author: PLEASANTS, (1 J.

text:
    PUBLIC NAT. BANK & TRUST CO. v. FORTINBERRY.
    No. 9751.
    Court of Civil Appeals of Texas. Galveston.
    July 8, 1932.
    Rehearing Denied Sept. 29, 1932.
    Andrews, Streetman, Logue & Mobley, W. L. Cook, and Gainer B. Jones, all of Houston (Jas. E. Kilday, W. M. Streetman, and Homer E. Mabry, all of Houston, of counsel), for appellant.
    William H. Scott, of Houston, for appellee.
   PLEASANTS, (1 J.

This is a suit by appellee, H. L. Fortinberry, trustee in bankruptcy of the estate of Thacker Building & Lumber Company, to recover from appellant the sum of $8,622.42, alleged to have been paid appellant by the Thacker Company after it became insolvent, and when appellant knew, or had reason to believe, that such payment was an unlawful preference by . which it obtained a greater per cent, of the indebtedness due it by the bankrupt Thacker Company than other creditors of the company of the same class.

The defendant answered by general demurrer and special exceptions to plaintiff’s petition and by general denial,, and also by special denial of some of the allegations of the petition, and specially pleaded facts relied on to show that the money received by it from the bankrupt did not constitute a preference in its favor over other creditors of the same class.

The pleadings need not be further shown, since there is no contention that they are not sufficient to present the issues upon which the case was tried in the court below and which are now presented for our determination.

The trial in the court below; without a jury resulted in a judgment in favor of appellee for the sum of $2,806.16, with interest at 6 per cent, from January 27, 1928.

The evidence shows that the indebtedness, the payment of which appellee seeks to recover on the ground that it constituted an unlawful preference over other creditors of the bankrupt estate, arose through the following transactions:

About August 1, 19-27, J. G.-Johnson and wife executed and delivered to one Evans two promissory negotiable notes in the sum of $8,500 each, due ninety days after date. The notes were secured by a constitutional, statutory, and contract mechanics’ and material-men’s lien. They were in payment for materials an'd labor to be furnished in the construction of two houses for the Johnsons. These; houses were to be constructed on lots 6 and 7, block 4, Temple Terrace addition to the city of Houston. Neither house was a homestead. Thacker Building & Lumber Company actually furnished the money and materials therefor to build the houses for the Johnsons. .

The notes and liens securing their payment wore indorsed and assigned by Evans to Thacker Building & Lumber Company, and about August 3, 1927, Thacker Building & Lumber Company indorsed, assigned, and pledged said notes and liens to appellant as security for a loan made by appellant to said Thacker Building & Lumber Company.

Later, during November of 1927, National Bond & Mortgage Corporation loaned J. G. Johnson and wife $8,500 on each of the Johnson lots and improvements, taking separate deeds of trust liens thereon. At the time this loan was made and mortgage executed, the notes and liens which had been previously executed and were then held by appellant, as before shown, were not recorded, but the time for filing such liens fixed by our statutes had not expired, and did not expire until after the payments sought to be recovered in this suit had been made.

Pursuant to a written order from the John-sons, National Bond & Mortgage Corporation paid to Thacker Building & Lumber Company $9,767.75 out of this $17,000 loan. The remaining portion of said loan was used by National Bond & Mortgage Corporation to' pay off a vendor’s lien of about $6,000 on the lots on which the houses were built and for the expenses incident to the making of the new loan from National Bond & Mortgage Corporation. At the time the National Bond & Mortgage Corporation made this new loan, the buildings on the lots in question had just been completed, and the officers, agents, servants, and employees of that corporation knew this, although they did not have actual notice that the notes and liens had been assigned and pledged to appellant. The trial court found that National Bond & Mortgage Corporation had sufficient notice of these facts to require inquiry by it concerning the previous notes and liens.

The Thacker Building & Lumber Company did not give the Johnsons releases from the original liens when the new loan was made from the National Bond & Mortgage Corporation. The order from the Johnsons to the National Bond & Mortgage Corporation directing it to turn the proceeds of the new loan over to the Thacker Building & Lumber Company read in part: “Such payment being made to pay said-for labor and for material entering into the erection of said improvements on the above mentioned premises.”

Thacker Building & Lumber Company did not apply the amount of money ($9,767.75) thus obtained on the new loan to the payment of the notes held by and pledged to the appellant, but placed it on deposit to the account of Thacker Building & Lumber Company, and paid other debts of the Thacker Building & Lumber Company with part of same. The ' sum of $7,232.25, remaining out of the $17,000 obtained on the second loan, was not turned ' over to the Thacker Building & Lumber Company, but, as above stated, was used by National Bond & Mortgage Corporation in paying for the lots on which the houses. were built and for incidental expenses in connection with making the new loan.

During the month of January, 1928, the Thacker Building & Lumber Company made ‘several payments on its indebtedness to appellant, which indebtedness, as stated, was secured by the pledge of the original Johnson notes and the liens securing the same. On January 27, 1928, the Thacker Building & Lumber Company made the last of such payments, paying to appellant the sum of $2,806.-16, being the amount involved herein; this payment being made within the four months’ period prior, to bankruptcy, which was adjudged and declared on February 28, 1928.

At the request of appellant, the trial court filed findings of fact and conclusions of law. These fact findings are in full accord with the statement of the facts which we have before set out, and contain the further fact findings as to the two Johnson notes:

“I find that Thacker Building & Lumber Company became the debtor of the Public National Bank of Houston on the 3rd day of August, 1927, as the result of a transaction involving the execution by the debtor company of' two promissory notes, in the principal amount of $10,000.00 each, bearing interest at the rate of ten per cent from maturity, one of said notes being payable on October 1, 1927, and the other on November 1,1927.
“The payment of said indebtedness as thus evidenced was secured by the assignment and pledge to said Bank by said Thacker Building & Lumber Company of collateral security, described as follows:
“Two promissory notes dated August 1,1927, executed and delivered by J. G. Johnson and Naomi Johnson, his wife, payable to the order of D. R. Evans, and in due course assigned and endorsed by him to Thacker Build,ing & Lumber Company and by it to the Bank, payable on or before 90 days after date, bearing interest at tbe rate of eight per cent per annum. The said collateral notes were negotiable in form and for the principal amount of $8,500.00 each. The payment of said collateral notes was secured by a written mechanics’ and materialmen’s lien contract, executed and delivered to the said Evans by said Johnson and wife, which contract and lien were duly assigned, with said notes, by said Evans to Thacker Building & Lumber Company and by it to the Bank. This was further evidenced by a Deed of Trust executed by Johnson and wife, which also' was duly assigned in the manner above stated. The mechanics’ and materialmen’s lien, as well as the Deed of Trust lien aforesaid, was fixed and established upon two certain lots in the City of Houston, Harris County, Texas, described as Lot Six (6), of Block Four (4), of Temple Terrace Addition to the City of Houston, and Lot Seven (7), in Block Four (4), of the same addition.
“At the time of the payments alleged to be preferential by plaintiff in this suit, said lots, with the improvements thereon, were reasonably worth Fifteen Thousand Dollars ($15,000.00).
“The original indebtedness to the Bank above described, evidenced by the two notes aforesaid, was reduced from time to time and the notes were extended.
“At the beginning of the four months antedating the filing of the petition in bankruptcy, there was owing to the bank on said indebtedness the amount of $15,000.00,
“I find that there was a first lien upon the lots above mentioned, securing the payment of the two collateral notes aforesaid pledged to the Bank to secure the indebtedness above described, and that, by virtue of the fact findings above mentioned, Public National Bank had at the time of each and all of the payments above mentioned full and adequate security for the amount of all said payments.
“On January 25, 1928, the Public National Bank received from T. D. Thacker, President of the Thacker Building & Lumber Company, a deed signed by him individually and conveying to Carter Stewart, Trustee, certain property on Washington Avenue, in the City of Houston, fully described in the evidence, and intended to supplement the security held by the Bank for the remaining indebtedness, then existing of the indebtedness above described, being an amount at that time of $9,-684.24. Subsequent thereto, the payment above set forth as having been made on Jan. 27, 1928, was accomplished and at the same time and as a part of the same transaction, the Bank surrendered to Thacker Building & Lumber Company, through its agent, the above described security, consisting of the Johnson notes and the lien papers assigned therewith to the Bank. The consideration for the surrender of this collateral as shown by the evidence, was the payment of thé sums mentioned and the placing of some further security by T. D. Thacker, individually, and the Thacker Building & Lumber Company executing a general assignment for creditors. The said other security was later surrendered by the Bank to the Trustee in Bankruptcy, except as to the security placed by T. D. Thacker, which consisted of stock in Thacker Building & Lumber Company of no value and which the Trustee in Bankruptcy, in open court, declared was of no value and that he did not want it.
“At the time National Bond & Mortgage Corporation made the loans and accepted the security above described, there had just been completed by Thacker Building & Lumber Company upon the two lots mentioned certain improvements, as shown in the evidence. Said improvements were constructed thereon by Thacker Building & Lumber Company as general contractor, which fact was known by National Bond & Mortgage Corporation, said Corporation being fully advised that Thacker Building & Lumber Company had provided the labor and furnished the material for all said improvements. As evidence of its knowledge in the premises, it is shown, in the evidence that it took affidavits from T. D. Thacker to the effect that all laborers and materialmen had been fully paid in respect to said improvements. It is also a fact that National Bond & Mortgage Corporation knew said improvements were constructed for Johnson and wife, at that time residing in Houston, Harris County, Texas. They were present in the office of said National Bond & Mortgage Corporation and signed the loan papers. I find that said National Bond & Mortgage Corporation was on notice sufficient to require inquiry.”
The court further finds that the payment by the Thacker Company to appellant of $800 on January 13, 1928, and the two payments of $3,165.76 and $2,650 made on January 23, 1928, were made in due order of business Without knowledge on the part of the appellant of the insolvency of the Thacker Company, but that, at the time of the payment of $2,806.16 on January 27, 1928, appellant “knew that the Thacker Building & Lumber Company was insolvent and that such payment would prefer and did prefer the Public National Bank as a creditor of Thacker Building & Lumber Company and that by such payment Public National Bank was enabled to obtain from the Thacker Building & Lumber 'Company a greater percentage of the assets than other unsecured creditors. In this connection I find that the Public National Bank was an unsecured creditor of the Thacker Building & Lumber Company in as much as the notes which Thacker Building & Lumber Company owed to Public National Bank were secured by liens on property which belonged to J. G. Johnson and wife, Naomi Johnson.
“I find that the property which was delivered by the Public National Bank to T. I>. Thacker consisted of liens on the property of J. G. Johnson and wife, Naomi Johnson, and formed no part of the estate of Thacker Building & Lumber Company and was ■ not property subject to administration by the Bankrupt Court.
“I further find from the agreement of both parties and as agreed that the Thacker Building & Lumber Company was insolvent on all the days and dates when the alleged payments were made and during the entire four months next preceding .February 27, 1928, when the petition for bankruptcy was filed.”

