author: SELLERS, J.

text:
    BAKER et al. v. CULPEPPER et al.
    No. 4265.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 22, 1932.
    Rehearing Denied Jan. 5, 1933.
    • George Sergeant and Garland Armstrong, both of Dallas, for appellants.
    Florence & Pulton, of Gilmer, and L. O.. Kemp, of Houston, for appellees.
   SELLERS, J.

This suit was brought by J. B. Baker and his brothers and sisters, whose names will be here omitted, in trespass to try title to 61¾.< acres of land located in Upshur county, Tex., against David Culpepper and others who claim title to the land. The case was tried to a jury and at the close of the evidence offered by the plaintiffs the court instructed a verdict for the defendants and entered judgment on such verdict for the defendants for title to the land involved. To this judgment plaintiffs have excepted and have duly prosecuted this appeal.

The facts are that J. B. Eater and his brothers and sisters, the appellants herein, are the only heirs of J. A. Baker and his wife, Theodosia Baker. Theodosia Baker died December 21, 1905. Before her death in 1905, she and her husband, J. A. Baker, had contracted to buy the land in controversy from J. M. Scarborough and wife and a part of the purchase price was paid, but the deed from Scarborough and wife was not made until October SO, 1906, at which time Mrs. Theo-dosia Baker was dead and the deed was made to James Baker, who, it seems, is the same party as J. A. Baker. The balance of the consideration was paid with community property of J. A. Baker and his deceased wife. J. A. Baker and his children moved on the land about the time the deed was made to Baker by Scarborough.

In June, 1909, J. A. Baker made application to the probate court of Upshur county to be appointed community survivor of the community estate of himself and his deceased wife, and on the same day the court appointed him community survivor and he caused to be made and recorded in the minutes of said court an inventory and appraisement of the community property and also a bond as such survivor. The inventory and appraisement did not list the property involved as community property, and, in fact, made no mention of this property, but other real estate located in Harrison county was listed as community property. The application of J. A. Baker to be appointed community survivor alleged that his deceased wife, Theodosia Baker, died in December, 1906, whereas she had in fact died in December, 1905.

On November 13, 1913, J. A. Baker by warranty deed conveyed the property to J. L. Reppond who paid $1,200 for it. No mention was made in this deed of Baker being community survivor. Reppond went into possession of the property immediately after the deed was made and continued in possession until October 13, 1927, when Reppond sold it for a valuable consideration to Mrs. S. S. Palmer, and this deed was placed on record the same day it was executed. Mrs. Palmer went into possession when she purchased the property and continued in possession until November 29, 1927, when she conveyed the land for a valuable consideration to David Culpepper, which deed was placed of record the same day it was executed. David Cul-pepper went into possession when his deed was made and is still in possession. David Culpepper and wife leased the land for oil and gas purposes on October 9,1930, to W. A. Davey, Jr., and other conveyances of the oil, gas, and minerals were made by Culpepper and wife. The original deed from Baker to Reppond was not recorded until March 11, 1931, although it had been delivered to all the subsequent purchasers when they purchased the land. This suit was brought by the appellants on November 5,. 1931, claiming an undivided one-half interest in the property in fee simple as the.heirs at law of their mother, Mrs. Theodosia Baker.

The deed from Scarborough to J. A. Baker conveyed the legal title to the land to J. A. Baker, and such title as the appellants herein had to the property was an equitable title. This would have been true had Mrs. Theodosia Baker died after the deed had been made to J. A. Baker. Mitchell et al. v. Schofield et al., 106 Tex. 512, 171 S. W. 1121. And this case is also authority for the holding that the deed to J. A. Baker was not notice to subsequent purchasers for value without notice of the equitable title of the appellants.

The burden in this case was upon appellants to show that appellees had notice, either actual or constructive, of the appellants’ equitable interest in the property involved at the time appellees purchased and paid for the same. Duckworth v. Collie (Tex. Civ. App.) 235 S. W. 924, and cases therein cited. This case turns upon the one question: Did the appellees have notice of the equitable title of the appellants when they purchased the land? It seems to be conceded that they did not unless it can be said that they had constructive notice of the community survivorship proceedings in the county court which showed that the wife died in 1906 after the deed from Scarborough and wife to J. A. Baker was executed and that this notice was sufficient to have put the ap-pellees on inquiry .which, if pursued, would ■have disclosed appellants’ equitable title. This contention cannot be sustained. It seems now well settled that community sur-vivorship proceedings are not constructive notice to a purchaser of the legal title for value. In the case of Thompson et al. v. Rust et al., 32 Tex. Civ. App. 441, 74 S. W. 924, 925, the Court of Civil Appeals at San Antonio in an opinion by Justice My, in which a writ of error was denied, held: “The proceedings in the administration of the estate in Colorado county did not serve as notice to Rust that land in Wharton county had been sold by the administrator to Thompson. Such proceedings would not be constructive notice of the sale of land, even in the county where the administration was pending, and it is not pretended that Rust had actual notice of such sale. Allen v. Atchison, 26 Tex. 616; Russell v. Farquhar, 55 Tex. 355; Lewis v. Cole, 60 Tex. 341; articles 4640, 4699, Rev. St. 1895.”

This case was cited with approval in Clemmons v. McDowell et al., 5 S.W.(2d) 224, 229, wherein the Amarillo Court speaking through Chief Justice Hall held: “We have concluded that the statement in Wade Atkins’ application to he appointed community administrator, with reference to his granddaughter, was not notice. Under Revised Statutes, arts. 6626 and 6627, the probate proceedings incident to the appointment of Atkins as community administrator were not such matters as could be registered, and the recitals therein were not notice to Young or his vendees. Allen v. Atchison, 26 Tex. 616; Davis v. Harmon, 9 Tex. Civ. App. 356, 29 S. W. 492; Thompson v. Rust, 32 Tex. Civ. App. 441, 74 S. W. 924; Russell v. Farquhar, 55 Tex. 355; Lewis v. Cole, 60 Tex. 341; Thomas v. First National Bank of Hico, 60 Tex. Civ. App. 133, 127 S. W. 844.”

The evidence failing to show that appellees had any notice of appellants’ equitable title to the land involved, the judgment will be affirmed.


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    MURRAY CO. v. DOBBS et al.
    No. 3931.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 4, 1933.
    W. P. Donalson, of Dallas, for appellant.
    Carl Rountree, of Lamesa, for appellees.
   JACKSON, J.

The appellees, M. C. Dobbs and W. W. Womack, instituted this suit in the district court of Dawson county against appellant, the Murray Company, to recover a commission for procuring the sale of a certain gin plant and certain machinery against which the appellant had and held a valid mortgage lien to secure an indebtedness due appellant by R. E. Coleman, the owner of said plant and machinery.

Appellees alleged that the appellant has its principal office and place of business at Dallas, Tex., and is engaged in the manufacture of cotton gin plants and cotton gin machinery which it sells to customers and. on which it frequently retains a lien to secure a part of the purchase price. That appellant sold the property involved to R. E. Coleman, and retained chattel mortgage liens thereon to secure a balance of approximately $24,151.61 of the purchase price, which balance was evidenced by notes given by R. E. Coleman to the appellant.

That on April 15, 1930, some of said notes were past due, and the maker was and had been for some years unable to satisfy either the principal or interest thereon, and had wholly defaulted in his payments. That about said date A. T. Biggers, the appellant’s agent who represented it in collecting, ad-, justing, and extending its notes and liens and with apparent authority' to so contract, promised and agreed with appellees that if they would effect a sale of said plant and machinery satisfactory to the interested parties, appellant would pay them the sum of $1,000 for such services. That thereafter, relying on such agreement, appellees effected and were the procuring cause of the sale of the property to the Farmers’ Co-operative Society No. 1 of George West, Tex., of which society D. M. Currie was manager. That the sale was evidenced by a written contract of date June 12, 1930, executed by R. E. Coleman, said Farmers’ Co-operative Society, through its manager D. M. Currie, and signed and approved by appellant and was accepted and consummated satisfactory to all the parties,

■ The appellees alleged the terms of the sales contract, the consideration passing to appellant; that the agreement for commission and the sales contract were made in Dawson county and that the property was located at Shumake, in said county, and their cause of action arose in whole or in part therein.

Appellees, in the alternative, say that if they are not entitled to recover on the contract, that they were the procuring cause of the sale; that the consideration therefor was $18,500; that the reasonable commission for a sale of such property is 5 per cent.; and asked that they be allowed compensation on a quantum meruit.

The appellant filed a plea of privilege aiid sought to have the case transferred to Dallas county, where it had its domicile and maintained its place of business. It alleged that it had no authority to sell the proper! ty, as its only interest therein was represented by its debt and liens; that an agreement to pay commission thereon would have been ultra vires. It stated that it , had no agent residing in Dawson county, and denied- the authority of A. T. Biggers or any other person to bind it to pay appellees a commission, and denied ratification- of any such agreement if it had been made.

The appellees filed a controverting affidavit making the allegations of their petition a part thereof, pleaded the contents and effect of certain letters received from appellant’s sales manager, and asserted that appellant, through its authorized agents and officers, had acquiesced in and ratified the sales contract and the commission agreement, had accepted the benefits of appellees’ services, and were estopped to deny liability therefor.

After a hearing the court overruled the plea- of, privilege, from which action this appeal is prosecuted.

The testimony, considered in its most favorable light for appellees, discloses that appellant was a private corporation with its principal place of business in Dallas, Tex., engaged in the manufacture and sale of gin plants and gin machinery. That it frequently retained a lien to secure a balance on the purchase price of the machinery sold. That the property involved in this controversy was sold by appellant to R. E. Coleman and erected at Shumake in Dawson county. That appellant retained a lien against said property to secure the payment of a balance of approximately $20,000 evidenced by notes, some of which were due and unpaid, and appellant was. apprehensive of the financial ability of the owner. That A. T. Biggers, who was the traveling collector of appellant, informed the appellees that Mr. Coleman had defaulted in his payments and promised them if they would effect a sale satisfactory to the owner and the lienholder, that appellant would pay' them the sum of $1,000.00 for their services. That this agreement was made in Dawson county. That appellees were the procuring cause of the sale of the property involved, to the Farmers’ Co-operative Society at George West; that a contract between Coleman and D. M. Currie, the manager of said society, was entered into, subject to the approval of appellant. That R. E. Coleman, M. C. Dobbs, and D. M. Cur-rie went to Dallas and the contract of sale was there approved in the oflice of appellant, and afterwards consummated. That on May 1st, M. C. Dobbs wrote the appellant, stating: “Tour letter in regard to my trip to South' Texas received. The place is George West, Texas, manager D. M. Cur-rie. I spoke to them in regard to your machinery.”

