in county court for the foreclosure of a lien the value of the property on which the lien is sought to be foreclosed must be alleged in order for such court to entertain jurisdiction. What-ley v. Gust (Tex. Civ. App.) 294 S. W. 245; Lunsford v. Pearce (Tex. Civ. App.) 19 S.W. (2d) 71; McIntyre v. Oliver Motor Company (Tex. Civ. App.) 20 S.W.(2d) 241; Welder v. First State Bank of Skidmore (Tex. Civ. App.) 37 S.W.(2d) 848; Michot v. Rizer (Tex. Civ. App.) 46 S.W.(2d) 1111.

For the reason stated the county court at law of Potter county did not acquire jurisdiction of the subject-matter of the suit, and hence this court has no jurisdiction to pass on the errors assigned.

The judgment is reversed and the appeal dismissed.


author: HIGGINS, Justice.

text:
    MILLER v. VAN-TEX ROYALTY CO. et al.
    No. 2785.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 2, 1933.
    Rehearing Denied March 2, 1933.
    Troy Smith and Butler, Price & Maynor, all of Tyler, for appellant.
    Conner & McRae, of Eastland, and J. T. Spencer, of Waxahachie, for appellees.
   HIGGINS, Justice.

This is an appeal by J. B. Miller from an order overruling a plea of privilege to be sued in Smith county where he resides.

Appellees filed the suit against Miller and others to recover damages for fraud. As to Miller the suit was an appearance case at the September term, 1931. In due time affidavit controverting the plea was filed by the plaintiffs. No notice was given of the controverting affidavit, and no action was taken upon the plea at .the September term. The next term convened December 7, 1931, and on February 1,1932, of the same term, the case was called for trial, whereupon an amicus curise suggested to the court that Miller’s plea of privilege had not been acted upon; that the court had no jurisdiction of Miller, and as to him the case should be transferred to Smith county. Whereupon the court set February 20, 1932, of the same term for hearing the plea. On February 3, 1932, plaintiffs announced they would no longer prosecute the suit against Miller, and entered an order of nonsuit. On February 4, 1932, plaintiffs filed a motion setting up that Miller was a proper and necessary party to the suit and jointly liable with the other defendants to plaintiffs, and prayed that he be made a party defendant. This motion was granted by the court, and on February 8,1932, plaintiffs filed amended petition in which Miller was again joined as a party defendant. Citation thereon, returnable to the March term, was issued and served upon Miller, who again filed plea of privilege to be sued in Smith county. The plea is in statutory form with additional allegations claiming that the order of nonsuit entered on February 3rd was, under the circumstances, res judicata of his right to be sued in Smith county. The plea was controverted and overruled.

Opinion.

It is quite clear that at the time the plaintiffs took their nonsuit against Miller they had the right to do so. Atlantic O. P. Co. v. Jackson, 116 Tex. 570, 296 S. W. 283.

At that time the issues upon the plea of privilege had been joined by controverting affidavit filed in due time and a later date set for hearing the plea. Before the issues presented by such plea and controverting affidavit had been determined, the suit, as to Miller, was dismissed. We think it quite plain that under such circumstances the issue of venue was never decided, and therefore the plea of res judicata is not sound. Hewitt v. DeLeon (Tex. Civ. App.) 5 S.W.(2d) 236; Southern N. Co. v. Beck & Bridges (Tex. Civ. App.) 55 S.W.(2d) 215.

The opinions rendered in these cases we regard as foreclosing against appellant his contention that upon the facts above shown the nonsuit taken on February 3d is res judicata of the issue of venue.

Nor is there any merit in appellant’s further contention that the evidence is insufficient to support the order overruling the plea. The evidence shows prima facie a case of actionable fraud committed in Ellis county, and sustains the venue in that county under subdivision 7 of article 1995, R. S., as amended by Acts 1927, 1st called Sess., c. 72, § 1 (Vernon’s Ann. Civ. St. art. 1995, subd. 7).

Affirmed.


author: LEVY, Justice

text:
    CLARK et al. v. HUMBLE OIL & REFINING CO. et al.

    No. 4228.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 17, 1933.
    Rehearing Denied Jan. 26, 1933.

      McEntire, James & Glower, of Henderson, for appellants.
    J. Q. Weatherly, R. E. Seagler, and John E. Green, Jr., all of Houston, for appellees.

      Writ of error granted.

   LEVY, Justice

(after stating the case as above).

The pertinent point for determination is that of whether or not the peremptory instruction to the jury was warranted, directing a verdict in favor of the defendants. The appellant insists that the verdict should have been directed in her favor, or, if not, the evidence adduced presented an issue of fact, which, if determined by the jury in her favor, would entitle her to recover. The appel-lees contend otherwise that the court did not err in giving a peremptory instruction in favor of them, for the evidence conclusively established their right to the same. It is believed that it may not be held that there was error in taking the case away from the jury, for in the state of facts proven there was no issue of fact arising to be submitted to the determination of the jury. The error was, as concluded, in instructing the verdict in favor of the defendants instead of the plaintiff for the facts proved at the trial to exist established the right of the plaintiff to recover her interest in the land. The instruction should have directed the verdict in favor of the plaintiff Margaret Coolidge because: (1) The several purported leases of her interest in the land through the community administration and the guardianship proceedings were legally void in the first instance, and she was not prevented from enforcing her rights by subsequent confirmation nor even by estoppel through writings or personal conduct; and (2) assuming a valid and legal confirmation of the guardian’s lease by Margaret Coolidge, still such lease had, as conclusively proven, expired by its terms for failure of payment of rental at or before the end of the period designated in the lease.

The legal consequences of the facts, in support of the ruling above made, are here given and set forth at length. The attempted leases in 1928, both through the community administration and guardianship proceedings, as to the undivided interest in the land of Margaret Coolidge, were treated by the parties in the trial of the case, not as voidable, but as legally absolutely void in the first instance. This is a vital fact of the case, for if Margaret Coolidge. may in any wise be deprived of her right in the land, it must rest in her acts and conduct or estop-pel after she became twenty-one years old. The evidence in behalf of the appellant is to the effect that she was induced to execute the instrument tendered and presented on September 12, 1930, and about which the controversy in this case arises, upon the representation of the appellee’s agent that it was for the purpose only of rectifying mistakes in the purported guardian’s lease bearing the date on its face of April 25, 1928, in description of the land, and in the legal steps taken in making the lease by the guardian. That she executed the instrument purely in the purpose and intention of confirming such infirmities of her guardian’s lease. That at the time she was three months past twenty-one years old and had no knowledge that the guardianship over her was brought to a close by reason of her majority. The testimony of the agent of the appellee goes to conclusively show tliat lie likewise intended the instrument so presented on September 12, 1930, to be only a confirmatory lease of tbe infirmities of tbe prior leases of 1928 made by tbe administrator and guardian. He testified that bis purpose in preparing and presenting and having appellant execute tbe particular instrument was to have it be “a ratification or correction lease correcting tbe field notes of tbe former lease which Mrs. Price executed (as guardian) covering Margaret’s interest.” In tbe circumstances stated it is believed that tbe contention of ap-pellee should be upheld that neither fraudulent representation nor misrepresentation can be deemed as arising as an issue of fact, as being an imposition or deceit on appellant. It is clear that tbe appellant and tbe agent of appellee each acted in tbe same common purpose of having a confirmatory lease only executed, and that the instrument to be executed was intended to be in tbe nature and to operate only as “an instrument to correct tbe field notes and guardianship proceedings.” Tbe appellant was in no .wise misled or deceived in point of fact in that respect, and tbe agent of appellee never in point of fact acted with tbe purpose of deception. Under tbe conceded rule, in order to say that fraud is proved, it must appear that false representation or misrepresentation was made.

Misrepresentation being absent, as we conclude, in obtaining tbe execution of tbe instrument presented on September 12, 1930, tbe vital question for decision is: What legal leasehold rights or estate can tbe ap-pellee be regarded as having acquired in tbe land as against appellant by virtue of such instrument? The particular instrument reads:

“Oil, Gas and Mineral Lease.
“This agreement made this 25th day of April, 1928, between L. H. Moore and wife, Mrs. L. H. Moore, and Margaret Coolidge, a feme sole, and Mrs. Lou Emma Price, lessor (whether one or more) and Humble Oil and Refining Company, lessee, witnessetb:
“Lessor in consideration of $10.00 in band paid, of tbe royalties herein provided, and of tbe agreement of tbe lessee herein contained, hereby grants, leases, and lets exclusively unto tbe lessee for tbe purpose of investigating, exploring, prospecting, drilling and mining for and producing oil, gas, and all other minerals, laying pipe lines, building tanks, power stations, telephone lines and other structures thereon to produce, save, take care of, treat, transport, and own said products, and bousing its employees, tbe following described land in Rusk County, Téxas, to-wit: (Here follows description of tbe land). It is tbe intention of tbe lessor (here follows tbe provisions and terms of tbe previously executed leases in April, 1928). In witness whereof this instrument is executed on tbe date first above written.” (Here follows tbe signatures of tbe lessors named.)

