author: WALKER, Chief Justice.

text:
    DUE et al. v. W. T. RAWLEIGH CO.
    No. 2327.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 16, 1933.
    James Peavy, Fairchild & Redditt, and W. J. Townsend, all of Lufkin, for appellants.
    Jack Scarborough, of Lufkin, J. W. Yancy, of Houston, and Mantooth & Denman, of Luf-kin, for appellee.
   WALKER, Chief Justice.

Appellee, the W. T. Rawleigh Company, instituted this suit against appellant Sam H. Due, and his coappellants, W. J. Jordan, Wyatt G. Chancey, and L. W. Denman, to recover the sum of $1,156.73 for products of ap-pellee sold to appellant Due under the following contract and surety agreement:

“1. In consideration of the execution and acceptance of this agreement, and the covenants hereinafter expressed, the W. T. Raw-leigh Company, an Illinois corporation, hereinafter called the Seller, agrees to sell and deliver to the undersigned Buyer f. o. b. cars Memphis, Tennessee, or any other point agreed upon, such of its products as the Buyer may order, on time, at current wholesale prices; also, if desired will sell Buyer a Raw-leigh-Ford Auto Body, Wagon or Sample cases for cash, or partly for cash, or wholly on time, such as the Buyer may choose from bulletins of other descriptions; it being agreed that the kind and quantity of merchandise sold is to be optional with Seller.
“2. Buyer, in consideration of the agreements herein, agrees to pay said Seller, in full, for all goods, purchased under this Contract, by cash, or by installment payments satisfactory to the Seller, at invoice prices and according to the terms and conditions thereof, and subject to such cash discounts as may be shown in current discount sheets, and to paragraph 3 hereof.
“3. It is mutually agreed that either party may terminate this Contract by written notice at any time, and when so terminated all accounts between said Buyer and Seller shall become due and payable immediately. If this contract is not so terminated it shall expire on December 31, 1926; it being agreed that a new Contract may be entered into for the succeeding year, but the refusal or neglect of the Buyer to furnish an acceptable Contract, or the refusal of the Seller to accept such Contract shall not in any way affect the payment of the account incurred hereunder.
“4. If the business relations be terminated for any reason the Seller agrees to purchase from the Buyer at wholesale prices current when goods are received any merchantable Products Buyer may have on hand (Sample Cases, Wagons, Auto Bodies and discontinued Products excepted) provided goods are returned promptly by prepaid freight to point designated by Seller, the Buyer to pay the actual cost for receiving overhauling and inspecting same.
“5. It is mutually understood and agreed that this is a Contract of Buyer and Seller, and that the Buyer is not the agent or representative of the Company for any purpose whatsoever, but is the sole owner and manager of his business, and that he expressly reserves the exclusive right to determine the price, terms and conditions upon which, and the place where, he will sell the merchandise he buys from the Seller it being mutually understood and 'agreed that when the Seller delivers the merchandise f. o. b. cars to Buyer at point of shipment, the merchandise becomes the property of the Buyer and the Seller retains no' right, title, interest or control over said" merchandise.
“6. Further it is mutually understood and agreed that the Seller has no territorial rights it can legally convey, and that it does not undertake to and does not give Buyer any exclusive selling or territorial rights whatsoever, nor does the Seller restrict or limit the place or locality where said Buyer shall sell or dispose of the merchandise he buys from the seller; it being mutually and fully understood that the Buyer is in business for himself and that the Seller does not undertake in any way to control Buyer in the conduct of his business.
“7. With the express understanding that it shall impose no legal restrictions whatsoever and that it shall not alter or modify the written terms or conditions of this contract, nor be considered as orders, directions, or instructions, or binding in any way upon the Buyer and that it shall be considered only as advice and suggestions intended only to' aid the Buyer in improving his sales, collections and service to his customers, (which advice or suggestions he may follow or not as he may choose), the Seller will furnish Buyer from time to time with Rawleigh Sales Service and Collection methods consisting of Rawleigh’s Weekly, Rawleigh Methods, and other books, bulletins, service sales or collections letters, and other letters and literature; it being intended and mutually agreed that this contract shall be the sole and only binding agreement between the parties hereto, and that it shall not be changed or modified in any way, or by any person, except such change or modification shall be first reduced to writing, signed, and agreed to by both parties, and the seal of the Seller thereunto affixed.
“8. It is further specially agreed that all accounts incurred under this contract not paid when due shall at once become due and payable at Bonham, in Fannin County, Texas, with ten per cent (10%) interest per an-num from maturity and ten per cent (10%) additional thereon as attorney’s fees after such account be placed in the hands of an attorney for collection.
“In witness whereof, the parties hereto have set their hands and seal, the Seller in its corporate name by its President thereunto authorized, and its corporate seal hereunto affixed, and the Buyer in his own proper person.
“Accepted Oct. 19, 1925, at Memphis, Tenn.
“The W. T. Rawleigh Company,
“By W. T. Rawleigh, President
“Buyer Sign here:
‘TSigned] Sam H. Due [Seal]
“P. 0. Address, Bufkin, Texas.”

The surety agreement sued upon was physically attached to the contract, and was as follows:

“In consideration of the W. T. Rawleigh Company, the above named Seller extending credit to the above named Buyer, we, the undersigned, do hereby jointly and severally enter ourselves as sureties, and unconditionally promise, guarantee and agree to pay the said Seller for all Products sold and delivered to the said Buyer under the terms of the above contract, hereby expressly consenting and agreeing to all the terms and conditions thereof. We hereby expressly waive notice of the acceptance of this contract and of the shipment of goods to the Buyer, and of extension of credit to the Buyer, and of the extension of time in which to pay for the goods so purchased, and waive all notice of any nature whatsoever. We also agree that any statement made by the Buyer as to the amount of indebtedness due at any time shall be binding upon us. We also agree that it shall not be necessary for the Seller to first exhaust its remedies against the Buyer before proceeding to collect for us. This undertaking is to be an open one and shall continue without regard to the residence of the Buyer, or the location or manner of conducting his business until the account is fully paid. It is mutually agreed that this Contract is conclusive and binding upon the party or parties who sign it, whether-it is signed by any. other party or parties or not, and that any statement or representations made to any of the undersigned sureties by any persons either as to who or how many parties will sign this surety agreement or as to any other matters not fully expressed herein shall not affect the rights of the Seller. It is further understood that there are not conditions or limitations to this undertaking except thosé written or printed herein at the time of signing hereof, and that after execution no alteration, change or modification shall be made except as provided for in the terms of the foregoing contract between the Buyer and Seller, and that any notice in any way affecting the rights of the Seller must be delivered by'registered mail to the Seller at its office at Memphis, Tennessee.
“In Witness whereof we have set our hands and seal in testimony hereof.
“Sureties sign above in person, giving occupation and P. O. Address. Write Plainly.
“The above sureties are entitled upon request at any time to a statement of Buyer’s account.”

The amount sued for was evidenced by an itemized account, duly verified. The answer of appellants was sufficient to support their propositions of error, and portions of it will be'hereinafter given in discussing their propositions. The judgment was upon a jury verdict, instructed in favor of appellee for the amount sued for.

Appellee’s petition was not bad on general demurrer, on the ground that it failed to allege that it was “duly” incorporated, as required by article 1099, R. .0. S. 1925. The allegations of the petition, on this issue, were: “Gomes now the W. T. Rawleigh Company, a corporation engaged in interstate commerce, hereinafter called plaintiff, complaining of” the parties named above as appel; lants; the contract sued upon was plead in hiec verba in the first paragraph of the petition wherein appellee was described as “an Illinois corporation.” And,in the affidavit to the account, which was specially pleaded, ap-pellee was described as “a corporation organized and doing business under the laws of the State of Illinois, with its legal domicile in said state.”' The point is not raised by special exception, but only by general demurrer. In the absence of a special exception, calling the omission in the petition specifically to the attention of the trial court (Way v. Bank of Sumner [Tex. Civ. App.] 30 S. W. 497; Womack Const. Co. v. Rhodes [Tex. Civ. App.] 283 S. W. 1108, 1109), the allegations constituted a sufficient compliance with the statute. Bury v. J. E. Mitchell Co. (Tex. Civ. App.) 74 S. W. 341. That case is in point upon the proposition and was cited with approval by the Court of Appeals of Kentucky in Martin v. Kentucky Lands Inv. Co., 146 Ky. 525, 142 S. W. 1038, Ann. Cas. 1913C, 332. See, also, Reliable Iron Works v. First State Bank & Trust Co. (Tex. Civ. App.) 241 S. W. 592. The strict rule of pleading upon this point, announced by our Supreme Court in Bank of Alabama v. Simonton, 2 Tex. 531, and Holloway v. Railway Co., 23 Tex. 465, 76 Am. Dec. 68, was abrogated by article 1999 as and when originally enacted.