That on May 7th, C. M. Nevitt, the sales manager of appellant, wrote M. C. Dobbs, thanking him for his letter of May 1st, and •stating: “We would be glad to have you work with us on this proposition and will cheerfully compensate you for such assistance * * * in the event we secure the business.”

That the credit and collection department of appellant was in charge of C.' W. Cowan, by whom A. T. Biggers was employed, and from whom he received his instructions. That at the time the sale of the machinery was approved by appellant in Dallas, Mr. Dobbs, at the request of Mr. Coleman, discussed the deal with Mr. Cowan, advising him of the organization of the Co-operative Society at George West, the financial responsibility of the members, and their ability to take care of the obligation they were assuming in the purchase of the property involved ; and Mr. McDonough, the assistant sales manager of the company, promised Mr. Dobbs that the appellant-would compensate appellees for their services in the sale of this property.

The mortgage liens retained by appellant provided that the property involved should remain in Dawsop county, and the removal thereof without the written consent of appellant would mature all of said notes and authorize the holder thereof to take possession of the property, and authorized the appellant to sell the property in the event the owner defaulted in the payment of the notes as they matured.

That appellant maintained a collection department and a sales department. That A. T. Biggers was a traveling collector and without authority to bind appellant in the agreement to pay appellees for their services.

The correspondence discloses that the sales manager had acquired some information relative to appellees’ services, and promised that Ms company would compensate appellees if their services eventuated in the sale of the property about which the- correspondence was had. This correspondence, together with the testimony, indicates that the property involved in this controversy was the machinery referred to in the letters.

Appellee M. O. Dobbs was promised compensation for the services of appellees by the assistant sales manager at appellant’s office in Dallas at the time the- head of the credit and collection department was advised by said Dobbs, at the request of the owner of the property, of the financial responsibility of the purchasers, the sales contract approved, and the services of. appellees accepted.

An agent cannot ratify his own unauthorized act, nor is his knowledge imputable to. appellant.

“An agent cannot ratify his own unauthorized act; * * * but where- the act which when done by one agent was unauthorized, is within the general power of án-other agent of' the same principal, the doing of the act by the first agent may be-rat-, ified by the second.” 1 Mechem on Agency (2d Bd.) page 274. - ,

“An agent who has the power to appoint a subagent and give him authority may ratify his act (if within the agent’s authority) and thereby make it binding on the agent’s principal,” -Id. 275.

“All the authorities agree that. a principal cannot be'said to have ratified a transaction, unless it is shown that he has had knowledge of the terms-on which it was arranged. This applies to a corporation as well as to an individual principal; the corporation cannot he said to have adopted acts of -which it is ignorant. However, where there is knowledge that the transaction has been entered into, this carries with it knowledge of all the usual conditions of such a transaction. The corporation may not thereafter say that it had no knowledge of the usual terms; on the other hand it-is not charged with knowledge of special conditions not. necessarily incident to a-transaction of the kind.” 10 Tex. Jur. 986.

Ratification has the effect of prior .authority and generally .rénders a contract binding on the" corporátion as to all-its terms from its inception. 10 Tex. Jur. 984.

The rule is well settled that a corporation is charged with the knowledge of its agent, acting within the scope of his authority. This rule is based on the duty of such agent to communicate his knowledge to his principal. ’ ' ... r

The record discloses ’that the sales manager of appellant .had information to the effect that appellees were engaged in an effort to effect the sale of the- property in-, volved,. and indicates that the head. of the" credit and collection department had information that the services had been .rendered,, and notice to either of them relative to such services is imputable to appellant.

In Peach River Lumber Company v. Ayers, 41 Tex. Civ. App. 334, 91 S. W. 387, 388, writ of error denied, J. K. Ayers sued said lumber company in the district court of Harris county for services as a broker ,in connection with the purchase by -said company of certain timber in Montgomery county. After holding that the company’s agent who employed Ayers was without authority to bind the lumber compány ’ to pay him' compénsation for his servibes,’ but that such employment was afterwards ratified and the; Services accepted, the court says: “Ayers lived in Harris county, the contract -was made there,, and’ was by' Ayers actually performed there. If.must have been-in the contemplation of Vidor that-Ayers’ part: of th'e contract would be performed in Harris county. Appellant, if liable at all, is liable upon the implied contract for compensation arising from -the employment of appellee 'by Vidor, and. its ratification and adoption -by the authorized-officer of the company. This ratification relates back to the. beginning- of the transaction binding appellant as though Vidor had been fully authorized, by force; of the legal maxim:. JOmnis- ratihabitio retro-trahitur et mandato .equiparatur.’ ’’’

This decision is authority for holding that appellee’s cause of- action, or a part thereof, arose in Dawson county, and that venue was properly laid therein. ■

Appellant’s contention that’ it waS without authority to contract to pay or ratify a contract for paying a eominission'-and; that such a "contract was ultra vires, is not-tenable. Rogers-Hill & Company v. San Antonio Hotel Co. (Tex. Com. App.) 23 S.W.(2d) 329.

The judgment of the trial court is affirmed,;


author: FUNDERBURK, J.

text:
    WARNER MEMORIAL UNIVERSITY v. RITENOUR.
    No. 1031.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 6, 1933.
    Rehearing Denied Jan. 27, 1933.
    Conner & McRae, of Eastland, for-plaintiff in error.
    J. R, Stubblefield and Chas. C, Robey, both of Eastland, for defendant in error.
   FUNDERBURK, J.

This is a suit by John W. Ritenour against Warner Memorial University, a corporation, to recover the sum of $484.44 claimed to be due for labor of the plaintiff as a plasterer in plastering work done upon a building of the defendant. There was also sought to be foreclosed a constitutional and statutory lien upon certain described land upon which said building is situated. It was alleged that plaintiff had his contract with the defendant by which he was to be paid the sum of $13 per day for his services as plasterer in plastering said building; that he started said work on or about the 19th day of July, 1930, and completed the work on or about the 12th day of November, 1930, having worked continuously with the exception of a week or ten days, ánd that on November 8th, 1930, defendant’s agent had given him a memorandum showing that he was due $494.69; that he afterwards worked one day at $13, and six hours at $9.75, aggregating the sum of $517.44, and had been paid a total sum of $33 leaving the said balance of $484.44. Facts were further alleged designed to show that plaintiff had a constitutional lien under article 16, § 37, of the Constitution, and also to show a statutory mechanic’s and laborer’s lien. Plaintiff recovered judgment for the amount sued for, with foreclosure of lien, from which the defendant brings the case here upon writ of error.

There are but two assignments of error. By one it is contended that the trial court was without jurisdiction as shown by the plaintiff’s petition. By the other it is contended that plaintiff’s petition was subject to a general demurrer.

It seems to be practically admitted that -there was no 'such compliance with requirements as to fix a statutory lien. Omitting consideration of that question, there, is in fact but one other question presented, and that is whether or not a plasterer who performs labor as a plasterer upon a building under contract with the owner has a lien, irrespective of statutes, under the provisions of Const, art. 16, § 37. The constitutional provision in question (reads: “Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor; and the legislature shall provide by law for the speedy and efficient enforcement of said liens.”

That a mechanic or artisan who performs labor upon a building under direct contract with the owner has as between him and such owner a lien independent of .statutory provisions, has long been well settled. Strang v. Pray, 89 Tex. 525, 35 S, W. 1054; F. & M. Nat. Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966; Gugenheim v. Dallas Plumbing Co. (Tex. Civ. App.) 42 S.W.(2d) 268.

The inquiry therefore is really narrowed to this: Is a plasterer who works for a daily wage a mechanic or artisan, within the meaning of those words as employed in said constitutional provision? “A mechanic * * * is a person skilled in tile practical use of tools, a workman who shapes and applies material in the building of a house or other structure mentioned in the statutes; a person who performs manual labor.” 40 C. J., 129. “Artisan. A term that signifies one skilled in some kind of mechanical craft; one who is employed in an industrial or mechanic art or trade.” 5 O. J. 597. Webster’s International Dictionary defines an artisan as “One trained for manual dexterity in some mechanic art or trade; a handicraftsman; a mechanic.” The same authority, explaining the difference between an artisan and an artist, says: “A portrait painter is an artist; a sign painter is an artisan, although he may have the taste and skill of an artist. The occupation of the former requires a fine taste and delicate manipulation; that of the latter demands only an ordinary degu-ee of contrivance and imitative power.” We think a plasterer comes clearly within the definition of an artisan or mechanic.

In Merrigan v. English, 9 Mont. 113, 22 P. 454; 5 L. R. A. 837, it was held that a plasterer is a laborer or mechanic within the meaning of a statute providing that a homestead is not exempt from any laborer’s or mechanic’s lien. In City of New Orleans v. Bayley, 35 La. Ann. 545 (5 Words and Phrases, First Series, 4460), it is said that a plasterer is engaged in a mechanical pursuit within the Constitution exempting such person from license taxes even though he employs others of the same class to assist him.

We have concluded that the plaintiff’s pleading was sufficient to show the jurisdiction of the court, and as against a general demurrer to show a cause of action. For a somewhat similar case, see Tenison v. Hagendorn (Tex. Civ. App.) 155 S. W. 690.

Being of opinion that the judgment of the trial court should be affirmed, it is accordingly so ordered.


author: MASTIN, J.

text:
    JOE B. WINSLETT, Inc., v. CITY OF HAMLIN.
    No. 3930.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1932.
    Rehearing Denied Jan. 18, 1933.
    Thomas & Thomas, of Anson, for appellant.
    Henry L. DeBusk, of Abilene, for appellee.
   MASTIN, J.

