author: SELLERS, Justice. LEYY, Justice

text:
    SHIREY v. TRUST CO. OF TEXAS et al.
    No. 4683.
    Court of Civil Appeals of Texas. Texarkana.
    March 12, 1934.
    Rehearing Denied March 22, 1934.
    Butler & Price and Marsh & Fitzgerald, all of Tyler, for appellant.
    Troy Smith, of Tyler, and Yinson, Elkins, Sweeton & Weems, of Houston, for appellees.
   SELLERS, Justice.

This is an appeal from an interlocutory judgment of the district court of Smith county granting a temporary injunction restraining the sale of real estate located in the city of Tyler in Smith county, the property involved being 70 by 120 feet, located at the corner of West Elm street and South College avenue, fronting 120 feet on West Elm street and 70 feet on South College avenue, in lot 1, block 22, of the original town of Tyler.

On July 21,1927, Carter Stewart recovered a judgment in the district court of Harris county in cause No. 103369 against Houston Finance Corporation and others. So far as the points involved in this appeal are concerned, this judgment provides:

“It is Therefore Considered by the Court, and so Ordered, Adjudged and Decreed that the plaintiff, Carter Stewart, do have and recover judgment in • the sum of fourteen thousand seven hundred and thirty-one and, 62-100 ($14,731.62) Dollars, together with interest thereon from the twenty-first day of Julyj 1927, at the rate of eight (8) per cent per annum and all costs in this behalf incurred, against the following defendants, and each of them, viz: Houston Finance Corporation, H. E. Byrne, W. M. Roberts, R. E. Morris, The Tyler Commercial College, W. E. Weatherford, W. C. Wiley (in his individual capacity), The Byrne Publishing Company, E. R. Burget and W. F. Andrews.
“2. It is further considered by the court, and it is so Ordered, Adjudged and Decreed that the plaintiff, Carter Stewart do have and recover judgment against The Texas Finance Corporation, and against Ed Hall, Y. F. Bu-cek, and A. W. Taber, as Receivers of The Texas Finance Corporation, and against Houston Finance Corporation, H. E. Byrne, W. M. Roberts; R. E. Morris, The Tyler Commercial College, Mrs. H. E. Byrne find husband, H. E. Byrne, Betty Glenn, W. E, Weath-erford, W. C. Wiley, individually, W. C. Wiley, Executor of the Estate of Alice D. Wiley, The Byrne Publishing Company, E. R. Burget, W. F. Andrews, Laura S. Andrews, J. W- Glenn and wife, Mrs. F. A. Glenn, Mrs. Betty Glenn, and against each and all of the defendants and all other parties to this case (except those as to whom the action has been dismissed) whether named in the judgment or not, establishing, adjudicating, and.determining finally and conclusively as against all parties to this suit the • following adjudications:” (Here follows specific adjudications in distinct sections “first” to “eleventh,” inclusive, respecting the title to certain bank stock. Sections “fourth” and “fifth” adjudge Carter Stewart to have a garnishment lien on the hank stock and award a foreclosure of the garnishment lien on such stock to satisfy the amount of the personal judgment before mentioned.)

It is further specifically provided that the plaintiff shall have judgment against the defendant A. W. Taber, receiver of the Texas Finance Corporation, who was adjudged to have no interest in or right to physical possession of the bank stock, for all costs of the case; and it is further specifically provided that the defendants Margaret Glenn, Betty Glenn, and John W. Glenn who were adjudged not to be members of the defendant Houston Finance Corporation, have judgment against the plaintiff for cost by them respectively incurred.

On August 1,1927, the above judgment was abstracted and the abstract recorded in the judgment record of Smith county on August 3, 1927. This abstract as issued and recorded is as follows:

“Judgment Record.
The State of Texas, County of Harris. In the District Court 55th of Harris County, Texas.
July Term, A. D. 1927.
No. 103369.
In What Court Rendered
Names of Plaintiffs and Defendants in Judgment
In the District Court 55th of Harris County, Texas.
Carter Stewart, Plaintiff in Judgment
Hoúston Finance Corporation, H. E. Byrne, W. M. Roberts, R. E. Morris, The Tyler Commercial College, W. E. Weatherford, W. C. Wiley (in his individual capacity), The Byrne Publishing Company, E. R. Burget, and W. F. Andrews, jointly and severally, Defendants in Judgment.
Date of Filing and Record Date of Judgment Amount of Judgment.
Month Day Year Hour Month Filed Day Year
August 3 1927 8:00 AM July Recorded 21 1927
August 3 1927 10:00 AM $14,731.62
Amount of Costs Rate of Interest Amount of Credits Amount Due.
$175.70 8⅞ None Full.”