The petition was not subject to the plea in abatement upon the point that it failed to allege that appellee had a permit to do business in the state of Texas, not was appellant entitled to a judgment upon the ground that appellee failed to prove this issue. The affirmative allegations of the petition were that it was “a corporation engaged in interstate commerce” and the contract upon which appellee’s products were sold was pleaded in hsec verba. There was no suggestion in the petition or the evidence (as received by'the court) that appellee was engaged in business in this state, or that the demand arose from an intrastate transaction. On these facts, it was not necessary for ap-pellee to allege that it had a permit to do business within this state, in order to avoid the force of the plea in abatement. Blackwell-Wielandy Co. v. Sabine Supply Co. (Tex. Civ. App.) 38 S.W.(2d) 654. See, also, 11 Tex. Jur. pp. 177-182. As it was not required to allege that fact, of course it was not required to prove it.

That the contract was unilateral, as originally executed, as appellant insists, may be conceded, hut that concession would not render the instructed verdict erroneous, because it had been executed by the parties to the extent of the relief sued for by appellee and no relief was asked under it except for the products sold and delivered. The rule is that want of mutuality is no defense to the enforcement of an executed contract. 13 C. J. pp. 334, 335; 10 Tex. Jur. pp. 170, 171. W. T. Rawleigh Co. v. Lemon (Tex. Civ. App.) 276 S. W. 1115, is in point upon its facts.

Appellants concede that the contract, as pleaded by appellee in its petition, was not in violation of the anti-trust statutes, but their contention in the lower court was that the contract, interpreted in the light of actual practices between the parties, was prepared and signed by them for the purpose of violating the anti-trust laws within this state and that the obligation arose in consummation of this purpose; that the true purposes of the contract, were to be ascertained by extraneous proof of what the parties said and did in its execution, despite what the contract said about the 'all-comprehensiveness of its provisions. Upon this issue appellants answered by the following special plea:

“These defendants would further expressly plead that while said plaintiff required a written contract, defining its obligations and duties, and so specifying by various provisions that it was not violating the Anti-Trust Laws of the State of Texas, yet these defendants would allege that said provisions of the contract were merely used as a method of showing plaintiff’s wilful intention to violate the anti-trust laws of the State of Texas, as plead herein, and said plaintiff, its officers and agents are compelling defendant, Sam H. Due to sign a contract, yet it compelled him to carry out its instructions by doing business in the State of Texas, and so notified him, ordered and directed him to confine his sales to a fixed territory in the State of Texas, further advising and instructing him that if he sold out of said territory, he would be discharged, further requiring him to devote all of his time to said territory to the sale of said products, and said plaintiff further fixed the price at which the products should be sold, and so advised the defendant, Sam H. Due the violations of its instructions would result in a cancellation of the contract, and discharge of said defendant, by reason of all of which these defendants allege that plaintiff’s intentions were, and plaintiff did violate the Anti-Trust Laws of the State of Texas.
“That by way of further answer and a special plea in their behalf, these defendants say that the contract sued upon does not constitute the entire contract between the plaintiff and defendant, and that before and after the execution of the so-called written contract declared upon a plaintiff, by instructions, both verbal and in writing, and by printed literature by letters, circulars, magazines and other printed matter imposed upon defendant, Sam H. Due, terms, conditions and requirements as parts of said contract, in making disposition of the products so purchased from the W. T. Rawleigh Company, which terms, conditions and requirements were, and are in violation of the Anti-Trust Laws of the State of Texas, Revised Statutes of Texas, 1&25, which are here referred to and made a part of this Answer, in that prior and subsequent to the execution of the so-called written contract declared upon, plaintiff, by letters, documents, magazines and circulars, oral instructions, required the defendant, Sam H. Due, as a part of said contract, and as a condition of selling him its goods, to select certain territory and to confine his resale to said territory, which was in Rusk County, and also required said defendant, Sam H. Due, to devote the whole of his time to the sale of plaintiff’s exclusive & hand no other products, and also plaintiff, by means of the above mentioned methods, required Sam H. Due to sell said goods at a price fixed by plaintiff. That W. T. Rawleigh & Company agreed with defendant, Sam H. Due, in addition to the above, that they would not allow any other person to sell the same products in his territory, all of which made said contract null and void and unenforceable.”

Appellee’s special exceptions to this plea were overruled by the trial court. Upon the trial appellants offered evidence in support of every material allegation of this answer, that is to say, appellants offered evidence raising the issues: (a) That after the contract was executed, appellee required Due to confine himself to a specific territory and that he agreed to this demand and that a violation of these instructions would result in his discharge; (b) that appellee required him to devote all his time to -the assigned territory in the sale of its products; (c) that ap-pellee fixed the price at which the products were to be sold and so advised Due and that a violation by him of this instruction would result in the cancellation of the contract,, and that Due received this instruction and obeyed it in order to maintain his contract; (d) that appellee required Due to handle no other products except those purchased by him from appellee; (e) that appellee further agreed with Due that it would not allow any other person to sell its products in his territory. This testimony was all excluded by the trial court on appellee’s objection that it would vary the written contract by a parol agreement and would thus be in violation of the specific provisions of paragraphs 6 and 7 of the contract. There is no merit in the proposition upon which the proferred testimony was excluded. Since this contract was not one which the law required to be in writing, it was subject to change by a subsequent pa-rol agreement, notwithstanding the express provision of the contract that it could not be changed or modified “except such change or modification shall be first reduced to writing, signed and agreed to by both parties, and the seal of the seller thereunto affixed.” Fleming v. Todd (Tex. Civ. App.) 42 S.W.(2d) 123. The legal effect of the testimony offered by appellants was most satisfactorily stated by Judge Nickels, for the Commission of Appeals, in W. T. Rawleigh Co. v. Land, 115 Tex. 319, 279 S. W. 810, 814. In approving Judge Nickels’ opinion, Chief Justice Cureton said: “Consideration of the facts convinces us that the written contracts between the parties, interpreted in the light of the actual practices between them, were prepared and signed for the purpose of violating the Anti-Trust Laws of this state within the state, and that the obligations arose in consummating this purpose. This leads to our concurrence in the opinion of the Court of Civil Appeals on motion for rehearing, and in the recommendation that the judgment of the Court of Civil Appeals be affirmed, and it is so ordered.” In support of the ruling of the court, appellee cites W. T. Rawleigh Co. v. Fish (Tex. Civ. App.) 290 S. W. 798; McConnon & Co. v. Marshall (Tex. Civ. App.) 280 S. W. 323. There is nothing in either of these cases conflicting in the least with the holding of Judge Nickels in the Land Case. In fact, that case is cited in the Fish Case in support of its holdings. We are in thorough accord with the holding in both of ap-pellee’s cases, that the question is not, what was the business policy of the parties nor what appellants did under the advice and direction of the appellee in choosing territory and making sales; the issue is, what did his contract obligate him to do? As said by ap-pellee’s cases, “unless he bound himself by contract to do the offensive things, although he did them, he cannot invoke the anti-trust laws to defeat the debt he owes.” This proposition involves the very contention of appellants. They pleaded and offered testimony that Due was required by appellee to do the offensive things and, in order to maintain his business contract with appellee, that he followed the advice, instructions, and directions given him from time to time.

Under Judge Nickels’ opinion in the Land Case, the excluded testimony was also admissible in support of appellants’ plea in abatement on the issue that appellee was engaged in intrastate business.

Appellants denied under oath the correctness of the account sued upon, pleading that it had been paid in full. On this issue appellant Due proposed to testify as follows:

“Q. Did you, at the request of the W. T. Rawleigh Company, deliver to customers merchandise in excess of two thousand dollars, for which you did not receive cash on your account? A. I did.
“Taney: We object to the question and answer of the witness because it is an attempt by parol testimony to vary the terms of a written contract.
“Court: The objection is sustained. Gentlemen of the Jury, you will not consider the answer to that question.
“Redditt: We except to the ruling of the Court and want a full bill.
“Court: You may have a full bill.”

The exclusion of this testimony was error.

For the errors discussed, the judgment of the lower court is reversed and the cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: McCDENDON, Chief Justice.

license: Public Domain

text:
    BROWNING-FERRIS MACH. CO. v. THOMSON.
    No. 7786.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1932.
    Rehearing Denied March 29, 1933.