Tbe language of tbe new instrument with its special recitals shows tbe intention of tbe parties to be, not to create any new duty or obligation or quitclaim any present interest or estate in tbe land, but only to execute an instrument made to effect or replace a transaction occurring at a time already long past — on tbe “25th day of April, 1928.” There are no words in tbe instrument which by their own force would operate to create a new leasehold interest or estate presently as well as in the future. By its terms its execution was made to wholly relate back and be retroactive. Tbe new instrument begins with tbe express statement of, “This agreement (of lease) made this 25th day of April, 1928,” and at tbe conclusion expressly mentions the execution and date of tbe instrument by reference to tbe date theretofore given, namely: “In witness whereof this instrument is executed on tbe date first above written.” It conforms entirely, to the terms and provisions of tbe leases which bad been previously executed through tbe community administration and the guardianship proceedings bearing date of “April 25, 1928,” . except in respect to tbe correction of certain field notes of tbe land as therein described. Tbe language of tbe instrument is plain and unambiguous. If the true purpose of its execution was to be a present conveyance as of September 12, 1930, why date it more than two years before? It is thought tbe new instrument would properly be construed as in-' tended by tbe parties to relate to a leasehold interest which had been created previously and to operate merely as confirmatory in character of infirmity of description of the land, and not as creating a new or present leasehold right or estate in tbe land. In this legal situation tbe new instrument could not be held operative as a valid and legal confirmation and ratification of tbe leases previously made, so far as relates to and concerns Margaret Coolidge. Margaret Coolidge, in view of tbe circumstances having special relation to her, must be regarded as standing independently of both her mother, Mrs. Price, and her sister, Mrs. Moore. In executing tbe previous leases as concerns their individual interests in tbe land, Mrs. Price and Mrs. Moore were doing so as adults and they were acting wholly independent of any exercise of power on tbe part of tbe probate court. Their previous leases were not as to them legally void, and it was allowable to them to render effectual by confirmation a defective, even voidable, deed or lease and to antedate and relate back to tbe original lease. Margaret Coolidge, though, at tbe time of tbe previous- leases in evidence was a minor, and such purported leases as to her interest in the land was not made independent of any exercise of power on the part of the probate court or of any statutory community administration. The original leases were made in 1928, and through community administration and guardianship) respectively, and they were treated and regarded in the trial of the case, not as voidable, but as legally absolutely void instruments in the first instance. Such leases must be treated on this appeal as absolutely void in the first instance. Therefore, as a legal consequence at the time of tendering this new instrument on September 12, 1930, for execution, the appellee oil company had no legal leasehold interest or estate whatever in the land so far as concerns the interest therein of Margaret Coolidge. The new instrument having entirely a retroactive operation, the execution of it by Margaret Coolidge could not be held effectual and binding upon her as her confirmation and ratification of the original void leases of her interest through community administration and guardianship. The act in legal effect would be simply a continuation of the former leases as an act of guardianship and administration, and not a distinct action with an operative effect of its own presently and apart from the original previous'leases. In general, contracts which are void from illegality because contrary to or opposed to statute cannot be confirmed and ratified, because the confirmation and ratification itself would be opposed to the statute.

It is the established principle that confirmation may make good a voidable or defeasi-ble estate, but cannot operate upon or aid an estate which is void in law. 1 Devlin on Real Estate (3d Ed.) § 18, p. 30; 14 Tex. Jur. § 23, p'. 776; Breitling v. Chester, 88 Tex. 586, 32 S. W. 527, 529; Montgomery v. Horn-berger, 16 Tex. Civ. App. 28, 40 S. W. 628, 629; 1 Warvelle on Vendors, § 338, p. 402. As stated in the Chester Case, supra: “It would seem that, the deed as originally delivered being void, it could be re-executed but not ratified so as to give it a retroactive effect.” As stated in the Montgomery Ca.se above: “It may be true, as contended by appellants, that the deed of 1845 was void because it was not acknowledged by Mrs. Sawyer. It is also true that, being a nullity, it could not be confirmed by the subsequent deed, so as to have any validity of its own. The attempt to confirm it could not change the fact that the title had not previously passed out of Mrs. Sawyer, or, retroactively, impart to the nullity an efficacy which it had not before possessed. But at the date of the second instrument Mrs. Sawyer was still the owner of the land and had capacity to convey it by complying with the law. An attempt to confirm a void deed * * * may fail to effect that'purpose, but may still operate as a new grant.” In the case of Jackson v. Tonahill, 49 Tex. Civ. App. 169, 108 S. W. 178, the original deed had not been acknowledged, and a quitclaim deed was signed, acknowledged, and delivered by the grantors, Mr. and Mrs. Hooker. The effect of the subsequent quitclaim deed was that of the re-execution of a deed and which presently created an estate in confirmation and ratification of the estate previously intended to be passed. The difference, as may be seen, is that in the present case the instrument as signed by Margaret Coolidge was entirely retroactive, and did not of itself look to nor relate to any new or further estate and did not in any wise change the fact that the estate in the land of Margaret Coolidge, a minor, had never legally passed out of her in 1928 by the leases attempted to be made. The rights of appellant to her interest in the land remained vested in her the same after the execution of that instrument as they were before. If the new instrument tendered on September 12, 1930, for signing had been a quitclaim deed or in the nature or effect of one, the situation here would be different and the consideration paid ‘the guardian would have been sufficient, and a new or different consideration would not have been necessary nor required.

The appellee, however, contends that the previously executed leases purport to cover the entire land and the interest of the lessors therein, and the subsequently executed royalty deeds to J. T. Perryman, Jr., and the Salt Mount Oil Corporation convey a portion of the royalty subject to the appel-lees’ lease, and therefore the doctrine is made applicable of ratification or acquiescence by tenants in common of the acts of each other, and Margaret Coolidge would be estopped from denying the effect thereof. On April 6, 1931, a deed was executed by the mother and the sister and Margaret Coolidge conveying to J. T. Perryman, Jr., “an undivided ⅛ interest in the oil, gas and other minerals in and under and that may be produced from the following described land” (here follows description by metes and bounds of the land involved in suit). The deed recites:

“Said land being now under an oil and gas lease executed in favor of the Humble Oil and Refining Company, it is understood and agreed that this sale is made subject to the terms of the said lease, but covers and includes ⅛ of all the oil royalty and gas rental demanded to be paid under the terms of the said lease, insofar as it covers the above described property.
“It is understood and agreed that ⅛ of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said grantee, and in event that the above described lease for any reason becomes cancelled or forfeited, then and in that event, an undivided ⅛ of the lease interest and all future rentals on said land for oil, gas and other mineral privileges shall he owned by the said grantee, he owning ⅛ of all oil, gas and other minerals in and under said lands together with ⅛ interest in all future rents.”

On June 6, 1931, the same parties executed and delivered a like royalty deed to the Salt Mount Oil Corporation conveying an undivided one-eighth interest in the oil, gas, and other minerals in and under and that may be produced from the tract of land described. The deed contains the recitation as follows: “It is the intention of the parties to this' mineral deed to cover all the land now covered by oil and gas leases held by the Humble Oil and Refining Company et al. with reference especially to that certain oil and gas lease executed by Mrs. W. L. Price, Gdn., to Humble Oil and Refining Company of date September 12, 1930, and recorded in VoL 186, p. 25, Deed Records of Rusk County, Texas, reference to which is here made for more complete description.” Then follows the same recitations as above copied from the Perryman deed. The lease referred to as executed by Mrs. W. L. Price, guardian, was a lease as to the interest of the minor William Coolidge.