Appellee is a municipal corporation located in Jones' county. Having an inadequate water supply, it negotiated a contract with appellant to locate and construct a reservoir to supply this deficiency. A site was selected and a dam erected on Oley’s creek by appellant. Out of this arose a controversy, which eventuated in a suit 'being filed by appellee against appellant and a recovery herein of damages in the sum of $29,000. ' The nature of this suit will sufficiently appear in the discussion below.

We are of tbe opinion that the court erred .in refusing to sustain the general demurrer to appellee’s petition urged by appellant, but for a- reason different from that here assigned. Generally speaking, a petition declaring upon a contract must clearly allege what was agreed to be done, what has been done, and what has been omitted, together with the damages resulting from such omission. 13 0. J. 714. Stated otherwise, the petition must disclose a valid agreement, a right in plaintiff, and a breach by the defendant. H. H. Averill Machinery Co. v. Bain, 50 Mont. 512, 148 P. 334; Harrell v. Southern R. Co., 14 Ga. App. 451, 81 S. E. 384.

A recovery was had herein apparently upon a written contract, but nowhere in its petition does appellee allege or set out either the terms or legal effect of the contract in such way. as. to show the legal duty of appellant with .respect to the matters alleged to have been breached. Nothing appears in the petition from whicli we can conclude that appellant was under an obligation to perform that which, it is alleged it failed to do, nor is a copy óf the contract alleged to have been made attached as an exhibit to the petition. Appellee alleges: “Under one cover now on file with the City Secretary of the City of Hamlin is the notice to contractors, acceptance of bids, a form of agreement, form bond, general conditions of the agreement and specifications and plans for the construction of said lake,' all prepared by or under the direction of deféiidahr herein. The above and foregoing instruments are hereby referred to for further particulars. Under separate cover, also now on file with the City Secretary of said City of Hamlin and hereby referred to for particulars, is a general recommendation as to-.the location of the'proposed reservoir, an estimated cost thereof,: together with a-contract executed by Joe. B. Winslett, Inc., and City, of Hamlin. This contract incorporates and makes all the other. documents hereinabove mentioned a part of it, and the. said contract and all other instruments incorporated therein and hereinabove mentioned are on file with the City Secretary of the City of Hamlin and the same are hereby referred to and incorporated herein in every particular the same as if copied herein.”

’ An instrument cannot be made a part of a pleading,' as was attempted here, by a mere reference to it. The instrument or a copy thereof must be attached to or filed with the pleading; that is, it must be actually “exhibited.” Blum v. Moore, 91 Tex. 273, 42 S. W. 856. While the Supreme Court has so decided, it is perfectly obvious without such holding. A mass of documents on file in another county are here attempted to be incorporated as part of the pleading by a mere reference to same. A moment’s reflection is sufficient to demonstrate that such a reference could not place upon the trial judge the duty of making a journey out of his county to determine the sufficiency of pleadings. Nor could exhibits, if attached, be made to supply the absence of allegations necessary to show a cause of action. Blair v. City of Houston (Tex. Civ. App.) 252 S. W. 882; Owen v. City of Eastland (Tex. Civ. App.) 37 S.W.(2d) 1053. Exhibits may make certain that which is indefinite in pleadings, but cannot be looked to for the purpose of supplying allegations which are indispensably necessary to show a cause of action or defense.

Aside from the above, we note that plaintiff’s petition is filled with allegations of statements and representations alleged to have been made by appellant. These were stricken by the trial court in response to special exceptions by appellant, in which ruling appellee apparently acquiesced, but filed no new pleading. We are left in doubt from the petition before us whether appellee originally intended to plead a cause of action ex delicto or ex contractu or both, and if ex contractu, whether express or implied. The court submitted the following special issue: “Did .the defendant Joe B. Winslett, Ine., fail to comply with the provisions of its contract with the City of Hamlin in the manner in which it constructed the dam in question? Answer yes or no.” Answer: “Yes.”

The original documents constituting-the alleged contract between the parties have been sent up with the record. These contain different acts to be perfoz’med by appellant. Which of these, or whether all, were-found to be breached by appellant is left to surmise, since neither the pleadings nor the court’s charge identified the particular promises now' alleged to have been breached. We would, therefore, be unable to pass upon any assignment of error calling in question the sufficiency of the evidence to support a finding as to any particular breach. Nor could we under these pleadings appraise the merits of any complaint of. a variance between the pleading and proof in the particular matters next referred to. It has been ofttimes decided that a recovery on a cause of action ex contractu is unauthorized where a cause of action-ex delicto is pleaded'and'vice versa. 49 C. J. 806, and authorities there cited. Nor can a party to a suit' declare on an express contract and recover on an implied one and vice versa. Nunn v. Townes (Tex. Civ. App.) 23 S. W. 1117; Krohn v. Heyn, 77 Tex. 319, 14 S. W. 130; Wisbey v. Boyce (Tex. Civ. App.) 27 S. W. 590.

These observations illustrate the necessity of definite and specific pleadings in this character of case. Plaintiff’s petition is too lengthy to here set out in its entirety, hat the following excerpts sufficiently illustrate its general character:

“And Joe B. Winslett on examination of the above and foregoing written documents show that said company (and said Winslett) held out to the governing body of the city to he expert engineers and contractors, and represented that a saving could be had to the city by awarding the contract to them by reason of the expert knowledge and ability both as contractors and engineers. Defendants made all representations, recommendations, agreements, and promises that were made and everything in connection with the procedure and contracts now on file as stated were executed by defendant herein. Defendants represented that the location and construction of a dam across Oley’s Creek, about 7½ miles North of the City of Hamlin, under the expert engineering and expert construction of defendant, would insure the city an adequate water supply and that the proposed reservoir would not leak. Accordingly the said lake is located and the dam is constructed across said Oley’s Creek and the same was done under the direct supervision and expert engineering and construction of defendant. The lake will not hold water due to the location of the dam across said O’.ey's Creek impounding water on a gypsum formation, together with careless and negligent construction and a breach of material agreements on the part, of defendant. All this was known or should have been known by defendant at the time of the execution of the agreement to so construct the lake.
“With these representations as aforesaid, to-wit: that the proposed lake should be located across Oley’s Creek as stated; that the lake would, when complete, impound such a quantity of soft water and retain same without leaks, to adequately supply the city and all its inhal itants for many years to come; and further that defendant, being both engineer and contractor, could save the city in the cost of said proposed and recommended project, and do a first class job, both from the standpoint of engineering and construction; with these representations,- covenants, and agreements made on the part of the defendant, the work began. * * * Although the lake has been completed only about ten or twelve months, it does not hold water as represented but it leaks and has been leaking since it first caught water so that it is of little or no value to the city. * * * The soil and geological formations are contrary to the representations made by defendants, both as to the location of the lake and the manner of its construction, and defendants knew at the time, or should have known, that a lake on such a formation could not be made to hold water and that a dam across such a creek could not and would not endure. * * *
“Plaintiff says that the lake and dam instead of being what defendants represented and said they would be, that the dam is of a pervious substance and contains a large per cent, of gypsum which defendants knew or should have known to be soluble in water. * * *
“Plaintiff declares that the agreements, representations, promises and covenants made by the defendants, jointly and severally, in the premises were not kept, done and performed by defendants or either of them. On the other hand, the said representations and agreements were believed and relied upon by plaintiff, the result of which plaintiff has lost and been damaged the whole contract price for said project to-wit: §111,800.00.”

A general allegation of breach of “material agreements” is-alleged, but such agreements' are not particularly set out nor described as being part of the written contract. If oral, they appear to have been stricken. We judge from the briefs on file -that the plaintiff is re-lying mainly on the fact that the,dam,across Oley’s creek was located in a gypsum formation and constructed in part of " gyp ' soil, which, being soluble in water, caused the loss of the reservoir. Prom the petition we are’ unable to say that appellant violated any express or implied covenant of its contract in, so constructing the dam. nor can we say that appellee did not intend to plead an ex delicto cause of action arising out of fraud perpetrated upon it by appellant. If we could exercise here the prerogative of a jury, we would have little difficulty in concluding that there is abundant evidence to sustain appel-lee’s claim that it has been “gypped” by the construction of a gypsum dam. Being given the power only of a reviewing court, we are compelled under our duty, as we see it, to order a reversal, with the suggestion that this case be repleaded in its entirety.

Upon the trial of this case under proper pleadings, other questions briefed may not arise and are not, therefore, discussed.

Reversed and remanded.


author: LOONEY, J.

text:
    HENSON v. COMMISSIONERS’ COURT OF HENDERSON COUNTY.
    No. 11353.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 3, 1932.
    Rehearing Denied Jan. 7, 1933.
    Ashworth, Crisp & Ashworth, of Kaufman, for appellant.
    E. A. Landman and H. B. Green, both of AthenSi for appellee.
   LOONEY, J.

During 1919, road district No. 13 of Henderson county was created, and bonds amounting to $75,000 payable in thirty installments bearing 5½ per cent, annual interest were authorized; the bonds were regularly issued, • sold, and the proceeds used to build and operate public roads in said dis-. trict. On September 14, 1931, the commissioners’ coubt. of Henderson county levied an ad valorem tax of $2 -on each $100 valuation of taxable property in the district for the redemption of the matured and immediately maturing bonds and interest thereon. George Henson, appellant, a resident property owner and taxpayer in said district, for himself and on behalf of all others similarly situated, sued the commissioners’ court of Henderson county, its tax assessor and collector, to enjoin the collection of the tax levy above mentioned.

The road district was organized under the provisions of the statute of this state, held void by the Supreme Court of the United States (in Brown v. Hooper, 269 U. S. 396, 46 S. Ct. 141, 70 L. Ed. 330), because repugnant to the due process clause of the Federal Constitution (Amendment 14). Thereafter the Legislature, at a special session convened in 1926, passed curative acts, that is, as applied to the road district in question, a special statute, being chapter 319, Special Laws of the First Called Session of the Thirty-Ninth Legislature, and, as applied to all road districts of the state similarly organized, a general statute, being chapter 17, General Laws of said Special Session.