      Leachman & Gardere and W. H. Neary,. both of Dallas, for appellant.
    Baker & Baker, of Coleman, and Kerr & Gayer, of San Angelo, for appellee.
   McCDENDON, Chief Justice.

Appeal from an interlocutory order overruling a plea of privilege, seeking to change the venue to the county (Dallas) of appellant’s residence.

The suit was for damage for breach of a contract of sale of machinery; the breach consisting (1) in failure to deliver within the contract (express or implied) time, and (2) in failure of machinery to meet the implied warranty as to quality, in that it was “defectively designed, manufactured and constructed, and was totally unfit and inefficient for the purposes for which it was designed, manufactured and constructed.”

Appellee contends that venue was properly laid in Runnels county on one or more of the following grounds:

(1) Because appellee was a corporation and the cause of action arose, in part at least, in Runnels county, in that (a) it was executed in Runnels county, and (b) appellee verbally guaranteed delivery in Runnels county.

(2) Because appellant contracted in writing to perform tlie contract in Runnels county.

Tlie contract was in writing, in the form •of a shipping order, the pertinent portions of which read:

“Vendor. Browning-Ferris Machinery Company ⅜ * * Guaranteed Contractors Equipment. Houston, Texas, 3/14/1929. Order No. —- Charge to H. E. Fitzgerald. P. O. Address Box 606. — Ballinger, Texas, 209-10th St., Ship to Do. Sta. — tion Do. County, Runnels, State - via. Frt. Terms: See below * ⅛ * Price FOB Factory (items and price of each article inserted here). Terms: $1000.00 on arrival; $1050.00 due •June 25, 1929; Bal (5) five equal monthly payments due every 30 days beginning July 25, 1929; all notes bearing 8%. ⅜ * ⅜ 1. Title to goods furnished on this order remains vested in vendor until paid for in full 'in cash. 2. Retention of any property shipped under this agreement after five days from arrival at destination shall constitute an acceptance of same. * * * 5. All conditions of this agreement are written and printed hereon, and no verbal agreements, warranties •or modifications whatsoever shall be binding. 6. In case default be made in the payment of any sums provided by this contract, or any renewals of any sums provided by this contract, or if said mortgagee shall at any time deem said mortgagor, said chattels, said debt provided herein or said security unsafe or insecure, then upon the happenings of said contingencies, or any of them, the amount herein secured and remaining unpaid is by said mortgagor admitted to be due and payable, and said mortgagee may, at said mortgagee’s option (notice of which option is hereby expressly waived), foreclose this mortgage by action or otherwise, and said mortgagee is hereby authorized to enter upon the premises where said goods and chattels may be, and remove and sell the same ■and all equity of redemption of the mortgagor therein, either at public auction or private sale .with or without notice to the mortgagor at Dallas, Texas, or elsewhere, without demand for performance, and out of the proceeds of said sale pay the cost of foreclosing this mortgage, and the expense pursuing, taking, keeping, advertising and selling said goods and chattels, • including a reasonable attorney’s fee, and apply the residue thereof toward the payment of said indebtedness or any part thereof in such manner as said mortgagee may elect, rendering the surplus, if any, unto said mortgagor, his executors, administrators and assigns upon demand. 7. It is further covenanted and agreed that all rights, remedies and relief and all claims, causes of action or complaints, accruing or to accrue, to or by, for •or against, either of the parties or the party to this contract, from any cause or by rea-eon of any breach or any failure of either party to comply with this or any part of this, as well as all payments to be made under or in pursuance of this contract, shall be and are hereby made performable and recoverable in Dallas, Dallas County, Texas.”

The contention that the contract was executed in Runnels county is predicated upon the testimony of appellee, the only witness upon the hearing. While this testimony is in some respects vague, we will assume that it supports the following findings: The negotiations leading up to the contract were conducted in Runnels county, between appellant’s agents Wooldridge and Fitzgerald. Wooldridge made out the order, signed it, and left it with Fitzgerald, who was to secure the signed guarantee of appellee. This was done and the order returned by appellee to Fitzgerald. There was no evidence of delivery of the completed instrument to appellant, but presumably it was mailed to it by Fitzgerald. This from a letter of trans-missal from Fitzgerald, addressed to “Mr. W. F. Wooldridge, Browning-Ferris Machine Co., Houston, Texas.” There is no proof of point of mailing of this letter other than that there appears opposite the signature of Fitzgerald the notation, “Box 606, Ballinger, Texas.” This letter contained the following conditions:

“In ordering the screens with this plant I would like to have the one-quarter inch perforations changed to three-eighth inch. Sketch given you mentioned one-half inch.
“Also kindly take up with the Morrow people the chutes for the material from the screens to the bin§ and at the time the question of height from the settling tanks to the screens.”

This evidence failed to show execution of the contract in Runnels county in two respects:

1. Execution of the contract was not complete until the signature of appellee was obtained, and the contract delivered to appellant. Until such delivery, the negotiations had proceeded no further than an unaccepted offer on the part of appellant. If it be assumed that the mailing was in Runnels county, delivery was not completed until receipt of the document in Houston. The case would have been different if appellant had mailed the order to appellee or Fitzgerald, for in such event appellant would have created an agency in the postal officials to accept delivery on its part. This was not the case. Wooldridge in person left the order with Fitzgerald, and there is no evidence that he left instructions to effect delivery through the mails.

2. The additional requirements of the letter constituted a counter offer on appel-lee’s part, until the acceptance of which by appellant there was no contract.

The only evidence of any verbal contract or guarantee was the testimony of ap-pellee to the effect that he heard Wooldridge say he would guarantee delivery within two weeks. This stipulation, was in direct conflict with clause 5 of the order above quoted, and was therefore merged in, or superseded by, the writing. There was no proof of fraud in procuring the signature of appellee. On the contrary, fraud is negatived, in that the order was left with Fitzgerald and full opportunity was afforded appellee to read it and advise himself of its contents before he signed it.

We have reached the conclusion that the suit was not founded upon the breach of any obligation which appellant contracted in wilting or otherwise to perform in Runnels county. We base this conclusion upon what follows.

Notwithstanding the reservation of title in appellant “until paid for in cash in full” (clause 1), the title passed to the buyer upon delivery, subject to a mortgage for the purchase money in favor of the seller. This construction follows both from R. S. art. 5489, and from the intention of the parties as manifested in clause 6 of the contract quoted above.

But even giving literal effect to clause 1, the reservation of title in appellant was until all the purchase money was paid in full in cash; upon, the consummation of which event the title would automatically vest in the seller. Under this construction of clause 1, the obligations which the contract imposed upon appellant as respects delivery related only to possession; and -what is said below applies with equal force to either construction of the effect of clause 1.

We agree with appellee that the expression, “Price FOB Factory,” has no relation to the place of delivery, but only to the price ^hich the purchasers were to pay. Heid Bros. v. Reisto (Tex. Civ. App.) 247 S. W. 349 (error refused); Partin & Fugate v. Hawkins (Tex. Civ. App.) 267 S. W. 571; Williston on Sales (2d Ed.) § 280b; 55 O. J. pp. 332 et seq., § 323.

The provision that the machinery was to be shipped by freight to Ballinger, Tex., brings the case within the well-established general rule, which may now be regarded as elementary, that: “Where goods are shipped in conformity with a contract or with an order to a buyer, the property in the goods generally passes to the buyer, and delivery to the carrier is said to be delivery to the buyer.” Williston on Sales (2d Ed.) §§ 448a and 278.

The provision in quoted clause 2, to the effect that retention for 5 days after arrival at destination shall constitute acceptance, does not take.the case out of the general rule. Acceptance on the part of the buyer is not essential to delivery or the passing- of title or possession where the contract of sale is otherwise absolute in its terms.

In the absence of any governing provision in the contract, the buyer would have the right of inspection upon arrival at destination, and if the property shipped did not comport with the contract he would have the right to refuse acceptance. The effect of the quoted provision was merelyto place a 5-day limit upon the exercise of this right.

The case here is to be distinguished (1) from those in which the sale is conditional upon acceptance by the buyer as in Hall & Brown Wood-Working Mach. Co. v. Brown, 82 Tex. 469, 17 S. W. 715 (see 55 C. J. p. 430, § 417); (2) from consignments to shipper’s order with draft for the purchase price drawn upon the buyer and attached to the bill of lading, as in Landa v. F. S. Ainsa Co. (Tex. Civ. App.) 231 S. W. 175; and from those cases in which the seller has guaranteed weight or grade at the point of destination as in Berlowitz v. Standley, 117 Tex. 362, 5 S.W.(2d) 963, and Scott & Mayhall v. Lubbock Grain & Coal Co., 113 Tex. 127, 252 S. W. 164.