Under appropriate assignments and propositions, appellant’s brief presents for our consideration and determinations the questions hereinafter discussed and decided. These assignments and propositions, which complain of >a number of the trial court’s conclusions of law, are all based upon the first and second propositions presented in appellant’s brief, which are as follows:

“The trial court erred, to the prejudice of the defendant, in rendering any judgment against it, because, under the undisputed evidence and according to the findings of fact made by the trial court, the defendant did not receive any preference, having given up adequate security at the time the alleged preference was consummated which resulted in no benefit to the defendant; and further, because if any benefit accrued to any one by reason of said payment, it accrued to the John-sons or the National Bond and Mortgage Corporation, and not to the Public National Bank and Trust Company, the defendant below and the appellant here.
“By the hypothecation of the Johnson notes and the assignment of such notes and liens securing the payment thereof to appellant, appellant became a creditor of Thacker Building & Lumber Company, secured by property of that company. After National Bond and Mortgage Corporation paid $9,767.75 to Thacker Building & Lumber Company at Johnson’s order, and .at the time the alleged preferential payment was made, appellant still remained a secured creditor of appellee, secured by appellee’s property interest in the notes and liens pledged, which interest, in any event, was as much as the difference between $17,000.00 and $9,767.75 and was sufficient to cover the alleged preferential payments made. Appellant was, therefore, a secured creditor within the meaning of the bankruptcy statutes, the payment in question did not constitute a preference and the trial court’s judgment in favor, of appellee for $2,806.16 should be reversed and the cause rendered in favor of appellant or, if not rendered, reversed for new trial.”

We think these propositions should be sustained. The court having found upon ample, if not undisputed, evidence that at the time the payments by the Thacker Company, which are attacked in this suit as preferential, were made to appellant, it held securities given it by the Thacker Company more than sufficient to satisfy the amount owed it by the insolvent company, and that appellant at the time the last of these payments were made on January 27, 1928, surrendered such securities 'to the Thacker Company and subsequently surrendered to the trustee additional security it had received from the Thacker Company on January 25, 1928, it seems clear to us that appellant cannot be forced to return the pay-' ments received by it on the ground that they constituted an unlawful preference by which it obtained a greater per cent, of the indebtedness due it by the bankrupt estate than other creditors of the same class. If these payments had not been made to it before its debtor had been adjudged a bankrupt, it could have enforced its lien through the bankruptcy proceedings, and, the security obtained by it from the bankrupt estate being more than sufficient to pay its debt, and primarily liable therefor, the other creditors only had an interest in the excess of the value of the security over the amount due appellant by the bankrupt estate. These securities having been surrendered by appellant to the Thacker Company and to the appellee trustee, and all the creditors being entitled to share in their proceeds, we are unable to see how appellant has obtained a preference in the payment of its indebtedness.

The term “secured creditor” is thus defined in the Bankruptcy Act: “ ‘Secured creditor’ shall include a creditor who has security for his debt upon the property of the bankrupt of a nature to be assignable under this title, or who owns such a debt for which some in-dorser, surety, or other persons secondarily liable for the bankrupt has such security upon the bankrupt’s assets.’? United States Code, Annotated, title 11, § 1, clause 23, being clause 23, § 1, Bankruptcy Act.

The notes and lien assigned by the Thacker Company to appellant as security for appellant’s loan were certainly property of the bankrupt of an assignable nature. These notes and liens were valid and enforceable, and, having been given to the original contractor, Evans, and assigned by him to the Thacker Company in payment for material and money furnished by it in the construction of- improvements upon the property of the makers of the notes and liens, we fail to see how it can be held that such notes and liens were not property of the Thacker Company, in the purview of the Bankruptcy Act, before quoted. Warner Elevator Mfg. Co. v. Maverick, 88 Tex. 493, 30 S. W. 437, 31 S. W. 353, 499; Huttig Sash & Door Co. v. Stitt (C. C. A.) 218 F. 1; Strang v. Pray, 89 Tex. 529, 35 S. W. 1054; Guarantee Savings, Loan & Investment Co. v. Cash (Tex. Civ. App.) 87 S. W. 749; Thelander v. Becker (Tex. Civ. App.) 199 S. W. 84S.

The fact that the property securing the liens and notes transferred by the Thacker Gompany to appellant to secure its indebtedness to appellant belonged to the Johnsons could not, in our opinion, possibly affect the status of those liens and notes as assignable property of the Thacker Company which would pass to the trustee in bankruptcy as assets of the bankrupt estate.

These conclusions render a discussion of the other questions presented-by appellant’s brief, and the cross-assignments presented in appellee’s brief complaining of the refusal of the trial court to render judgmént in his favor for all of the payments to appellant claimed in his petition as preferential, unnecessary.

We are of opinion that the judgment, of the. trial court should be reversed, and Judgment her.e rendered for appellant that appellee take nothing by his suit, and it has been so ordered.

Reversed and rendered.


source: Caselaw Access Project

author: PELPHREY, O. J.

license: Public Domain

text:
    SEIFERT v. BROWN.
    No. 2708.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 22, 1932.
    Rehearing Denied Oct. 13, 1932,
    . .Jno. E. Sentell, of Snyder, and Harris, Harris & Sedberry, of San Angelo, for plaintiff in error.
    ■ W. H. Lipscomb and James Cornell, both of San Angelo, for defendant in error.
   PELPHREY, O. J.

On October 11, 1930, plaintiff in error and M. Z. Dibble entered into the following contract :

• “This agreement made and entered into on the 11th day of October, 1930, by and between O. A. Seifert of Danbury, Conn, and M. Z. Dibble of Snyder, Texas, hereinafter referred to as parties of the First Part, and of the Second Part, respectively: Witnesseth:

“That, Whereas, Party of the Second Part (M. Z.- Dibble) has secured leases on approximately six thousand acres of oil and gas leases in a block about three miles north of Ira, Texas, and has agreed to drill a well to the depth of thirty-five hundred (3,500) feet on said block of leases and in addition thereto pay the land owners $1 per acre of said leases; and
“Whereas, Party of the First Part (C. A. Seifert) has agreed- to loan Party of the Second Part (M. Z. Dibble) up to the sum of thirty thousand ($30,000) Dollars, to be used in paying for said leases and in the drilling of said well and' the necessary expenses incident thereto;
“Now, therefore, it is hereby agreed as follows :
“First: That M. Z. Dibble shall execute his note to O. A. Seifert, for the sum of $30,-000 du.e in one (1) year from date with interest at six (6) per cent per annum;
“Second: That the leases shall be held by C. A. Seifert and in his name as security pending the repayment of the above sum and interest;
“Third: That.M. Z. Dibble .shall have the privilege of selling acreage, out of the block in spreads to piajor oil companies, or to individuals, at not less than $12.50 per acre to the extent of thirty thousand ($30,000) Dollars, any or all of which sums, either in cash or in purchase letter agreements from major oil companies, shall 'go to O. A. Seifert, and when paid shall be credited on said note of M. Z. Dibble in the sum of thirty thousand ($30,000) Dollars.
“Fourth: That when and after C. A. Sei-fert has been repaid the sums actually advanced, that the then remaining leases in said block shall.be equally owned by O. A. Seifert and M. Z. Dibble, each to own an undivided one-half (½) interest in said remaining leases and the well to be drilled thereon.
“Fifth: That the well shall be located on the J. M. Blackburn tract of 240 acres and the location thereof being in the Southeast corner of the Northwest quarter of Section 155, in Block 97, H. & T. O. Ry. Co. survey, Scurry County, Texas.
“Sixth: That the above mentioned wéll shall be drilled by M. Z. Dibble, at his expense and under his direction, and within the limit of thirty thousand ($30,000) Dollars; and if any additional sums are needed to finish said well that they shall be provided by M. Z. Dibble out of his remaining one-half interest in the leases after the $30,000 has been first provided for.
“Seventh: That this agreement shall in no way be construed as a partnership and that C. A. Seifert (Party of the First Part) shall have no liability or be responsible for any debts incurred by M. Z. Dibble (Party of the Second Part) in connection with the drilling of said well.”