The effect of the validating statutes was to legalize all such road districts, including road district No. 13, Henderson county; established their boundaries as selected by the petitioners and defined by the commissioners’ court; validated all bonds issued and all proceedings of commissioners’ courts pertaining to the creation of road districts as bodies corporate; also validated the construction of public roads therein, and all levies of taxes made for the redemption of bonds issued.

In the case of Louisiana Ry. & Nav. Co. v. State (Tex. Civ. App.) 298 S. W. 462, affirmed by the Supreme Court, 7 S.W.(2d) 71, similar to the case at bar, we held that, although the road districts involved were organized under the void statute, they were nevertheless validated by the act of the Legislature. We discussed at length every phase of the subject, with full citation of authorities, and can add nothing to what was there said.

Appellant contends, however, that the validating acts are repugnant to section 53, art. 3, of our Constitution, reading: “The legislature shall have no power to grant, or to authorize any county or municipal authority to' grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor after service has been rendered or a contract has been entered into, and performed in whole or in part; nor pay, nor authorize the payment of, any claim created against any county or municipality of the state, under any agreement or contract, made without authority of law.”

This section, in our opinion, has no application to the subject under consideration, because of the effect that must be given the validating acts; therefore, Without further discussion, we overrule appellant’s contention in this respect.

Appellant contends further that the levy in question is wrong in principle, amounts to double taxation, is confiscatory, and does “violence to the fundamental law of the land.”

This contention is based upon the following situation: Taxes were regularly levied and collected from appellant and other taxpayers in the district, approximately sufficient to discharge the principal and interest' of bonds that matured in 1931; the amount collected being $7,494.30, of this the collector paid the county treasurer to the credit of the road district $5,556.16, and the same was by the treasurer placed in the Athens National Bank, the county depository; also the sum of $1,938.15 collected, but neither reported nor turned over to the treasurer, was by the collector deposited to the credit of his account in the said depository; and in this status the bank ceased payment, closed doors, and its affairs were placed in liquidation.

After the bank closed, these funds not being available for payment on the bonded indebtedness of the district, the commissioners’ court, in the exercise, as we believe, of a sound discretion, .made the levy in question.

The record fails to disclose what, if any, dividend had been paid depositors from the liquidation of the closed bank, or what, if any, effort was made, or contemplated, to realize on the bond of the county depository.

Appellant does not contend that the $2 levy is in excess of the constitutional limit, but that the payment by him and others of said taxes discharged the bond obligations. (pro tanto), “and that if perchance the money is lost by the tax collector or the county treasurer or the county depository, that the taxpayer is not liable therefor, and that the remedy of the bondholder is against either or all of the above named officers and their bondsmen.”

Was the commissioners’ court, in the situation above described, authorized to make the levy of September 14, 1931, or rather designate the rate, the levy having been made before the bonds were sold? (On the nature of the levy, see discussion in Louisiana, etc., Co. v. State (Tex. Civ. App.) 298 S. W. 462, 468.) We think so. The tax money collected was handled by the county officials as the law directs (see articles 738, 740, 741 and 742, R. S. 1925). While it would be a hardship at any time, and especially is it, under stress of present conditions, for appellant and the other taxpayers to be called upon to replace the fund tied up on account of the bank failure, yet they are not without relief; the district is a body corporate (article 746), may sue and be sued; dividends may be realized from the affairs of the depository bank; if necessary, the liability of its bondsmen may be enforced, and any sums collected, from either or both sources, will, to that extent, lessen tax levies in the future, but we do not think a suit to enjoin officials from collecting the tax in question a proper remedy. The obligation of the district was not discharged, because of the misfortune, its misfortune, and it alone must suffer the consequences. The duty of the commissioners’ court to see that sufficient taxes, within the constitutional limit, -yvere col-leeted to satisfy the bonded indebtedness, is plain (see articles 738 and 740), and we find in the instant case no evidence of the abuse of discretion.

The assignments and propositions urged f0r reversal having been duly considered, and found without merit, are overruled, and the judgment below is affirmed.

Affirmed.


author: FLY, C. J.

text:
    MAYFIELD v. HUSTAD et al.
    No. 8927.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 14, 1932.
    Rehearing Denied Jan. 25, 1933.
    R. T. Pritchett, of Corpus Christi, for plaintiff in error.
    E. B. & Howell Ward, of Corpus Christi, for defendants in error.
   FLY, C. J.

Plaintiff in error sued J. C. Hustad and the City National Bank & Trust Company of Corpus Christi, and Kosar & Kosar, a partnership for $1,060' held in escrow by said bank. It was alleged by plaintiff in error that he and Hustad entered into a contract for the sale by plaintiff in error to Hustad of a certain lot in the city of Corpus Christi, under the terms of which plaintiff in error was to furnish an abstract of title satisfactory to his attorney, and when such abstract was furnished, and deed given to the land, Hustad bound himself to pay plaintiff in error the sum of- $5,000 in cash,f and assume the payment of three promissory notes executed by plaintiff in error amounting in the aggregate to $5,000, and he was also to deposit with the City National Bank, afterwards succeeded by the City Bank & Trust Company, the sum of $1,000 as liquidated damages. Hustad made the deposit.

The first proposition is as follows: “The Trial Court should have rendered judgment in favor of plaintiff-in-error, because, if the X Company did dedicate the Street S in Y Subdivision to C City and the X Company conveyed by warranty deed all the Y Subdivision, without restriction or reservation of title whatsoever, before C City abandoned Street S, then afterwards C City abandoned Street S and M acquired the title to the abandoned Street S held by the holders of record fee simple title to the lots abutting both sides of the abandoned Street S at the time of abandonment, then M holds merchantable record title to the abandoned Street S.”

The proposition is not only unique but suggestive of an attempt to conceal from all but the initiated, the cryptic meanings of a secret society. It is about as plain and obvious as the newspaper names and designations of baseball and football teams are to an untutored layman, struggling to ascertain the result of a game. The abbreviations show such economy of time, and space as would arouse envy in the breast of the most thrifty, typical Scotchman. The court has no key to the mystical letters used, and has not the time to look through pleadings, voluminous and tedious, to arrive at the identity of the parties and places described by letters. The proposition is too obscure for consideration.

The second and only remaining proposition is not obscure, but is long and so involved as to be unintelligible. It may be said that it assumes the existence of facts not sustained by the statement, which clearly indicates that the abstract did not show a merchantable title, and that I-Iustad was justified in refusing to pay for the land.

The judgment is affirmed.


author: HARD, C. J.

text:
    THOMASON et al. v. HASKELL NAT. BANK.
    No. 3934.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1932.
    Rehearing Denied Jan. 18, 1933.
    Walter Fly, of Dallas, for appellants.
    Ratliff & Ratliff and Tom Davis, all of Haskell, for appellee.
   HARD, C. J.

The bank sued G. W. .Thomason and Mrs. G. W. Thomason to recover the amount of a note in the usual form, which was made payable to the appellee at its office in Haskell, Tex.

The- appellants filed separate pleas of privilege to be sued in Dallas county, which they alleged was the county in which they resided. The bank filed separate controverting affidavits, alleging the execution of the note by the appellants, that according to its terms it .was payable at the office of appellee in Haskell county, Tex., and did, therefore, under subdivision 5 of article 1995, R. S., confer jurisdiction .upon the district court of Haskell county. The appellants answered the controverting affidavits by general demurrer, special exceptions, general denial, plea of payment in the sum of $751.11, lack of jurisdiction of the district court, that Mrs. Thoma-son was a married woman at the time she signed the note, for which reason it was .void, that she was the real obligor, that G. W. Thomason signed it as an accommodation maker or surety and because the note was void there was no liability as to him because he received no consideration therefor, and further alleged that he was released because the time of payment had been extended without his knowledge or consent.

The principal contention of appellants is that Mrs. Thomason being a married woman at the time of the execution of the note, and there being no allegation • or evidence to the effect that the $1,000 for which the note was executed was for necessaries or for the benefit of her separate property, and because Thomason alleged that he was an accommodation indorser and received no part of the consideration and the note had been extended without his knowledge, there was no liability on the part of either party, and because for said reasons the contract was void, it did not come within the terms of article 1995, subdivision 5.

A married woman’s note, given for purposes not specifically authorized by statute, is not void, but voidable. She may de-' feat a recovery against her personally by pleading her coverture or at her option she may waive this defense. Taylor v. Leonard (Tex. Civ. App.) 275 S. W. 134; Cruger v. McCracken, 87 Tex. 584, 30 S. W. 537.

The matters set up in the answer to the controverting affidavits with reference to the coverture of Mrs. Thomason, the want of consideration and release from liability of Thomason, are all matters which affect the validity of the contract sued on and cannot enter into the trial of the issues presented by the plea of privilege.

As said in Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.(2d) 810, 811: “The ownership of the note, and the validity of the obligation evidenced thereby, are matters which go only to the merits of the action. An inquiry into those matters has no proper place in determining the question of venue.”.

The judgment is affirmed.


text:
    OLIVARES v. GARCIA.
    No. 8947.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 14, 1932.
    Rehearing denied Jan. 18, 1933.
    Perkins & Ployd, of Alice, and J. T. Can-ales, of Brownsvillé, for appellant.
    Lloyd & Lloyd, of Alice, for appellee.
   FLY, C. J.

Appellee sued to recover on a certain promissory note for $1,500 due on December 18, 1931, the original petition having been filed on September 30, 1931, before the note became due; a writ of attachment having been obtained, on the allegation that appellant was about to dispose of his property with intent to defraud his crediors and defeat the claim of appellee.

The writ of attachment was issued and levied on lots one and two in West End addition to Robstown, and lots in San Diego; there being writs issued to Duval and Nueces counties, An amended petition was filed alleging that the note had become due, arid seeking to recover attorney’s fees. Appellant sougnr by cross-action to recover damages from appellee and the sureties on his attachment bond, to which the court sustained a general demurrer, and rendered judgment in favor of appellee for $1,857.90 and foreclosed the attachment liens and provided that a deposit of $1,660 paid into the registry of the court by appellant be credited on the judgment.