It is sometimes said that “an acceptance is necessary to make a delivery effective to pass title, where the delivery is such as the buyer is not bound to accept, as where goods do not conform to the requirements of the contract, or are not delivered at the time stipulated.” 55 C.. J. p. 563, § 573.

We think it is immaterial here whether the title was' still in the seller by reason of his failure to ship the quality of goods ordered, or whether the title passed to the buyer, subject to his right to rescind and reject the shipment on that account. There was no contract to deliver at Ballin-ger. The obligation of the seller was only to ship there. When the machinery was placed upon the cars at point of shipment, the seller had met every obligation imposed upon him, if the shipment as to quality and time met the requirements of the contract. If there was a breach of the contract, as regards either, such breach occurred at the place of delivery, which, as we have seen, was the point of shipment. The cause of action for the breach arose at the time and place of the breach. There was, however, a choice of alternative remedies in the buyer. He might refuse to accept the property, in which event he could resist payment or recover back what he had paid, and additionally recover compensatory damages for the breach; or he might affirm the contract and recover his damages for the breach, this latter by abatement in the price, or separate suit, or both, as the facts might warrant. The fact that his right to elect between these remedies as regards breach in respect to quality, did not expire until five days after the shipment arrived at destination, would not, we think, be material in determining where the appellant had obligated itself to perform the contract, or where its breach thereof and the resulting cause of action arose.

The same is true, we think, regarding the provision thdt $1,000 of the purchase price should be paid “on arrival.” There is nothing in the contract to indicate that the sale was conditional upon payment of the $1,000. It is true the shipment might be lost or destroyed in transit, in which event there could be no “arrival.” In that ease the buyer’s obligation to pay would not be defeated, because “arrival” had reference only to the time of payment, and not to the obligation to pay. As stated by Wil-liston on Sales (2d Ed.) p. 1109, “If without the seller’s fault, inspection became impossible, the condition qualifying the maturity of the obligation is excused.” The same is true of “arrival” as of inspection.

The order appealed from is set aside, and the cause remanded, with instructions to change the venue to Dallas county.

Order set aside; cause remanded, with instructions.

On Motion for Rehearing.

In overruling appellee’s motion for rehearing, we think it necessary only to add that the record facts do not in our opinion, bring the instant case within the rules: (1) That the place of execution of a contTaet made by an authorized agent, but subject to approval at the home office of a corporation, is the place where the contract is signed (Westinghouse, etc., Mfg. Co. v. Troell, 30 Tex. Civ. App. 200, 70 S. W. 324; Texas Farm Bureau Ass’n v. Lennox [Tex. Civ. App.] 257 S. W. 935; Lummus, etc., Co. v. Mills [Tex. Civ. App.] 233 S. W. 126); (2) that a contract is consummated when an acceptance is mailed, where the contract either expressly (Blake v. Fire Ins. Co., 67 Tex. 160, 2 S. W. 368, 60 Am. Rep. 15) or by necessary implication from the surrounding circumstances (13 C. J. 300, 301, § 116) contemplates that the acceptance should, be so made.

The other points in the motion have been fully discussed in our original opinion.

The motion is overruled.

Overruled.


author: BOND, Justice.

text:
    DIAMOND et al. v. HODGES.
    No. 11441.
    Court of Civil Appeals of Texas. Dallas.
    March 4, 1933.
    Hughes & Monroe and O. F. Weneker, all of Dallas, for appellants.
    Mack L. Vickrey, of Dallas, for appellee.
   BOND, Justice.

This is an appeal from an interlocutory order of the district court of Dallas county, granting a temporary injunction to prevent a sale under the terms of a deed of trust, and declaring, or attempting to declare, due a note and attorney’s fee thereon.

On January 21, 1932, Charles O. Hodges, appellee, executed to W. H. Diamond a promissory note in the sum of $60,000, with interest thereon from said date until paid at the rate of 6 per cent, per annum, interest payable semiannually as it accrues on the 21st day of July and the 21st day of January of each and every year for five years, the maturity date of said note. The note provides that a failure to pay “any installment ol interest due thereon shall, at the election of the holder, mature same, and it shall at once become due and payable and subject to foreclosure proceedings,” under the terms of the deed' of trust. The note further provides that, in default of payment of principal and interest and the note is placed in the hands of an attorney for collection, etc., 10 per cent, additional on the principal and interest shall be added as attorney’s fee.

Simultaneously with the execution of said note, Charles O. Hodges executed to O. P. Wencker, trustee, for the use and benefit of W. H. Diamond and his assigns, a deed of trust on property situated in the city of Dallas, known as the St. George Hotel, to secure the payment of said note.- Said deed of trust also bore an optional acceleration clause, as did the said note, authorizing the trustee to sell the property after giving notices, etc.

Soon after the maturity of the July 21, 1932, installment of interest, W. H. Diamond died testate, and W. C. Diamond, appellant, became the owner and holder of said note, demanded payment of the principal and interest, and in addition thereto exacted a penalty of $6,180 attorney’s fee, on account of the default in payment of $1,800, the semiannual installment of interest, and acceleration of the maturity of the principal, and directed the said trustee to sell the property under the terms of the deed of trust, and as directed the said trustee proceeded with such sale, posted notices, and advertised said property for sale to satisfy said indebtedness.

On a hearing, the district court issued the temporary injunction.

We have reviewed the pleadings and evidence presented to the trial court and conclude that it did not abuse the discretion necessarily imposed on it in ordering the temporary injunction, thereby preventing appellants from selling the property until a trial of the cause. The suit, as pleaded and presented by evidence, challenges the right of W. H. Diamond to exercise the option to accelerate the maturity of the note, and to visit upon appellee the penalty of $6,180 attorney’s fee on account of the failure to pay. W. H. Diamond and Charles O. Hodges had been for many years cordial and intimate friends, and Hodges being unable to pay the principal or installment of interest, on account of the financial depression which prevailed at that time and now, advised his friend of the situation and that he would try to refinance the loan and pay it off. Whereupon W. H. Diamond remarked, ‘‘Don’t you worry about what you owe me, as it is too hot.” Notwithstanding the feeling of security which their said relationship and said remarks might reasonably repose in Charles O. Hodges, W. H. Diamond immediately placed the note in the hands of an attorney, and he, during his lifetime, and appellants, since his death, have demanded of the maker payment of the principal, interest, and attorney’s fee.

An optional acceleration of maturity of a note can be waived by the acts and words of one who holds right of election, as was held by our Supreme Court in San Antonio Real Estate Bldg. & Loan Ass’n v. Stewart, 94 Tex. 441, 61 S. W. 386, 389, 86 Am. St. Rep. 864, as follows: “But, aside from this, while neither party by his separate action or non-action could impair the rights of the other, each could waive his own rights as they accrued from the default in payment of an installment so as to estop him from relying upon such default. To accomplish this, it would only be necessary that each should so act as to justify the other in believing and acting upon the belief that the effect of the failure to pay an installment was to be disregarded, and that the contract should stand as if there had been no default. The principle of estoppel by waiver would, we think, have proper application in such a case.”

In the case at bar, if appellant believed from the long and intimate association between him and W. H. Diamond, and from the acts and declarations of W. H. Diamond, it could be reasonably concluded that the option of acceleration of maturity of the note would not be exercised, then neither W. H. Diamond nor appellants could mature the whole of the indebtedness, exact the penalty of attorney’s fee, and thereby sell the property to satisfy their demands, without giving the maker an opportunity to pay the principal and interest, and without the visitation of such penalty. This is a matter for a determination on the trial of the case, and the court below, in holding the matter in statu quo by a temporary injunction, exercised sound discretion. As said by Chief Justice Jones of our court, in the case of Midland Bldg. & Loan Ass’n v. Sparks, etc., Church, 35 S.W.(2d) 774, 775:

“The issuance of a temporary writ of injunction is merely a provisional remedy allowed by the court, before the trial of this ease on its merits, for the sole-purpose of' preserving the subject-matter of the controversy as it existed at the time the suit was instituted. As a provisional remedy, the function of the temporary injunction in the instant case is to prevent appellants from selling the property until the trial of the suit, which challenges the right to -sell, has determined the issues of law and fact made by appellees’ petition. The issuance of the temporary writ of injunction did not determine the issues of law or fact involved in the main suit, and they are left as they existed prior to the issuance of such writ.
“In any particular ease the issuance of a temporary writ of injunction rests largely in the discretion of the trial court, and his action, in either granting or refusing to grant such writ, cannot be disturbed, unless it be made to appear that the discretion' thus lodged was abused by the order made. So, in the instant case, the sole question for review is: Did the trial court abuse its discretion in granting this writ and thereby maintaining the existing status of the property. If the petition filed by appellees in the suit alleges no cause of action against appellants, in that its allegations fail to show that ap-pellees have alleged a valid defense to the sale of their property under the deeds of trust, or if the petition does allege a cause of action, but, at the hearing, the evidence failed to disclose any issuable fact to sustain such cause of aetmn, then, in either event, the trial court abused its discretion in granting the temporary writ. On the other hand, if the petition does allege a cause of action and the hearing shows the existence of evidence tending to sustain it, then there was no abuse of discretion by the trial court in issuing the temporary writ.”

