author: HALL, Chief Justice.

text:
    CRANE v. COLONIAL HOLDING CORPORATION.
    No. 3902.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 8, 1933.

      P. H. McGregor and Morgan, Culton, Morgan & Britain, all of- Amarillo, for appellant.
    Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellee.
   HALL, Chief Justice.

The appellant, Crane, sued the appellee corporation for services rendered under a contract, and in the alternative upon a quantum meruit.

He alleges that prior to March, 1930, he had been employed by the Colonial Building & Loan Association as local representative with authority to sell investment stock and make loans on local property. That he was paid no salary and was compensated by commissions on the stock sold and loans made. That the appellee corporation was organized as a holding company for the purpose of acquiring and controlling building and loan associations through the ownership of the reserve fund of said associations. That ap-pellee owned the reserve fund stock of the Colonial Building & Loan Association, for which plaintiff was working, and was desirous of acquiring the controlling interest in other building and loan associations in Texas, and to this end appellee, through its executive vice president and general manager, J. C. Allen, informed plaintiff that the appellee desired to enlist plaintiff’s services in searching out building and loan associations operating in the Panhandle of Texas and, if such associations should be found, appellee wanted plaintiff to investigate the condition of such associations and report to its officer Allen. That Allen had full authority to employ plaintiff, and expressly agreed with him that if any such controlling interest were acquired through plaintiff’s efforts, appellee would pay plaintiff a reasonable compensation for his services. That plaintiff immediately abandoned his efforts to sell stock in the Colonial Building & Loan Association or to make loans in his behalf, and devoted his time and energies in canvassing and investigating various building and loan associations operating in Amarillo and surrounding territory. That he ascertained that both the Amarillo Building & Loan Association and the Texas Plains Building & Loan Association were favorable to the proposition and willing to convert said associations into reserve fund associations, and on or about July 17, 1930, an agreement was reached whereby the appellee acquired a controlling interest in both of said associations, which were consolidated and reorganized into a reserve fund association under the ownership and control of appellee. That negotiations between the appellee and the two associations were commenced about May 1, 1930, and consummated about July 20th, during which time plaintiff devoted his entire time and energy in investigating the affairs of the association, in interviewing officers, directors, and stockholders thereof, and reporting to the appellee. That plaintiff was the instrumentality who brought about and consummated the consolidation agreement whereby the appellee acquired the reserve fund of the reorganized company, which took over the Texas associations at a total cost to the defendant of approximately $165,000. That a reasonable fee for plaintiff’s services in the premises is $15,000.

Defendant answered by general demurrer and numerous special' exceptions, which were waived. It denied that Allen had made any contract with plaintiff or agreed to compensate him for his services. In the alternative it alleged that if Allen had made such contract, then in that event Allen had no authority to represent the appellee in so con'tracting. That appellee had certain by-laws which provided that no officer or agent acting alone should have authority to bind it upon any contract of the nature sued upon. That only the board of directors could enter into such contract with plaintiff or any ojie else. ' That the only services rendered by plaintiff in bringing to appellee’s notice the fact that there was a possibility of consolidating the Texas associations were rendered by him in connection with his duties as selling agent for the Colonial Building & Loan Association, for which he was to be compensated by that company. That before it was possible for appellee to become the owner of the reserve fund stock of the Texas Plains Building & Loan Association, it was necessary that it be merged with the Amarillo Association and become the successor and owner of all the assets of the Amarillo Association and subject to all of its liabilities. That one of the essential things to be done was for the defendant to pay W. H. Brymer, secretary of the Texas Plains Building & Loan Association, a certain sum of money for his operating contract with said Texas Plains Association in order to cancel said operating contract and in order that the ap-pellee might become the owner of and entitled to the benefits accruing to Brymer thereunder. That while plaintiff was pretending to act for and on behalf of the appellee in consolidating said two Texas associations with the idea of creating a position of steady employment for himself with appellee and while he was pretending to act honestly for the appellee and to its best interest, plaintiff falsely represented to appellee that in order to effect the consolidation of the two Texas associations it was absolutely necessary for defendant to pay Brymer, the secretary of the Texas Plains Association, the sum of $6,000 in cash for his operating contract with said association. That appellee believed plaintiff’s representations and relied upon the same and, without knowledge of the falsity thereof, paid Brymer the sum of $6,000 for his operating contract That the purchase of said operating contract was necessary in effecting a consolidation and, while relying upon plaintiff’s false representations, appellee paid Brymer $6,000 in cash. That long after said payment, and after the merger of the two associations, appellee learned that plaintiff had perpetrated a fraud upon it, in that it was not necessary to pay Brymer $6,000 in order to acquire his operating contract. That in fact and in truth Brymer only demanded the sum of $5,000 for his contract, and appellee alleges that the extra $1,000 was required by plaintiff to be paid to him by Brymer and that such payment was kept concealed from the appellee. “In other words, this defendant (appellee) represented that at a time when plaintiff was purporting to act as its agent in the matter of seeking a consolidation of the two associations last named and the issuance of reserve fund stock by the Texas Plains Building' Association and the acquiring of such stock by this défendant (appellee) and at a time when plaintiff was in law and good morals bound to show toward this defendant the utmost good faith and to act solely for its best interest, that the said plaintiff himself commanded and directed the said Brymer to inform this defendant (appellee) that he, Brymer, was charging $6,000.00 for his operating contract.” .

It is further alleged that this fraudulent agreement was carried out' between plaintiff and Brymer and that plaintiff received §1,000 of the $6,000 which appellee was fraudulently induced by plaintiff to pay Brymer.

The next special defense was that the only compensation of any kind ever requested by plaintiff was that he desired to be manager of the consolidated building and loan association so that he might obtain a permanent position, and that following the merger, plaintiff was made manager and continued to serve until he voluntarily resigned.

By supplemental petition the appellant alleged that Allen had authority to bind appel-lee in entering into the contract; that ap-pellee’s officers had actual knowledge of the fact that plaintiff was rendering the services for which he claims compensation and accepted plaintiff’s services with knowledge that he was expecting to be compensated therefor and was thereby estopped. He specially denied all of the allegations with reference to the transaction with Brymer and alleged that the purchase and sale of Brymer’s contract was the result of negotiations between Brymer and Allen, at which time appellee required Brymer to agree to devote his time and energies toward closing up the consolidation of the two associations and the consummation of the entire scheme, and that this required a great deal of detail work upon the part of Brymer. That Brymer agreed to pay plaintiff $1,000 for the latter’s work in assisting him in effecting the consolidation. That the $6,000 did not represent the consideration for Brymer’s contract alone, but was also consideration to Brymer for his services rendered with the assistance of plaintiff, in perfecting the consolidation.