The recital was true that the land was under a gas and oil lease executed in favor of the Humble Oil & Refining Company so far as pertains to the separate interest in the land of each Mrs. Price and her married daughter, Mrs. Moore, and the minor, William Coolidge. It would have special application to them and be an express recognition of the lease previously executed by them as to their individual interests in the land as existing and valid as to both of them. The lease referred to could truly exist as to some of the parties and wholly fail in legal validity as to the other party. As to Margaret Coolidge the reference to the lease of appel-lee would not have special application or application at all, and would amount merely to an incidental statement of a fact and not of adoption or acquiescence of the lease as covering her interest in the land. The oil company would be chargeable with notice of the interest of Margaret Coolidge by the leases to which it must look for its interest and estate in the land. The oil company would know that the attempted lease in April, 1928, by Mrs. Price as community ad-ministratrix was not valid as to Margaret Coolidge’s interest. The oil company would know that the purported lease by Mrs. Price as guardian was not valid as to Margaret Coolidge. The authority of Mrs. Price to act and bind Margaret Coolidge, a minor at the time, in- the transaction did not legally exist. Each lease on its face and by its terms reveals the intention to lease and pass no more than the title or distributive share and estate in the land of the lessors therein named, and not a share and estate that they or either of them did not hold or claim. Although purporting to have the lease cover the whole field notes of the tract, yet each tenant executing the lease in legal effect was letting her own undivided share and portion therein. Article 1200, R. S. In the execution of the lease Mrs. Moore merely joined with her mother, Mrs. Price, who was acting for herself “individually” and who was assuming to act for the minors respectively “as community survivor” and “guardian.” Such character of execution and transfer of estate in the land would affirmatively show that Mrs. Moore and Mrs. Price were not attempting to pass all interest and estate in the land as if they were individually the sole owner of the same. They clearly were not undertaking to represent themselves as the sole owners of the land. Each of the first two leases contains the clause: “If the lessor owns an interest in said land less than the entire fee simple then the royalties and rentals to be paid the lessor shall be reduced proportionately.” The purported lease to the Humble Oil Company presented for execution on September 12, 1930, and antedated to be made on “April 25, 1928,” and which instrument was legally valid only as to Mrs. Moore and her husband, contains the clause: “It is the intention of the lessors and we do hereby lease all the land we own in the above and adjoining Surveys whether the same was acquired by purchase, inheritance, or limitation or otherwise, it being the intention to include all land owned or claimed by the lessors in said Survey or Surveys.” The language “all the.land we own” clearly indicates the interest and estate in the land which the lessors named intended to pass and confer in the leasehold estate or interest. In view of the evident situation shown, can it be held that the recital in the mineral deeds is sufficient and effective to predicate estoppel against' Margaret Coolidge by ratification or acquiescence from asserting her interest or estate in the land? It is believed the doctrine in view sought to be applied may not be made applicable to the facts of this case. It is the accepted rule that a tenant in common not authorized by his cotenants cannot execute a lease that will bind them without subsequent ratification. 38 Oye. pp. 101-104; 1 Devlin on Deeds (3d Ed.) § 109. It was not shown by the evidence that Margaret Coolidge did any positive acts of acceptance of benefits or oil royalties arising under or resulting from the lease to the oil company. There was no producing oil well on the land until from and after July 14, 1931. This suit was filed at a time shortly after the well came in and prior to September ⅞⅞, 1931. The rule that tenants in common, being owners of several interests, may ratify the acts of each other or acquiesce therein, is made applicable only against the nonconsenting tenant where there is attempted conveyance or lease, not of an undivided distributive share or estate in the land, but of the entire tract or some specific portion of the whole of the common property. 38 Oye. p. 111. Unless the tenants in common signing the lease purported to lease all the land as if they were the sole owners, there would be absent the elements of ostensible ownership, or of ostensible agency which is necessary to be proven in order to predicate estoppel or preclusion to deny the existence thereof. There would be no such appearance of power in dealing with the rights or estate of the nonjoining tenant on which to found ratification and acquiescence of the particular act done or transaction. Ratification applies to agency. Mon-dragon v*. Mondragon, 113 Tex. 404, 257 S. W. 215.

The present case is quite unlike the cases cited. In the case of Merriweather v. Jackson (Tex. Civ. App.) 38 S.W.(2d) 599, the mother undertook to convey to the oil company the specific portion of 5 acres of land out of a tract of the common property covering 162 acres. Later the mother and two daughters undertook to lease 157 acres of the tract, describing it as “containing 157 acres after deducting five acres off of the Northeast end of the tract conveyed to the Luling Oil Company.” The circumstances and recital there went clearly to show that sufficient assent had been given by the daughters to the prior conveyance of the' mother to make it operative entirely. The act of recognition was so distinct and emphatic as to preclude the daughter from aft-erwards denying that the mother owned and held the entire five acres. In the. case of Texas & Pacific Coal & Oil Company v. Kirt-ley (Tex. Civ. App.) 288 S. W. 619, two tenants in common executed an oil lease and the lessees drilled productive oil wells. The co-tenant who did not join in the execution of the lease did join in the orders, and took his proportion of the oil royalty after the oil was produced. Such acts on the part of the nonjoining tenant in dealing with the oil produced as his part of the oil royalty under the lease was strong evidence of acquiescence and consent to the leasing. He not only recognized the lease as existing, but actually took and claimed the royalty benefits resulting from it. In such affirmative circumstances, ratification and assent may be reasonably inferred, as was done by the court. In the present appeal Margaret Coolidge received no benefits and therefore that rule would not be applicable. 2 C. J. § 115, p. 495. In the case of Van Deventer v. Gulf Production Co. (Tex. Civ. App.) 41 S.W.(2d) 1029, 1038, the facts show that the mother and sister executed a lease of the entire land, and afterwards the brother, L. Q. Van Deven-ter, joined with his sister and mother in the execution of an option contract to purchase 72½ acres of the 120 acres leased, and subsequently in executing a warranty deed which recognized that the land was encumbered by the oil lease. Eurther, as stated by the court, “Also, we have the additional fact that on the testimony of his mother he [L. Q. Van Deventer] received from her a part of the proceeds of the sale of the 25 acres [which was under lease] of land as well as the other lease money.” The court thought, and correctly so, that the circumstances of the case brought it within the ruling in the case of Texas & Pacific Coal & Oil Co. v. Kirtley, supra, as supporting estoppel by ratification and acquiescence on the part of L. Q. Van Deventer. There was evident not only the recital in the deed of the existence of the lease, but the positive acts of L. Q. Van Deventer of accepting benefits and sharing in the consideration paid for the lease. Such acts of L. Q. Van Deventer1 amount in effect to the consent to the lease as existing and of intention to carry it in effect. In the present case there was no act of acceptance of benefits by Margaret Coolidge.

Upon another ground,. however, we think the plaintiff would be entitled to recover, assuming the instrument presented on September 12, 1930, for execution was legally valid as a lease by Margaret Coolidge. Such lease must be regarded as having expired by its terms for lack of payment of rental to Margaret Coolidge on April 25, 1931. The oil company made payment of rental in the Overton bank but to Mrs. Price as guardian of Margaret Coolidge. The rental was never tendered by the bank nor the oil company to Margaret and there was no offer of tender to her or direction to have it credited to her in the bank. It was not shown that the bank had the power to appropriate the money to the credit of Margaret. There is no dispute as to these facts. The instrument expressly provides for forfeiture for nonpayment of rentals, annually from the date of the instrument (which was April 25, 1928), unless drilling oixerations were begun. Drilling operations had not begun before April 25, 1931.

Therefore, in the light of the grounds and reasons above reviewed, it is concluded that the judgment in favor of the appellees should be reversed and here rendered in favor of the appellant "Margaret Coolidge Clark, as against the appellees the Humble Oil & Refining Company and the Gulf Production Company, decreeing cancellation of the oil and gas lease upon the 440-acre tract of land executed on September 12,- 1930, so far as the lease pertains to and affects her-one-sixth undivided interest in the 440 acres. The cost of this appeal and of the trial court to be taxed equally against the appellees.


author: HICKMAN, Chief Justice.

text:
    HARTFORD ACCIDENT & INDEMNITY CO. v. LEIGH.
    No. 1066.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 17, 1933.
    Eckford & McMahon, of Dallas, for appellant.
    Scott & Gilbert, of Cisco, for appellee.
   HICKMAN, Chief Justice.

Appellee, Edward Alford Leigh, sustained an injury to his left eye on or about June 21, 1930, in the course of his employment as tooldresser for the Lone Star Gas Company. Several months later he discovered that he was entirely blind in that eye and thereafter filed his application with the Industrial Accident Board for compensation, alleging good cause for not filing same sooner. At the time the injury was sustained the appellant Hartford Accident & Indemnity Company had in full force a policy of workmen’s compensation insurance covering the employees of the Lone Star Gas Company. An award was made by the board in favor of appellee, and this suit was timely filed in the proper court to set same aside. The case was tried before a jury upon special issues and resulted in a judgment in favor of appellee and his attorneys, Scott & Gilbert, against appellant for compensation in the sum of $20 per week for 100 weeks, with interest on payments due at time of trial, all to be paid in a lump sum. The appeal is from that judgment.

Questions are presented relating to the sufficiency both of the pleadings and of the evidence on the issue of appellee’s average weekly wages, and these questions will be considered together. The allegations of the petition were as follows: “That said Edward Alford Leigh further alleges that he was employed by the Lone Star Gas Company and other oil companies for many years prior to the time of said injury as an oil well driller up until the time of -the injury when he was working for the Lone Star Gas Company as a tooldresser. That as such driller and tool-dresser he worked seven days each week, and received daily wages therefor at the rate of $14.00 per day as a driller up to July 1st, 3929, and from that time until the time he was injured, with the exceptions of a few months he worked as a roustabout receiving $4.00 per day, he received $8.00 per day as tooldresser, and was getting $8.00 per day at the time he was injured.”