About November 1,1930, defendant in error went to work on the well driving a truck, and on January 18,1931, he was injured when the truck ran off the road. Later he filed this suit against appellant alleging that he and Dibble as partners jointly, and, as joint adventurers, were engaged in the business of acquiring, developing, and selling oil and gas leases, and on the date of his injury were engaged in the drilling of the well mentioned in the above agreement; that he was engaged in driving a truck for them; that it was the duty of said partnership to exercise ordinary care to furnish and supply him with a-truck which was reasonably safe for him to use in the discharge of his duties, but that, in violation -of such duty, they negligently furnished him with a truck with defective radius rods and brakes, and that by reason of said defective radius rods and brakes the truck became unmanageable and ran off the road, permanently injuring him. Sworn denial of partnership was filed by plaintiff in error.

Plaintiff in error, at the close of the testimony, requested the court to instruct a verdict in his favor. The trial court’s refusal to grant such request is made the basis of plaintiff in error’s sixth assignment of error and his first point.

Defendant in error himself introduced in evidence the agreement above quoted, and is therefore bound by its provisions.

We have reached the conclusion that the agreement is wholly insufficient to establish a partnership between plaintiff in error and defendant in error in the drilling of the well.

It shows upon its face that the parties did not intend to enter into such relationship. It is true that the agreement provides that plaintiff in error was to have an undivided one-half interest in the leases remaining after defendant in error had sold enough to repay the $30,000 to plaintiff in error, as well as in the well, but we find nothing in the record to indicate that the parties were jointly engaged in the drilling of the well. The mere fact that plaintiff in error was to receive an interest in said leases and in the well for the use of his money could not, in our opinion, render him liable as a partner in the matter of drilling the well, and especially would this be true where the very agreement upon which defendant in error depends to show the existence of a partnership refutes the fact that the parties intended such relationship to exist.

There is no pleading or evidence of any “holding out” of plaintiff in error as a partner, or that he acted in such a manner as to estop him from denying the alleged partnership, and therefore the whole question as to whether a partnership existed depended upon the above agreement wjiich it was the duty of the court to interpret.

The terms of this agreement as a whole made it clear that plaintiff' in error and Dibble did not, as far as the drilling of the well was concerned, contemplate joining in a common business to be conducted for their joint account, and in which they, as owners, each of an interest, would be entitled to share as principals in the profits, as such. Fink v. Brown (Tex. Com. App.) 215 S. W. 846, and authorities cited.

The order of the court overruling plaintiff in error’s motion for an instructed verdict reciting: “Coming on to be heard in due order, after the plaintiff and defendant had both rested and before the court charged the jury, defendant’s motion that the court instruct a verdict for the defendant,” the contention of defendant in error that plaintiff in error invited such action by the court by requesting the submission of special issues is untenable.

The motion and the order both sufficiently show, we think, that the request was made before the request for the submission of any issues.

The judgment of the trial court is therefore reversed, and judgment here rendered that defendant in error take nothing as against plaintiff in error.

Reversed and rendered.


author: MARTIN, J.

text:
    LOGAN v. GREEN.
    No. 3865.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 14, 1932.
    Rehearing Denied Oct. 12, 1932.
    Levens, McWhorter & Howard, of Lubbock, for appellant.
    Bean & Klett, of Lubbock, for appellée.
   MARTIN, J.

In December, 1927, appellee, Wm. D. Green, made a lease contract with one W. R. Bettes, leasing him certain real estate in the town of Lubbock upon which there was then being constructed certain improvements, for a term of five years from the completion of said improvements. The consideration for said lease was the sum of $18,000, payable monthly in advance, in the sum of $300 per month, $900 of which was paid at the time the lease was entered into, $300 of which amount was to apply on the first month’s rent, and $600 of which was to apply on the rent for the last two months of the term. The tenant, Bettes, went into possession about March 1, 1928.

In March, 1929, W. R. Bettes, the tenant, sold his business and certain fixtures and equipment not necessary here to detail, together with his lease contract, to appellant herein, who went into possession and paid the rent to appellee until September 1, 1931, at which time he defaulted in the payment of the September rent and the three months following this date, with the exception of a $69 payment.

On the 26th day of December, 1931, the ap-pellee sued appellant ih the district court of Lubbock county, Tex., for all rents that had accrued and rents to accrue until the end of the term, which was March 1, 1933, and for foreclosure of his landlord’s and contract lien upon certain fixtures and equipment, the description of which we omit as immaterial to any issue in this case, and also for possession of the premises.

This petition alleged that, as part of said transaction, the said Bettes also transferred and assigned to the said Logan the lease contract between himself and plaintiff, and the said Logan purchased the same and agreed in writing that he took said lease contract subject to the provisions thereof, and “agreed to carry out the obligations therein imposed upon the said W. R. Bettes,” and also agreed that a landlord’s lien and contract lien existed upon the property by the said Logan from the said Bettes in favor of plaintiff to secure the unpaid rentals. Appellee prayed for judgment against appellant in the sum of $5,031, “being the full rentals for the entire term,” and in the alternative he prayed that, “if he be not allowed to recover rentals for the entire term, that nevertheless, he be granted judgment for $1,131.00 due as rentals to: December 1, 1931 and for rentals up to the date of judgment herein at the rate of $300.00 per month, with foreclosure of liens, and thereafter to the end of the term of the lease to W. R. Bettes at a reasonable value, which he alleges is $200.00 per month.”

The appellant answered by general denial, and by way of special answer and cross-action pleaded the contract of sale between Bettes and Logan in hsec verba, the material parts of which we shall presently quote. He' further alleged payments up to and including the month of August, 1931, of $300 per month and a $69 payment thereafter, and specially pleaded that he had been assigned the $600 which was the payment of the last two months’ rent of the term, in the contract between himself and Bettes. He further pleaded a release by appellee of the W. R. Bettes estate, Bettes himself having died, of all liability under the original contract sued on, in consideration of the sum of $900 paid by the Bettes estate to appellee, alleging that, by the' execution of said release, defendant became released from all the terms and conditions of the contract entered into between the plaintiff and the said Bettes. He pleaded other, items of damage which have passed out of the case under the record as presented and is not necessary here to state. The prayer of the defendant was that plaintiff take nothing by his suit; that the $900 paid by the executors of said estate be applied to any accrued rentals ; that the $600 paid by the said Bettes to apply on the last two months of the rental contract be advanced and applied on the last two months prior to the wrongful termination of said lease contract by the plaintiff, if any.

By a supplemental petition, and in reply to appellant’s original answer, appellee pleaded, among other things, that, under the contracts existing between the three parties already referred to, appellant, Bogan’ became the principal and W. R. Bettes the surety only for the payment of the rents; that plaintiff had the right to demand of either or both the payment of all rents and had a legal right to release the surety, Bettes estate, and that, though the estate of W. R. Bettes has been released, appellant has not been and is still under obligations to pay the rent, since he assumed this obligations thereof to this plaintiff in his contract with Bettes.

The only issue submitted to the jury was an inquiry as to whether or not the appellee, Green, prior, to filing his suit, requested the appellant to pay his past-due rents, to which the jury answered, “Yes.”

Thereupon, on the 22d day of January, 1932, the court entered judgment against appellant in favor of appellee for the sum of $2,050, with a foreclosure of his lien, and for possession of the premises in controversy.

Since this case will turn upon the construction of the said lease contracts, we deem it necessary to here reproduce their material portions in hsee verba:

“State of Texas, Lubbock County.
“This agreement witnesseth, that W. D. Green, here called owner, has leased and let to W. R. Bettes, here called tenant, for a term of Five Years, that certain real estate situated in the original town of Lubbock, being Lots Nine (9) and Ten (10) in Block One Hundred Thirty Four (134), together with certain improvements that owner will erect thereon, and which it is contemplated will be completed by March 1st, 1928.'
“And the said W. R. Bettes, agrees to become the tenant of said owner, of the premises above described for said term of Five years, and as rentals, agreed to pay to said W. D. Green, at Lubbock, Texas, Eighteen Thousand Dollars, ($18,000.00), the same payable monthly in advance; that is to say:— there shall be paid at date of taking possession of the premises the sum of $900.00, which will pay the rental for the first month of the term, and for the last two months of the term; and thereafter on the first day of each succeeding month of the term (except the last two months) there shall be paid $300.00. * * *
“The tenant is given the privilege of subletting or subleasing said premises or any part thereof, for the purposes only that said tenant acquires hereunder; but the tenant shall continue to be liable for all the rentals for the full term. And in this connection it is specially agreed that at any time the tenant is behind with any monthly rental, he shall not collect from subtenants or subleasees, except for the purpose of turning the collections to the said Green to the amount owing him at that time.
“The owner is here granted and given a landlord’s lien and contract lien on all property of the tenant on and in the premises at any time rentals are delinquent to secure the payment of such delinquent rentals, as well as those accrueing thereafter.
“Possession of the premises shall be delivered to and accepted by the tenant as soon as the improvements are completed, which it is contemplated will be by March 1st, 1928; and to guarantee that said tenant will consum[m]ate this contract and enter into and upon the premises and prosecute business thereon, the tenant has this day placed with a copy of this contract,' in escro[w], a cashier’s check, payable to order of W. D. Green, for $900.00, which shall be applied as three months’ rentals if the tenant shall con-sum[m]ate the agreement as above set forth; but if he shall fail or refuse to take the premises, and otherwise consum[m]ate the transaction, he shall forfeit said $900.00 to said W. D. Green, and same shall be turned over to him by the escrofw] holder.
“It is further agreed as one of the conditions upon which this lease is made,, that if the tenant shall make default in the payment of any monthly installment of the rental when due, or in the performance of any of the covenants or agreements on the part of the tenant to be by him done or performed, then and from thenceforth this lease shall be ended and determined as to him and all persons holding under him, and all his rights shall be forfeited and lapsed, as fully as if this lease had expired by lapse of time, and the full lease money hereunder shall.immediately become due and payable; and the owner shall at once have all the rights of reentry upon said premises, without becoming liable for damages, or guilty of a trespass.
' “Witness our hands at Lubbock, Texas, this the 24th day of December, 1927.
“Wm. D. Green — W. R. Bettes.”
“State of Texas, Lubbock County.
“Contract of Sale
“W. R. Bettes to J. B. Logan.
■ “W. R. Bettes is' conducting a wholesale and retail business at the corner of Texas Avenue and 13th Street, under the name of W. R. Bettes Oil & Tire- Co., and he is also the owner of a lease contract on Lots Nine {9) and Ten (10) in Block- One Hundred Thirty Four (134) of the Original Town of Lubbock, Lubbock County, Texas, upon which said business is conducted. Said lease contract was made with the owner, Wm. D. Green, and is more fully shown by the original, with which the parties hereto are acquainted. The lease was executed on December 24, 1927, and runs for a period of five years after the completion of the building on said premises.
' “The said W. R. Bettes hereby bargains, sells and delivers to the said J. B. Logan all of the retail business owned by the said W. R. Bettes on said premises, except as herein stated, at the prices and upon the terms herein stated. * * *
“The said W. R. Bettes hereby transfers and assigns the aforesaid lease contract to the said J. B. Logan, and the said J. B. Logan takes said lease contract subjeet’to the provisions thereof and agrees to carry out the obligations therein imposed upon the said W. R; Bettes.
“Under said lease contract, the said W. R. Bettes has paid the sum of $600.00 in advance, and the said J. B. Logan is to receive .said $600.00 in accordance with said contract. And in consideration therefor, the said W. R. Bettes is to have the use and posses sion of the warehouse on said premises, (now .used for storage of Quaker State oil) and the Northwest corner of the office in said building, without cost to him for a period of twelve months from April 1, 1929, and during ■the remainder of the unexpired lease the said W. R.-is to have the use and possession of said warehouse and said office space, for which he is to pay the said J. B. Logan the agreed rental of $50.00 per month in advance on the first day of each month for the remainder of the term. If for any unavoidable circumstance, not now foreseen, the said W. R. Bettes should have to vacate the said warehouse and office space, and not be permitted to use it before the expiration of said twelve months, the said J. B. Logan shall thereupon reimburse the said W. R. Bettes for ■the unexpired term of the first twelve months .mentioned, at the rate of $50.00 per month.
“It is understood that this sale .and lease •does not cover W. R. Bettes’s wholesale busi- ’ ness or his contract for distribution of Quaker State oil or his franchise on Mohawk tires and tubes.
“The said X B. Logan does not buy and will not be entitled to use the trade name or firm name of W. R. Bettes Oil & Tire Co.’
“The said J. B. Logan shall not remove or alter the Quaker State electric sign now attached to the building on said premises without the written, permission of the said W. R. Bettes.
“It is understood as one of the'eonditions of this contract that the said J. B. Logan will have and offer for sale Quaker State oil to the retail trade, and that' the said W. R. Bettes, as long as he has the contract for the sale of- Quaker State oil, will sell said oil to the said J. B. Logan at the same price he sells other retail dealers.- And that should the said J. B. Logan fail or refuse to offer and. keep for sale said Quaker State oil, this contract as tó use and possession of warehouse and office space shall be null and void, at option of W. R. Bettes, and unearned rental for remainder, if any,' of the first year shall be refunded by Logan to Bettes.
“It is also understood that the aforesaid lease contract under Wm. D. Green fixes a landlord’s lien on certain, of the foregoing property, and the said J. B. Logan purchases said property with that understanding.
“It is further ¿greed thát should the buyer fail or refuse to keep and perform any covenant and condition of this contract in .the time and manner stated, then the seller shall have the right to declare the aforesaid transfer and assignment ’of said lease as null and void and enter and take possession of said premises without being liable for trespass or other damages and without prejudice to any other remedy he may have.
“Witness our hands this the 20th day of March, 1929. .
“W. R. Bettes [Seller]
“J. B. Logan [Buyer]”

We regard the three following legal issues as being properly presented for our consideration by the briefs on file: (1) Appellant contends that the contract quoted above between Bettes and Logan constituted a subletting and not an assignment, and therefore no cause of action existed in favor of appellee against appellant for rents, and the court erred in construing said contract as an assignment and entering, as he did, a personal judgment against appellant; (2) that, conceding that said contract last mentioned constituted an assignment so as to make appellant personally liable, still the court was in error in entering judgment as he did for the unexpired rental period; (3) that the $600 ■payment already referred to should have been. credited at all events on any judgment rendered, since appellant had obtained an assignment of the right to said item from the original lessee to be applied on the rentals due.

We do not purpose to enter into a discussion of the subtle niceties of and distinctions between an assignment and sublease. The question has been ably discussed, and the distinction between the two clearly pointed out by Judge Dibrell in the case of Davis v. Vidal, 105 Tex. 444, 151 S. W. 290, 42 L. R. A. (N. S.) 1084. Under our view of the case, whether the. instrument in question belongs to either or neither of the classes mentioned is immaterial, since by its terms appellant agreed to carry out the “obligations therein imposed upon said W. R. Bettes,” thus creating a privity of contract between appellant and appellee.

It maybe said in general terms that a sublessee is not personally liable to the original lessor for rent, because an instrument which on its face is no more than a subleasing creates neither a privity of estate nor of contract between the parties. It would not, however, follow that, because the instrument was in such form, there could not be added to it the obligation to pay rent of the character noted above. To so hold would be to exalt the shadow above the substance. It may therefore be admitted that the instrument in question is not in the form of an assignment, but a mere subletting, without affecting the real question at issue, which is the right of appellee to take a personál judgment for rent against appellant as he did in this case. This is made plain, we think, by the language and reasoning of the following authorities: Foucar v. Holberg, 85 Ark. 59, 107 S. W. 172.; Tinsley v. Metzler (Tex. Civ. App.) 44 S.W.(2d) 820; Springer v. De Wolf, 194 Ill. 218, 62 N. E. 542, 56 L. R. A. 465, 88 Am. St. Rep. 155; Mann v. Ferdinand Munch Brewery, 225 N. X. 189, 121 N. E. 746 ; 36 C. J. 379 ; 35 C. J. 996.

■Believing that the instrument in question creates a privity of .contract between the parties and an obligation binding on appellant to pay the rent in question, we overrule the first contention.

The appellant argues that the trial court construed the instrument in question as .an assignment, and rendered judgment accordingly for both past-due and future rents for the full rental period, and that, admitting his construction is correct, rents to accrue could not be recovered.

It will be noted that the contract between the original parties in substance provided for surrender of possession and the payment of all lease money to the end of the term in case of default in the payment of any monthly installment of rent. This provision was pleaded and proven.

Construing a similar provision, it was held in the case of Grommes v. St. Paul Trust Co., 147 Ill. 634, 35 N. E. 820, 822, 37 Am. St. Rep: 248, there was nothing unreasonable in the agreement of a lessee to completely indemnify his lessor for any injury which might arise to him by the lessee’s breach of his own agreement. It can make but little difference whether the sum to be paid be called rent or damages.

We know of no law that would make such a provision in a contract void. It is, in our opinion, a valid, enforceable one.

Of course, under proper pleadings and proof, this amount might be reduced or entirely abrogated by evidence of a reduced or of no rental value of the premises in controversy. The only question, apparently, presented here is the invalidity of such provision. However, we note that the pleading and proof showed in round numbers eighteen months of the rental period due; that is, from Sept. 1, 1931, to March 1, 1933. The appellant was still in possession of the premises at the date of the. trial, January 22, 1932'. The appellee testified its rental value was from $150 to $200 per month for the months to run. Calculating. the rent at $300 per month to the date of the trial and $200 per month to the end of the rental period, and subtracting therefrom the $600 hereinafter mentioned, we have an amount greater than that named in the judgment, or, calculating the full period of eighteen months at $300 per month, and subtracting therefrom the items claimed as an offset by appellant in his pleadings, wé would still have an amount somewhat greater than awarded appellee by the court.

In the state of this record, it is impossible for us to know what construction the court placed upon the contract or what calculations he used in arriving at the figure named in his judgment. Nor have we any way of knowing upon what pleading he based this judgment. This, of course, has caused us a great deal of additional work, but we have arrived at the conclusion that, whatever basis he used, the amount rendered by him as the amount owing by appellant was less than that which he actually owes. Therefore any error he may have made apparently inured to the benefit of appellant, and was harmless.

What has already been said disposes of appellant’s third contention, which is to the effect that the $600 named in the contract already quoted should have been credited on any judgment rendered. If appellee had recovered for the full rental period, his judgment would have been for $5,031. It being for only $2,050, he not only allowed this credit, but many others, the exact nature and amount of which we cannot determine, any further than to say that, since appellant got all at the hands of the court he was entitled to, he is in no position to complain, and. since the appellee is not complaining, the .above disposes of the question presented.

After the death of Bettes, his legal representatives, in consideration of the payment of $900 cash, procured the release of the Bettes estate from liability under the original contract quoted above. Two contentions are made by appellant with respect to this, if we understand them, one to the effect that the $900 paid by the Bettes estate should have been credited on the judgment rendered herein and the other that the release had the legal' effect of relieving appellant from liability.