The verdict of the jury, in response to special issues, is, in substance, that Allen requested plaintiff to perform the services, promising to compensate him in money. That plaintiff relied upon such promises and found the two Texas companies willing to be converted into reserve fund associations, informed Allen of that fact, and that appel-lee acting upon such information, accepted the services of plaintiff, and the merger was effected. That Allen was authorized by ap-pellee to contract with plaintiff for his services and to compensate him in money and that appellee knew of such contract. That the reasonable value of plaintiff’s services was $3,750, with interest from July 20,1930. That appellant understood from Allen that his compensation would have to be determined by the board of directors of the Colonial Holding Corporation and would be compensated only in the event of the approval of the amount by said board of directors. That Brymer told plaintiff prior to plaintiff’s telegram of May 14, 1930,. to Allen, that he (Brymer) was asking only $5,000 for his operating contract with the Texas Plains Association. That prior to the time plaintiff sent said telegram of May- 14, 1930, to Allen reporting that Brymer’s contract was priced at $6,000, plaintiff had told Brymer to ask $6,000 for the contract and that $1,000 thereof should be paid by Brymer to plaintiff for the latter’s services in effecting the merger. That prior to the signing of the contract dated May 17, 1930, appellant had demanded and received. from Brymer said $1,000 of the money which appellee had paid Brymer. That at the time Allen and Brymer agreed relative to. the transfer of the operating contract by Brymer, it was understood that Brymer should devote his time and energy on behalf of appellee in working out and closing up the details of the consolidation, and that this was part of the consideration for the $6,000 paid to Brymer. That Allen did not agree to pay Brymer $6,000 before he asked Brymer to render future services to him in bringing about a consolidation of the Texas companies. That it was not agreed between appellant and appellee that appellant’s compensation should be the procurement by appellee of appellant’s appointment as general manager of the Texas Blains Building & Loan Association. That plaintiff did not agree to accept such position as full compensation for his services. That plaintiff’s duties, under his agreement with Allen to find- associations in the Panhandle, were performed when plaintiff found the Texas Plains and the Amarillo Associations as prospects to be converted into reserve fund associations.

Based upon the verdict the court rendered judgment that appellant take nothing.

The appellant insists that upon the last finding of the jury, to the effect that when he found two associations which were willing to enter into the combination, he had performed the obligations of the contract and was entitled to recover.

In the first place, this issue should not have, been submitted to the jury, because the rule is that when the facts are undisputed, the question of whether or not they constitute a performance or a breach of the contract is one of law for the court. 13 O. J. 790, § 1041.. There is no conflict'in the testimony as to the extent of the services performed by Crane; and as stated in 13 C. J. and elsewhere, the question of whether there has been a performance or a breach of a contract when the evidence is undisputed is a matter of law for the court.

In the second place, the appellant pleads over and over again that under his contract with Allen he was to do these three things: (1) Seek out and find building and loan associations, especially in the Panhandle, willing to sell their reserve fund stock to the defendant; (2) to make a complete investigation of the condition of such associations; and (3) report the result of his investigations to the defendant. Manifestly, his services would be worthless to defendant if any part of the obligations resting upon him were not performed, and,the general rule is that a party suing upon a contract must recover upon the identical contract alleged or not at all. In so far as his right to recover upon the express contract is concerned, he must show by his testimony that he has discharged the obligations in full which rested upon him or he cannot recover. Hillmer v. Asher (Tex. Com. App.) 29 S.W.(2d) 1011; McConnell v. Payne & Winfrey (Tex. Civ. App.) 229 S. W. 355; Morris v. Kasling, 79 Tex. 141, 15 S. W. 226, 11 L. R. A. 398.

The next contention is that the court erred in submitting special issues 9a and 9b, inquiring whether Crane understood that the amount of his compensation in helping to bring about the merger of the associations would have to be determined by the board of directors of the Colonial Holding Corporation and whether he understood from Allen that he would receive compensation only in the event the Colonial Holding Corporation approved the amount. We think these issues are immaterial and, if so, their submission and the findings based thereon constitute harmless error. The appellee was not bound by Crane’s understanding. The inquiry must necessarily be: What was the contract? Ap-pellee could prove altogether a different contract under a general denial, and the authorities cited by appellant have no application to the question presented. The defendant may plead as many different inconsistent defenses as he desires.

Crane pleaded the fact of his agency as a basis of his right to recover and it was not necessary for the appellee to plead it.

The allegations of the answer are sufficient to charge both actual and constructive fraud on the part of Crane with reference to the $1,009 which he obtained from the appellee through Brymer. 20 Tex. Jur. 135, § 91; Hickernell v. Gregory (Tex. Civ. App.) 224 S. W. 691.

The agency of Crane in the matter of the merger and all acts and things necessary to be done to effect it was clearly shown by the evidence, and especially by the letters and telegrams which were exchanged between Crane and the appellee acting through its officers.

In his brief appellant attacks numerous special issues which were submitted by the court, but the record discloses that he filed no objections in the trial court to any of them, and is therefore conclusively presumed to have approved the charge. We have, however, considered the objections urged in the brief to several of the issues.

The suggestion that Crane acted as a middleman and not as a broker in effecting the merger is without support in the pleadings or evidence. The idea of a middleman seems to have been an afterthought. A “middleman” is one who merely brings the parties together in order to enable them to make their own contracts. T4e facts in this case show that Crane was the active agent of the defendant. He alleged that he was employed to search out and find building associations in Texas, and especially in the Panhandle, which would be willing to enter into the proposed combination, and he further bound himself to investigate the condition of such associations as he might find and report their financial condition to Allen. He alleges that he did these things and the purpose of this suit is to recover compensation, not as a middleman, but as the agent of the appellee. An agent must be faithful to his principal and his right to compensation calls for the exercise of the utmost good faith on his part. He must not participate in any fraud nor be a party to any misrepresentation which results in deceiving his principal. Moreover, he is bound to disclose to his principal all material facts coming to his knowledge which affect the transaction. He cannot act for both parties without the full knowledge and consent of both. This is an ancient rule, founded upon public policy, and compliance therewith is a condition precedent to his right to recover. Leake v. Scaief (Tex. Civ. App.) 140 S. W. 814; Allen v. Roach (Tex. Com. App.) 292 S. W. 195, 197.

In 14 A. L. R. 474, it is said: “ ‘If he [the broker] takes * * * any part in the negotiations * * * he cannot be regarded as a mere middleman, no matter how slight a part it may be.’ * * * To be a mere middleman the agent must not be invested with the least discretion, and the first employer must have no right to rely on obtaining the benefit of his judgment.”

The rule is stated in 4 R. O. L. 330, § 65, as follows: “A broker is a middleman, within the meaning of this exception, when he has no duty to perform but to bring the parties together, leaving them to negotiate and come to an agreement themselves without any aid from him. If he takes any part in the negotiations, he cannot be regarded as a middleman, no matter how slight a part it may be.”

It must be admitted that under the first several findings by the jury, in the absence of any findings upon the issue of double agency and fraud, Crane would have been entitled to a judgment, but the court would not have been justified in rendering a judgment in his favor and could not have done so without disregarding the findings upon the issue of fraud and dual agency. The genesis of the merger transaction, as shown by the record, lies in Crane’s telegram of May 14, 1930, to J. C. Allen, in which he says that the assets of the Texas Plains Association can be taken over, that its loans are in good shape, and contains this statement, “Operating contract $6,000.00,” as a part of the consideration for absorbing that association. Notwithstanding appellant’s efforts to show that the $1,000 was to, in a measure, compensate him for his services in working out the details of the merger, the jury disregarded all such testimony and believed the unequivocal statement of Brymer that he was willing to take $5,000 for his operating contract and that he added the $1,000 at the request of Crane and with the understanding that when the $6,000 was received, $1,000 should be paid to Crane. This transaction was kept secret and concealed from the principal until after the deal was practically consummated. No clearer case of fraud could well be established. By its findings the jury has settled that question.