The injury was received on June 21, 1930. These allegations are to the effect that appellee had not worked as a tooldresser for substantially the whole of the year immediately preceding the injury, but, on the contrary, they affirmatively show that, for a few months of that time, he worked as a roustabout. A few months less than twelve months is not substantially a year. Petroleum Casualty Co. v. Williams (Tex. Com. App.) 15 S.W.(2d) 553; Commercial Standard Insurance Co. v. Carr (Tex. Civ. App.) 22 S.W. (2d) 1101.

The applicable statute is a portion of article 8309, § 1, R. S. 1925, which reads as follows:

“ ‘Average weekly wages’ shall mean:
“1. If the injured . employee shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, substantially the whole of the year immediately preceding the injury, his average annual wages shall ■consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.
“2. If the injured employee shall not have worked in such employment during substantially the whole of the year, his average annual wages shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed.
“3. When by reason of the shortness of the time of the employment of the employee, or other employee engaged in the same class of work in the manner and for the length of time specified in the above subsections 1 and 2, or other good and sufficient reasons it is impracticable to compute the average weekly wages as above defined, it shall be computed by the board in any manner which may seem just and fair to both parties.”

Subsection 1 is not applicable, because, as noted above, appellee pleaded facts which affirmatively disclose that he had not worked as a tooldresser for substantially the whole of the year immediately preceding his injury. Petroleum Casualty Co. v. Williams, supra.

Subsection 2 is not applicable, because the petition contained no allegation as to the average daily wage of other employees of the same class working substantially the whole of the immediately preceding year in the same or similar employment in the same or a neighboring place. In order to make this subsection applicable, the facts bringing the case within it must be alleged. Texas Employers’ Ins. Ass’n v. Fitzgerald (Tex. Com. App.) 296 S. W. 509; Federal Surety Co. v. Shigley (Tex. Civ. App.) 7 S.W.(2d) 607; Zurich General Accident & Liability Ins. Co. v. Wood (Tex. Civ. App.) 10 S.W.(2d) 760; Southern Surety Co. v. Martin (Tex. Civ. App.) 16 S. W.(2d) 929.

■ The only subsection which could be applied under the pleadings is subsection 3. It may be that, had the facts been fully developed, with reference to claimant’s employment, the length of time in the different employments, and the wages received at all times, that, under the holding of Petroleum Casualty Co. v. Williams, supra, the average weekly wages could have been computed under that subsection. But when we consider the facts we find them insufficient to enable us to apply the provisions of that subsection. They indicate that subsection 2 should have been pleaded and relied upon. Since the case must be reversed on other grounds, we shall not enter into a discussion of these facts, for they will doubtless be more fully developed upon another trial.

Appellee’s pleading contained allegations of his necessitous condition, designed to show that manifest hardship and injustice would result if appellant 'did not redeem its liability by the payment of a lump sum. Appellant specially excepted to that portion of the pleading. It also objected to the evidence offered in support of these allegations and excepted to the judgment of the court awarding recovery in a lump sum. We sustain the assignments presenting these questions. The only provision of the Workmen’s Compensa-•ton Law for lump-sum settlements will be found in article 8306, § 15,. and, by the express language of that section, the right exists only in cases where death or total permanent incapacity results from the injury. Appellee’s injury resulted in partial permanent incapacity, and he was therefore not entitled to a judgment in a lump sum. In recasting his pleading before another trial, appellee should omit all allegations with reference to his poverty and necessitous condition, and no evidence thereof should be admitted. Texas Employers’ Ins. Ass’n v. Pierce (Tex. Civ. App.) 230 S. W. 872; Aetna Life Ins. Co. v. Rodriguez (Tex. Civ. App.) 255 S. W. 446; Texas Employers’ Ins. Ass’n v. Shilling (Tex. Civ. App.) 259 S. W. 236; Texas Employers’ Ins. Ass’n v. Nelson (Tex. Civ. App.) 292 S. W. 651; Oilmen’s Reciprocal Ass’n v. Harris (Tex. Civ. App.) 293 S. W. 580; Norwich Union Indemnity Co. v. Davis (Tex. Civ. App.) 293 S. W. 932; Norwich Union Indemnity Co. v. Maynard (Tex. Civ. App.) 300 S. W. 196; Texas Employers’ Ins. Ass’n v. Jones (Tex. Civ. App.) 40 S.W. (2d) 961.

In answer to special issues the jury found that appellee sustained an injury to his left eye in 1900 which resulted in a partial loss of vision in that eye, and that the percentage of loss of vision from this previous injury was 25 per cent. It is the contention of appellant that the compensation to which'appel-lee is entitled for the subsequent injury is 75 per cent, of the statutory amount allowed for the loss of the sight of an eye, and not 100 per cent, thereof, as decreed below. Article 8306, § 12c, reads as follows: “If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury.” This statute does not undertake to reduce the amount of compensation to which a claimant is entitled for a subsequent specific injury to less than that elsewhere provided for such injury, but, on the contrary, provides that the association shall beTiable for the compensation to which that injury would have entitled the injured employee had there been no previous injury. The subsequent injury in this case was the loss of the sight of an eye for which the Workmen’s Compensation Daw, article 8306, § 12, provides a definite compensation. That section makes no provision under which the loss of the sight of a good eye draws a greater compensation than the loss Of the sight of a defective one. Had the defect in the claimant’s eye been the result of natural causes or disease, there would have been no question Of his right to the full amount of compensation allowed for the loss of the sight of an eye. Suppose a claimant who had lost one of the fingers of his left hand should later sustain an injury in the course of his em- • ployment, resulting the the loss of that hand. We do not believe his compensation for the subsequent specific injury for loss of a hand should be reduced on account of the previous loss of the finger. Had the claimant in this case suffered the loss of the sight of his right eye by the previous injury, so that the loss of the sight of his left eye in this subsequent injury resulted in his total incapacity, the statute would operate to limit his compensation on account of the subsequent injury to that amount specifically provided for the loss of the sight1 of an eye, notwithstanding the two injuries resulted in total permanent incapacity. Gilmore v. Lumbermen’s Reciprocal Ass’n (Tex. Com. App.) 292 S. W. 204.

Where the combined effect of the previous injury and the subsequent injury is to increase the incapacity of the employee beyond that which would have resulted from the subsequent injury alone, the statute would operate. But where, as in this ease, the condition of incapacity following the subsequent injury is the same as it would have been had ■there been no previous injury, the statute has no application.

Complaint is made that some of the special issues were so framed as to place the burden of proof as to-such issues upon the appellant. This was error. Article 8307, § 5, as- amended (Vernon’s Ann. Civ. St. art. 8307, § 5), expressly places the burden of proof upon the party claiming compensation. Nobles v. Texas Indemnity Ins. Co. (Tex. Com. App.) 12 S.W.(2d) 199; Petroleum Casualty Co. v. Bristow (Tex. Civ. App.) 21 S.W.(2d) 9; Texas Employers’ Ins. Ass’n v. Stephens (Tex. Civ. App.) 22 S.W.(2d) 144; New Amsterdam Casualty Co. v. Rutherford (Tex. Civ. App.) 26 S.W.(2d) 377; Commercial Standard Insurance Co. v. MeGee (Tex. Civ. App.) 40 S.W.(2d) 1105.

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


author: PLEASANTS, Chief Justice.

text:
    RADOFF v. GUARDIAN TRUST CO. et al.
    No. 9801.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 31, 1933.
    Rehearing Denied March 9, 1933.

      A. M. Waugh and C. L. Bass, both of Houston, for appellant.
    Lewis & Burr, of Houston, for appellee R. L. Autrey.
    Sam Neathery and W. D. Orem, both of Houston, for appellee city of Houston.
    Baker, Botts, Andrews & Wharton, P. G. Coates, and J ohn T. McCullough, all of Houston, for appellee Guardian Trust Co.
   PLEASANTS, Chief Justice.

This is a suit by appellant to recover damages from appellees for wrongful injury to his property. The defendants named in the petition are Guardian Trust Company, independent executor of the Estate of Hugh Hamilton, deceased, the City of Houston, and R. L. Autrey. Plaintiff’s petition alleges, in substance, that on and prior to May 30,1929, each of the defendants owned in severalty and possessed and occupied land situated in the city of Houston and lying between the lines made by the highest unobstructed floods, or the highest unobstructed flow of water in Buffalo bayou, the land so owned by each defendant being described in the pleadings; that on and prior to said 30th day of May, 1929, each of the defendants owned, possessed, occupied, and maintained certain structures upon the land owned by them, respectively ; that “said structures were located so close to one another that their combined effect was such that they might, could, and probably would obstruct flood waters of Buffalo Bayou so as to lift such waters in one body so high that such water would overflow land adjacent to Buffalo Bayou that would not have been overflowed if such body of water had not been made of such height; and said structures did have such effect at such time.