So far as the parties named in the abstract are concerned, it was properly indexed when recorded by the clerk.

On January 21, 1929, Carter Stewart duly transferred the above judgment to W. L. Shirey, who caused a pluries execution to be issued on the judgment to Smith county which was placed in the hands of Earl Price, sheriff of Smith county, and by him levied upon the property herein involved as the property of H. E. Byrne, and the sheriff proceeded to advertise the property for sale in order to satisfy W. L. Shirey’s judgment lien against the land. The land levied upon by the sheriff was purchased by H. E. Byrne on February 16,1927, and by him conveyed to his wife, Mrs. Lida Byrne, on April 7, 192S. Mrs. Lida Byrne, joined by her husband, I-I.»E. Byrne, conveyed the land by general warranty deed to R. E. L. Johnson. Johnson and wife on November 30, 1928, conveyed by general warranty deed to A. Hicks for a consideration of several thousand dollars, all of which has been paid. On August 12, 1929, A. Hicks and wife executed a deed of trust lien on the property in favor of the Trust Company of Texas to secure the payment of a $40,000 note with interest thereon given by A. Hicks and wife to said company. On June 23, 1930, the Trust Company of Texas assigned to State Life Insurance Company a $30,000 interest in and to- the above described note and the lien securing the same. At the time the suit pending before this court was instituted, there was still due on the «$40,000 note the sum of «$30,000.

This suit was brought by the Trtist Company of Texas, State Life Insurance Company, and R. E. L. Johnson against W. L. Shirey and Earl Price, sheriff of Smith county, to remove the cloud cast upon their title to the land involved by the recording of the abstract of judgment above mentioned which ■is alleged to be void, for reasons hereinafter discussed, and also prayed for a temporary injunction to restrain the sheriff and W. L. Shirey from selling the land under the execution until the final determination of this suit. On a hearing before the court in vacation the temporary injunction was granted and W. L. Shirey has duly prosecuted this appeal from such interlocutory order.

Appellant contends on this appeal that there is a misjoinder of parties plaintiff in this case. We cannot sustain this proposition. The appellees who were the plaintiffs in the trial court are all directly interested in removing the cloud from the title to the land involved, and in preventing a sale of the land under execution by appellant, defendant below, until a final adjudication of the title question. It seems to be well settled in this state that all persons having an interest in the subject-matter which can be affected by the decree may join in the suit. The appellees being interested in the land, either as warrantors or mortgagees, they have such interest in the land as will authorize the court to grant them a temporary injunction to restrain a sale under execution against a party who has no interest in the land when the sale would place a cloud upon the title to the land involved. Huggins v. White, 7 Tex. Civ. App. 563, 27 S. W. 1066; San Bernardo Townsite Co. v. Hocker (Tex. Civ. App.) 176 S. W. 644; McCall v. Page (Tex. Civ. App.) 155 S. W. 655; Ivory v. Kempner, 2 Tex. Civ. App. 474, 21 S. W. 1006; National Loan & Investment Co. v. Pelphrey & Co. (Tex. Civ. App.) 39 S.W.(2d) 926. And this right to a temporary injunction is not dependent upon a showing by appellees that they have no adequate remedy at law. Article 4642, subd. 4, R. C. S. 1925. Neither can there he any question but that a sale under the execution here enjoined would cast a cloud upon the title to the land involved. Stolte et al. v. Karren et al. (Tex. Civ. App.) 191 S. W. 600.

It is conceded by the parties to this appeal that the execution as issued and levied upon the land was for the sole purpose of satisfying appellant’s judgment lien against the land. And if the judgment lien is void, as alleged by appellees, then appellant hás no right to have the land sold under the execution. Tlie appellees contend that the judgment lien sought to be satisfied by the execution sale is void for the reason that the abstract of judgment as issued by the clerk of Harris county wherein the judgment was rendered did not include in the abstract the name of each defendant in the judgment, and, further, because the abstract as recorded in the judgment record of Smith county by the county clerk was not indexed in the name of each of the defendants named in the judgment. It will be/ observed that the abstract here involved, as prepared by the clerk of the court where the judgment was rendered, did not contain the names of all the defendants in the judgment, and when the abstract was recorded by the county clerk of Smith county it was indexed only in the names of the plaintiff and the defendants appearing in the abstract and was not indexed in the name of each defendant appearing in the judgment. It is true that there is no personal recovery for debt by the plaintiff against the defendants whose names were omitted from the abstract, but the judgment did decree a recovery by plaintiffs of all the cost of the case against one of the defendants not named in the abstract, and likewise another defendant whose name did not appear in the abstract was decreed a recovery of all cost incurred by him against the plaintiff. We mention the above facts in view of the contention made on this appeal to the effect that the statutes providing for the establishment of a judgment lien do not require that names of all the defendants in the judgment be given in the abstract but only require that the names of all those against whom a personal money judgment is granted be given in the abstract, and when properly recorded as to them the statutes have been complied with. The statutes providing for the creation of a judgment lien are as follows:

“Article 5447. Abstracts of Judgments.
“Each clerk of a court, when the person in whose favor a judgment was rendered, his agent, attorney or assignee, applies therefor, shall make out, certify under his hand and official seal, and deliver to such applicant upon the payment of the fee allowed by law, an abstract of such judgment showing:
“1. The names of the plaintiff .and of the defendant in such judgment.
“2. The number of the suit in which the .judgment was rendered.
“3. The date when such judgment was ren- ■ dered.
“4. The amount for which the judgment was rendered and balance due thereon.
“5. The rate of interest specified in the .judgment. Each justice of the peace shall .also make and deliver an abstract of any . judgment rendered in his court in the manner therein provided, certified under his hand.
“Article 5448. Recording Judgments.
'“Each county clerk shall keep a well bound book called the ‘judgment record,’ and he shall immediately file and therein record all properly authenticated abstracts of judgment when presented to him for record, noting therein the day and hour of such record. He shall at the same time enter it upon the alphabetical index’ to such judgment record, showing the name of each plaintiff and of each defendant in the judgment, and the number of the page of the book upon which-the abstract is recorded. He shall leave a space at the foot of each such abstract for the entry of credits upon and satisfaction of such judgment, and shall enter the same when properly shown.
“Article 5449. Lien of Judgment.
“When any judgment has been so recorded and indexed, it shall from the date of such record and index operate as a lien upon all rof the real estate of the defendant situated ;in the county where such record and index .are made, and upon all real estate which .the defendant may thereafter acquire situat,ed in said county. Said lien shall continue for ten years from the date of such record .and index ;■ hut if the plaintiff fails to have execution issued upon his judgment within twelve months after the rendition thereof, said lien shall cease to exist.”

In view of the clear and unambiguous language used in the statutes, we think appellant’s contention as above stated cannot be sustained. The identical question has recently been decided against appellant’s contention by the Court of Civil Appeals at Eastland in the ease of McGlothlin v. Coody, 39 S.W.(2d) 133. The opinion in this case reviews the authorities on the point and we adopt the conclusions therein reached by that court. 'The Supreme Court granted a writ of error in the McGlothlin v. Coody Case, 59 S.W.(2d) 819, 821, and the Commission of Appeals, in an opinion sustaining the Eastland Court of Civil Appeals, construed articles 5447 and 5448 and held:

“However, the articles involved here are 5447 and 5448, and it appears that, according to the provisions of article 5447 the clerk of a court, upon an application having been made, shall make out, certify, and deliver to the applicant an abstract of judgment, showing five different things, the first of which is that the abstract shall show the names of the plaintiffs in the judgment, and of the defendants in the judgment, not the name of one of the plaintiffs, and not the name of one of the defendants,' but the names of the several defendants, if there be.several, and the names of the several plaintiffs, if there be several, appearing upon the face of the judgment. After this has been done, and this instrument has been handed to the clerk, where it is sought to create a lien, then, according to article 5448, this clerk shall record all properly authenticated abstracts of judgment when presented to him for record, noting therein the day and hour of such record, and, after he has done this, the clerk is required to enter it upon the alphabetical index to such judgment record, showing the name of each plaintiff and of each defendant in the judgment and the number of the page of the book upon which the abstract is recorded. In other words, the judgment lien given by plaintiff in a judgment is purely a statutory one, and a person who asserts that he has such a lien must show that each and every requirement of the statute has been followed in order that he shall establish the existence of such lien.”

We regard the interpretation of the statutes by the Commission of Appeals as sound, and overrule appellant’s contention that the abstract here involved as issued and recorded created a valid judgment lien against the property sought to be sold under exe'cution.

There are other assignments which we have carefully considered, but they are believed to be without merit and are overruled.

The judgment of the trial court is affirmed.

LEYY, Justice

(dissenting).