The court correctly entered a judgment for the defendant, and it is affirmed.


source: Caselaw Access Project

author: STANFORD, Justice.

license: Public Domain

text:
    SORIA v. AMERICAN NAT. INS. CO.
    No. 1324.
    Court of Civil Appeals of Texas. Waco.
    Feb. 16, 1933.
    Wm. E. Calvert and Chas. J. Lieck, both of San Antonio, for appellant.
    E. B. Simmons, of San Antonio, for appel-lee. '
   STANFORD, Justice.

This suit was filed on the 7th of August, 1931, by Guadalupe Soria as plaintiff against the American National Insurance Company as defendant. Plaintiff alleged that on the 21st of July, 1913, in consideration of certain premiums, the defendant delivered to Seeundeno Quintero a policy of insurance on the life of Ambraeio Quintero, her brother, and thereby insured the said Ambraeio Quintero in the sum of $344. She further alleged a change in beneficiaries from Seeundeno Quintero to Crescencia Quintero on or about May 13,1921, and thereafter a change of beneficiaries was had from the said Crescencia Quintero to the plaintiff herein. Plaintiff further alleged that the assured left San Antonio, and had not been heard of since the month of April, 1923; that all of the conditions of the policy 'had been complied with; and that demand had been made for the payment of same, including the statutory penalties and $150 attorney’s fees. Judgment was sought by plaintiff against defendant upon the ground that the assured disappeared from his last known domicile, and had not been heard from for seven years successively, and had been absent and his whereabouts unknown for more than seven years.

The case was tried on the 16th of December, 1931. The court submitted the case on special issues, the first being as follows: “Do you find from the preponderance of the evidence that the said Ambraeio Quintero disappeared from his last known domicile and has not been heard from for seven years successively?” To which the jury answered: “No.” This issue having been answered in the negative, it was unnecessary for any others to be answered. Upon this finding by the jury in favor of the defendant insurance company, the court entered judgment for defendant. Motion for new trial was filed, presented, and overruled. Notice of appeal was given, and said cause has been duly appealed.

Appellant filed assignments of error and bills of exceptions, and presents the record here for review. Appellant’s first and second assignments will be considered together.

The first assignment shows that the defendant introduced as one of its witnesses, Del Lester, who testified, in substance, that he made a trip to Columbia, Tex., in an effort to locate the insured, Ambracio Quintero, and, after he had further testified, that the plaintiff gave him pictures of the said Ambracio Quintero, and that he took said pictures with him to Columbia, Tex., and there displayed the same to a number of people around Columbia, Tex., the defendant’s counsel was permitted, on direct examination, over plaintiff’s objection, to elicit from said witness the testimony hereinafter set out. It was admitted, for the purpose of this bill of exception, that the time to which the evidence referred was a time subsequent to the filing of this suit, and that the plaintiff was not present nor did she ever make a trip to Columbia; and in the presence and- hearing of the jury defendant’s said attorney propounded to the witness the following question: “Q. Did you find any people — don’t say what anybody said — did you find any people who recognized that picture? A. I found some that said his face was familiar to them.”

Said question and answer thereto and said testimony was objected to by plaintiff and requested stricken at the time. The objections made were as follows, to wit: “(a) Because said testimony is hearsay, is self-serving, is irrelevant and immaterial and prejudicial to plaintiff’s rights, and is an attempt to introduce evidence by hearsay, of some pérson unknown to the plaintiff and without giving the plaintiff an opportunity to cross examine said person or persons, and the jury should be instructed not to consider the same.”

The court overruled said objection, to which ruling the plaintiff then and there in open court excepted. The court qualified this bill of exceptions as follows: ‘‘Prior to the propounding of the question referred to in the foregoing bill of exception, the witness Del Lester was instructed by the court that he might testify as to what he had done in -his efforts to locate the insured, but was instructed, in the presence and hearing of the jury, that he should not testify as to what others had said to him out of the presence and hearing of the plaintiff, and that the jury should not consider the testimony except as to what he, the witness, had done, and not what anyone may have said concerning the matter, which instruction was given several times during the trial, not only while the witness Lester was upon the stand, but while other witnesses were testifying, and the court is of the opinion the jury fully understood 'the instructions given.”

Under appellant’s second assignment and bill of exception No. 2, it is shown the same witness, Del Lester, testified as ábove, and that, in the presence and hearing of the jury, the defendant was permitted to elicit evidence to the effect “that he, the witness, had seen a number of people around Columbia who, upon being shown the pictures (which he claims the- plaintiff gave -him), told him that they recognized the man, and that a man answering the description of the one in the pictures had been around there some three years prior to his visit,” to all of which testimony the plaintiff objected at the time same was given, and said testimony was requested by plaintiff stricken. The objection to said evidence was about the same as the objections made under the first bill of exception. The court also qualified this bill of exception practically the same as he did the first bill. Evidently the witness, Del Lester, paid no attention to the instructions of the court.

From the foregoing statement it is shown that the witness was permitted to testify to transactions and conversation he had with some people around Columbia, Tex., a't a time when the plaintiff was not present. This evidence was purely hearsay evidence, and was, we think, erroneously admitted. It is thought that the questions involved in the two assignments above were very material. The point under investigation, and on which a recovery was sought in favor of plaintiff or the defendant, was whether or not the whereabouts of her brother was unknown, and had been so unknown for seven years. If he had disappeared from his domicile and had not been heard from, and his whereabouts unknown for seven years, then under the law he was presumed to be dead. If the witness, Lester, had procured the attendance of the said witnesses at Columbia, Tex., or elsewhere, and taken their depositions as the law provides, then he might have had some evidence, but for Mr. Lester to take supposed pictures of the assured out to Columbia, Tex., and exhibit same to various people, and then return and go upon the witness stand and testify what said proposed witnesses said, is to make a case based solely on hearsay evidence. The effect of said evidence would have been to get before the jury statements not sworn to and based wholly upon hearsay. In other words, the effect of the evidence would have been to establish by hearsay evidence and by conclusions of the witnesses, in the absence ■of the plaintiff, that her brother was alive, although there was no sworn evidence showing the same. We think it was a very material point in the case. In fact, the evidence bearing upon the question as to whether or not the assured was alive or had died was the very gist of the issue and only issue in this case. The plaintiff’s cause of action was asserted under the seven years’ absence rule-, raising a presumption of death. The testimony shows that she had not known her brother Ambraeio’s whereabouts, nor had she seen him since the month of April, 1923; that attempts had been made by her to locate him, but with no avail; 'that he always wrote.