The contracts quoted are of such character as to create between appellee and Bettes the relation of principal and surety. Gray v. Tate (Tex. Civ. App.) 251 S. W. 820. A lessor may release such surety without releasing the principal. 16 R. C. L. p. 851.

Without consuming space in further •discussion, suffice it to say that in our opinion the liability of appellant remained unaffected by the instrument in question, and what has already been said is sufficient, we think, to demonstrate that he has already received credit for the $900, though it seems apparent that under a proper construction of the transaction he1 is not entitled to same, since this was a matter with which he was in no way connected, and was apparently not made as a payment on the rental contract, but merely to relieve the estate from further liability.

The judgment is affirmed.


author: S. S. SEARCY, Special Associate Justice. FLY, C. J. COBBS, J. COBBS, J. (dissenting). FLY, C. J.

text:
    COUNTY DEMOCRATIC EXECUTIVE COMMITTEE IN AND FOR BEXAR COUNTY et al. v. BOOKER.
    No. 9038.
    Court of Civil Appeals of Texas. San Antonio.
    July 28, 1932.
    Dissenting Opinion July 29, 1932. Concurring Opinion Aug. 1, 1932.
    See, also, 52 S.W.(2d) 908.
    Templeton, Brooks, Napier & Brown, of San Antonio, for appellants.
    Oscar M. Powell, of San Antonio, for inter-veners.
    Cunningham, Moursund, Johnson, Rogers & Slatton, of San Antonio, for appellee.
   S. S. SEARCY, Special Associate Justice.

C. A. Booker, appellee, brought this suit in tihe Forty-Fifth judicial district court of Bexar county, Tex., “for himself and others in the same class and like situation, under similar circumstances and conditions, as this plaintiff,” against the county Democratic executive committee in and for Bexar county,Tex., John K. Weber, chairman of the Bexar county Democratic executive committee, C. O. Wolfe, secretary of the Bexar county Democratic executive committee in and for Bexar county, Tex., and Adolph Lassner, presiding judge of the Democratic precinct primary election, to* be held on July 23, 1932, in election precinct No. 73, in the city of San Antonio, Bexar county, Tex., and their successors in office.

He alleges he is a member of the negro race, a native-born American citizen, a resident citizen of San Antonio, Bexar county, Tex., a qualified voter and elector under the Constitution and laws of the United States and the state of Texas, a member of the Democratic Party, and entitled to vote at election precinct No. 73, in San Antonio, Tex., in the primary elections, to be held July 23 and August 27, 1932; that he will be deprived of his- right to vote at said primary elections by reason of the following resolution adopted by the state Democratic convention at Houston, Tex., May 24, 1932, to wit: “Be It Resolved: That all white citizens of the State, who are qualified to vote under the Constitution and laws of Texas, shall be eligible for membership in the Party and as such, eligible for participation in the primaries,” in violation of his rights' under the Fourteenth and Fifteenth Amendments to the Constitution of the United States. He prays for injunction, etc.

The trial court granted the injunctive relief prayed for, and the case is here on appeal to review the decree of the district court.

In Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 487, 76 B. Ed. 984, a similar resolution passed by the state executive committee was held to have been passed under the authority of article 3107 (chapter 67, Acts 1927 [Vernon’s Ann. Oiv. St. art. 3107]), and the reasoning is that the State Executive Committee acted as a state agency and not as a political agency, and therefore its resolution came within the inhibitions of the Fourteenth and Fifteenth Amendments. The court said: “The pith of the matter is simply this, that, when those agencies are invested with an authority independent of the will of the association in whose name they undertake to speak, they become to that extent the organs of the state itself, the repositories of official power. They are then the governmental- instruments whereby parties are organized and regulated to the end that government itself may be established or continued. What -they do in that relation, they must do in submission to the mandates of equality and liberty that bind officials everywhere. They are not acting in matters of merely private concern like the directors or agents of business corporations. They are acting in matters of high public interest, matters intimately connected with the capacity of government to exercise its functions unbrokenly and smoothly.” This decision, however, is expressly limited in its scope.

We are confronted with a different state of facts. The resolution complained of by appellee was adopted by the state convention of the Democratic Party in convention assembled at Houston, Téx., May 24,1932, as its free and voluntary act, expressing the will of the Democratic Party in Texas, with respect to who shall be eligible for membership in the party, and, as such, eligible for participation in the primaries. In Nixon v. Condon, supra, the court said:

“In Nixon v. Herndon, 273 U. S. 536, 71 L. Ed. 759, 47 S. Ct. 446, decided at the October term, 1926, this court had before it a statute of the state of Texas (article 3093a, Revised Statutes * * * afterwards numbered 3107 [Vernon’s Ann. Civ. St.]) whereby the Legislature had said that ‘in no event shall a negro be eligible to participate in a Democratic party primary election (held in that State),’ and that, ‘should a negro vote in a Democratic primary election, such ballot shall be void,’ and election officials were directed to throw it out. While-that mandate was in force, the negro was shut out from a share in primary elections, not in obedience to the will of the party, speaking through the party organs [italics ours],, but by the command of the state itself, speaking by the voice of its chosen representatives. * * *
“We recall at this point the wording of the statute invoked by the respondents. ‘Every political party in this State through its State Executive Committee shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote or otherwise participate in such political party.’ Whatever inherent power a state political party has to determine the content of its membership resides in the state convention. [Italics ours.] Bryce, Modern Democracies, vol. 2, p. 40.
“There platforms of principles ore a/n-nounaed and the tests of party allegiance made known to the world. What is true in that regard of parties generally is true more particularly in Texas, where the statute is explicit in committing to the state convention the formulation of the party faith (artiele 8139). [Italics ours.] The state executive committee, if it is the sovereign organ of the party, is not such by virtue of any powers inherent in its being. It is, as its name imports, a committee and nothing more, a committee to be chosen by the convention and to consist of a chairman and thirty-one members, one from each senatorial district of the state (article 3139). To this committee the statute, here in controversy has attempted to confide authority to determine of its own motion the requisites of party membership and in so doing to speak for the party as a whole. Never has the state convention made • declaration of a will to bar negroes of the state from admission to the party ranks. Counsel for the respondents so conceded upon the hearing in this court. Whatever power of exclusion has been exercised by the members of the committee has come to them, therefore, not as the delegates of the party, but as the delegates of the state. [Italics ours.] * * * The most that can be said for the respondents is that the inherent powers of the committee are still unsettled in the local courts. Nothing in the state of the decisions requires us to hold that they have been settled in a manner that would be subversive of the fundamental postulates of party organization. The suggestion is offered that in default of inherent power or of statutory grant the committee may have been armed with the requisite authority by vote of the convention. Neither at our bar nor-on the trial was the case presented on that theory. At every stage of the case, the assumption has •been.’made that authority, if there was any, was either the product of the statute or was inherent m the committee under the law of its creation.” (Italics ours.)

The Democratic Party in Texas is a voluntary political association, and, assembled in convention, has the power to determine who shall be eligible for membership in the party, and, as such, eligible for participation in the primaries, A study of the election laws of Texas and their history can lead to no other conclusion.

Nixon v. Condon, supra, was decided May 2, 1932. The state convention of the Democratic party was held at Houston, Tex., May 24, 1932. In our opinion, the adoption of the resolution complained of by appellee, by- said convention, was the expression of the will of the Democratic Party in Texas, with respect to who shall he eligible for membership in the party and as such .eligible for participation in the primaries, in line with the opinion of the Supreme Court of the United States in Njxon v. Condon.

■ The judgment of the district court should be reversed, and the suit dismissed. It is so ordered.

FLY, C. J.

I concur in this decision.

COBBS, J.

I do not concur, but dissent, in the decision.

COBBS, J. (dissenting).

The majority of this- court, speaking through Special Associate Justice SEARCY (appointed by the Governor becapse of the disqualification of Associate Justice SMITH) have delivered an opinion upon the questions involved in this case, and it is with some regret that I feel called upon to dissent from the conclusions reached by the majority. That regret is based upon the profound conviction that their decision is unsound, and does violence to the Eourteenth and Fifteenth Amendments to the Constitution of the United States. It is believed that the judgment and opinion of the majority is so out of harmony with the decisions of the United States Supreme Court in Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446, 71 L. Ed. 759, and Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 76 L. Ed. 984, the decision of our own Supreme Court in Love v. Wilcox, 119 Tex. 256, 28 S.W.(2d) 515, 70 A. L. R. 1484, and the decision of this Court in Briscoe v. Boyle, 286 S. W. 275 (which is cited with approval by our Supreme Court in Love v. Wilcox, supra), that I feel constrained to file this dissenting opinion.

■ The opinion of the majority in the statement of the allegations of appellee’s petition wholly fails to mention the fact that appel-lee alleged that on June 14, 1932, the state Democratic executive committee, acting under authority of article 3107 of the Revised Civil Statutes of Texas, by resolution, declared the resolution of the convention to be valid to deprive appellee and all other qualified voters of the Negro race similarly situated of the right to vote in the primary elections, and ordered said resolution certified to the county chairmen, and that, in obedience to the mandates of the state Democratic executive committee, the appellants were threatening to do the acts complained of by appellee. The majority fail to mention the numerous allegations in appellee’s petition showing that primary elections held in this state'are conducted in part at public expense, which bring this case within the decision of the United States Circuit Court of Appeals, for the Fourth Circuit, in the case of Bliley v. West, 42 F.(2d) 101 (C. C. A. 1930), and the majority also fail to mention the fact that the position of each of the appellants herein is created by statute and that each of said appellants is vested with authority from the state. However, in the view that I take of the matter, it will not be necessary to discuss at length these omissions.