“And at said time each of defendants knew, and an ordinarily prudent person under the same and similar circumstances would have known, the facts set out in the next preceding sentence, with the exception of the fact that such overflow actually occurred; and an ordinarily prudent person under the same and similar circumstances would have known that water so overflowing might, could, and probably would damage the personal property of plaintiff as stated below.
“And at such time each of defendants, by having knowledge as aforesaid and by failing to remove such structures and enough thereof from said pieces of land of such defendant to prevent the high accumulation of said body of water and its overflow, as aforesaid, thereby agreed and co-operated and jointly participated with one another in maintaining said structures and said body of water, so that said body of water was made sufficiently high to overflow said land, as aforesaid, and damage said personal property of plaintiff as stated below.
“And at said time each of defendants by failing to do acts that would prevent such body of water from becoming so high as to cause such overflow and damage to plaintiff’s personal property, so participated in the negligence of one another as to be jointly negligent to maintaining said body of water and in permitting it to cause damage to plaintiff’s personal property.
“And said damage to plaintiff’s personal property was the natural and proximate effect of each and all of the willful and negligent acts of defendants stated aboye.”

The damage to plaintiff’s property from overflow of Buffalo bayou, caused by the alleged wrongful and negligent acts of the defendants, is alleged to have amounted to the sum of §2,500.

Each of the defendants in due time and order of pleading filed pleas in abatement, setting up misjoinder of parties and causes of action on the ground that such defendant did not occupy, possess, or own any of the lands described in plaintiff’s pleadings in eom-mon with either or both the other defendants; that there was no common design or purpose, or concerted or joint action on the part of such defendant with either or both of said other defendants in maintaining any structures or alleged obstructions upon the land and premises so held in possession by such defendant; that such defendant is entirely separate and distinct from each and both of said other defendants, and has no interest in the lands alleged to be owned by either or both of them; and that such defendant is liable, if at all, only for injuries and damages directly and proximately caused by obstructions located upon the lands owned and possessed by such defendant; and that all these facts affirmatively appear upon the face of plaintiff’s pleadings.

The trial court sustained the plea of mis-joinder, and appellant having refused' to amend his petition, his suit was dismissed.

The correctness of the court’s ruling on the plea and the validity of the judgment for costs against appellant are the only questions presented by this appeal.

The question of whether appellees’ pleas in abatement were properly sustained by the trial court, it seems to us, is definitely decided against appellant by tbe opinion of our Commission of Appeals in the case of Sun Oil Co. et al. v. Robicheaux et al., 23 S.W.(2d) 713, 715. The rule in cases of this character is thus stated in the opinion cited:

rule is well established in this state, and supported by almost universal au-authat an action at law for damages for tort cannot be maintained against several defendants jointly, when each acted inde-indeof the others and there was no con-conor unity of design between them. In such a case the tort of each defendant is sev-sevwhen committed; and it does not become joint because afterwards its consequences, united with the consequences of several oth-othtorts committed by other persons in pro-prodamages. Under such circumstances, each tort-feasor is liable only for the part of the injury or damages caused by his own wrong; that is, where a person contributes to an injury along with others, he must re-rein damages, but if he acts independ-independand not in concert of action with other persons in causing such injury, he is liable only for the damages which directly and proximately result from his own act, and the fact that it may be difficult to define the dam-damcaused by the wrongful act of each per-perwho independently contributed to the final result does not affect the rule. Sun Oo. Co. Wyatt, 48 Tex. Civ. App. 349, 107 S. W. 934; 38 Cyc. 484 ; 26 E. R. C. L.

The first ease cited in the quoted opinion, that of Sun Company v. Wyatt, was decided by this court; the opinion of this court having been written by that great lawyer and judge, the late Justice Eeese. That opinion clearly distinguishes the question here presented from cases of concurrent negligence in which each party found guilty of negligence which concurring with the negligence of the other party or parties renders each jointly and severally liable for the entire damage caused by such negligence. After making this distinction, the opinion says: “We take it, however, to be established that, unless each party is liable for the entire injury resulting from the combined acts of all, they cannot be joined in one action. Now in the present and similar actions, where the parties act separately and independently, with no concert of action, and no common purpose, it would be manifestly unjust to make each liable for the entire injury without regard to the extent to which its acts contributed to the general result. Yet this is exactly what the charge of the court, following logically the averments of the petition, sought to do. We are of the opinion that the defendants were improperly joined, and that their several special demurrers should have been sustained.”

Upon a second trial of the Wyatt Case, the trial court sustained the pleas of misjoinder, and on appeal to this court that holding of the trial court was affirmed, and writ of error from our judgment was denied by our Supreme Court. Wyatt v. Sun Co. et al. (Tex. Civ. App.) 126 S. W. 1198.

It is true that in the Robicheaux Case, supra, the opinion of the Commission of Appeals reversing the judgment is based upon the absence of any facts adduced upon the trial showing any concert of action or common purpose of the defendants in the commission of the acts which caused the injury, but, on the contrary, the court in its opinion finds that the facts shown upon the trial negative such

The facts of that ease do not negative a concert of action or common purpose on the part of the defendants more strongly than the allegations of plaintiff in this case, and it is immaterial in determining the question of appellees’ joint and several liability whether that question is presented by the adad-duced on the trial or is raised on exception to the petition by a plea of misjoinder.

The cases of Little Schuylkill Co. Oo. v. Richards’ Administrator, 57 Pa. 142, 98 Am. Dec. 209, Chipman Ohipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566, fully sustain the holdings of our courts before

When the trial court sustained the plea of misjoinder and appellant declined to amend his petition, his suit was properly dismissed, and the judgment against him for propprop-erly followed the order of dismissal.

These conclusions require an affirmance of the judgment, and it has been so ordered.

Affirmed.


text:
    RADOFF BROS., Inc., Appellant, v. GUARDIAN TRUST COMPANY, Independent Executor, et al., Appellees. RUMMAGE COMPANY, Inc., Appellant, v. GUARDIAN TRUST COMPANY, Independent Executor, et al., Appellees. H. BERGMAN,. Appellant, v. GUARDIAN TRUST COMPANY, Independent Executor, et al., Appellees. MYSTIC WASHER COMPANY, Inc., Appellant, v. GUARDIAN TRUST COMPANY, Independent Executor, et al., Appellees.
    Nos. 9802-9805.
    Court of Civil Appeals of Texas, Galveston.
    Jan. 31, 1933.
    Rehearing Denied March 9, 1933.
    A. M. Waugh and C. L. Bass, both of Houston, for appellant.

      Lewis & Burr, of Houston, for appellee R. L. Autrey.
    Sam Neathery and W.' D. Orem, both of Houston, for appellee city of Houston.
    Baker, Botts, Andrews & Wharton, E. G. Coates, and John T. McCullough, all of Houston, for appellee Guardian Trust Co.
   PLEASANTS, Chief Justice.

These are companion cases to that of Radoff v. Guardian Trust Company (Tex. Civ. App.) 57 S.W.(2d) 607, and by agreement of the parties were submitted with the Radoff Case.

The controlling question in each of the cases is the same, and the pertinent allegations of the petition to which appellees’ pleas of misjoinder were sustained are identical in each case.

We need only refer to our opinion in the Radoff Case for our reasons for affirming the judgment in each of these cases.


author: LANE, Justice.

text:
    T. T. WORD SUPPLY CO. v. BURKE et al.
    No. 9816.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 3, 1933.
    Rehearing Denied March 2, 1933.
    Andrews, Streetman, Logue & Mobley, T. M. Mobley, and Homer Mabry, all of Houston, for appellant.
    York & Neeld, of Houston, for appellee Burke.
   LANE, Justice.

T. T. Word Supply Company, a corporation, brought this suit against E. J. Burke and Joe F. Bong, as individuals and jointly as parties composing a copartnership of E. J. Burke & Joe F. Long, to recover $1,200, the alleged purchase price of certain goods, wares, merchandise, and material, which plaintiff alleges it sold to the alleged copartnership.

The plaintiff aileged that such goods, merchandise, and materials were purchased and used for and on behalf of the copartnership.

Joe F. Long made no answer, nor was any answer made by the alleged partnership.

E. J. Burke by his answer denied under oath the existence of the alleged partnership. He averred that the account sued upon was neither just nor true in whole nor in part. He alleged that all business relations between himself and Joe F. Long were under and in pursuance of a written contract entered into between them, and that he never at any time authorized Joe F.- Long to purchase any of the items contained in the account sued upon.