The action of the court in sustaining a general demurrer to a cross-action for damages filed by appellant against appellee and the sureties on the attachment bond was not error. The pleadings in the cross-action were long and set forth in detail the ineffectual efforts of appellant to obtain from his cousin, the appellee, an extension of the time of payment of the note given by him to her. The unrelenting conduct of the cousin in refusing to concede any favors to appellant, of course., was riot sufficient'to base a suit’for damages thereon. None of the other allegations showed any basis for damages, and it is only necessary to say that no personal property was seized but only certain real property was levied upon without disturbing the possession- of appellant. 'Such seizure of real property did not constitute a basis for a claim to any damages actual or exemplary. This court so decided in the ease of Tsesmelis v. Sinton State Bank et al., 35 S.W.(2d) 451. The cited case was taken by writ oí error to the Supreme Court, but was afterwards affirmed in an opinion written by Judge Joseph Ryan of the Commission of Appeals, 53 S.W.(2d) pages 461, 463. The Commission of Appeals on the subject being considered-said: '“The mere levy of a writ of attachment upon real estate, not being attended with any disturbance of the possession, use, or enjoyment by the owner, will not authorize a recovery of actual or exemplary damages.” The cro^s-action stated no cause of action, and- the general demurrer was properly sustained. The second proposition is,like unto the first, and falls with it.

Appellant paid the full amount of his debt and interest, up to' the time of the maturity of -the debt, which occurred after the institution of the suit. The payment was made to the clerk.with instructions to hold it until final judgment was rendered in the cause. The institution of the suit was caused by the acts of appellant in preparing to dispose of his property with intent to defeat the claim of appellee. The court must have found this fact in rendering the .judgment'which was rendered against appellant.

The facts in this ease sharply differentiate it from the facts in the case of Laning v. Iron City National Bank, 89 Tex. 601, 35 S. W. 1048, relied upon by appellant to show that attorney’s fees and interest should not be recovered because the suit was instituted before its due date. In that case the jury found that the writ of attachment was wrongfully sued out. Not so in this case; but the action of the judge in sustaining a general demurrer to appellant’s cross-action and in rendering judgment for appellee showed conclusively that he found that the facts existed which justified the issuance of the writs of attachment.

The appeal is without merit, and the judgment is affirmed.


author: HIGGINS, J.

text:
    COMMERCIAL STANDARD INS. CO. v. WALLS et al.
    No. 2763.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 22, 1932.
    Rehearing Denied Jan. 19, 1933.
    Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in error.
    Lea, McGrady & Edwards, of El Paso, on rehearing only, and Louis Wilson, of Dallas, for defendant in error.
   HIGGINS, J.

This is an action by defendant in error against the plaintiff in error to set aside an award of the Industrial Accident Board. He recovered judgment awarding a lump-sum settlement upon findings of total and permanent incapacity. The parties will be designated as they were in the trial court.

The issue as to whether plaintiff’s injuries resulted in total and permanent disability was the sharply contested issue in the case. To sustain his contention that he was so incapacitated the plaintiff relied upon the testimony of Dr. John F. Ford. W. P. Bon-dies was a representative of defendant.

While Dr. Ford was being cross-examined, he was asked if he did not meet Mr. Bondies on the street last year and say to him: “I am starving to death, if you people don’t get some business for me I am going on the other side of the fence.and testify and ruin you.’)

Dr. Ford denied making such statement. Later Bondies was placed upon the stand and testified that Dr. Ford had made a statement to him to the effect as quoted above.

Upon cross-examination counsel for plain-' tiff asked Bondies this question: “Q. Mr. Bondies, why have you suddenly turned on Dr. Ford when you have heretofore used him to testify for the Company wherever he had patients? To which the witness answered: “A. I-Ie was found guilty in this Court House of malpractice, there is the charge right there if you want the jury to see it, signed by Judge Works and by Mr. Roeliella as foreman; of course we couldn’t use a doctor like that when they found that doctor operated wrong on a woman — shall I read it.”

Later in the day the following occurred:

‘‘The Court: Gentlemen of 'the Jury, I want you to listen carefully, a matter occurred this morning that should not have occurred in this law suit. Mr. Reporter, I wish you would read the question and answer referred to.”

(Here follows question and answer as quoted above.)

“The' Court: 'Now, Gentlemen of the Jury, you are instructed to disregard every single solitary word I have had read to you because there is no such thing as finding a man guilty of malpractice in the civil courts, if he is found guilty of such a thing as that it is in the criminal court and not the civil court.' He was not found guilty of any malpractice, in either of the civil courts of this County xior has he been found guilty in the Criminal Courts. There was a suit, a damage suit pending in Judge Works’ Court; they sued' him for damages and a judgment was rendered against him for $400.00; he appealed it to the Civil Court of Appeals and it was reversed and sent back and has never been tried since. Mr. Bondies should not have made that statement to you gentlemen, this morning and you should disregard every Word. It may be reversible error but I am going to do all I can to tell you to disregard it entirely. ' '
. “Mr. Strasburger: To which action and remarks of the Court we except.
“The Court: I am doing it of my own accord.
“Mr. Strasburger: We would like to offer in’ evidence the original papers themselves, they speak for themselves.
“The Court: I am not going to let in a word of it, anything about that law suit, it has no business in it at all.
“Mr. Strasburger: We would like to offer in evidence the opinion of the Court of Civil Appeals.
“The Court: No sir.
“Mr. Strasburger: Can we show why it was reversed?
“The Court: You are not going to show anything about it, your witness should not have told it; if you had not been a lawyer I could see some reason in it,
“Mr. Strasburger: The defendant excepts to the remark of the Court.
“The Court: Go ahead and stay off that, subject.”

The alleged malpractice case is Ford v. Couch (Tex. Civ. App.) 16 S.W.(2d) 869.

Error is assigned to the rulings and remarks of the court reflected by the foregoing statement.

The answer of the witness was responsive to the question propounded and, if the answer was believed by the jury, tended strongly to impeach the testimony of plaintiff’s medical expert .on the issues of total and permanent incapacity. Its effect was calculated to be most damaging to the plaintiffs ease. The action of the court most likely nullified the damaging effect of the testimony of Bondies and if the court erred in the matter complained of, it necessitates reversal.

It may be conceded Bondies misinterpreted'the legal 'effect of the proceedings in Couch against Dr. Ford, and in that sense his answer was untrue. But it was incumbent upon plaintiff to so show. • It was not the province of the court to investigate the facts in Couch against Ford and in -effect by instructions to the jury he became a witness for plaintiff upon an issue which vitally impeached Dr. Ford’s testimony in the present case.

The remarks of the cpurt constituted a comment upon the weight of the evidence, were prejudicial, and reversible error. Texas, etc., Ins. Ass’n v. Adcock (Tex. Civ. App.) 27 S.W.(2d) 363; Kelly Salvage Co. v. Neel (Tex. Civ. App.) 262 S. W. 189.

Complaint ⅛ made 'of argument of counsel to the jury wherein he said; “There are one or two things, where you can give a lump sum settlement, that is in case of deáth or in case of total permanent disability we can get a lump sum but on no other theory on earth except where there is a foreign beneficiary, that is some kin that lives in another State. If you don’t find total permanent disability with him living, there is no chance for him to get a lump sum settlement but I say the testimony is unimpeached and uncontrovert-ed, in fact, there is no conflict and it is just up to you to say, that is all. I think I know how you will answer that question.”

The effect -of this argument was to inform the jury that a lump-sum settlement could not be awarded unless it was also found plaintiff was totally and permanently disabled, thus informing the jury of the legal effect of their answers to the issues of total and permanent incapacity.

Under recent rulings of the Supreme Court and Commissions of Appeals, such argument is improper and reversible error, unless it affirmatively appears no prejudice resulted. McFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213; West Texas Utilities Co. v. Renner, (Tex. Com. App.) 53 S.W.(2d) 451.

In these and other cases the Supreme Court and Commission of Appeals have plainly indicated their attitude towards improper argument of counsel and it is the imperative duty of the Courts of Civil Appeals to follow their rulings.

The objection to the use of the phrase “will be permanent,” in issue No. 6, we think is not well founded; but upon retrial it is suggested the present objection be avoided.

The sixth proposition questions the sufficiency of the evidence to support the findings upon the issues of total -and permanent incapacity. This is overruled. In view of retrial the evidence upon these issues will not be discussed.

The matter referred to in the second proposition should not recur, but in this connection we desire to say that the trial court has authority to curb and end an abuse of the right of cross-examination. Mena v. Byers (Tex. Civ. App.) 237 S. W. 330.

Reversed and remanded.


author: GALLAGHER, O. J.

text:
    SILBERT v. KETON et al.
    No. 1297.
    Court of Civil Appeals of Texas. Waco.
    Dec. 22, 1932.
    Rehearing Denied Jan. 26, 1933.
    Spell, Ñaman & Howell, of Waco, for appellant.
    W. L. Eason and Bryan & Maxwell, all of Waco, for appellees.
   GALLAGHER, O. J.

This appeal is prosecuted by appellant, H. Silbert, from a judgment denying him a recovery against appellee Frank Keton, on an alleged contract of guaranty. This is the third appeal. For opinions on former appeals, see Silbert v. Keton (Tex. Civ. App.) 29 S.W.(2d) 824, and Keton v. Silbert (Tex. Civ. App.) 250 S. W. 316. Silbert owned a storehouse in the city of Waco. On August 6, 1915, he leased the same to George Costas, Paul Costas, and Gus Costas for a term of five years, beginning September 1, 1915, at a monthly rental for the first two years of $225 per month, payable in advance. The lease contract was in writing. Appellant contends that appellee, by separate writing indorsed on or attached to said lease contract, guaranteed the payment of the monthly rentals stipulated therein as they accrued during the first year of said lease. Both said instruments were lost at the time of the trial, but compared copies thereof were identified and introduced in evidence. Appellant admitted that the stipulated rentals were paid him to and including the month of March, 1916. George Costas, Paul Costas, and the firm of Costas Bros, were adjudged bankrupt in April or May, 1916.. Appellant filed his claim in the bankruptcy court for the stipulated rentals due him for the remaining five months of .the first contract year, and asserted a landlord’s' lien on the property of the bankrupts situated in said building to secure the same. He' received as the sole dividend apportioned to him on said claim the sum of $109.49. He then brought this suit against George Costas, Paul Costas, and Gus Costas and appellee. Keton to recover the remainder claimed to be due on said lease contract for said five months. George and Paul Costas pleaded their discharge in bankruptcy. Gus Costas" was a nonresident of the state, and appellant’s suit against him was dismissed. Ap-: pellee Keton, among other defenses,.-denied’ that said purported written guaranty was-signed by him or by his authority, and further pleaded that, if the same was signed by him,, it was- signed after said lease contract was executed and delivered and the transaction evidenced thereby closed and consummated, and that the same was without consideration.