The Legislature, by enacting present article 3107, and therein providing that “every political party in this State tlwough its State JSsoeovMve Committee shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote or otherwise participate in such political party” (italics mine), has designated the agency to determine the requisites of party membership and to speak for the party as a whole, and the mention of this one agency is the exclusion of other agencies. This principle of construction is recognized by our Supreme Court in Harris County v. Crooker, 112 Tex. 450, 248 S. W. 652, where the court, speaking through Mr. Chief Justice Cureton said (loc. cit. 655, of 248 S. W., 112 Tex. 450): “The rule expressio unius est exclusio alterius is a sound one, frequently applied in the construction of statutes, and is applicable here. The inclusion of the specific limitation excludes all others” — citing authorities.

This construction is also sustained by the United States Supreme Court in Nixon v. Con-don, supra.

The majority, while quoting from that portion of the opinion in Nixon v. Condon, supra, where the court, speaking through Mr. Justice Cardozo, said: “Whatever power of exclusion has been exercised by the members of the committee has come to them, therefore, not as the delegates of the party, but as the delegates of the state” — but the majority omit the portion immediately following the above quotation, where the court, speaking through Mr. Justice Cardozo, further said: “Indeed, adherence to the statute leads to the conclusion that a, resolution once adopted by the committee-must continue to he binding upon the judges of election though the party in convention may have sought to override it, unless the committee, yielding to the moral force of numbers, slvall revoke its earlier action and obey the party will. Power so intrenched is statutory, not inherent.” (Italics mine.)

I am therefore constrained to believe that the state convention (which passed the resolution set out in the majority opinion), held under article 3167, w'hich is a creature of the statute and authorized by law to meet only once every four years for the purpose (prescribed by statute) of selecting delegates to the national convention, was without authority to prescribe the qualifications of membership in the Democratic Party and of those who should participate in the Democratic Primary elections, and that whatever inherent power the Democratic Party had prior to the enactment of article 3107 to determine the content of its membership resided in the convention held under article 3139 and not in the convention held under article 3167, and that, by reason of the enactment of article 3107, such inherent power has been taken from such convention and by the state delegated exclusively to the state executive committee, and that said state executive committee, in the passage of its resolution, was necessarily acting under the power conferred upon it by article 3107, and that this action of this agency of the state is violative of the Fourteenth Amendment. Nixon v. Condon, supra.

The majority claimed support for their conclusions in the case of Nixon v. Condon, supra; but I am unable to find comfort there for those conclusions. In that case, the court, speaking-through Mr. Justice Cardozo, said (286 U. S. loc. cit. 81, 52 S. Ct. 484, 76 L. Ed. 984):

“The petitioner, a negro, has brought this action against judges of election in Texas to recover damages for their refusal by reason of his race or color to permit him to cast his vote at a primary election.
“This is not the first time that he has found it necessary to invoke the jurisdiction of the federal courts in vindication of privileges secured to him by the Federal Constitution.”

And the court further said (286 TJ. S. loc. ■cit. 83, 52 S. Ct. 484, 485, 76 L. Ed. 984): “Barred from voting at a primary the petitioner has been, and this for the sole reason that his color is not white. The result for him is no different from what it was when his cause was here before. The argument for the respondents is, however, that identity of result has been attained through essential diversity of method.”

And the court further said (286 U. S. loc. ■cit. 84, 52 S. Ct. 484, 485, 76 D. Ed. 984):

“Whatever our conclusion might be if the statute had remitted to the party the.untrammeled power to prescribe the qualifications of its members, nothing of the Jeind was done. Instead, the statute lodged the power m a committee, which excluded the petitioner and others of his race, not by virtue of any authority delegated by the party, but by virtue of an authority originating or supposed to originate in the mandate of the law.” [Italics ■mine.]
“We recall at this point the wording of the statute invoked by the respondents. ‘Every political party in this State through its State Executive Committee shall have the power to prescribe the qualifications of its own members and-shall in its own way determine who shall be qualified to vote or otherwise participate in such political party.’ ”

And the court further said (286 U. S. loc. cit. 85,' 52 S. Ot. 484, 486, 76 L. Ed. 984): “To this committee the statute here in controversy has attempted to confide authority to determine of its own motion the requisites of party membership and in so doing to speak, for the party as a whole. Never has the state convention made declaration of a will to bar negroes of the state from admission to the party ranks. Counsel for the respondents so conceded upon the hearing in this court. Whatever .power of exclusion has been exercised by the members of the committee has come to them, therefore, not as the delegates of the party, but as the delegates of the state. Indeed, adherence to the statute leads to the conclusion that a resolution once adopted hy the committee must continue to he bind-mg upon the, judges of election though the party in convention may have sought to override it, unless the committee, yielding to the moral force of numbers, shall revoke its earlier action and obey the party will. Power so intrenched is statutory, not inherent.” (Italics mine.)

And the court further said (286 U. S. loc. cit. 88, 52 S. Ot. 484, 487, 76 L. Ed. 984):

“We do not impugn the competence of the Legislature to designate the agencies whereby the party faith shall be declared and the party discipline enforced. The pith of the matter is simply this, that, when those agencies are invested with an authority independent of the will of the association in whose name they undertake to speak, they become to that extent the organs of the state itself, the repositories of official power. They are then the governmental instruments whereby parties are organized and regulated to the end that government itself may be established or continued. What they do in that relation, they must do in submission to the mandates of equality and liberty that bind officials everywhere. They are not acting in matters of merely private concern like the directors or agents of business corporations. They are acting in matters of high public interest, matters intimately connected with the capacity of government to exercise its functions un-brokenly and smoothly. Whether in given circumstances parties or their committees are agencies of government within the Fourteenth or the Fifteenth Amendment is a question which this court will determine for itself. It is not concluded upon such an inquiry by decisions rendered elsewhere. The test is not whether the members of the executive committee are the representatives of the state in the strict sense in which an agent is the representative of his principal. The test is whether they are to be classified as representatives of the state to sueli an extent and in such a sense that the great restraints of the Constitution set limits to their action.

“With the problem thus laid bare and its essentials exposed to view, the case is seen to he ruled by Nixon v. Herndon [273 U. S. 536, 71 E. Ed. 759, 47 S. Ct. 446], supra. Delegates of the state’s power have discharged their official functions in such a way as to discriminate invidiously between white citizens and black. Ex parte Virginia [100 U. S. 339, 25 L. Ed. 676, 3 Am. Crim. Rep. 547], supra; Buchanan v. Warley, 245 U. S. 60, 70, 77, 62 L. Ed. 149, 161, E. R. A. 1918C, 210, 38 8. Ct. 16, Ann. Cas. 1918A, 1201. The Fourteenth Amendment, adopted as it was with special solicitude for the equal protection of members of the Negro race, lays a duty upon the court to level by its judgment these barriers of color.”

It will be noted that the Supreme Court in Nixon v. Condon, .supra, held that the statute granting the power to the state executive committee to fix the qualifications of membership was a statutory grant of power, while it was the contention of the minority that this was merely a statutory recognition 'of inherent authority. But even the minority opinion in Nixon v. Condon, supra, concedes that the conclusions reached by the majority in the case at bar cannot find support in that opinion of the United States Supreme Court, because Mr. Justice McReynolds, speaking for the minority, in the course of his opinion, said (2S6 U. S. loc. eit. 103, 52 S. Ct. 484, 493, 76 L. Ed. 984): “If statutory recognition of the authority of a political party through its executive committee to determine who shall participate therein gives to the resolves of such party or committee the character and effect of action by the state, of course the same rule must apply when party conventions are so treated,” etc.

The majority, in their opinion in the case at bar, say: “The Democratic Party in Texas is a voluntary Political Association and, assembled in convention, has the power to determine who shall be eligible for membership in the party, and as such, eligible for participation in the primaries. A study of the election laws of Texas and their history can lead to no other conclusion.”

In the case of Briscoe v. Boyle, supra, this court considered at length the legislative situation with respect to primary elections, and held that, since the state of Texas had legislated in detail concerning the qualifications of voters at such elections, the political parties themselves no longer had any power to prescribe qualifications not made under authority of statute, and, while there are expressions in the opinion not necessary to the decision, and not material now, which are not in accord with the later case of Nixon v. Herndon, supra, yet I believe what we held there to be applicable here, and contrary to the aforementioned conclusions of the majority, for we there said (loc. eit. 276 of 286 S. W.):

“Before the legislative department invaded the province of party government, and assumed control and regulation of party machinery, the right to say who should and who should not participate in party affairs was exercised by the party governments, with which the courts would not concern themselves.
“But the Legislature has talcen possession and control of the machinery of the political parties of the state, and, while it permits the parties to operate that machinery they do so only in somewhat strict accordance, with the rules and regulations laid down in minute and cumbersome detail by the legislative body. The statute designates the official positions to be occupied in the parties, and, while it permits the members of the parties to select such officials, they can do so only in the manner prescribed by the statutes, which define the powers and duties of those officials, beyond which they cannot lawfully act. The statute prescribes the time, place, and manner of holding primary elections. It prescribes the forms of the ballots to be used, and the process by which the election officials shall identify and hand out the ballots and by which the voters shall mark and deposit the ballots when voted. It prescribes the declaration to be made by the voter, and the obligation to be assumed by him as a condition precedent to the validity of his ballot. In fine, the Legislature, has in minute detail laid out the process by which political parties shall operate the statute-made machinery for making party nominations, and has so hedged this machinery with statutory regulations and restrictions as to deprive the parties and their managers of all discretion in the manipulation of that machinery. * * *
“By excluding negroes from participating in party primary elections, and by legislating upon the subject of the character and degree of party fealty required of voters participating in such elections, the Legislature has assumed control of that subject to the exclusion of party action, thus depriving the party of any power to alter, restrict or enlarge the test of the right of the voter to participate in party primaries.” (Italics mine.)