From what we have said, the judgment of the lower court is affirmed.

Affirmed.


author: McCLENDON, Chief Justice.

text:
    STATE LIFE INS. CO. v. BARNES.
    No. 7782.
    Court of Civil Appeals of Texas. Austin.
    Jan. 4, 1933.
    Rehearing Denied March 29, 1933.

      Sam Bumap and Wilcox & Graves, all of Georgetown, for appellant.
    Stanton Allen, of Bartlett, and W. C. Wofford, of Taylor, for appellee.
   McCLENDON, Chief Justice.

Appeal from a judgment (in trial to court without a jury) in favor of Sara G. Barnes (appellee here, plaintiff below) against State Life Insurance Company (appellant here, defendant below), upon two policies issued by appellant on May 31 and October 31, respectively, 1916, insuring the life of A. T. Barnes, husband of appellee, who died April 26, 1931.

Appellant defended upon the grounds: (1) That the policies had lapsed for nonpayment of premiums due May 31 and October 31,1930, respectively; and (2) that appellee and her husband had accepted the full cash value and accumulated dividends on the policies in full satisfaction and cancellation thereof.

Appellee countered: (1) That Barnes was insane and totally disabled from performing any gainful labor prior to the due date of the premiums and continuously thereafter until Barnes’ death, notice whereof was given appellant within a reasonable time after she discovered a provision in the policies waiving, under the stated contingency, payment of the premiums; and (2) that the sums paid in settlement were accepted in ignorance of the waiver provision.

The controversy on appeal revolves mainly around a proper construction of the waiver provision, whether notice to appellant of Barnes’ disability prior to default in payment of the premiums was a condition precedent to effectiveness of the waiver; and whether ap-pellee was precluded from recovery under the settlement payments. Other questions involved in the appeal relate to the admission of evidence. The waiver provisions of the policies read: “Total and Permanent Disability. If the insured, after paying at least one full annual premium and before default in the payment of any subsequent premium, and before attaining the age of sixty years, shall become wholly and permanently disabled by bodily injury or by disease, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, or from following any gainful occupation, the Company, upon receipt at its I-Iome Office, of due proof of such disability of the insured, will waive payment of the premiums thereafter becoming due, by a written endorsement thereon. Any premiums so waived shall not be a lien on this Policy, and the values in the table of options pn the first page hereof shall increase in the same manner as if the premiums were paid by the insured. If the insured should so far recover as to be able to engage in any gainful occupation, the obligation on the part of the Company to waive payment of premiums shall cease, and the insured shall resume payment of premiums in accordance with this contract, beginning with the first premium becoming due after the date of such recovery. Proofs similar to those required in the first instance of such continuous disability must be furnished prior to the payment of each premium by the Company, if requested. Without prejudice to any other cause of disability the entire and irrecoverable loss of the sight of both eyes, or the severance of both hands above the wrists, or both feet above the ankles, or of the entire hand and one foot, occurring before age Sixty, will be considered total and permanent disability within the meaning of this provision.”

Upon this issue the trial court found: “I find that on May 31st 1929 and October 31st 1929, and for several months prior thereto and up to the date of the death of Albert T. Barnes in Williamson County, Texas, on April 26th, 1931, that the said Albert T. Barnes was mentally deranged and insane, and was during all of said time so suffering from such bodily disease to such an extent that he was wholly and permanently disabled so that he was wholly, permanently and continuously prevented thereby from performing any work for compensation or profit, or from following any gainful occupation.”

The evidence amply supports this finding; and it is not challenged by appellant.

While the authorities in other jurisdictions are not in accord upon the question, those in this state, which we think are supported by the better reasoning, hold that the waiver took effect at the time of the disability, and did not depend upon the time when proof thereof was furnished. Minnesota Mut. Life Ins. Co. v. Marshall (C. C. A.) 29 F.(2d) 977; Mid-Continent Life Ins. Co. v. Hubbard (Tex. Civ. App.) 32 S.W.(2d) 701 (error ref.); Missouri State Life Ins. Co. v. Le Fevre (Tex. Civ. App.) 10 S.W.(2d) 267 (error dis.); State Life Ins. Co. v. Fann (Tex. Civ. App.) 269 S. W. 1111 (error ref.); Merchants’ Life Ins. Co. v. Clark (Tex. Civ. App.) 256 S. W. 969 (error ref.); Bank of Commerce & Trust Co. v. Ins. Co., 160 Tenn. 551), 26 S.W.(2d) 135, 68 A. L. R. 1380; Southern Life Ins. Co. v. Hazard, 148 Ky. 465, 146 S. W. 1107.

In Bergholm v. Ins. Co., 284 U. S. 489, 52 S. Ct. 230, 76 L. Ed. 416, the Supreme Court of the United States granted a writ of certio-rari to the Circuit Court of Appeals for the Fifth Circuit [50 F.(2d) 67], “because of a supposed conflict with Minnesota M. L. I. Co. v. Marshall (C. C. A. [8th]) 29 F.(2d) 977.” The provision in that case read:

“Upon receipt by the Company of satisfactory proof that the Insured is totally and permanently disabled as hereinafter defined the Company will
“1. Pay for the Insured all premiums becoming due hereon after the receipt of such proof and during tlie continuance of the total ancl permanent -disability of the Insured.”

The provision in the Marshall Case was substantially the same as that in the case at bar. In affirming the Fifth Circuit Court of Appeals in the Bergholm Case, the Supreme Court pointed out the controlling distinction in the wording of the policy provisions in the two cases as follows:

“The court [in Marshall Case] held that the waiver took effect at the time of the disability, and did not depend upon the time when proof thereof was furnished.
“We do not need to controvert this construction of the words quoted, or question the soundness of the view of the court that the existence of the disability before the premium became in arrears, standing alone, was enough to create the waiver. In that view, the obligation to furnish proof was no part of the condition precedent to the waiver; but such proof might be furnished within a reasonable time thereafter. Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof. The provision to that effect is wholly free from the ambiguity which the court thought existed in the Marshall policy.”

The holding in the Marshall and other cases above cited is in our opinion sound. Further comment we think unnecessary, except to add that, if appellant, the author of the language of the policy, had intended to make the notice and proof of liability a condition precedent to effectiveness of the waiver, apt unequivocal language to that effect was available and should have been employed. Absent which the rule is applicable that, “where the terms of a policy are of doubtful meaning, that construction most favorable to the insured will be adopted.” Bergholm v. Ins. Co., 284 U. S. 489, 52 S. Ct. 230, 231, 76 L. Ed. page 419. In the recent case of American Nat. Ins. Co. v. Callahan (Tex. Civ. App.) 51 S.W.(2d) 1083 (writ of error granted 11-28-32), the question of the construction of the .policy does not appear to have been considered.

Upon the issue of estoppel, the facts in substance follow:

Up to or shortly before the year 1927, Barnes was in apparent good health. During that year he had a “collapse,” and was taken to a hospital, where his malady was diagnosed as “general paresis.” This affliction is thus described by one of the medical witnesses: “If he had a positive test of general paresis he couldn’t show any permanent improvement —he could show temporary remissions from the disease, but no permanent improvement; there are remissions where the disease halts in its progress, and the patient may even recover some of his mental faculties, or some of the nervous factors disappear, or get better, but he never recovers; and then the disease will start again and progress to the ultimate end.”