The case was submitted to a jury on special issues, in response to which the jury answered, in substance, that appellee Keton did sign the guaranty contract sued upon, that appellant resumed control of the rented premises on the 7th day of June, 1916, and that the sum of $393.01 for. rent which accrued prior to that time remained unpaid. The court submitted the issue of want or failure of consideration as follows: “Do you find from the evidence that at the time defendant Keton signed the guaranty agreement (if you have so found), that the agreement between the plaintiff Silbert and the defendants Costas Brothers had been executed by the defendants Costas Brothers and the plaintiff Silbert and delivered to the plaintiff Silbert, and the transaction as between Silbert and Costas Brothers was closed and consummated, before the guaranty agreement was signed by the defendant Keton?”

The jury returned an affirmative answer to said issue. The court thereupon rendered judgment against appellant that he take nothing by his suit and that the defendants Frank Keton, George Costas, and Paul Costas go thence without day and recover their costs.

Opinion.

Appellant presents assignments of error in which he contends that the court erred in submitting said issue with reference to the want or failure of consideration for the contract of guaranty sued upon, over' his objection that the evidence was insufficient to raise such issue, and in which he assails the sufficiency of the evidence to support the answer returned by the jury thereto. Appellant’s attorney testified as follows: “I drew the lease and the guaranty contract. I drew it in my office. Paul Costas, George 'Costas and Gus Costas were present. The three of them signed it. Mr. Silbert and George Cos-tas and myself went to Mr. Keton’s place of business on South Third Street and there Mr. Keton signed it and Silbert signed it there too.” Appellee’s testimony on the issue covers approximately twenty pages of the statement of facts. Only a summary of the same will be attempted. Appellee first denied the testimony of appellant’s attorney above recited. He then testified that he saw one or more of the Costas brothers' in the rented building preparing the same for occupancy, that about three days thereafter appellant came to his place of business and asked him to sign a paper, and that he refused to do so. He stated in that connection that appellant was alone; that he said something about signing a five-year contract; that he had a little slip of paper in his hand, but that he, the witness, did not read it and did not sign it. Appellee further testified that during the next two weeks he had occasion to pass the leased building several times and saw the lessees installing fixtures therein; that thereafter George Costas came to his place of business with' a sheet of paper and asked him to sign it, and that he did so; that the paper consisted of about half of a single sheet; that he did not read the same; that Costas said, “Sign it for me”; that he replied, “What the Devil you want me to sign it for?” and that Costas said, “Oh, to satisfy the Jew”; that no further discussion concerning the contents of the paper was had; that appellant was a Jew; and that he presumed Costas meant appellant, but did not know. One of appellee’s attorneys, in interrogating him as a witness, stated to the court, that they expected to show by him that he did sign something that George Costas brought down there, but that it was not a contract, such a contract-as had been introduced in evidence. The’ compared copies of the lease and guaranty contract introduced in evidence were then exhibited to the witness, and he testified: “It is impossible to be that much on that small piece of paper. It is impossible, and furthermore, I didn't read any of it.” Appellee failed to testify whether he did or did not sign the guaranty sued on, nor, if he did sign the same, when he did so.

The burden of introducing testimony to sustain his plea of want or fafure of consideration rested on appellee. Gutta Percha & Rubber Mfg. Co. v. City of Cleburne, 102 Tex. 36, 38, 112 S. W. 1047; 10 Tex. Jur., p. 527, and authorities cited in note 6 thereto; 6 Tex. Jur. p. 987, and authorities cited in note 10. Appellee relies solely on his own testimony to justify the court in submitting said issue and to support the finding of the jury thereon. The rule for determining whether the court erred in subm'tting an issue over an objection that the evidence is insufficient to justify submission, and whether the court erred in refusing to set aside a finding for lack of sufficient support in the evidence, is that, in passing upon such contentions, the court must consider the evidence in the most favorable aspect for the opposite party, disregarding all evidence to the contrary. Williams & Chastain v. Laird (Tex. Civ. App.) 32 S.W.(2d) 502, 505, par. 1, and authorities there cited. The issue as submitted involved in effect only the time of signing the instrument sued on, which the jury found appellee did in fact sign. The mere fact that, about two weeks after the Costas brothers occupied the leased building, appel-lee, at the request of George Costas and for his accommodation, signed a slip of paper, the contents of which he did not read, and which were never disclosed to him, for the declared purpose of satisfying some Jew, whose identity was not disclosed, is not of sufficient probative force to justify a finding that the paper signed at that time was the guaranty sued on, especially in view of ap-pellee’s testimony in that immediate connection that the paper signed by him could' not possibly have been the guaranty so sued upon. There is no other testimony showing, or tending to show, that the guaranty sued on was signed after the lease agreemént had been fully consummated and the lessees were in actual occupancy of the building. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, 1062 (second column); City of Houston v. Scanlan, 120 Tex. 264, 37 S.W.(2d) 718, 720, pars. 4 and 5; Bell v. Parsons (Tex. Civ. App.) 34 S.W.(2d) 372, 374 (second column); Waco Drug Co. v. Hensley (Tex. Com. App.) 34 S.W.(2d) 832, 835 et seq.; Houston & T. C. Ry. Co. v. Schmidt, 61 Tex. 282, 286.

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

BARCUS, X, did'not participate in the consideration nor disposition of this case.


text:
    PUBLIX THEATRES CORPORATION v. CARPENTER.
    No. 11086.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 17, 1932.
    Rehearing Denied Jan. 21, 1933.
    See, also (Tex. Civ. App.) 25 S.W.(2d) 695.
    Thompson, Knight, Baker & Harris and Adair Rembert, all of Dallas, for appellant.
    Renfro, Ledbetter & McCombs, of Dallas, for appellee.
   LOONEY, J.

Jean Henry (who pending suit married Rufus Carpenter) sued Publix Theatres Corporation to recover damages for personal injuries, due to defendant’s alleged negligence, received while she was- witnessing a moving picture on exhibition in a building operated by defendant.

On a former appeal by plaintiff from an adverse judgment rendered, on an instructed verdict, we held that the evidence on the issues of negligence alleged raised jury questions, hence reversed and remanded the cause for further proceedings. See report of the case in (Tex. Civ. App.) 25 S.W.(2d) 695 (writ refused), to which reference is made for a statement of the case, the issues presented, the discussion and authorities cited.

Plaintiff’s petition was the ".same on both trials; defendant answered by general denial and special plea, to the effect that the structural conditions complained of by plaintiff as to the height of the guard rail around the edge of the balcony, the space between the front row of seats and the base upon which the guard rail rested, and all matters in respect to the construction of the balcony and its seating in and around the place from which Mary Lou Bills fell, were of standard and customary design and construction, and specially denied that the fall of Mary Lou Bills was proximately caused by the negligence of defendant.

The case, in our opinion, was properly submitted to the jury, and, as they answered all issues of negligence favorable to plaintiff, except findings upon which the court rested judgment, discussion of another phase of the case is obviated.

The jury findings on the issue of negligence favorable to plaintiff are based upon substantially the same pertinent facts as on first appeal, were made in response to special issues Nos. 6, 7 and 8, and are to the effect that defendant failed to maintain a reasonably safe passageway next to the guard railing in the balcony, above where plaintiff was sitting; that such failure was negligence and a proximate cause of the fall of Mary Lou Bills from the balcony upon Jean .Henry, inflicting the injuries of which complaint is made. In addition to the jury findings, the court found “all unsubmitted issues and facts” in favor of plaintiff, and the jury having assessed the damages at $5,500, judgment was rendered in favor of plaintiff for that amount, from which defendant appealed.

Appellant urges a number of propositions; their combined effect being that the findings of the jury upon which the judgment is based are manifestly wrong, requiring, reversal, because not supported by evidence, in that the great weight of the evidence shows that the fall of Mary Lou Bills from the balcony upon ■plaintiff was caused by no fact or circumstance other than that the Bills girl swooned, became insensible, and fell from the balcony; and that the occurrence being so unusual and unforeseeable, appellant, in the exercise of ordinary care, would not have anticipated the event.

In rendering judgment ior appellee, it is obvious that the court, finding against appellant’s swoon-theory, acted upon the findings of negligence in respect to the manner in which defendant maintained the narrow, darkened passageway between the front row of seats and the .railing around the edge of the balcony. This was an issue that we held on former appeal sufficiently sustained by evidence to raise.a jury question; and remanded the case.for further proceedings. These findings of the jury, on substantially the same evidence as presented on first appeal, established the issue as a negligent, proximate •cause of the fall of the Bills girl, and brought the case within the doctrine of the “law of the case”-; its general rule being that a question of law decided on appeal will govern throughout subsequent stages of the case, including decisions that determine the sufficiency of evidence to raise or to establish an issue, where the facts on each appeal are substantially the same. See authorities cited in Clem v. Fulghum (Tex. Civ. App.) 37 S.W. (2d) 201, 203, 204.

As indicating a ground upon which the case was reversed and remanded on first appeal, we quote from the opinion by Chief Justice Jones, he said, in part [25 S.W.(2d) 697]: “The proof established the height of the railing and width of the aisle to be as alleged, and also that the theater was dark and the front row of seats in the balcony was occupied; that the girl, Mary Lou Bills, arose from this front row of seats to leave the theater, and that immediately thereafter she fell over the railing; that her fall resulted in appellant’s injury: The immediate cause of this fall is left to inference from the other facts and .circumstances in the case. When Miss Bills was first seen, after she had screamed, she was below the railing, falling with her body parallel to the floor and her hands outstretched. ⅜ * ⅜ The falling of a person from .a balcony in a .public theater is such an occurrence that does not happen in the ordinary course of things, if the management has used ordinary-care to guard against such an occurrence. Such an occurrence could be brought about by an occupant of the balcony attempting to use the narrow and darkened aisle for •exit, and in such attempt is suddenly precipitated against the railing, and is unable to protect himself in such an emergency from falling on account of the railing being too •low for such purpose. It is a reasonable inference to be drawn from the evidence that ■the fall of Miss Bills .resulted from these causes.”