I am of the opinion that, in view of the recent pronouncements of the United States Supreme Court and our primary election laws and the decisions of the courts of our state construing the same, particularly our own decision in Briscoe v. Boyle, supra, the state executive committee, the state convention, and each of the appellants herein are to be classified as representatives of the state to such an extent, and in such a sense that the restraints of the Constitution set limits to their action, and that the threatened acts of each of the appellants are in violation of ap-pellee’s rights guaranteed to him under the Fourteenth Amendment to the Constitution of the United States, and in violation of the federal penal statutes enacted pursuant thereto, and that the trial court did not err or abuse his discretion in granting the injunction prayed for, and that the judgment of the trial court should be in all things affirmed. Nixon v. Condon, supra; Nixon v. Herndon, supra; Raymond v. Chicago Union Traction Co., 207 U. S. 20, 28 S. Ct. 7, 52 L. Ed. 78, 79, 87, 12 Ann. Cas. 757; Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U. S. 278, 33 S. Ct. 312, 57 L. Ed. 510, 515; Yick Wo v. Hopkins; 118 U. S. 356, 373, 6 S. Ct 1064, 30 L. Ed. 220. '

I cannot agree with my brethren in the conclusions they have reached, and therefore dissent.

FLY, C. J.

In all popular governments it has always been conceded that the liberty of the people could only be preserved through the undisturbed right of the citizens to assemble and give expression to their views as to the proper conduct of governmental affairs, to give voice to their grievances and suggest changes in the administration of the government and advocate principles necessary to protect the rights of the people. The Americans inherited their principle of the voice of the people being uttered through the medium of assemblies for that purpose, and, while assuming this right before the adoption of the Federal Constitution, our forefathers deemed the right of citizens to meet in assemblages or conventions so important that it was written into the Constitution, and became a cardinal point in the Bill of Rights of the organic law of the land. Out of the right so secured by the Constitution, political parties came by natural and inevitable evolution. In the convention held for the purpose of framing a constitution, the difference in theories of government came rapidly to the surface, and the seeds of different political parties germinated and came into active existence, and a cleavage of ideas as to what would constitute a government of the people became so marked and antagonistic that it was apparent that it was necessary that those believing in local self-government and those who believed in a strong central government could not live together in unity, and the contest was on ■ that will exist as long as there is a semblance of liberty in America. The antagonistic principles and theories of government found expression in convention of those of like faith, who held conventions, wrote their principles, and indorsed those they desired to elect to carry out the views of their constituencies. The party of Jefferson holding to the theory of local self-government was organized in the early days of the republic, and has existed through the vicissitudes and political contests of more than one hundred years. The opposing school of politics has also existed during that time, sometimes under the name of Federáis, Whigs, or Republicans, but at all times adhering to the Hamiltonian theory of a strong centralized government at the expense of state rights and local self-government. Parties to formulate and execute the two diverse theories of government have kept up their organizations without interference until within the last forty or fifty years, when the state has in many ways sought to invade the rights of the people as expressed through their party organizations. The invasion has been pressed through constitutional amendments, the Congress, federal courts, and the machinery of the judiciary department of the federal government. The primary system has been adopted in a number of the states, and that system has opened a fertile field for legislation seeking to destroy the freedom of choice and action on the part of political parties. The onslaught on political parties has culminated in courts usurping most of their prerogatives, and at last the political party is enjoined from selecting its own membership, and labored opinions are delivered to demonstrate that the party is a mere agency of government and has even lost the right of deciding who shall be eligible to participate in its actions'.

The Fourteenth and Fifteenth Amendments of the Constitution, submitted and adopted by a portion of the states of the United States, have been interpreted so as to cover almost every phase of life, at least in the Southern section of the republic. The object and aim of those responsible for the formation and presentation of the amendments were primarily to transform the former slave into a full-fledged citizen, and invest him with all the rights and privileges of the highest position on earth, that of a voter under the Constitution. No one would so stultify himself as to claim that it was contemplated by those who formulated the two amendments to obliterate all control of the people over their political parties, and especially open wide the doors of the Democratic Party to all negroes who might desire to enter therein. On the other hand, the negroes were taught to avoid that party as they would a pestilence, and to homologate and associate alone with the “Grand Old Party.” The creators of the two amendments would have been horrified at the thought of a negro entering Democratic councils. The amendments were undoubtedly only intended to protect the negro in his right of suffrage at elections for choosing the officials of government, national and state. One of the rules for the proper interpretation of an amendment or a statute is to endeavor to arrive at the intentions and motives of the legislators who proposed or enacted them. No such complicated political machinery as that used at the present time had ever been attempted, or perchance dreamed of, for years after the two amendments were added to the Constitution. If such an interpretation had been attempted in the reconstruction period, it would have ■been derided, because those then in power did not desire that the newly enfranchised should ever enter the Democratic, or any other than the Republican Party. However, “time marches on,” and the negro had turned from the “lily white” arm of the Republican Party to the Democratic Party, and in construing the primary system it was held that the party was an agency of the state government, and as such under the fostering care of the two amendments.

However much the logic and strength of the minority opinion in the case of Nixon v. Con-don, herein cited, may excel those of the majority opinion, however much we may differ with the majority opinion, representing only five of the nine judges of the federal Supreme Court, still it is the law of the land, and this court will endeavor to follow not only its spirit but its letter. That opinion, while holding that the state had made the state executive committee its agent by authorizing them to fix the qualifications of members of the party, still in effect holds that the state had not made the party state convention its agent, and that, if the convention, through its inherent powers, decided who should or should not be members of the party, it would be a valid and binding exercise of power, which had steered clear of the Fourteenth and Fifteenth Amendments. In an attempt to follow the majority opinion in Nixon v. Condon, the state convention of the Democratic Party of Texas in May last, by resolution duly adopted, excluded negroes from Democratic primaries. The convention followed the majority opinion to the letter, and this court follows it in the same manner.

No decision of any appellate court of Texas has ever been written that tends to sustain the decision of the trial court herein, which enjoined the primary election officers of the Democratic Party from obeying the commands of their highest authority in the councils of the party, and which Judge Cardozo holds had power to give the authority destroyed by the district judge.

The case of Briscoe v. Boyle, 286 S. W. 275, delivered by this court, has no applicability to the facts of this case. In that case it was merely held that, the Legislature having passed a law fixing the only test that could be imposed upon a voter by the inscription at the head of the ticket, the officers of the election had no right or authority to exclude a voter because he had voted the Republican ticket at a former election; in other words, election officers have no power or authority to create new tests not fixed by the governing power of the party.

The case of Love v. Wilcox, 119 Tex. 256, 28 S.W.(2d) 515, 70 A. L. R. 1484, is mainly on the jurisdiction of the Supreme Court, and follows the Briscoe Case in saying that officers of election have no authority to prescribe other qualifications than those prescribed by statute. The two opinions merely held that the statute had prescribed the only tests that could be invoked by the officers of election^ The last expression of the Supreme Court in Love v. Buckner (Tex. Sup.) 49 S.W. (2d) 425, if read in consonance with the last expression of the Supreme Court of the United States, sustains the opinion of this court. ' •

We quote from Love v. Buckner as follows:

“We do not think it consistent with the history and usages of parties in this state nor with the course of our legislation to regard the respective parties or the state executive committees as denied all power over the party membership, conventions, and primaries, save where such power may be found to have been expressly delegated by statute. On the contrary, the statutes recognize party organizations including the state committees, as the repositories of party power, which the Legislature has sought to control or regulate only so far as was deemed necessary for important governmental ends, such as purity of the ballot and integrity in the ascertainment and fulfillment of the party will as declared by its membership.?’, . ■

In the Nixon v. Condon Case, 286 U. S. 73, 52 S. Ct. 484, 76 L. Ed. 984, the Supreme Court-bases the agency of Texas in the governing of political parties on the power given the executive committee to fix the qualifications of membership in the party, but, after destroying the ship of party power and rule, threw out a spar upon which the party might keep its head above the tumultuous political sea of 1932, that spar being the convention of the party, not acting on any state mandate, but on its unfettered volition. The executive committee acquiesced in the resolution of the state convention and' certified the resolution of the convention down for the government of the county primaries. The primary of Bexar county endeavored to act under that resolution, but was prevented by the injunction granted by a state district judge.

The only method of protecting its inherent right to state who shall and shall not be members of the Democratic Party in Texas, by the five to four opinion in Nixon v. Condon, has been strictly followed by the party, and tb,e resolution of the May convention of 1932 will be respected and carried into effect by this court.

Our original opinion is upheld as supported by law and precedent.


author: ALEXANDER, J.

text:
    DALLAS GAS CO. v. BANKERS’ & SHIPPERS’ INS. CO. et al.
    No. 1243.
    Court of Civil Appeals of Texas. Waco.
    July 11, 1932.
    Rehearing Denied Oct. 13, 1932.
    Harry P. Dawther and Robert M. Perry, both of Dallas, for plaintiff in error.
    Thompson, Knight, Baker & Harris and Robert Lee Guthrie, all of Dallas, for defendants in' error.
   ALEXANDER, J.