It is true also that conversations between a witness and a third party, in the absence of the opposite party to the suit, have been repeatedly condemned by our courts. Jung v. Harris (Tex. Civ. App.) 281 S. W. 335; Daggett v. Wolff (Tex. Civ. App.) 44 S.W.(2d) 1063; Dial v. Martin (Tex. Civ. App.) 37 S.W. (2d) 166 (pt. 48); Tucker v. Hamlin, 60 Tex. 171, 176; Texas & P. Ry. v. Felker (Tex. Civ. App.) 99 S. W. 439, 441; Panhandle & S. F. Ry. v. Curtis (Tex. Civ. App.) 190 S. W. 837. It has been held that hearsay evidence alone, admitted without objection, will not support a verdict or a finding of a material fact, Texas Midland Ry. Co. v. Cummer Mfg. Co. (Tex. Civ. App.) 207 S. W. 617; Johnson v. Gattegno (Tex. Civ. App.) 267 S. W. 740; and that incompetent evidence is not to be considered in determining the sufficiency of evidence, Cosden Oil Co. v. Sides (Tex. Civ. App.) 35 S.W.(2d) 815; Dallas Ry. & Terminal Co. v. Bankston (Tex. Com. App.) 51 S.W. (2d) 304, 309. Evidence as to the result of inquiries made by a witness in the counties where a certain person once lived and was last heard of, with reference to whether he was dead, etc., has been held inadmissible ds hearsay. Wells v. Margraves (Tex. Civ. App.) 164 S. W. 881.

The only evidence in the record to support the negative answer to question No. 1 of the court’s charge is the hearsay evidence above referred to, and, with this hearsay evidence eliminated', there is no evidence to support the finding of the jury. The case of Johnson v. Gattegno (Tex. Civ. App.) 267 S. W. 740, 743, referring to hearsay evidence, quoting from another authority, states: “Such incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the record without objection,” etc.; and again quoting from Southern Surety Co. v. Nalle & Co. (Tex. Com. App.) 242 S. W. 197: “Evidence in itself wholly incompetent, and therefore without probative force, gains no vitality because admitted without objection. It will not support a verdict by a jury or a finding of facft by a court.” See, also, Texas Midland Ry. Co. v. Cummer Mfg. Co. (Tex. Civ. App.) 207 S. W. 617, where it was held: “Hearsay testimony unsupported, is insufficient to establish an essential fact.” If the hearsay testimony in this ease is taken away, there is absolutely no evidence supporting the negative answer of the jury in the first issue of the court’s charge.

In conclusion, it is thought that the verdict of the jury in this case was obtained solely by reason of the erroneous admission of this hearsay evidence, and therefore i't cannot be said that no harm resulted from its erroneous admission, so we think clearly the errors here referred to require a reversal of this case.

The judgment of the trial court is reversed, and the cause remanded.


author: LATTIMORE, Justice.

text:
    CITY OF OLNEY v. CHANDLER et al.
    No. 12751.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 24, 1932.
    Rehearing Denied Jan. 21, 1933.
    E. G. Thornton, of Olney, and Marshall & King, of Graham, for appellant.
    Taylor, Muse & Taylor, of Wichita Falls, and Fred T. Arnold, of Graham, for appel-lees.
   LATTIMORE, Justice.

The appellee sued appellant for damages and an injunction from the discharge of water from appellant’s sewage disposal plant into a ditch which led some distance into Salt creek, thence in that creek four or five miles to appellee’s farm. Salt creek does not run in the dryer portions of the year. This sewer water was carried to evaporation tanks, and the excess, which according to appellant was 90 per cent, pure; was run into tlie creek at times, alleges appellant, when the wet weather impeded evaporation, yet gave the creek sufficient flow to carry water promptly to the Brazos river. The plaintiff’s ease was that the sewer water had diminished the rental value of his farm, had caused stock to refuse to drink the creek water, had spoiled a well for him, and the odors caused him sometimes to have to close his doors and windows. He asked for damages to rental value and for personal discomfort.

The verdict on special issues rejected any damages to rental value or that the water was unfit for stock purposes, but found personal discomfort to plaintiff and family, the damages being $250. The court entered judgment for same and enjoined the pollution by appellant of the waters of Salt creek on appel-lee’s farm.

The principal question is whether the evidence is sufficient to sustain the judgment in either portion. The sewage plant of appellant has been in operation for many years. Appel-lee’s evidence is that two or three times a month he can smell the sewage water in the creek at his house, which is some one hundred yards from the creek, and two or three times since 1928 he has had to close the windows on the side nearest the creek in order to eat his meals in comfort. He had dug a well a few feet from the creek, and while he could not smell the sewer water in the well, the water tasted “slick.”

We discard the injury to the well, since there is no evidence that sewer water produces a “slick” taste, but there is evidence that a large number of oil wells discharged their refuse into the creek. Mere inconvenience from odors unaccompanied by any other injury is not a ground for damages. Royalty v. Strange (Tex. Civ. App.) 220 S. W. 421.

Civilization and increasing density of population has brought us traffic lights and taxes, which we cite to exemplify the rule that we must give up some freedom for the privilege of living amongst our kind. Appellee and family have enjoyed better health than before, his stock are content, and the tenantry find his place no less worth while. The proximity of the city, of Olney, if the usual rule prevails, gives him a market for his crops, and stores from which to replenish his supplies. Sometimes people are too emphatic on “rights” and too short on “duty”; each one is the complement of the other. A good citizen must sometimes surrender what seems his right in order that he may do his duty.

Believing the evidence is insufficient to support any verdict, the judgment is here reversed and rendered in favor of appellant. The injunction does no more than the criminal laws already require, and same is dissolved.

On Motion for Rehearing.

We have carefully examined a vigorous motion for rehearing, in deference to which we say that our decision was intended to carry out the principles announced in Daniel v. Ft. Worth & R. G. Ry. Co., 96 Tex. 327, 72 S. W. 578, where it was said that an owner of land may recover damages for injuries to his land and his health or the enjoyment of the property. In the case at bar the jury found the use of the land had not been damaged, but did find that plaintiff has suffered personal discomfort from such odors. We have heretofore set out the evidence on this issue, from which we conclude that the same is insufficient to sustain the verdict.

The motion is overruled.


author: DUNKLIN, Justice.

text:
    TROTTLE v. HARRISON et al.
    No. 12726.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 3, 1932.
    Rehearing Denied Jan. 14, 1933.
    F. M. Brantly, of Fort Worth, for appellant.
    Polk, Sansom & Terrell, of Fort Worth, for appellees.
   DUNKLIN, Justice.

B. G. Trottle instituted this suit In trespass to try title to three lots in Worth Heights addition to Fort Worth. Plaintiff’s petition was in the usual form of trespass to try title, followed by a petition in the nature of a bill of review to set aside and cancel as void a foreclosure decree of the same court and a sale of those lots thereunder to plaintiffs in that suit, to wit, James Harrison, W. B. Harrison, Frank Andrews, and the Fort Worth National Bank, as independent executors and trustees of the last will and the estate of Mrs. Sállie H. Culbertson, deceased; all of whom were made defendants in this suit.

The grounds upon which plaintiff claimed that the foreclosure decree and sale attacked were void, consisted in allegations that appellant here, who was a party defendant in the former suit, was never served with citátion to appear and answer plaintiffs’ petition in the former suit, notwithstanding he resided in Tarrant county where the suit was instituted as was well known to plaintiffs at the time; and that he was the owner of the fee-simple title to the lots at the time of the institution of the suit and at the time of the foreclosure sale, free of the lien which was foreclosed in that suit.

There were further allegations that plaintiff did not learn of the decree of foreclosure nor of the sale thereunder “until long after the same and after the expiration of the term of said court at which said purported judgment was rendered, nor could this plaintiff have learned of the same by due diligence, not having any notice thereof as aforesaid.”