According to appellee, from this time on Barnes’ mental condition was never normal, although at times he was better than at others, and he seemed to improve and she had hopes of his recovery. She knew of the existence of the policies, but had never seen them. He kept them in his office, and later locked in a trunk at home; and would not permit her or any one else to see or have access to them. At times he wrote apparently normal and intelligent letters, some of which were to appellant regarding the policies. But the evidence, we think, was sufficient to warrant the conclusion that his mental faculties were not sufficiently normal to charge him as a matter of law with knowedge of the contents of the policies in the respects in issue, and of his legal rights thereunder. Such is the character of mental afflictions that occasional and isolated acts and language of the afflicted party do not afford dependable criteria in determining the mental quality. Only those in close and constant association with the afflicted are, in many cases, qualified to place a reliable estimate upon his mentality. This is true, in any event, of nonexpert observation. There appears to have been no medical examination of Barnes in tbis regard ■after he left the hospital in 1927. The question of his responsibility for his acts or omissions was in any event one of fact which was concluded by tbe trial court’s findings.

Three or four days before Barnes’ death, and while he was suffering from a stroke of apoplexy, appellee and Barnes’ brother broke open the trunk and examined the policies. This examination brought to appellee her first information of the policies’ contents. Shortly after Barnes’ death, she made claim upon the policies, notified appellant of Barnes’ disability, furnished proofs of death, and made the statutory demand for payment. The amounts paid in settlement of the policies were in each instance less than $10, and represented earned dividends, with the exception of 1 cent on one policy and 51 cents on the other. These latter amounts were the cash surrender value, less the amount of .the loans. The small sums thus received were not in any sense by way of compromise upon a disputed liability, but were sums absolutely due by appellant in any event; and were merely nominal in comparison with appellant’s liability under the policies in view of Barnes’ then physical condition and the apparent certainty of his early demise. Their payment, we think, furnished no substantial consideration for cancellation under the circumstances; and clearly, we believe, appellee was not estopped thereby from asserting her right as beneficiary under the policies.

"Under the circumstances detailed, we think there can be no serious question but that ap-pellee furnished notice to appellant of Barnes’ disability in a reasonable time.

Objection was made to testimony of one of the attending physicians at the hospital in 3927, giving his diagnosis of Barnes’ malady at that time as “general paresis.” The objection was predicated upon the physician’s statement that some of the laboratory tests and hospital records were not made by him nor in his presence.

It is unnecessary to consider how far and under what circumstances medical testimony so predicated may be received in evidence. The physician made a number of personal examinations and observations of the patient, and was present when some of the tests and records were made. But independently of this he testified: “I based my opinion that Mr. Barnes was suffering with general paresis upon my personal examination of Mr. Barnes. * * * I am basing my diagnosis on my personal examination of Mr. Barnes, his mental reactions that I saw, and this opinion is corroborated by the laboratory work done in our clinical laboratory. * * * I am basing my opinion on my own personal examination of the patient. My diagnosis was based on my examination, corroborated by laboratory and history reports made as I have stated in a previous interrogatory.”

We think the evidence admissible. But, aside from this, there was ample additional testimony to support the court’s findings, and, the trial being to the court, “the mere fact that improper evidence was received will not require a reversal.” Lawther Grain Co. v. Winniford (Tex. Com. App.) 249 S. W. 195, 196.

Objection to opinion evidence of ap-pellee and another witness to the effect that Barnes was insane was objected to on the ground that the facts upon which such opinion was based were not previously detailed. The testimony of these witnesses sets out fully the acts and conversations of Barnes upon which their opinions were predicated. The order of their testimony — whether the opinions preceded or followed the facts upon which they were based — was not of material substance. The objection went to the competence of the evidence, which Could as readily be shown after as before it was admitted. Technically the witness should qualify before giving opinion evidence; but to reverse the order was a mere informality which was not prejudicial to any substantial right of appellant. Especially is this true in a trial to the court, which is usually less formal than to a jury.

Objection was made to the introduction of a letter written by appellee’s attorney to appellant shortly after Barnes’ death, giving notice of his disability. The letter was of-' fered and received in evidence for the limited purpose of showing notice to appellant, and not as proof of the facts it recited regarding Barnes’ disability. For this purpose it was clearly admissible.

The trial court’s judgment is affirmed.

Affirmed.

On Appellant’s Motion for Rehearing.

The motion only questions our holding construing the policy provision regarding notice of disability, elaborately reviewing the authorities upon this issue.

We have re-examined this question in the light of the motion, and have reached the conclusion that our holding, while in direct conflict with some of -the decisions in other jurisdictions, is sound, and is supported by the better reasoning. Directly in point, as to the wording of the disability clause, and supporting our holding, are the following: State Life Ins. Co. v. Fann (Tex. Civ. App.) 269 S. W. 1111 (error refused); Marti v. Ins. Co., 108 Neb. 845, 189 N. W. 388, 29 A. L. R. 1507; Pfeiffer v. Ins. Co., 174 Ark. 783, 297 S. W. 847, 54 A. L. R. 601; Minnesota Mut. Life Ins. Co. v. Marshall (C. C. A.) 29 F.(2d) 977. A number of other decisions in which there is some slight difference in the wording of the policies support our holding in principle.

We are unable to distinguish the case at bar from the Fann Case, in which writ of error was refused. The disability clauses in the two cases are in all material respects identical.

The motion is overruled.


author: FLY, Chief Justice.

text:
    WINERICH MOTOR SALES CO. et al. v. OCHOA.
    No. 9015.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 22, 1933.
    Rehearing Denied March 22, 1933.
    Eskridge & Groce, of San Antonio, and Gibson & Blackshear, of Laredo, for appellant.
    Ed A. Mullally and Hicks, Dickson, Bobbitt & Lange, all of Laredo, for appellee.
   FLY, Chief Justice.

Appellee, a minor, through her mother, sued the Winerich Motor Sales Company, who will hereinafter be identified as the appellant, and Romeo Salinas, to recover damages inflicted upon her by Salinas while driving an autorno-mobile belonging to appellant. The cause .was tried by jury, resulting in a verdict and judgment in favor of appellee for $7,500.

The main issue in this case is, Was Romeo Salinas, at the time he drove the automobile of appellant against and over the body of Delia Ochoa, in the streets of Laredo, mangling one of her legs, a servant of appellant or an independent contractor in the prosecution of his own business? The evidence showed that appellant’s main place of business was in San Antonio; that it had a branch establishment in Laredo. Romeo Salinas was a car repairer engaged in his business in Laredo. He was employed by appellant to repair any breaks or defects in its cars, and he always came to the garage of appellant to make the repairs, and was paid by the piece or job. Salinas had no shop, although he accepted jobs for others, using his own tools in making repairs, and working wherever he could.

On November 20, 1930, one West, an agent and employee of appellant, drove up to the garage of appellant and told Salinas that the motor in the car he was driving, which was the property of appellant, was “missing,” and for him to get in and drive around and ascertain the cause of the misses in the motor. Salinas got in the car and drove off, and shortly afterwards ran over the girl, who was crossing the street, crushing one of her legs. At the time he struck the girl he was attempting to locate the trouble in the motor, with a view to repairing or correcting the defect.

The facts in this case were ample to show that the general employment of Salinas did not create the relationship of master and servant between the motor sales company and Salinas. He was an independent contractor, and could not be held to be subject to the orders of the motor sales company. He was following an independent occupation, with his own means and instruments, according to his ideas and methods. He was engaged in an occupation that required expert and skilled knowledge, and necessarily he could act according to his own means and methods. The facts of this ease indicate that Salinas was a general contractor. An accurate definition of an independent contractor is quoted by the Commission of Appeals in the case of Shannon v. Western Indemnity Co., 257 S. W. 522, 524. We adopt the definition: “A contractor is any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details. The true test of a contractor would seem to be -that he renders service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.”

This definition differentiates the employee from the contractor. That is clearly brought out in the Shannon Case.

The facts having established that the relationship of employer and general contractor existed between the motor sales company and Salinas, that relationship existed on the day of the .accident, unless appellee showed that the relationship had been changed, and that Salinas, for the time being, had changed his position and had become the employee of •the Motor Sales Company, and was so acting when the girl was injured by appellant’s ear. When he was requested by West to get in the car and drive it around the block or along the street, Salinas was idle and had been all day, and he acceded to the request as any automobile mechanic would do under like conditions. While the burden was on appellant to show that Salinas was an independent contractor and not its employee, still, when that relationship was once established between the parties, it would be presumed to exist until it was shown by appellee that the relationship had ceased to exist and that at the very time she was injured that Salinas was acting in the capacity of an employee or servant of appellant. The facts, we think, fail to establish the destruction of one relationship and the creation of another. It would require clear and - cogent facts to change a relationship shown to exist and create another totally different from the original relationship. The appellant had destroyed the presumption that, as Salinas worked for appellant, he must be a servant, and the presumption then arose that another and different relationship which had been established remained in full force and effect until the party to be benefited by a change in that relation had proved the change.