In the alternative, he says that if the court should find that there existed the partnership, as alleged by the plaintiff, then he says that he notified the plaintiff orally and in writing long prior to the sale of any of the items shown in said account not to sell or deliver any items or articles to Joe F. Long, unless and until the purchase of same had been approved by him; that all of the items shown in said account were sold and delivered to Joe F. Long without his knowledge, consent, or approval; that said items were sold and delivered to Joe F. Long by plaintiff on Long’s personal credit, and that such items were solely used on a drilling rig owned and operated by Long for his own use ■ and benefit, and that all of them are now in Long’s possession, attached to his drilling rig, which is used for his exclusive benefit; that he (Burke) is in no way legally liable for the payment of the purchase price for said items.

The case was tried before the court without a jury. Upon the pleadings and evidence the court rendered judgment against Joe F. Long, E. J. Burke, and the alleged partnership, jointly and severally, for the sum of $519.28, the sum “oked” by Burke, in favor of the plaintiff, and he also rendered judgment in favor of plaintiff against Joe F. Long and the alleged partnership, jointly and severally, for the further sum of $645.25, same being for purchase not “oked” or approved.by Burke.

Upon request therefor by the plaintiff, the court prepared and filed his findings of fact and conclusions of law with exhibits attached, as follows:

“Heretofore on the 18th day of July, 1930, E. J. Burke and Joseph Long, the defendants in the above entitled and numbered cause, entered into a partnership contract for the purpose of prospecting and drilling for oil and gas, said operations to be conducted in Nacogdoches county, Texas, and a copy of said contract and agreement is attached hereto and marked Exhibit ‘A.’ That the defendants, E. J. Burke and Joseph Long, and each of them, immediately commenced to carry out the terms and provisions of said agreement and prosecuted the drilling of the well stipulated for in said contract up until about November 15,1930. The plaintiíf, T. T. Word Supply Company, furnished and delivered to said copartnership the various and sundry items mentioned in the accounts annexed to the plaintiff’s petition and marked Exhibits ‘A’ and ‘B’ and the prices charged therefor were the usual, reasonable and customary prices and were the prices agreed upon as the purchase price thereof, all of which was delivered to the well being drilled by the said E. J. Burke and Joseph Long. On or about August 18, 1930, the defendant, B. J. Burke, in a telephone conversation with M. H. Albert, treasurer of plaintiff, T. T. Word Supply Company, notified the plaintiff and the said M. I-I. Albert ‘not to sell Joe Long anything and expect me to pay for it. I would not be responsible for anything he purchased unless I oked the bill.’ The plaintiff wrote E. J. Burke with reference thereto as shown by Exhibits ‘B’ and ‘C’ attached hereto. Burke did not reply to either letter. The plaintiff and the plaintiff’s agents did procure from the said E. J. Burke his O. K. on some of the items which are specified in said account, totaling the sum of five hundred nineteen and 28/100 ($519.28) dollars. These items are as follows:

“Bill of 8/23/30 for $30.87.
“Bill of 9/27/30 for $42.12.
“Bill of 9/27/30 for $145.00.
“Bill of 8/19/30 for $68.00.
“Bill of 8/27/30 for $64.30.
. “Bill of 10/24/30 for $14.76.
“Bill of 10/6/30 for $115.60.
“Bill of 10/1/30 for $38.63.
“That the balance of the items in the accounts Exhibit ‘A’ and ‘B’ attached to plaintiff’s petition were not oked by E. J. Burke although plaintiff undertook to reach him for his O. K.
“Conclusions of Law.
“The notice given by E. J. Burke to the plaintiff is sufficient to limit his liability to the items and bills which he oked and approved or ordered and he is not bound to plaintiff for the partnership debts further than such items.
“That plaintiff is- entitled to recover the amounts set forth in the foregoing findings of fact from each and all of the defendants, but the defendant, E. J. Burke, is not liable for the balance of the account although the other defendants are so liable.”
“Exhibit ‘A’
“The State of Texas, County of Harris.
“Know All Men by These Presents:
“That this contract and agreement entered into by and between E. J. Burke of Harris County, Texas, hereinafter referred to as Eirst Party, and Joseph Long, also of Harris County, State of Texas, hereinafter referred to as Second Party.
“Por and in consideration of the Second Party furnishing his oil well drilling equipment to drill one or more wells on the leases owned by Eirst Party in the Northeastern portion of Nacogdoches County, Texas, the First Party agrees to give to the Second Party a one-half (1/2) interest in all the profits derived from the drilling of the well or wells and from the sale of all leases.
“First Party has entered into a contract with W. J. Tinkle, Trustee, to drill a well on leases that Eirst Party is receiving from W. J. Tinkle, Trustee, and W. J. Tinkle individually, which leases aggregate ten thousand (10,000) acres, more or less.
“First Party has contracted with the Sloan Prospecting Company of Houston, Harris County, Texas, who has developed the above territory geophysically which contract between First Party and Sloane Prospecting Company, First Party agreed to give Sloane Prospecting Company one-fourth (1/4) of the leases he has, and which the Second Party herein agrees for him to do.
“The Second Party agrees to furnish his drilling equipment and to furnish his time and to use his best efforts to complete a well successfully for First Party, and to help First Party to carry out his contract with W.' J. Tinkle, Trustee.
“The money to be used for the sinking of the well or wells to be derived from the sale of leases.
“The First Party and Second Party agree, mutually, to use their best efforts to sell the leases and neither party is to receive any compensation for the sale of the leases.
“The First Party has spent certain sums of money in securing the leases in this block of acreage, which aggregate about Five Thousand Dollars ($5,000.00) and the First Party has agreed to pay about Thirteen or Fourteen Hundred Dollars ($1300.00 or $1400.00) which is due on the Kyle Well. This is to be paid out of the sale of the leases.
“First Party agrees with the Second Party that from the sale of the leases, all expenses for the sinking of the well and for shipping the rig and equipment to Garrison and for the returning of the rig to Houston shall be paid from the sale of the leases.
“The First Party agrees that the rig and equipment shall he kept in good order and Second Party agrees and guarantees that the rig and all equipment is in first class condition and is ready to set up and begin operating.
“The First ahd Second Party are to receive not over Seven Hundred Fifty ($750.00) Dollars each per month for expense money during the operation and sinking of the well and developing of the above territory. This expense money is to come out of the sale of the leases.
“As soon as enough leases are sold, First Party is to receive the money he has spent in securing and getting the block of acreage together.
• “If the. well is a dry hole and the First Party decides to have another well sunk, then Second Party agrees to sink it, provided the money can be secured to do so from the sale of leases.
“After the well has been drilled or abandoned and First Party has completed his contract with W. J. Tinkle, Trustee, and First Party has received the money he has spent, then what monies are on hand from the sale of leases shall be divided fifty per-cent (50%) to First Party and Fifty per-cent (50%) to Second Party, and if the well is brought in, all the profits that are made are to be divided fifty per-cent (50%) to the First Party and fifty per-cent (50%) to the Second Party.
“The Second Party agrees that the First Party is to have the entire control and management of the sale of the leases.
“And the Second Party agrees to render to First Party any assistance he is able to and agrees that all monies received from the sale of leases shall be kept in the name of E. J. Burke and all bills for expense and labor shall be paid for out of this fund by First Party.
“Both parties are to have charge and supervision of the operation and development of the above leases and any contract that the First Party enters into is hereby agreed to by Second Party.
“Signed in duplicate, this the 18th day of July, A. D. 1930.
“[Signed] E. J. Burke /
“E. J. Burke, First Party.
“[Signed] Joseph Long
“Joseph Long, Second Party.”
“Exhibit ‘B’
“August 18, 1930.
“Mr. E. J. Burke,
“%M J. Burke Co.,
“4700 Lyons Ave.,
“Houston, Texas.
“Subject: J. F. Long.
“Dear Mr. Burke:
“Confirming our telephone conversation of this morning, first of all we want to thank you very much indeed for the courtesy you have shown us in this matter.
“The thought has occurred to us, however, that in getting approval from you on each and every item that Mr. Long may need, that in some cases it might cause considerable inconvenience or delay, or it is iikely that Mr. Long will need supplies at night, or even he may come by early in the morning before you could be reached over the telephone, and it has occurred to us that to expedite matters, that you get an O. K. for, let us say, $250.00 to $500.00 worth of equipment more or less, whichever meets with your approval. However, we could even then furnish you with a copy of the tickets, or, if you so desired, ’phone you and give you this information.
“We want to assure you, however, that we would like to cooperate with you to the fullest extent, and are desirous of fulfilling your wishes in the matter.
“Trusting that we may hear from you favorably within the next few days, we are “Yours very truly,
“T. T. Word Supply Company, “MHA:WRS By Treasurer.”
“Exhibit ‘C’
“August 19, 1930.
“Mr. E. J. Burke,
“%Redland Hotel,
“Nacogdoches, Texas.
“Dear Mr. Burke:
“Today Mr. Long ’phoned in an order from Garrison, Texas, for one Eccentric Hub and one Eccentric Yoke Strap complete for 10x10 Ideal Twin Engine. This particular type of engine, of course, is not handled by us, however, as you know, we have always taken care of all repair parts for Mr. Long, regardless of the make of the equipment, and in this case we bought this, and are shipping it today by prepaid express to Mr. Long at Garrison.
“We called your office here to get an approval of these supplies which total $102.45, •however, we were informed that you would be gone for the balance of the week, therefore we are addressing this communication to you asking that you kindly approve this charge.
“There is also herewith attached a copy of a letter that we addressed to you at your Houston Office, and really we believe that it will avoid inconvenience if you will authorize, credit for a certain amount and would appreciate, therefore, your giving us your authority for a certain amount in writing immediately upon receipt of this letter.
“As above stated, we have forwarded this shipment so as to not cause any delay, and we trust you will appreciate our action in the matter.
“Yours very truly,
“T. T. Word Supply Oo,
“MHA:WRS By Treasurer. “end.”