In the present suit defendants filed an answer consisting of a general demurrer, a special exception invoking the statute of limitation of two years, a plea of not guilty, and a general denial; also a plea of the statute of limitation of two years, with further allegations that plaintiff negligently failed to ■have citation served on defendants in this suit until five months after the suit was filed, and therefore the date of such service was in fact the date of the institution of the suit within the meaning of the statute of limitation of two years. And by way of cross-action defendants sought a judgment removing plaintiff’s claim as a cloud upon defendants’ title to the property in controversy.

The former judgment against B. G. Trottle, which he sought in this suit to set aside, was rendered October 8, 1928, and this suit was filed by him October 7, 1930, just before the expiration of the two years’ period allowed by article 2236, Rev. Statutes, within which to file such a proceeding when the former judgment has been rendered upon service of citation by publication against the complaining party; and it has been held that, while the statute denominates such a proceeding as a bill of review, it amounts to nothing more than a continuance of the original suit by motion for a new trial, the merits of which are not governed by the rule in equity governing an independent suit to set aside a final judgment. Wiseman v. Cottingham, 107 Tex. 68, 174 S. W. 281; Hunsinger v. Boyd, 119 Tex. 182, 26 S.W. (2d) 905.

This application made by B. G. Trottle, styling himself plaintiff and the holders of the former judgment defendants, to set aside the former judgment because it was procured in his absence from the state and without his appearance, and by publication only, was called for trial on May 7, 1931, after it had. been regularly set therefor on the docket. Thereupon defendants announced ready for trial, but plaintiff announced not ready, and then filed a motion for a continuance, which was overruled. Thereupon plaintiff moved to dismiss his suit, as did also the defendants their cross-action, and both motions were granted. Plaintiff did not except to the dismissal of his suit, nor to the denial of his motion to continue, nor did he then give notice of appeal.

The motion for continuance was verified by plaintiff’s counsel and attached thereto was also the affidavit of Mrs. V. E. Withers. The motion contained an allegation that plaintiff was the owner of the fee-simple title to the property in controversy, which was superior to the lien foreclosed in the former suit, and that he was absent from the state of Texas when his application was called for hearing, and that his counsel had been unable to advise him of the setting of the application for hearing by the court. The affidavit of Mrs. V. F. Withers embodies statements that she was a codefendant with plaintiff Trottle in the former suit, and was personally served with citation, 'and that at the time of such service Trottle’s place of residence was at 932 West Weatherford street, Fort Worth, Tex., which was the location of the property in controversy, and that affiant was quite sure that plaintiff Trottle had no knowledge of the issuance or service of the citation by publication on him, or of the subsequent rendition of such former judgment until long after its rendition. Affiant further stated that on account of illness she was then unable to appear at the hearing of plaintiff’s application ; and in the motion for continuance it was alleged that plaintiff was unable to establish the fact so alleged by any other witness than plaintiff and Mrs. V. F. Withers.

In plaintiff’s motion to dismiss his suit, it was alleged that he was forced to take such action by reason of the overruling of his motion for continuance, and that the motion was made without prejudice to his right at a later date to apply for a reinstatement of his application to set aside the former judgment against him.

On May 15, 1931, eight days after the dismissal of plaintiff’s application to set aside the former judgment, he filed a motion to set aside the dismissal of his suit and to reinstate his said application. In that motion plaintiff reasserted the grounds upon which he sought to set aside the former judgment of foreclosure with the further statement that he had been forced to take a nonsuit on account of the overruling of his application for a continuance, and that since more than two years had elapsed since the rendition of such foreclosure judgment he could not institute a new suit for the same purpose. Attached to that motion was the affidavit of Mrs. V. E. Withers, stating that when the nonsuit of plaintiff’s application was taken she was then too ill to attend court, but that she has now recovered from such illness.

The application to reinstate was heard on June 16,Í931, and was on that day overruled, and to that order plaintiff excepted and in open court gave notice of appeal.

The application for a reinstatement of the case was not accompanied by any affidavit of plaintiff himself showing why he had not appeared at the time a continuance of his suit was sought, nor any showing of merit in the proceeding instituted to set aside the former judgment. Indeed, plaintiff failed to attach any affidavit of himself of any character. Nor was there any affidavit from any source explaining why he did not make such a showing in support of his motion to reinstate; and under such circumstances we believe it clear that there was a lack of showing of merit in the application to reinstate, and therefore the assignment of error addressed to that ruling must be overruled. The further assignment of error to the dismissal of the suit on plaintiff’s application therefor is likewise overruled; and the judgment of the trial court is in all things affirmed. The order of dismissal of defendants’ cross-action is left undisturbed.


author: FLY, Chief Justice.

text:
    CLAMPITT et al. v. KINGSVILLE LUMBER CO.
    No. 8976.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 11, 1933.
    Rehearing Denied March 1, 1933.
    Sidney P. Chandler, of Corpus Christi, for plaintiffs in error.
    Gus L. Kowalski, of Kingsville, for defendant in error.
   FLY, Chief Justice.

Defendant in error filed this suit against W. A. Oampítt and J. E. Barnhill upon an account in the sum of $2,972.67, alleged to be due for material and money furnished said Olampitt. It was alleged that Olampitt had been in the employment of the lumber company, and was engaged in building houses for those who might buy material for the same; that Olampitt had, in violation of the trust, built a dwelling house for himself on his own lots and reported to the lumber company that the house was built for another and secured by a lien, all of which was false and done for the purpose of defrauding said lumber company out of the valué of the material furnished him. It was alleged that, after the house had been erected, Olampitt sold the lot and house to J. E. Barnhill on credit, and he was paying for the same in small payments. The lumber company sought a recovery against Olampitt for the sum due for the material furnished to build the house and for the establishment of a lien thereon, and that it have judgment against Barnhill for any sum remaining unpaid on the property.

The court submitted the cause to a jury on nineteen special issues, and upon the responses thereto rendered judgment in favor of defendant in error, the Kingsville Lumber Company, as follows:

“It is therefore, now here on this the 19th day of September, A. D. 1931, ordered, adjudged and decreed by the court, that a constructive trust be and the same is hereby impressed in favor of plaintiff upon lote nine (9) and ten (10) in block nine (9) of Brooks addition to the town of Kingsville, in Kleberg county, Texas, together with the improvements thereon situated, and that plaintiff recover of and from the defendant W. A. Olampitt all of the right, title and interest of the said W. A. Olampitt in and to said land and premises and improvements, and the said W. A. Olampitt is hereby divested of all right, title and interest therein;

“It is further ordered, adjudged and decreed by the court that the plaintiff be and it is hereby subrogated to all of the rights of the said W. A. Olampitt in and to that certain contract in writing entered into between W. A. Olampitt and J. E. Barnhill, dated August 31st, 1928, relating to the sale by said Olampitt to said Barnhill of the above described land and premises; and that defendant J. E. Barnliill be and be is hereby ordered to pay to plaintiff, the Kingsville Lumber Company, all past due installments on demand, and all other installments to become due and payable as they mature, together with all interest due and to become due thereon, as provided in said contract, and according to the tenor and effect of the promissory note described in said contract, and the said contract and note are hereby cancelled in so far as the rights of defendant W. A. Olampitt are concerned therein; and the defendant Barnhill is hereby relieved from any further obligation to defendant Olampitt under said contract; and plaintiff is hereby given a lien upon said land and premises as against defendant Barnhill to secure the payment of the unpaid installments under and of said contract and note;

“And it is further ordered, adjudged and decreed that the plaintiff, the Kingsville Lumber Company, have judgment against defendant Olampitt for the amount paid to him by defendant Barnhill under said contract, to-wit, the sum of eight hundred sixty and 8¾00 ($860.85) dollars, less the sum of four ¡hundred ($400.00) dollars, being the sum of four hundred sixty aind 8¾00 ($460.85) dollars, together with interest thereon from date hereof at the rate of six per cent, per annum, for which plaintiff may have its execution.”