Again,- on motion for rehearing, he said: “In the instant case, the evidence, in our opinion, clearly raises the issue of the negligence of appellee in creating a dangerous condition as to the use of the aisle in question by patrons of appellee’s theater, and we shall not enlarge upon the discussion in the original opinion in this respect.”

The doctrine of the “law of the case” announced in Clem v. Fulghum, supra, and the authorities there cited, in our opinion, rules the case, requiring its affirmance. We have given careful consideration’to all assignments and propositions urged by appellant, and, finding no. reversible error, the judgment of the court below is affirmed.

Affirmed.


author: O’QUINN, J.

text:
    BRITTAIN et al. v. O’BANION, Sheriff, et al.
    No. 2295.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 9, 1933.
    Rehearing Denied Jan. 11, 1933.
    Dallas Ivey, of Center, for appellants.
    Avery & Wallace, of Center, for appellees.
   O’QUINN, J.

About April 19, 1932, an execution issued out of the county court of Galveston county, Tex., on a judgment in favor of H. Kempner et al., in the sum of $827.30, against T. H. Brittain, was levied by Mrs. Rilla O’Banion, sheriff of Shelby county, Tex., on the alleged interest of T. H. Brittain in a small stock of merchandise at Center, Tex. The store was operated under the style of Boles & Brittain. Mrs. O. L. Brittain, wife of T. H. Brittain, joined pro forma by her husband, filed her petition in the district court of Shelby county, praying for an injunction restraining the further execution of said writ, alleging that her husband, T. H. Brittain, the defendant in execution, had no interest in said merchandise levied upon, but that same was her separate property and not subject to the debts of her said husband. She alleged that for some years she had been an independent trader, doing business in connection with E. P. Boles, as partners; that she nor her partner ■had any connection whatever with the judgment against her husband, but that her interest in the property levied upon was derived from her separate property received by her through gifts from her relatives. E. P. Boles joined Mrs. Brittain in her petition and application for injunction, alleging that he wa? in no way connected with the' suit in which judgment was rendered against T. H. Brittain, and that he was a partner with Mrs. Brittain in the store of merchandise levied upon, and that to permit the sale of the Brit-, tain interest in the -same would ruin and destroy his interest, for in that. creditors of' the concern would begin to push him for settlement and cause his business to be destroyed. The matter was set for hearing, and-unon trial and full proof the court found the property in controversy to be the community property of T. H. Brittain and his wife, Mrs. O. L. Brittain, and denied the injunction. This appeal is from the judgment denying the injunction.

The evidence shows that Mrs. Brittain received about the sum of $200 from the estate of her mother, and that one of her grown sons gave her $100. This $300 she invested with E. P. Boles in the merchandising venture. This was in 1925, since which time the business has been carried on, selling goods both for cash and on credit. Her husband, ⅛. H. Brittain, worked in the store, and they lived out of the proceeds of the business— they had no other income. The stock of goods was replenished from time to time, buying generally on credit. Some years a profit was made, and others a loss was suffered because of inability to collect accounts for merchandise sold on credit. A number of bills were outstanding for goods purchased on time. It appeared that there was-about the same quantity on hand as when business was begun. T. H. Brittain testified that he did not know just what interest, at the time of the trial, his wife owned in the store. He said he did not know what goods in the store his wife’s money purchased; that he did not know what goods there were purchased with earned profit or by the original investment; that the buying and selling had been so intermingled that no part derived from profits could be distinguished from the rest — it was all mingled together. He was asked:

“Q. There is no way in the world, is there* that a person can go down there and take that stock of goods and determine what actually belongs to Mrs. Brittain and what actually belongs to Mr. Boles, and what was bought with profit? A. I don’t think so.
“Q. It is all mingled together? A. Tes, sir.
“Q. There is some profit and some of Mrs. Brittain’s and some belongs to Mr. Boles, and some belongs to-both of them? A. Nobody can tell how it is — it is all mixed up there.”
Mr. Boles testified that Mrs. Brittain was his partner — that he had always recognized her as such. He was asked:
“Q. What interest have you in the business, if you can tell? A. I don't know, to tell you the truth, -how much I have in it.
“Q. State whether or not the business has ever made any money since you have been there. A. No, it hasn’t — I don’t think it has.
“Q. You own an uncertain interest in the business? A. Yes, sir.
“Q. Who does the buying? A. I do.
“Q. Who does the managing? A. I do the managing, myself, of the goods.
“Q. You did make some profit down there? A. I expect so, the first few years.
“Q. You took this profit, then, and bought other merchandise?' A. Yes, sir.
*‘Q. When you bought other stuff, Mrs» Brittain didn’t hand you the money to pay it with, you bought it on credit? A. Yes, sir.
“Q. You couldn’t pick out what Mrs. Brit-tain’s money bought could you? A. No, sir.
“Q.- You couldn’t pick out what was bought with profit? A. It is all there together, and it was bought and we work there together.
“Q. The stock of goods has changed? A. Yes, sir.
“Q. You run out and buy more? A. Yes, and add to it.
“Q. You buy that on credit? A. Generally, Yes.
“Q. Would you say you turn your stuff several times during the year? A. I suppose we do.”

Brittain and Boles were the only witnesses testifying. It appears that Mrs. Brittain put in $300. Boles’ interest is not shown, whether more or less than Mrs. Brittain’s. It is undisputed that the Brittains lived out of the store — they had no other income. No accounting was had between the partners at the end of any year, or at any time. Both witnesses testified that it was impossible for any one to ascertain just what interest either partner Rad in the stock of goods at the time of the trial, or what portion of the goods was bought with profit of prior business; in other words, it was admitted that the original investment, profits, and operations of the business had been so intermingled that it was impossible to ascertain what Mrs. Brit-tain’s interest was, or what portion thereof, if any, represented her original investment, or whether her interest consisted entirely of profits.

The facts found by the court are supported by the record, and the judgment denying the injunction was proper. Mrs. Brit-tain’s property having undergone mutations, and having for years been constantly intermingled with like property of another, the burden was upon her to trace with certainty her separate means alleged to have been invested with Boles in the mercantile business, for the property remained her separate property only so long as it could be clearly traced and identified. Rose v. Houston, 11 Tex. 324, 62 Am. Dec. 478; Chapman v. Allen, 15 Tex. 278, 284; Epperson v. Jones, 65 Tex. 425, 429; Id., 69 Tex, 586, 7 S. W. 488; Smith v. Bailey, 66 Tex. 553, 1 S. W. 627. While it is true that the separate property néed not be preserved in specie, still it must be susceptible of being clearly traced and identified. Here whatever interest Mrs. Brittain may have had in the stock of goods, according to her husband and her partner, Mr. Boles, it could not be shown whether it consisted partly of the original and partly of the profits ■derived from the investment, or wholly of profits, which, under the law, could not be separate property; in other words, no one was able to identify her interest in any definite manner. If Mrs. Brittain mingled the profits of her mercantile business in replenishing her stock from time to time, which it is admitted she did, and was unable to show -how much of her separate means was invested in the goods at the time of the levying of the execution for the debt of her husband, which was also admitted, then she cannot protect the goods as her separate estate.

Moreover, we think it clearly appears that all of Mrs. Brittain’s interest in the stock of goods on hand when the execution was levied was in profits from the several years’ business, for it is undisputed that her original investment was only $300, and that she and her husband had no other income, and that they lived out of the store during all that time. It has long been settled law that the profits derived from a married woman’s separate property in a mercantile .business are community property, and as such are subject to the debts of her husband. Epperson v. Jones, 65 Tex. 425; Id., 69 Tex. 586, 589, 7 S. W. 488; Smith v. Bailey, 66 Tex. 553, 1 S. W. 627; 23 Tex. Jur. § 102, p. 125; Id. § 266, p. 304; Spears’ Law of Marital Rights in Texas (3d Ed.) §§ 295, 297, and 367.

Prom what We have said it follows that the judgment of the trial court should be affirmed, and it is so ordered.

Affirmed.


author: LEVY, J.

text:
    WALKER et al. v. TAYLOR.
    No. 4258.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1932.
    Walter S. Jones, of Ennis, Milton Greer Mell, of Gilmer, and W. Y. Dunnam, of Waco, for plaintiffs in error.
    Crawford & Pletcher, of Grand Saline, and Prentice Wilson, of Dallas, for defendant in error.
   LEVY, J.

The plaintiffs in error urge.the point of error of a lack of a final judgment, in the failure of the judgment in the case to dispose of or make adjudication as to the Herbert Oil Company, a corporation, one of the defendants named and making appearance in the suit. The point will necessitate the dismissal of the plaintiffs in error’s writ of error proceedings for want of jurisdiction in the appellate court to entertain the same.

..The defendant in error, L. O.- Taylor, brought the suit against Isabella Walker anfl her husband, the Herbert Oil Company, a corporation, and several other named defendants. The purpose of the suit was to cancel certain instruments executed by L. C. Taylor and his wife to Isabella Walker purporting to convey an interest to her in certain land, and to remove the cloud east upon the title to the land. The Herbert Oil Company, besides others named, was made a defendant in the suit upon the allegation of having some interest or claim in the oil production from the land. The Herbert Oil Company made its appearance in the suit, and as answer filed a disclaimer of any interest, claim, or ownership in the land in controversy. No' formal judgment was ever entered on the disclaimer. The case proceeded to trial before a jury, and in the charge the court peremptorily instructed the jury, to return a verdict in favor of several defendants named, including the Herbert Oil Company. The instruction to the jury, as pertinent, was as follows: “The Court concludes that there is no issue of fact to be submitted to the jury as to the defendants, E. L. Smith Oil Company, Falcon Oil Company, Herbert Oil Company, Mead Brothers Company, The Texas Company, * * * and as to said named defendants you are instructed to find for each- of defendants respectively.”