No statement of facts has been filed in this court.

From the judgment rendered the plaintiff has appealed.

The contention made by appellant for reversal of the judgment presents only one proposition which is, substantially, that the trial court, having found that the copartnership alleged by appellant, plaintiff in the lower court, did exist at the time Joe F. Long purchased the items shown in the account sued upon from appellant, and having found that all the items were delivered to the well being drilled by E. J. Burke and Joe P. Long, he erred in holding that the notice given by Burke to appellant not to sell Joe Long anything and expect him (Burke) to pay for it, and that he would not be responsible for any such purchase unless he first “oked” the bill, limited Burke’s liability to pay for such purchases only as were purchased before such notice was given and those “oked” or approved by him.

We overrule the contention. The evidence shows, and the trial court found, that on the same day that Burke gave the notice mentioned limiting his liability, appellant, the T. T. Word Supply Company, wrote to Burke acknowledging the receipt of such notice, and,-in effect, agreed to be governed by the same, and in pursuan.ee of such agreement got the O. K. or approval of Burke on several items which Long wanted, and by a letter addressed to Burke requested him to O. K. or approve the purchase of other items by Long, which request Burke refused. Notwithstanding such notice, agreement, and refusal, appellant thereafter, without the approval of Burke, sold and delivered to Long items of merchandise and charged the same to the alleged copartnership; such charge being the sum of $045.25. s

The import of the agreement entered into between appellant and Burke is that appellant, after the receipt of the notice mentioned, would not sell and deliver to Long for the account of the partnership any articles of merchandise or material unless such sale was “oked” and approved by Burke.

Neither the statute relative to limited partnerships, nor the cases cited by appellant, have any application to the facts of the present case.

In B. C. L. vol. 20, p. 887, § 98, it is said: “A partner while remaining a member of a firm may place limitations on the authority of his copartner to bind him, either generally or as to particular transactions. Such restrictions and agreements are usually binding and enforceable by the courts. When a partner gives to a third person notice that he will not be bound by the acts of his copart-ner, this amounts to a notice that the implied agency has ceased, and such partner will then not be bound by a contract entered into by his copartner although the fruits of the contract have been enjoyed by the partnership of which he is a member.”

In Dawson, Blakemore & Co. v. Elrod, 105 Ky. 624, 49 S. W. 465, 20 Ky. Law Rep. 1436, 8S Am. St. Rep. 320, the Court of Appeals of Kentucky held that “a partner is not liable for the price of goods sold to his co-partner over his protest, and after notice that he would not be bound therefor.” The court said: “The effect of the notice, if given, must be to put the seller on notice that, if you sell over my protest, in no event will I be liable. This view is sustained by Monroe v.Conner, 15 Me. 178 [32 Am. Dec. 148].” See Bromley v. Elliot, 38 N. H. 287, 75 Am. Dee. 182; also, Dawson, Blakemore & Co. v. Elrod, 105 Ky. 624, 49 S. W. 465, 20 Ky. Law Rep. 1436, 88 Am. St. Rep. 320-322.

Having reached the conclusion that Burke’s protest made to appellant was sufficient to limit his liability to the payment for the purchases which were sold and delivered prior to his protest and those made before such protest was made, it becomes our duty to affirm the judgment, and it is so ordered.

Affirmed.


author: WALKER, Chief Justice.

text:
    JUDGE et ux. v. SHABOUB.
    No. 2297.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 17, 1933.
    Rehearing Denied March 8, 1933.

      David L. Broadus, of Beaumont, for appellants.
    W. R. Blain and P. S. Jones, both of Beaumont, for appellee.
   WALKER, Chief Justice.

On the 10th day of March, 1932, in the court below, upon trial to the court without a jury, appellee, Deeb E. Shaboub, recovered judgment against appellant, John Judge, for the sum of $3,732.36, with foreclosure of certain mechanic’s, materialman’s, contractor’s, and laborer’s liens, and one deed of trust lien, dated January 12, 1928, against lots Nos. 1 and 2 of the Carver addition to the city of Beaumont, as to both John Judge and his wife, Lula Judge. Appellee purchased all the notes and liens in controversy on the 27th day of September, 1929. On that date the deed of trust lien principal, with interest at 10 per cent, per annum, 'amounted to $1,007.-88. The notes, representing this amount, also called for 10 per cent, additional as attorney's fees. In their deed of trust to secure the amount just stated, appellants made the following statement: “The parties of the first part hereby declare that the property hereinbefore mentioned and conveyed to said party of the second part, forms no part of any property by them owned, used or claimed as exempt from forced sale under the laws of the. State of Texas, and disclaim and renounce all and every claim thereto under any such law or 1'aws, and hereby designate the following property to-wit: Lot No. Two of'the Carver Addition to the city of Beaumont, Jefferson County, Texas, according to the map dr plat thereto, and filed in the office of Clerk of the County Court of Jefferson County, Texas, as their homestead and as constituting all the property of similar nature to that herein conveyed, owned, used, or claimed by them 'as exempt under said laws.”

This statement was false. Lots Nos. 1 and 2 had been the residence homestead of appellants since 1915 and lot No. 2, with part of lot No. 1, was their residence homestead continuously from 1915 up to the time this case was tried in the lower court. In 1925 appellants erected on one end of lot No. 1 a filling station and garage, which they have occupied and operated continuously since 1925 and were so occupying and operating it when this case was tried. • The sign “Judge’s Garage and Filling Station” was on the front of the building at all times from the date of its erection. One of the mechanic’s and mate-rialman’s liens involved in this litigation was executed by appellants to Jeff Compton and dated the 1st day of February, 1929. The improvements covered by this contract were described as follows: “To furnish all labor, work and material of whatever kind or character, and to build and erect, construct and complete in a workmanlike manner for the parties of the first part, on or before ten days after the date of this contract, according to plans and specifications, a correct copy of which plans and specifications being fully identified by the signatures of the parties to this contract subscribed thereto is hereby referred to and made a part hereto for all purposes without being hereto attached or copied herein. The improvements herein contracted to be made.shall be reroofing and reconstruction of a roof of a dwelling house in which the parties of the first part are living as shown by said plans and specifications, said buildings, when completed and reconstructed, to be free and clear of all liens, demands and claims except the liens which are now held by S. Feinberg on the identical property to-wit: Lots Nos. One and Two in Block One, in and of the Carver Addition to the City of Beaumont.”

The undisputed proof was to the effect that no part of the improvements covered by this contract was ever made to the property located on lots Nos. 1 'and 2. The residence! house, occupied by appellants, on lot No. 2, being the only residence house on either lots Nos. 1 or 2, was originally erected in 1915 at the cost of about $650, and had not been re-roofed since the date of the original erection. On the date appellee purchased these notes, the roof of the residence building was in a bad state of repair, and on that date the building was occupied by appellants as their home. The Jeff Compton lien amounted to $1,027.22, principal and interest at 10 per cent., on the 27th day of September, 1929, the day it was purchased by appellee. The note, evidencing this lien, also called for 10 per cent, additional as attorney’s fees.