This suit was brought by H. M. Maxey, Bankers’ & Shippers’ Insurance Company, and the Royal Insurance Company against the Dallas Gas Company. The plaintiffs alleged in substance that Maxey carried policies of insurance with the Bankers' & Shippers’ Insurance Company and the Royal Insurance Company insuring certain merchandise and other personal property belonging to him against the hazards of fire. It was further alleged that the Dallas Gas Company negligently maintained defective gas pipes about the premises occupied by Maxey, and as a result thereof a large quantity of gas was allowed to accumulate in and under the premises occupied by Maxey, and a fire and explosion occurred damaging and destroying Maxey’s property. The insurance companies alleged that they paid to said Max-ey the amount claimed by him to be due under said policies, and took subrogation assignments from him permitting the insurance companies to recover from the Dallas Gas Company the amount of loss suffered by Max-ey as the result of the. fire and explosion, to the extent of the payments made to him by the insurance companies. The insurance companies prayed for a recovery against the gas company for the loss sustained by Maxey to the extent -of the amount so paid by them, and Maxey prayed that he be permitted to recover from the gas company the amount of his loss over and above such payments. A trial before a jury resulted in a verdict for the Bankers’ & Shippers’ Insurance Company for the sum of $1,467 and the Royal Insurance Company for the sum of $3,189, and that Max-ey take nothing. The Dallas Gas Company appealed.

The policies of insurance issued to Maxey insured him against loss by fire, and provided that, in the event of a loss, and if it should be claimed that the fire was caused by the negligence of any other person, the insurance companies, on payment of the loss, should be subrogated to Maxey’s rights against such wrongdoer to the extent of the payment so made. The evidence shows that, after the loss, Maxey presented his claims and same were paid by the insurance companies, Max-ey then executed and delivered written assignments to the insurance companies assigning to them his claim against the party causing the loss to the extent of the amounts so paid by them. The petition alleged the sub-rogation agreements as contained in the policies and subsequent assignments thereunder, and further alleged that the loss was caused by a fire and an explosion, but did not allege what amount of damages was caused by the fire separate from the explosion nor that the fire preceded and caused the explosion. The court did not submit to the jury the amount of damages caused by the fire, but submitted only the amount of loss caused by the explosion. The jury found that the loss was caused by an explosion, and that the defendant’s negligence was responsible therefor.

The defendant in various ways raises the proposition that the insurance companies were not in position to recover against the defendant for any damages caused by it to Max-ey by the explosion alone, disassociated from the fire. Its contention is that, since the policies insured Maxey against loss by fire only, the insurance companies were entitled to subrogation only in the event the loss was caused by a fire and were not entitled to sub-rogation if the loss was caused by an explosion. It further contends that the subsequent assignments executed by Maxey to the insurance companies were intended merely to carry out the subrogation agreement as eon-, tained in the policies, and were not intended to and did not have the effect of transferring to the insurance companies any greater right than they had under the subrogation agreements as contained in the policies, and therefore the Insurance companies did not acquire any part of Maxey’s right to sue the defendant for a loss occasioned by an explosion.

Of course, if Maxey had sued the insurance companies for the loss, it would have been necessary for him to have alleged and proven that the loss was caused by fire, or, .if he had sought to recover for a loss caused by an explosion, it would have been necessary for him to have alleged and proven that a fire preceded and caused the explosion. Northwestern National Insurance Co. v. Mims (Tex. Civ. App.) 226 S. W. 738; Liverpool & London & Globe Ins. Co. v. Currie (Tex. Civ. App.) 234 S. W. 232. However, in this case we do not consider that the insurance companies in their action' against the gas company are limited to the cause of action that could have been successfully prosecuted by Maxey against the insurance companies under the policies. Maxey and the insurance companies, by agreements among themselves, have settled the question as to whether the insurance companies were liable to him under the policies. Maxey presented his claims, and asserted that the loss came within the terms of the policies. The insurers paid the claims. Maxey, by accepting payment, impliedly agreed that the claims came within the terms of the policies, and that they were claims to which the insurance companies became subro-gated upon payment thereof. This was a matter that they had the right to settle among themselves, and it is of no - concern to the wrongdoer who caused the loss that the insurance companies paid a loss which they could have defeated in court. Maryland Casualty Co. v. Cherryvale Gas, etc., Co., 99 Kan. 563, 162 P. 313, L. R. A. 19170, 487; Iowa State Ins. Co. v. Missouri Southern R. Co., 223 Mo. App. 148, 9 S.W.(2d) 255; Cooley’s Briefs on Insurance, vol. 7, p. 6732; Couch, Cyc. of Insurance Law, vol. 8, p. 6649. Moreover, Max-ey joined with the insurance companies in the prosecution of this suit, and permitted them to recover from the gas company for the loss resulting to him. He did not appeal from the judgment, and is apparently satisfied therewith. It is of no concern to the gas company that the insurance companies were allowed a greater proportion of the recovery than was due them so long as the judgment is satisfactory to Maxey and the gas company is not required to pay more than the damage caused by it

Furthermore, Maxey, upon the payment of his claims by the insurance companies, executed and delivered to them written assignments of whatever claim he had against any third party for the destruction of his property, to the extent of the amounts so paid by the insurance companies. His claim against the gas company for the destruction of his property by an explosion was one that pertained to property rights and was therefore assignable. Maxey alone could raise the proposition that he did not intend to assign any part of the cause of action that did not come within the terms of the policies. He was a party to the suit, and is not complaining of the action of the court in awarding the recovery to the insurance companies. The insurance companies as the assignee of Max-ey had the right to maintain any cause of action that Maxey could have maintained against the gas company. St. Louis A. & T. Ry. Co. v. Fire Association of Philadelphia, 60 Art. 325, 30 S. W. 350, 28 L. R. A. 83; Iowa State Ins. Co. v. Missouri Southern R. Co., 223 Mo. App. 148, 9 S. W.(2d) 255.

The building. where the explosion occurred was a two-story hrick building, with a básement. A drug store was located on the ground floor. Defendant’s gas pipes were located under the building and in the basement. The explosion completely collapsed and demolished the building. It was defendant’s ' contention that the explosion was cdused by nitroglycerine • kept in the drug storej while the plaintiffs contended that it was caused by the accumulation of gas under the building. The defendant introduced expert witnesses to prove that nitroglycerine explodes downward while gas explodes upward. It introduced evidence tending to show that the flooring of the building at the place of the explosion was not totally demolished, and from this sought to draw the deduction that the explosion could not have been caused by gas that had accumulated under the building. The court, over the objection of the defendant, permitted the plaintiff to prove by several witnesses who were in the building at the time of the explosion that they were blown across the street and severely injured and that others were tilled in the building. We think this evidence was admissible for the purpose of showing the character and extent of the explosion so as to enable the jury to determine the cause thereof.

The court, over the objection of defendant, permitted the plaintiffs to introduce in evidence a photograph of a piece of gas pipe taken from beneath the building. The testimony showed that shortly after the explosion the piece of gas pipe was removed from under the building, and several days thereafter the photograph of it was made. The picture showed a hole in the pipe. There was evidence that removing the pipe and exposing it' to the air might have caused the rust scales to sluff off, producing the hole in the pipe at the time the photograph was made. However, the witness who removed the pipe testified that he saw the hole in the pipe immediately after it was removed. He could not say whether it was there before the pipe was removed. We think the photograph of the pipe, although taken several, days after the pipe was removed from the building, was admissible especially in connection with the testimony of the witnesá who removed the pipe that the hole was in it when it was removed from the building. The testimony was admissible for ,the purpose of showing the condition of the pipe and to enable the jury to determine whether gas leaked therefrom.

Claude Allen, a witness for plaintiffs, testified that, when he opened the drug store in the building in question on the morning pri- or to the explosion, he smelled natural gas, and reported the matter to his brother at about 11 a. m. He testified, over the objection of the defendant, that his brother immediately reported the matter to the gas company. The defendant claims this was error. The same witness testified on cross-examination in answer to questions by the defendant that he told his brother that he had better report the matter to the gas company, and for this purpose his brother went to the telephone and dialed a number and reported the leak; that his brother said over the telephone, “We have a bad gas leak, please send someone out here. * * * Thank you.” He testified that he did not know to whom his brother was talking, but that some time that afternoon some men came looking for a gas leak. Other witnesses testified that on that afternoon two white men and a negro from the office of the Dallas Gas Company came into the building and stated that a leak had been reported to the office and that they were there for the purpose of looking for it. They began soaping the pipes and trying to find the leak. The gas company admitted that these men from their office were in the building inspecting the pipes, but claimed that they were making a regular inspection and had not received any notice of the leak. The evidence of Claude Allen that his brother reported the leak to the company was a conclusion of the witness. He could not state what number was dialed. However, in view of the fact that on cross-examination the matter was gone into fully by the defendant, And the witness ex; plained to the jury that he did not know to whom the report was made, we do hot deem this reversible error. Allen’s brother, who was supposed to have reported the leak, was dead, and there was no one who could testify as to what number was dialed. The fact, however, that a number was dialed and a report of the leak was made, when considered in connection with the fact that the men from the Dallas Gas Company soon appeared on the scene looking for a gas leak, and stating that the matter had been reported to the office, was a circumstance admissible in evidence to show that the defendant actually received the report made by Claude Allen’s brother. 17 Tex. Jur. 355.

We have carefully examined all other assignments of error, and do not find any reversible error therein.

The judgment of the trial court is affirmed.