Olampitt was a trusted employee of defendant in error, and had absolute control of that part of its business connected with the furnishing of building materials and the erection of 'houses with the same, and had charge of all books and accounts relating to the same. He at times made reports of his activities in the furnishing of material and the erection of houses. He reported that the house afterwards claimed by him was erected for one Barker, when in deed and in truth it was erected on the land of Olampitt and for himself, and he afterwards sold the property to J. E. Barnhill, who was paying Olampitt for the same. He deceived defendant in error as to the building, and within two years after the fraud was discovered, or could have been discovered by reasonable diligence, it brought the suit. The confidence! of defendant in error in Olampitt lulled it into security and prevented discovery of his fraud at an earlier date. The jury found all the necessary facts which are supported by the statement of facts. The evidence clearly showed that Olampitt perpetrated ai fraud upon defendant in error and appropriated lumber and other material in the erection of a house for himself, and caused defendant in error to believe that the material had been used for one Barker, who had secured the claim by a lien. It is ai clear case of trust and confidence abused and a wrong perpetrated against the trusting employer.

The petition did not show on its face that the action was barred by limitation, but, on the other hand, showed that Olampitt had. deceived defendant in error and caused delay in instituting the suit. The first, second, third, fourth, fifth, sixth, seventh, eighth, tenth, and the subsidiary propositions are overruled. The court presented every issue in the ease to the jury, and they answered them all under the evidence.

The jury found that concealment and fraud were used to delay the suit and that there was no negligence upon the part of the lumber company.

The judgment is affirmed.


author: HIGGINS, Justice.

text:
    SANDERS et ux. v. LIFE INS. CO. OF VIRGINIA.
    No. 2775.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 2, 1933.
    Anderson, Orr & McCord, of Fort Worth, for appellants.
    Geo. T. Burgess, of Dallas, for appellee.
   HIGGINS, Justice.

This is a suit by appellee against appellants, Sanders and wife, to recover upon notes executed by the latter and to foreclose a deed of trust upon land given to secure the payment of such notes.

Upon trial without a jury judgment was rendered as sought by plaintiff. The defendants appeal, complaining only of that portion of the decree awarding foreclosure of the deed of, trust. In bar of the foreclosure, defendants set up the homestead character of the land. As against this defense the plaintiff pleaded estoppel.

Upon request of defendants, the court filed findings and conclusions. Those portions material to the question at issue read:

“Findings of Fact.

“1. That prior to the first of December, 1927, the defendants, Sanders and wife, owned and occupied Lot No. Two (2) and the West one-fourth (⅛) of Lot No. Three (3) in Block eight (8) of Ryan’s Place, an Addition to the City of Fort Worth, Tarrant County, Texas, encumbered with a balance of $838.40 on one note for $1,000.00, dated October 25, 1922, executed by said Sanders, payable to John C. Ryan Land Company, and secured by a vendor’s lien on the West one-fourth (½) of Lot No. Three (3) in said Block, retained in the deed from said Land Company to said Sanders, of even date with said note.

“2. That taxes were due and owing to the City of Fort Worth on all of said property in the sum of $1,392.10, and to the State of Texas, County of Tarrant in the sum of $861.09, making a total of taxes due upon said property of $2,253.19.

“3. That the Investment Securities Company of Texas, a corporation, was engaged in the lending of money and had an office in Dallas, Texas, and was represented at Fort Worth by the Stewart Title Guaranty Company; that when it made a loan at Fort Worth the matter of making the loan, examining the title, of passing upon the validity thereof and the payment of the money thereunder was in the hands of the Stewart Title Guaranty Company.

“4. That sometime prior to the 5th day of December, 1927, the defendant, Sanders, approached the representative of the Investment Securities Company of Texas with reference to making a loan of $15,000.00 upon the property described in paragraph 1 hereof, which will be hereinafter referred to as the Ryan Place property, advising them that he had suffered financial reverses; that the property was too expensive for him to longer occupy as a home; that he had contracted to purchase a smaller home and desired out of the loan to pay the cash payment required to be made by him on the place he was purchasing; that he intended to abandon the Ryan Place property as his home and to move into and occupy the property which he was purchasing as his home, and he was advised that when he and his wife moved from the Ryan Place property into the other property and he and his wife abandoned the Ryan Place property as their home a loan could be made upon the Ryan Place property.

“5. That thereafter and before the 13th day of December, 1927, there was sent to and deposited with the Stewart Title Guaranty Company a deed from C. B. Barnes and wife and C. W. Buncy to R. O. Sanders, conveying Lot No. Twelve (12) in Block No. Nine (9) of Homeland Addition to the City of Fort Worth, in Tarrant County, Texas, reciting a consideration of $500.00 and certain purchase money notes, with instructions to said Stewart Title Guaranty Company to deliver said deed to the Homeland Addition lot to said Sanders upon Sanders paying to said Stewart Title Guaranty Company $400.00 of the purchase money called for in said deed, which deed remained with said Stewart Title Guaranty Company until the loan was closed.

“6. That Lot No. Twelve (12) in Block No. Nine (9) of Homeland Addition to the City of Fort Worth, Texas, is the property referred to in the evidence as the Townsend Drive property.

“7. That on the 12th day of December, 1927, 'Sanders and wife moved all of their furniture and household effects out of the Ryan Place property, moving the beds, cooking stove and other articles of furniture to the Townsend Drive property, and on the 13th day of December 1927, advised the said Stewart Title Guaranty Company of these facts, and on said 13th day of December, 1927, executed and delivered to said Stewart Title Guaranty Company the following affidavit signed and sworn to by said R. O. Sanders and wife, to-wit:

“Before me, the undersigned authority, a Notary Public in and for said County and State, personally appeared R. C. Sanders and wife, Carrie Gipson Sanders, who, after being by me duly sworn on oath, did each depose and say:

“Our names are R. C. Sanders and Carrie Gipson Sanders. We are husband and wife, and as such reside together in Tarrant County, Texas. We are the owners of:

“Lot 12, Block 9 of Homeland Addition to the City of Fort Worth, Tarrant County, Texas, the same being known as lot numbered 3567 Townsend Drive in Fort Worth, Texas, upon which said property we now reside, and which we now own, occupy, use and claim as our homestead property or place of actual residence.

“We further state that we are also the owners of:

“Lot 2 and the West one-fourth of Lot 3 Block 8 of Ryan Place Addition to the City of Fort Worth, in Tarrant County, Texas.