On the 27 th day of September, 1929, all the notes and liens in controversy herein were owned by T. J. Yoorhies. Appellants had defaulted in the payment of the notes, and Yoor-hies was demanding payment and threatening suit and foreclosure. Appellants made a, personal request of appellee to take up these notes and save the property from foreclosure. They represented to him that the property was worth $6,000, and they further represented to him that all the liens against the property were good, valid, and subsisting liens, and that they owed the full amount claimed by Yoorhies against the property. Appellee, having money to loan, went out and inspected the property as to its value, and was satisfied with the security. He found the building on lot No. 2 occupied by appellants as their residence and the filling station occupied by John Judge as his place of business. Appellants made no affirmative statement to appellee as to the history of the liens against their property, other than that they were good, valid, and subsisting liens. An inspection of the residence by appellee revealed to him the fact that no new roof had been put on the building, and that none of the improvements called for in the Compton lien contract had been made to the property. Appellants made no representation to 'appel-lee as to the occupancy by them of lot No. 1 as a business homestead on the date of the execution of the deed of trust in 1928. Appellee had no actual knowledge as to the facts of the occupancy of this property, prior to the date he personally inspected it. He informed appellants that he was satisfied with the value of the security, and would take up the notes and liens held by Yoorhies on condition that his attorney approve their legality. Appellants knew appellee’s attorney personally, and called upon him in connection with the transaction, and represented to him that all the liens were valid and subsisting liens. The attorney inspected the abstract to the property, and, on the representations madb to him by appellants as to the legality of the liens, approved their title. On the facts stated, ap-pellee purchased from Yoorhies all the notes held by him against the property, paying him on the 27 th of September, 1929, the full amount due thereon in the sum of $2,913.40. Appellants and appellee then entered into a new contract, extending the payment of the notes, and appellants executed to appellee a new deed of trust on lots Nos. 1 and 2 to secure all the notes. Appellants defaulted in their payments, whereupon appellee instituted suit against them for the amount due, with interest and attorney’s fees, with a prayer for foreclosure of the liens as set out above. Appellants answered, denying the amount of the indebtedness claimed by appel-lee, and pleaded specially that the property was their homestead when the liens were executed, and therefore void. Appellee pleaded by way of estoppel the facts as we have stated them above. In appealing from the judgment of the lower court, appellants complain only of the foreclosure of the Jeff Compton materialman’s and mechanic’s lien and of the foreclosure of the deed of trust lien of date January 12,1928.

Opinion.

We sustain appellants’ assignments against the Jeff Compton lien. As no improvements were made under this lien, and as it was a simulated transaction, it was absolutely void from the d'ate of its execution. Though appellants represented to appellee that the lien was a valid and subsisting lien, and he purchased it on this representation, the physical facts, when he inspected the property, put him upon notice that these representations were false. The improvements called for a new roof 'and only a new roof. Appellee’s personal inspection showed him that the roof on the residence was old and could not have been put on the building on the date of the contract, which was only about six months prior to the date he purchased the lien. It is the law that one cannot say that he h'as been deceived by statements which he was bound to know were false. Spears’ Law of Marital Bights in Texas, p. 343.

We overrule the assignments, complaining of the foreclosure of the deed of trust lien. While appellants were occupying the garage and filling station on the 27th day of September, 1929, the date appellee inspected the property and purchased this lien from Voorhies, yet they gave no notice to appel-lee that they were occupying this lot as their residence or business homestead on the 12th day of January, 1928, the date of the execution of the deed of trust lien. As against the representations in the deed of trust and the statement by appellants that the lien was valid, no presumption arose from the homestead occupancy on the 27th day of September, 1929, that it was so occupied on January 12, 1928. As to whether or not the facts in evidence, as summarized above, were sufficient to put appellee upon notice of the character of the'occupancy of this lot, on January 12, 1928, was a question of fact for the trial court, and, on this issue, he found in favor of appellee.

Appellants represented to appellee that this deed of trust lien was a good, valid, and subsisting lien, and, by this representation, induced him to purchase it from Voorhies; at the time they induced him to purchase this lien, on representations as to its validity, they failed to tell him that lot No. 1 was their business homestead on the date of the execution of the deed of trust; the record contains no fact, sufficient as a matter of law, to visit appellee with actual or constructive notieei that lot No. 1 was appellants’ business homestead on the date of the execution of the deed of trust. We think these facts support the conclusion of the trial court that appellants were estopped to assert their claim of homestead against the deed of trust lien. In Burnett v. Atteberry, 105 Tex. 119, 145 S. W. 582, 587, our Supreme Court quoted with approval the rule that “he who has been silent as to his alleged rights when he ought in good faith to have spoken, shall not be heard * * * when he ought to be silent.” In Garrett v. Katz, 23 S.W.(2d) 436, 438, Judge Looney, speaking for the Dallas Court of Civil Appeals, said: “The doctrine is also well settled that, where a void- lien emerges from ail illegal transaction, such as the one involved in this controversy, the maker will be es-topped to set up its invalidity where he has induced a stranger to become its purchaser on representations that asserted its validity. See Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900; Cain v. Bonner (Tex. Civ. App.) 149 S. W. 702; Mel-cher v. Higbee (Tex. Civ. App.) 165 S. W. 478, 481; Moore v. Beakley (Tex. Com. App.) 215 S. W. 957; Baxter v. Baxter (Tex. Civ. App.) 225 S. W. 204; Farmers’ State Bank v. Welch (Tex. Civ. App.) 279 S. W. 481; Bernstein v. Hibbs (Tex. Civ. App.) 284 S. W. 234; Barron v. Theophilakos (Tex. Civ. App.) 13 S.W.(2d) 739.”

Appellants do not complain of the personal judgment against John Judge.

From what we have said it follows that, in so far as the judgment of the lower court foreclosed the Jeff Compton mechanic’s and materialman’s lien, it must be reversed and, on this item, rendered in favor of appellants. In all other respects the judgment of the lower court is affirmed.

Reformed and affirmed.


author: MARTIN, Justice.

text:
    MARYLAND CASUALTY CO. v. MEYER.
    No. 3951.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 1, 1933.
    Rehearing Denied March 1, 1933.
    Dorenfield, Foster & Fullingim, of Amarillo, for appellant.
    G. C. Harney, of Borger, and Willis, Studer & Studer, of Pampa, for appellee.
   MARTIN, Justice.

A former appeal of this case is reported in (Tex. Civ. App.) 41 S.W.(2d) 291, where a sufficient statement appears, except as we see fit to add to same in its discussion.

The same jurisdictional question is again presented as was decided on the former appeal. Being satisfied with the disposition and the discussion of this question shown in the report of this case, we pretermit any further reference to same.

Appellant again assails the sufficiency of the testimony to support the finding of the jury upon the issue of fraud and also upon the further issue of ratification of fraud pleaded.

Upon the first of these questions, we are in grave doubt as to the sufficiency of the evidence, but, since the case will have to be reversed upon the second contention, we fore-go a discussion of this as unnecessary.

On the 20th day of February, 1929, appel-lee executed a compromise settlement with appellant, subject to the approval of the Industrial Accident Board, for the sum of $75. He was discharged from the hospital about April 3d following. About April 9th the Industrial Accident Board approved this settlement, and notified appellee in writing to this effect. From this date until about May 10th appellee was at work for a portion of the time. On the last-mentioned date a compromise settlement receipt was signed by appel-lee and a check for $75 delivered to him and cashed. This receipt contains the recital that the sum of $75 is in full compromise settlement of all claims for compensation which he has or could have against the appellant. It is the claim of appellee that -he read none of these documents, and that the last was not legible and could not be read, and that, he accepted the $75 under the belief that it was an installment payment upon the six and one-half months’ pay promised him by the agent of appellant at $75 per installment and that he had no knowledge at the time this was signed that'it was a final settlement of all his claims. In response to an appropriate issue, the jury found, in substance, that the last instrument was not legible and could not he read by appellee. The original has been sent up with the record. There is not a blur or erasure on its face. It is as plain .as any page of the record in this case. It is signed in ink. An inspection of it makes it certain that it is not only plainly legible, but that there was no evidence upon which any such issue could properly be submitted to the jury. Some two weeks preceding the execution of this settlement receipt, appellee wrote appellant: “Could you get final settlement checks $75.-00 due me * * * out today. * * * The only reason I agreed to settle with you on this basis was I had another job in sight. * * * If this money is not in Amarillo Bank & Trust Co. by Monday, April 29th, 1929, I am to enter suit for a lot more money.”

He claims he did not know the contents of the original compromise settlement, but on April 20th he wrote to appellant in part: “I fell in a ten foot ditch. The papers ydu sent me to sign said six foot.”

The total of this evidence seems to make it plain that, whether appellee ever read these instruments or not, he knew their contents in part when he accepted the $75 in full and final settlement of all claims, and must have known that such payment was intended as a final and full one. If we impute to the appellee enough mental capacity to know the nature of these transactions, we are forced to the conclusion that he signed the final receipt with knowledge that it was intended as a final payment. If appellee correctly states his physical condition, it is a pathetic one, but no appropriate issue was made in the lower court on his mental capacity, and, assuming that he had such, as we must in the absence of a contrary showing, we are compelled under our duty as we see it to hold that the findings of the jury which had the effect of findings against ratification are without evidence to support them.

The judgment is reversed, and the cause remanded.