It seems to be a policy of the Supreme Court to grant a writ of error in any ease where a Court of Civil Appeals reverses a judgment of the trial court founded on a verdict and renders a different judgment, and so it has become the policy of this court to- reverse and remand, rather than reverse and render, in eases where verdicts serve as the basis of judgments. It follows that there will be no rendition in this case.

The judgment is reversed, and .the cause remanded.


author: ELY, Chief Justice.

text:
    ELLIS et al. v. SCOTT et al.
    No. 9017.
    Court of Civil Appeals of Texas. San Antonio.
    March 1, 1933.
    Rehearing Denied March 29, 1933.
    John R. Beasley, of Beeville, and H. S. Bon-ham, of Corpus Christi, for appellants.
    Proctor, Vandenberge, Crain & Vanden-berge, of Victoria, for appellees.
   ELY, Chief Justice.

This is a suit by John R. Scott, J. E. Wilson, I. J. Miller, and James R. Dougherty, executors of the will of Richard J. Cook, deceased, against Mrs. Mamie Ellis and nine others, to secure the construction of the will of said Richard J. Cook.

. The will is as follows, omitting nonessential parts:

“First: I direct that all my just debts and obligations be paid as soon after my death as practicable.
“Second: As early as possible after my demise, I direct that my executors file an inventory and appraisement of my estate and pay and adjust all claims and debts for which I may be liable, including partnership obligations and endorsements for .others. I suggest that a limit of three to five years be allowed to complete these settlements if necessary.
“Third: I direct that my executors or trustees hereinafter named provide a suitable and proper home for my beloved wife, Dora W. Cook.
“Fourth: Appreciating the many courtesies and special favors and services rendered me, I direct that my executors or trustees pay to Miss Helen Ransom, $1,000.00; to Miss Gertrude Linke, $500.00 and to I. J. Miller, $2,-000.00.
“Fifth: After the settlement of all just debts and .obligations for which my estate may be liable, I direct that my executors or trustees have full power to dispose of any portion of my estate and reinvest and carry on all transactions pertaining thereto, and provide a trust fund, under their control or the control of their successors, to be held and handled during the life of my wife, Dora W. Cook, and at her death this trust fund shall be divided equally between the heirs of my wife, Dora W. Cook and my sister, Mamie Bilis or her heirs.
“Sixth: I give, devise and bequeath to my sister, Mamie Ellis or her heirs, all the land together with the improvements thereon inherited by me from my father, John W. Cook, and my mother, Frances A. Cook, being described in the partition deed partitioning the estate of Frances A. Cook.
“Seventh: It is my desire and I direct that the executors or trustees hereinafter named, provide for the education of John Cook Rees, provided however, that he takes proper action to change his name to read John Cook, and when this is done, he is to receive $5,000.00 when he reaches the age of twenty-one years. In the event that he does not comply with this provision he is to receive only $1000.00 when he reaches the age of twenty-one years. It is the intention of this provision that John Cook Rees shall have the opportunity to be educated in any chosen profession under the direction and authority of my executors or trustees.
“Eighth: I give, devise and bequeath to Mary Frances Rees and Louise Rees $1000.00 each as they become of age or are married.
“Ninth: I hereby constitute and appoint my friends, John R. Scott, J. E. Wilson, I. J. Miller and James R. Dougherty trustees and executors of my estate, any three of which may act or be a majority in any action taken relative to any transaction in connection with the management or disposition of my estate.
“Tenth: Realizing the uncertainty of life, I further direct that in event of the death of any of my designated executors and trustees, or refusal of any one of them to serve, the three remaining trustees shall select another to serve, except that it is my wish that whoever might succeed I. J. Miller as officer of the Commercial National Bank, Beeville, Texas, shall also succeed in this trust, as it is- my • desire that the Commercial National Bank, Beeville, Texas, shall be depository for my estate. In event that it should become necessary to have a successor for any of the other three, I suggest that in selection of successors men as near equal ability and character be selected to serve, and that a capable attorney be selected to succeed James R. Dough-erty.
“It is my wish that after the completion of settlement of all claims against njy estate and the provision of a home for my wife, Dora W. Cook, that the portion of my estate bequeathed to my sister, Mamie Ellis, shall be conveyed to her subject to the payment of $1000.00 per annum to the credit of the trust fund created above.
“In case of necessity or in the discretion of trustees, they may from time to time withdraw from the trust fund created and pay to my beloved wife, Dora W. Cook and to my beloved sister, Mamie Ellis in equal amounts. That is to say, should it appear that either of them needed assistance, or in the discretion of the trustee, it was to the best interest of those concerned to make a payment to either Mamie Ellis or Dura W. Cook, a like amount shall be paid to the other.”

As a means to obtaining a construction of the will, the following eight questions were propounded to the court, through the petition, which, together with the answers thereto, are hereby copied:

“1. What funds of Richard J. Cook, deceased, shall be used in the payment of the community obligations of said Richard J. Cook and wife, Dora W. Cook?
“In response to the first question, all community debts of Richard J. Cook, deceased, and his wife, Dora W. Cook, shall be paid and discharged out of the community funds and estate of said Richard J. Cook, deceased, and his wife, Dora W. Cook, as far as may be possible, unless such community funds and estate are exhausted before such community debts shall be fully discharged, then and in that event all property and funds, including separate funds of Richard J. Cook, deceased, shall be used in the payment of community debts after the sepavate debts of Richard J. Cook, deceased, are settled out of his separate estate.
“2. What funds shall be used in the payment of the separate debts of Richard J. Cook, deceased?
“In response to the second question, the separate debts of Richard J. Cook, deceased, shall be paid out of his own estate without resort to the community estate of his wife, Dora W. Cook, unless the same shall be insufficient to discharge such separate debts.
“3. In what order shall the assets, both personal property and real property, be applied in the payment of the debts of Richard J. Cook, deceased?
“In response to the third question, the personal property shall first be sold to discharge the debts, and. thereafter the real property.
“4. What property is included in the corpus of the deceased’s estate which is to be managed and controlled by the trustees or executors herein?
“In answer to the fourth question, the corpus of the trust estate is composed of all the separate estate of Richard J. Cook and his community interest which is to be managed and controlled by the Trustees herein.
“5. Is the legacy to Mrs. Dora W. Cook charged upon the devise to Mrs. Mamie Ellis by the language of paragraph 10 of the will of Richard J. Cook, deceased?
“In response to the fifth question, the devise to Mrs. Dora W. Cook of her homestead is a charge upon- the devise to Mrs. Mamie Ellis by virtue of paragraph 10 of the will of Richard J. Cook, deceased.
“6. What, funds are to be used in the payment of the devises made in said will?
“In response to the sixth question, the legacies to Helen Ransom, Gertrude Iánke, I. j: , Miller, John Cook Rees, Mary Prances' Rees and Louise Rees shall be paid out of the trust estate after the payment of-the debts, and the homestead for Mrs. Dora W. Cook has been provided and the conveyance made to Mrs. Mamie Ellis. '
“7. Considering the will in its entirety, was it the intention of the testator, Richard J. Cook, that his wife, Dora W. Cook, should receive the devise made her by paragraph of the will numbered ‘Third’ before any other legacy or devise made by the will be paid, or vest or be provided for?
“In response to the seventh question, the executors shall first provide a suitable and proper home, out of the trust fund for the surviving wife, Mrs. Dora W. Cook, before any other legacy or devise in the will shall be paid or vest or be provided for.
“8. Did Richard J. Cook, deceased, intend by his will to devise only his interest in the community property, or did he intend to devise the entire community property thereby?
“In response to the eighth question, Richard J. Cook intended by his will to dispose of his separate estate and his interest in the community property only.”

A report as to amounts collected and an appraisement of the property of the estate was included in the petition. The widow endeavored to prevent probate of the will, but failed. However, she obtained a decree giving her the widow’s statutory allowance. It was also alleged that the executors had on deposit in a bank $50,214.55, and averred a readiness to proceed to pay debts and execute the provisions of the will when given a construction of its contents. It was indicated' that there were some antagonistic claims between the widow and Mrs. Mamie Ellis, a sister of the deceased. She appears to be the-only one dissatisfied with the decision of the-trial judge, and she alone prosecutes this appeal.