“We here now state that we do not reside, occupy, use or claim said last above described property as our homestead property. We further state that we have heretofore removed therefrom all our furniture, household goods and personal effects of whatsoever description; and that we now have and hold no manner of homestead claim against said last above described property.

“We make this affidavit as an inducement to Investment Securities Company of Texas, a corporation, to extend to us a loan upon the security of said Lot 2 and the West ⅛ of Lot 3, in Block 8, Ryan Place Addition — upon the security of our two certain deeds of trust of even date herewith to T. P: Junkin, Trust.ee, recorded in the deeds of trust of even date herewith to T. P. Junkin, Trustee, recorded in the Deed of Trust Records of Tarrant County, Texas.

“Executed this the 5th day of December, 1927..

“[Signed] R. C. Sanders,

“[Signed] Carrie Gipson Sanders.

“Subscribed and sworn to before me, this the¡ 13th day of December, A. D. 1927.

“Mary Deane Melton,

“[Seal] Notary Public, Tarrant County, Tex.’

“8. That on the same date, December 13, 1927, said Sanders and wife executed their certain promissory note for $15,000.00, payable to the Investment Securities Company of Texas, and a deed of trust upon the Ryan Place property, being the note and deed of trust sued upon herein, all of said papers being dated December 5,1927, but actually signed, executed and acknowledged on the 13th day of December, 1927, which deed of trust was properly acknowledged by R. C. Sanders and wife, Carrie Gipson Sanders.

“9. That on the 13th day of December, 1927, the said Sanders and his agents advised the Stewart Title Guaranty Company that they had moved all of their household goods and personal effects from the Ryan Place property and were residing on Lot 12, Block 9, of Homeland Addition and no longer claimed any homestead interest in the Ryan Place property.

“10. That the Ryan Place property is known in the evidence as the Elizabeth Boulevard property.

“11. That On the 13th day of December, 1927, the said R. C. Sanders did deliver to the Stewart Title Guaranty Company a letter reading as follows:

“ ‘This letter will be your authority to pay to Roy R. Nanny the sum of $400.00 out of the proceeds of my loan with you of $15,-000.00, he having advanced to me this amount to purchase other property.

“ ‘[Signed] R. C. Sanders.’

“12. That the Stewart Title Guaranty Company relying upon the statements and representations of said Sanders and wife, and the affidavit set out above, did accept said note and deed of trust and pay over to and for said Sanders the full amount thereof, to-wit, $15,000.00, paying to the Ryan Land Company the sum of $838.40, being the balance due upon the vendor’s lien note owing on the West one-fourth (⅛) of Lot Three (3) in Block No. Eight (8) of Ryan Place, and paying $861.09 to the County Tax Collector of Tarrant County for the taxes due the State and County, and $1,392.10 to the City of Fort Worth for the taxes due the City, and $400.00 of the purchase money for the Homeland Addition lot and some other items of expense reguested by Sanders to be paid, and giving to said Sanders the balance of $10,808.16.

“13. That the said Sanders and wife, by their conduct and representations, led the Investment Securities Company of Texas and its agents to believe that they had abandoned Lot No. Two (2) and the West one-fourth (¼) of Lot No. Three (3) in Block No. Eight (8) of Ryan Place Addition as their homestead, and were setting up their homestead on Lot No. Twelve (12) in Block No. Nine (9) of Homeland Addition, upon which acts and conduct the Investment Securities Company of Texas relied and so relying and believing same to be true, paid out the full amount of money evidenced by said note.

“14. That by the acts, conduct and representations of the said Sanders and wife they have estopped themselves to now claim any homestead interest in Lot No. Two (2) and the West one-fourth (⅛) of Lot Three (3) in Block No. eight (8) of Ryan Place Addition as against the lien of said deed of trust sought to be foreclosed herein and have estop-ped themselves to set up any invalidity of the lien of said deed of trust.

“15. That thereafter, for value, before maturity of the note and in due course of trade, the Investment Securities Company of Texas sold said note and liens securing same to the plaintiff.”

“Conclusions of Law.

“From the foregoing facts I make the following conclusions of law:

“1. That the defendants, Sanders and wife, by their acts and conduct, and the reliance thereon by the Investment Securities Company of Texas, have estopped themselves from setting up any homestead interest in Lot No. Two (2) and the West one-fourth (½) of Lot No. Three (3) in Block No. eight (8) of Ryan Place Addition to the City of Dallas, Texas, as against the lien of the deed of trust executed by them for the benefit of the Investment Securities Company of Texas and now sought to be foreclosed herein by the plaintiff.”

It is one of the husband’s rights, as head of the family, to designate the homestead ; and his acts in so doing are not subject to question so long as he does not aet in fraud of the wife’s homestead rights. Hanes v. Hanes (Tex. Com. App.) 239 S. W. 190.

It is well settled that, where the facts respecting two places are such that the homestead character will attach to either to the exclusion of the other, according as the husband and wife intend, a declaration by the spouses of their intention in this respect will estop them from disputing the truth of the declaration as against one who acquires a deed of trust in reliance upon such declaration. Parrish v. Hawes, 95 Tex. 185, 66 S. W. 209; Carstens v. Landrum (Tex. Com. App.) 17 S.W.(2d) 803; Dallas B. & L. Ass’n v. Patterson (Tex. Civ. App.) 48 S.W.(2d) 657; First Texas J. L. Bank v. Chapman (Tex. Civ. App.) 48 S.W.(2d) 651; Purdy v. Grove (Tex.Civ. App.) 35 S.W.(2d) 1078, 1079; Glaser v. Henderson (Tex. Civ. App.) 2 S.W.(2d) 987; Wootton v. Jones (Tex. Civ. App.) 286 S. W. 680.

Appellees do not question such to be the rule of law, but they question the sufficiency of the evidence to bring this case within its purview.

We copy excerpts from the testimony as given in brief of appellee.

“The appellant, R. C. Sanders, testified:

“The house is a large brick house. Taxes on it were high — about $900.00 a year. It took some money to live in the place. * * *

“Q. And didn’t you say to him (Foster) that you were — either had a sale for the property or you were going to sell it and you wanted this to get you a smaller home; that you had arranged to buy a smaller home and that you wanted this property to probably pay the cash payment on the smaller home?

“A. Not in those exact words. I told Foster that I was buying another home somewhere else and out of this loan I wanted to make the cash payment on that home and that I was moving out of the Elizabeth Boulevard property and moving in the Homeland Addition lot and was going to make that my home. When the loan was closed I got $400.00 to pay on the Homeland lot. We moved practically all of the furniture out of the Elizabeth Boulevard property and a great deal of it to the Homeland Addition property. The papers were signed on the 13th of December, 1927. That he and Mrs. Sanders signed the affidavit as to homestead on the 13th of December, 1927, and swore to the same. That the facts stated in the affidavit were true.”