The charge then proceeded further to submit to the jury issues for findings of fact “as to the plaintiffs and the other defendants not named above.” . The verdict of the jury as returned into court and as received was, besides answers to the issues, “We, the jury, find for the defendants E. L. Smith Oil Company, Herbert Oil Company, Falcon Company, Mead Brothers, The Texas Company. * * * ” The judgment of the court as entered of record sets out the Verdict in hose verba, and makes adjudication in keeping with, and in conformity to, the verdict as to the issues and as to all the parties; except' as to the Herbert Oil Company. The Herbert Oil Company is not mentioned by name, and there is nothing in the judgment as written from which it could be in anywise concluded that the court had disposed of or had judicially, adjudicated either for or against the Herbert Oil Company as to any right or interest in the land in controversy, or as to its disclaimer of any interest in the matter in'controversy.

Ordinarily a judgment does not lack finality by reason of failure to mention a defendant who has disclaimed any interest in the matter in controversy. Gullett v. O’Connor, 54 Tex. 408; Henninger v. Pickren (Tex. Civ. App.) 295 S. W. 264; and other cases. That is, provided the disclaimer be before final judgment is entered. Mignon v. Brin-son, 74 Tex. 18, 11 S. W. 903. It is proper to enter a dismissal or discontinuance as to one of several defendants and then to proceed to trial and final judgment against the remaining defendants. Dean v. Duffield, 8 Tex. 235, 58 Am. Dec. 108; Tulane v. McKee, 10 Tex. 235. But the situation in the present case is entirely different, for it affirmatively appears in the record that the Herbert Oil Company was not by any order or judgment eliminated or dismissed from the ease, but was held and regarded as a defendant still in court by appearance and answer duly filed at the time of the trial before the jury. The court in instructing the jury peremptorily instructed them to find a verdict for such defendant oil company along with the other defendants named, and the jury in their verdict expressly named such defendant along with the other defendants as entitled to a finding in its favor. In the face of such charge of the court, and verdict of the jury, it eoúld not be pre* sumed that the Herbert Oil Company had been previously by order of the court dismissed as a defendant in the easel In such situation as appearing, it was legally required that the judgment should follow and conform to the verdict, which would have to include an adjudication against the plaintiff and in favor of the Herbert Oil Company. The verdict of the jury alone was not sufficient to eliminate the particular defendant, but the judgment of the court must have followed pronouncing the legal consequences of the verdict, of the' final discharge of the Herbert Oil Company. Tie statute expressly requires the judgment to follow and conform to the verdict. Articles 2211, 2209. The verdict or the result of the verdict is thus by statute made to have a place in, and be incorporated in, the judgment. Mayfield v. State, 40 Tex. 289; 33 C. J. p. 1195. There is no principle of law more firmly established than that the judgment must follow and conform to the verdict of the jury in respect to the parties for and against whom it is given. Kinkler v. Junica, 84 Tex. 116, 19 S. W. 359; Gulf, C. & S. F. Ry. v. James, 73 Tex. 12, 10 S. W. 744,15 Am. St. Rep. 743; Carter v. Bolin (Tex. Civ. App.) 30 S. W. 1084; Turner-Cummings Hardwood Co. v. Philip A. Ryan Lumber Co. (Tex. Civ. App.) 201 S. W. 431; and other cases; 33 C. J. p. 1169. In the Kinkier Case, named above, there was an -actual adjudication against those defendants named in the verdict and in favor of all the -other defendants, and there was not failure or omission to include any defendant in the judgment as rendered.

It is concluded that the judgment, as is contended by plaintiffs in error, cannot be treated as a final judgment, -because it affirmatively appears that all the defendants expressly named in the verdict of the jury were not disposed of by adjudication. A complete judgment by proper proceedings in the trial court- may yet be entered nunc pro tunc mak- tag actual adjudication as to all the defendants named in the verdict; but a new appeal or writ of error would have to he timely prosecuted from such amended judgment. El Paso & N. E. Ry. v. Campbell, 45 Tex. Civ. App. 231, 100 S. W. 170. The present writ of error is accordingly dismissed for want of jurisdiction in this court to entertain the same. The costs of the writ of error will be taxed against the plaintiffs in error.


text:
    HARRIS et ux. v. PHILLIPS.
    No. 4250.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 14, 1932.
    Rehearing Denied Oct. 27, 1932.

      Slay & Simon, of Fort Worth, for appellants.
    Wynne & Wynne, of Longview, for appel-lee.
   LEVY, J.

(after stating the ease as above).

The two points urged on the appeal as error are, in effect, that: (1) The judgment against the plaintiffs on the cross-action of ■the defendant may not be sustained, for there was no service or waiver of process or appearance by the plaintiffs; and (2) the ad-judgment allowable on the nonsuit was not •that the plaintiffs should not recover anything against the defendant, but that of merely a dismissal of the cause.

In the absence, as here, of a statement of facts, this court must presume, in support of the order overruling the appellants’ motion to vacate the order of nonsuit and'to set aside the judgment upon the eross-.action, that the trial court took the view of 'the facts set up in the .appellee’s reply or contest of the appellants’ motion. In that ■view it would seem, as we must assume, that the attorney asking “the Court to permit him to take a non-suit” was in fact at the time of the judgment of November 30, 1931, the attorney in truth authorized to represent the appellants. Further, as a fact, which we must assume, “that Richard Harris was present in court at one time before when this ease was tried on B. F. Phillips’ cross action and knew that the cross action was filed, because he and his wife each heard it read.” The trial court was seemingly authorized to conclude, of his own knowledge, and from the trial docket, that the case was regularly called for trial on August 14, 1931, the day after the amefided cross-action was filed on August 13, 1931, and that the appellants appeared and announced ready for trial. The first point therefore must be overruled, it is concluded, because it may not be said that it is evident in the record that the appellants had not entered such appearance in the case, as the trial court seemingly found they did do, at any time after the cross-action had been timely filed as to entitle the appellee to judgment against them. An actual appearance in the case after the cross-action was filed would be, as may be conceded, equally as effective as the service of citation to confer jurisdiction over the person of the appellants. Evans v. McNeill (Tex. Civ. App.) 41 S.W.(2d) 268.

The case of Early v. Cornelius, 120 Tex. 335, 39 S.W.(2d) 6, cited by appellants, rests upon quite a different state of facts. That case clearly announces that the mere appearance by the plaintiff by motion to dismiss his cause of action as against all of the defendants does not constitute such general .appearance in the case as to entitle the defendants to judgment without citation on cross-actions subsequently filed. It appeared there that plaintiff J. W. Cornelius filed on February 5, 1929, a motion to dismiss his cause, and on February 6, 1929, both Opal Cornelius by guardian ad litem filed a cross-action seeking affirmative relief, and Mary Early and her husband filed an amended cross-action for affirmative relief.

The second point made as above is well taken and must be sustained as fundamental error. The judgment of nonsuit, after adjudging a dismissal of the cause, has the further recitation: “And that the plaintiffs, Richard Harris and wife, Annie Harris, take nothing by this suit as against the defendant.” That, in legal effect, is a final disposition of the case on the merits. A voluntary nonsuit is an abandonment of his case by the plaintiff with the costs to be entered against him. The only judgment allowable on the nonsuit was that of merely a dismissal of the cause and the payment of costs by the plaintiffs. Burger v. Young, 78 Tex. 656, 15 S. W. 107.

The judgment of nonsuit is accordingly reformed, and the recitation quoted above elim-mated, and, as reformed, the judgment of nonsuit, and also the judgment on the cross-action, will be, and are hereby in all things, affirmed. The costs of appeal to be taxed against'appellee.


author: ELY, C. J.

text:
    BURWELL et al. v. SOUTHWEST CONST. CO. et al.
    No. 8962.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 21, 1932.
    Rehearing Denied Jan. 25, 1933.
    Willson & Cooper, of Cotulla, for appellants.
    Boggess, La Crosse & Lowrey, of Del Rio, for appellees.
   ELY, C. J.

This suit was brought by W. M. Burwell and C. B. Burwell, against the construction company, Robert L. Guyler, who conducts the affairs of the company, and La Salle county. The county had entered into a contract with the construction company to erect a courthouse and jail, on January 17, 1931. Guyler really owns the construction company, and uses that name under which he obtains and executes contracts. His residence was in Del Rio, Vai Verde county. On January 24, 1931, Guyler made a written proposal to the Burwells to employ them at the rate'of $6 per day to work on the structures, and also to give them 25 per cent, of the net profits of the job. The proposition was accepted by appellants. It is stated in the letter that the 25 per cent, was to be in addition to the $6 per day, which should recompense W. M. Burwell and his father, O. B. Burwell, for services in procuring the contract for the construction company. The suit was for 25 per cent, of the profits, whether in money or in material, salvaged from the contract. It was alleged that the county still owed the construction company $1,500, which it had in hand. The county was ready and willing to pay the amount to the person designated by the court, and in reality made itself a stakeholder for the parties. . Appellants had obtained a writ of injunction prohibiting the payment of the money, or any part thereof, by the county to any one except the one to whom it had been adjudicated. There-being a dispute as to the ownership of the-money, the commissioners’ court ordered it held until the dispute had been decided. There was not and could not have been any money held except for the purpose of protecting the county against the contending claims. The tax assessor testified to that fact. The county of La Salle was not only a proper, but a necessary, party. A writ of garnishment could not be obtained and could' not operate against the county.

The county was sued at its home, and, being a proper and necessary party, the suit was properly brought there. Roberts v. Bludworth, 295 S. W. 210, by this court; Commonwealth Bank & Trust Co. v. Heid Bros. (Tex. Com. App.) 52 S.W.(2d) 74. The money and the material were in La Salle county, one of the necessary parties was there, and the venue was properly laid . in-that county. Vernon’s Ann. Civ. St. art. 1995, subd. 29a, which is construed in the Commonwealth Bank Case herein cited.

The judgment of the district court, changing the venue to Val Verde county, is reversed, the plea of privilege of the construction company is denied, and the cause will be remanded for trial to La Salle county.