The facts show that Mrs. Cook contested the probate of her husband’s will, and, failing in that, she afterwards had the court to-set apart to her the statutory allowance made to widows of deceased persons, consisting of a homestead, 200 acres of land, farming utensils- and other personal property, and $200 in lieu of exemptions which could not be obtained in kind. She desired the widow’s allowance and nothing more at that time, and she had repudiated the will by endeavoring to destroy and render it ineffectual. Afterwards, when a construction of the' will was sought by the loyal trustees appointed by her dead husband, the contestant of the will came forward to claim anything bequeathed to her by the will-She made no offer to return the widow’s allowance and elect to inherit under the will, but she held what the law had given her, and,, like Oliver Twist, clamored for more. Does the law countenance such action? Can a legatee under a will repudiate that will, and' elect to receive the statutory allowance instead of the testamentary bequests, and then,. without returning the allowance into the body of the estate, demand and receive all bequeathed in the will? To sustain such a proposition would be rank injustice, destructive-of the elements of honesty, and subversive of the principles which should govern civilized society.

The language of the will does not disclose that the wife had any community interest in the property set out in the will, and it will be presumed that the testator was disposing of property owned by him alone. Avery v. Johnson, 108 Tex. 294, 192 S. W. 542. If, however, the testator did attempt to bequeath community estate, still, if Mrs. Cook,, after the will was probated, elected to receive as her part of the estate the widow’s allowance, she would be precluded from claiming anything under the will. Whatever interest may have been intended for her under the-will, she had rejected and had made the statute her refuge and haven of protection. She was adjudged everything the law allowed her-If she had any community interest in the property bequeathed by Richard Cook, she failed to prove it. The presumption is she had none.

The doctrine of election, as applied to remedies and interest in property, is a wholesome and salutary one. It allows a choice to a beneficiary, and is a right of value, but it should not be used in such a manner as to vex and harass others concerned, and as a means of exploiting an estate and depriving others of their rights. Such election should not be one that every varying emotion of the party should he able to change the result of, to the harm of others. In this case, to allow the wife to repudiate the will, obtain her allowance under the statute as a widow, and then go in and obtain the bequests made to her in the repudiated will, would be rank injustice. It is clearly indicated in article 3493, Revised Statutes, that such a procedure could not be tolerated, for it is provided that, in case of a solvent estate, where the assets show an excess above the indebtedness, the widow can only obtain her part of the excess by releasing her allowance to the estate, with the exception of her homestead. Under the Texas Constitution, art. 16, § 52, a life estate in her homestead was given to the widow so long as she elected to so use it, but in the will of the deceased husband provision is made for another homestead for his widow. She wants the constitutional homestead and the testamentary one also. Should she be allowed to have two homesteads? Would not acceptance under the will be equivalent to an abandonment of the homestead set apart to her by the court? It is apparent that no such procedure is contemplated by law. If it be conceded that the widow could hold her statutory homestead, and not put it back into the estate, still, in order to share in the estate, she would be compelled to return the other allowances made to her.

In the will it was provided that the executors should prepare “a suitable home” for the wife, but, before they could carry out the provisions of the will, she had the existing homestead set apart to her by the court. Of course, she had only a life estate in the home set apart to her, and would probably have had absolute title to the home the husband desired to have prepared for her, but she rejected the testamentary home and chose the statutory one. This she had the right to do, but she cannot now claim any right to a home under the will, or claim a right to an interest in the trust fund to be created under the will for her. She chose to take her statutory allowance; it was given to her, and she must abide the consequences. She will not be permitted to blow hot and cold with the will of her dead husband.

It might be supposed from the manner of discussion in this case that the estate was being distributed under the will, and that Mrs. Cook had received everything bequeathed her by the will, as well as everything given to her under the statute, but such is not the ease. This appeal has been prosecuted 'from the judgment construing the will, and which construction would permit Mrs. Cook, when the estate is distributed under the will, to retain all property set apart to her in the order giving her the widow’s allowance. While the estate has not been actually distributed under the will, its provisions and status have been fully determined by the judgment of construction by the district court. There is no complaint of that construction, except in so far as it relates to Mrs. Cook.

In the judgment of the court the provision for the" home for Mrs. Cook is given precedence over the claim of Mrs. Ellis. The bequest for the new home was placed ahead of everything in the will, and yet Mrs. Cook had chosen to take the old home, and had it judicially declared to be hers. Can it be assumed that the husband anticipated that his wife would obtain the old home, and then demand the new one also? That seems hardly reasonable. The testator desired a suitable home for his widow. She selected the one that suited her, and thereby obtained the home intended for her by the testator.

The court found in his judgment that the will applied alone to his separate estate and his interest in the community estate. If there was a community estate, the interest therein of the wife was in no manner affected by the will, and it was not involved in the proceedings for construction of the will.

The third proposition is overruled, as the debts due by the estate will be liquidated, according to the terms of the law, and the matter is one of no importance under the facts before this court.

We hold that the construction of the will was correct, and that construction would not be changed by the fact that Mrs. Cook had repudiated the will and had elected to take under the statute rather than under the terms of the will. Her actions could not affect the will, but affected her status under the will only.

The sixth proposition is without merit, and is overruled.

The construction of the will, on its face, by the court we think was correct, but, in the light of the testimony presented to the court, it should not have been held that the executors should furnish Mrs. Cook with another home. She had chosen under the statute the home she desired, and, if the court intended to convey the idea that, in spite of her acts in choosing her home, another should be provided, it was error. AVe hold that the wishes of the testator that his surviving wife should be provided with a home have been fully complied with by her selection of the existing home, and she will not be permitted to obtain another. Striking out the conclusion of the judge that another home should be provided, the judgment construing the will is affirmed.


author: HIGGINS, Justice.

text:
    MUELLER-HUBER GRAIN CO. v. HEID BROS., Inc.
    No. 2796.
    Court of Civil Appeals of Texas. El Paso.
    March 2, 1933.
    Rehearing Denied March 30, 1933.
    W. C. Jackson, of Port Stockton, and Douglas & Black, of San Antonio, for appellant.
    J. U. Sweeney and J. E. Quaid, both of El Paso, for appellee.
   HIGGINS, Justice.

Appellee brought this suit in the justice court of Pecos county against .the members of the partnership of Mueller-Huber Grain Company. Defendant filed plea of privilege to be sued in Bexar county. The plea is in statutory form, but failed to state the justice precinct of Bexar county in which defendants resided. Controverting affidavit was filed and date set for hearing the plea. Upon the date set for the hearing, the justice of the peace sustained an exception to the plea of privilege, overruled the plea, and judgment upon the merits was rendered against defendants, who appealed to the county court. In the latter court, defendant filed amended plea of privilege in statutory form, and asked that the suit be transferred to justice court precinct No. 1 of Bexar county.

To the amended' plea exceptions were sustained and the plea overruled.

In this ruling the court erred. A plea of privilege is amendable as any other plea. Lillie v. Globe Printing Co. (Tex. Civ. App.) 6 S.W.(2d) 444; Cobb v. H. C. Burt & Co. (Tex. Civ. App.) 241 S. W. 185.

It is amendable in the county court. Patterson Produce Co. v. Tombs (Tex. Civ. App.) 14 S.W.(2d) 959.

There is no issue of waiver presented by the defendant’s failure to first appeal from the order of the justice court overruling the plea of privilege.

The trial in that court, upon the merits, followed immediately after the plea was overruled. Under such circumstances, a waiver of the plea is not to be implied. Smith Bros. Grain Co. v. Windsor & Stanley (Tex. Com. App.) 255 S. W. 158; Martin v. McKean & McNeal (Tex. Com. App.) 257 S. W. 241.

It has been held that in a suit in the justice court a plea of privilege is defective unless it shows the precinct residence of the defendant in the county in which he resides. Leventhal v. Hollamon (Tex. Civ. App.) 165 S. W. 6; Hume v. Devenport (Tex. Civ. App.) 52 S.W.(2d) 539; Patterson Produce Co. v. Tombs, supra.

We doubt the correctness of such rulings because article 2007, R. S., prescribes the requisites of a plea of privilege, and says that a plea in the prescribed form shall be prima facie proof of defendant’s right to change of venue. The statute makes no distinction between the requisites of such a plea in the different courts.

But in any event the plea was amendable and was amended in the county court so as to meet any possible defect in the particular indicated.

Upon the views expressed, it follows that none of the reasons urged by appellee in support of the overruling order are well taken.

Reversed and remanded for trial of the plea of privilege upon its merits. Hayes v. Penney, 215 S. W. 271.