“Mrs. Sanders testified:

“That the furniture left the house on the 12th of December and was moved back on the afternoon of the 14th; that she moved to the Homeland property the beds, kitchen table, kitchen range, chairs and mattresses. That if anyone had come out to the place on the 12th or 13th of December it would have been apparent' that they (the Sanders) were moving out of the property. That all the beds and the range were moved to the Homeland lot. That all of the heavy furniture and beds were moved before Foster came out to the house; that there was a breakfast room suite in the basement. That their acts in moving the furniture out and in hiding some of it in the basement was to give the impression that they were moving away from the Elizabeth Boulevard place, and that their moving the furniture over on the Townsend Drive (the Homeland) lot was to give the impression that they were moving into that place. I did not tell Mr. Foster that I was going to move back in the Elizabeth Boulevard property. I never saw Mr. Heath or Mr. Griddle. I was never in the office, of the Stewart Titlp Guaranty Company. I signed all the papers so that Mr. Sanders could get the money on them.”

“J. T. Mackey testified:

“That he was connected with the Investment Securities Company in 1927 and lived in Dallas. That when the Company made a loan at Fort Worth the matter was turned over to the Stewart Title Guaranty Company and the examination of the title and closing of the loan was up to it and they paid out the money when they were satisfied as to the title.”

“A. C. Heath testified:

“That he was a member of the bar in Tar-rant County, living at Fort Worth, in 1927, and connected with the Stewart Title Guaranty Company. That he partly handled the Sanders loan; that at its inception Mr. Sanders and a Mr. Nanny came in to his office andi Sanders told him he was purchasing another home and wanted to borrow on the Elizabeth Boulevard property, out of which he wanted to pay the cash payment on the property he was buying. Sanders said he would move out of the Elizabeth Boulevard property; that it was too large for him; that he had to keep a yard man and two servants and it was too expensive; that he told Sanders he could mortgage the Elizabeth Boulevard property if the transaction was bona fide and he was buying the other property and moving-into it; that Sanders said that was what he proposed to do; that he went out and looked at the Boulevard property and found practically everything out of the property, except a little yellow table and chair in one room; that he was not able to get into the house but could see through the windows; that thereafter Sanders came in to see him; that the deed to the Homeland lot which Sanders was buying was sent to him with instructions to deliver the deed to Sanders when the loan was closed and the money ready to distribute and there also came a letter from Mr. Sanders to pay the $400.00 on account of the purchase of the Homeland lot out of! the loan. That he saw Sanders the second time after he (Heath) had visited the Boulevard house and told Sanders that the shades were up and that there was a table and some chairs in there; that Sanders told him that it was impracticable to remove the shades as they were especially cut for the windows in that house and to use them elsewhere would be too expensive and he thought it was immaterial. That he would ¡move the table and chairs and then assure 'them by affidavit of himself and wife that the things had been moved; that the loan was then handled by John Oriddle and closed by him; that he afterwards learned that all the things were out and he prepared the affidavit for Sanders and wife to sign. I know Sanders said he had moved out there at the other place. I believed and relied upon the statements and representations made by Mr. Sanders and thought they were true and would not have permitted the money to be paid out otherwise.”

“J. E. Foster, Jr., testified:

“That he and his father were in the loan business at Fort Worth in 1927; that a Mr. Nanny came to him and told him that a Mr. Sanders desired to borrow $15,000.00 on property owned by Sanders on Elizabeth Boulevard; that Nanny was in no way connected with his firm; that he looked at the house from the outside and thereafter Mr. Sanders came into his office and talked to him and his father and said he wanted to borrow $15,-000.00 on the Elizabeth Boulevard property; that he had entered into a contract to purchase another piece of .property into which he was to move; that the property was on Townsend Drive in Homeland Addition; that his business was poor and he didn’t have sufficient income to justify his living in the Elizabeth Boulevard property and he was buying the smaller property for his home and would dispose of the Elizabeth Boulevard property; that he was going to move into the Townsend Drive property and wanted the loan on the Elizabeth Boulevard property so as to' make a cash payment on the Townsend Drive property. That the deed to the Townsend Drive property was left with the Stewart Title Guaranty Company to be delivered to Sanders when the loan was closed and the purchase money deducted. That before the papers were signed or the money paid out, he, with Mr. Nanny, visited the Elizabeth Boulevard property and found all the furniture moved out. That the garage was open; that there was no indication of anything in the garage; that he never saw the negró girl around the place; that all the heavy draperies and curtains on the windows and pictures and furniture was out of the house; that he believed from the appearance of the Elizabeth Boulevard property that the statements Sanders had made to him were true. That on the 13th of December, Sanders and wife came into his office; that he read and explained the deed of trust and affidavit to them and they signed and acknowledged it. That he believed the representations and statements of Sanders and wife were true • and that the next day, the 14th of December, the money was paid out. That after the papers were signed and acknowledged they were turned over to the Stewart Title Guaranty Company. That he had no reason to say that either Mr. or Mrs. Sanders was not telling him the truth and not acting in good faith and that he believed the acts and statements of Sanders and wife were true. I didn’t know that Sanders and wife were staying at the hotel down town. I was informed by Mr. Sanders that he was moving to this place and was going to make the Townsend Drive property his abode.”

“J. E. Foster, Sr., testified:

“That he and his son were in the loan business in Fort Worth in 1927; that Mr. Nanny first mentioned the loan to him. Mr. Sanders came into his office after that and said that the Elizabeth Boulevard property was too large for him and was too expensive and that he was buying, or had bought another place and was going to move to a smaller place. That Sanders said the Elizabeth Boulevard property was too expensive for him to live in as it took two servants and a yard man and that by living in a smaller house the expense would be eliminated and that he wasn’t able to live in a house that expensive.”

“John Criddle testified:

“That he was in the employ of the Stewart Title Guaranty Company and his duty was to close loans. That on the 14th of December, in the morning, the deed of trust, affidavit and note were brought to him and then Mr. Sanders came in and he checked over the papers, saw that they were properly signed and acknowledged; that he had some instructions from Mr. Heath, saw that the affidavit and papers were in form, and believing the statements to be true, delivered the deed for the Homeland property to Mr. Sanders and disbursed the money by paying $400.00 toward the purchase of the Homeland property, paying the taxes on the Elizabeth Boulevard property and giving the difference to Mr. Sanders. That before he paid out the money Foster advised him that the stuff had been moved out of the house.”

“R. C. Nanny testified:

“That he was a loan broker in Fort Worth in 1927, working for himself under the name of Roy Nanny Company; that he inspected the Elizabeth Boulevard property before the loan was closed with Foster; that there was nothing in the house. That he went in all the rooms but did not go into the basement; that there was no furniture in any of the rooms; that Mr. and Mrs. Sanders told him they had moved a part of the furniture over on Townsend Drive in a house they bought And they were storing a part with Binyon-O’Keefe. That Sanders and wife told him they were going to make the Townsend Drive property their home.”

Appellee offered in evidence a deed from 0. B. Barnes et al. to R. C. Sanders, for Lot No. 12 in Block 9, of Homeland Addition to the City of Fort Worth, Tarrant Cbunty, Tex., dated-day of December, 1927, and filed for record December 15, 1927.

Sanders testified on rebuttal that: “Mrs. Johnson took Mrs. Sanders acknowledgment and read the deed of trust and instruments to Mrs. Sanders. That he moved the furniture hack in the house after he got the money and waited until then.”

This testimony discloses a state of facts very similar to those presented in Oarstens v. Landrum, supra, and in our opinion clearly supports the finding and conclusion of the trial court upon the issue of estoppel.

The judgment is therefore affirmed.