I feel constrained to construe the article of the statute in hand as supijorting the sufficiency of the abstract in-evidence, although the case of McGlothlin v. Coody (Tex. Civ. App.) 39 S.W.(2d) 133; Id. (Tex. Com. App.) 59 S.W.(2d) 819, would render such abstract, if applied to it, ineffective as a judgment lien.

It is firmly settled that a lien does not arise until the judgment is properly abstracted and indexed in the very provisions of the statute. Nye v. Moody, 70 Tex. 434, 8 S. W. 606; Pierce v. Wimberly, 78 Tex. 187, 14. S. W. 454; Evans v. Frisbie, 84 Tex. 341, 19 S. W. 510; and other cases; 34 C. J. § 834, p. 575. The point determinative of the lien in the present appeal is entirely that of whether or not the statute relating to the docketing of judgments by transcript or abstract when applied to the judgment rendered in cause No. 103369 in the district court of Harris county, requires, in order to make the judgment lien effective, such abstract to contain the names of every individual person made a party to the action in respect to whom final adjudication in any particular was made, irrespective of whether they were persons against whom a money judgment was rendered. The judgment in entirety made adjudication, as to parties, matters determined and relief granted, in two adjudications or branches of the case. Firstly, there was adjudicated the payment of the definite and certain sum of money of $14,-731.62 with '8 per cent, interest per annum by the particular parties enumerated. All of the defendants and each of the defendants liable at all in personal judgment for money were adjudged to be liable, separately and jointly for the certain sum of money specified. Secondly, the remaining sections of the judgment dealt with and made final adjudication as to all parties enumerated therein as respects their right to hold or to have an enforceable lien against certain shares of corporate stock. The two adjudications can, in effect, be separated and distinguished, the one being for payment of a specific sum of money, and the other being not for the payment of money but in rem. Article 2211, R. S. (amended by Acts 1931, c. 77, § 1 [Vernon’s Ann. Civ. St. art. 2211]), specially provides that “judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or interveners.” Although only one final judgment in entirety is contemplated by that article of the statute, yet within the meaning of the article adjudication upon each independent branch of the case may be deemed in proper instances not a joint but a several judgment. Cotton v. Colt, 88 Tex. 414, 31 S. IV. 1061. It is in the light of such judgment in its entirety that the sufficiency of the abstract of the judgment in evidence to create a lien under the provisions of the statute is to be considered. While the statute which fixes a judgment lien is to be construed strictly, yet this does not mean that it may not -be given the full meaning that the language employed reasonably imports. 26 Tex. Jur. § 520, p. 360; Kingman Texas Implement Co. v. Borders (Tex. Civ. App.) 156 S. W. 614. The provisions of the'statute are literally set out above. The language of the statute is unambiguous in respect of what the abstract of the judgment must show. As expressly provided in that article such “abstract” or brief statement must set forth or contain a “showing” of (1)-“the names of the plaintiff and of the defendant in such judgment,” and (2) “the number of the suit in which the judgment was rendered” and (3) “the date when such judgment was rendered,” and (4) “the amount for which the judgment was rendered and balance due thereon,” and (5) “the rate of interest specified in the judgment.” Article 6447. It is this authenticated abstract of judgment that the county clerk is required,, when it is presented to him, to file, record,, and alphabetically index. Article 5448, R. S-. Does the provision “the names of the plaintiff and of the defendant in such judgment” require, in order to make the lien effective, the abstract to contain the name of every individual person made a party to the action in respect to whom filial adjudication in every particular of the judgment in its entirety was made? Do the words “such judgment” refer and mean to be applicable only to ai money judgment, or as the case may be to ai section of a judgment adjudicating only respecting the payment of money? The language does not absolutely require the construction, as the necessary and unavoidable-one, that every defendant in a judgment in. its entirety should be enumerated in the abstract, although such defendant be not adjudged personally liable in any wise for payment of the sum of money. Rather does the wording and the purpose of the provision more reasonably point to the restrictive construction that the abstract need contain only the names of the defendants against whom a money judgment was rendered. It was manifestly a money judgment only that was in view. The fundamental provision which-shall create the lien as is evid.ent, is the-recital that a specified amount for which the judgment was rendered remains unpaid. The lien is based upon the amount of a purely money judgment remaining unpaid. That is the only character of judgment that does or can create the lien. The abstracting and recording of a judgment that has been paid is ineffectual to create a lien. Huggins v. Johnston, 120 Tex. 21, 35 S.W.(2d) 688. And too, as will be observed, the provisions of the statute do not require the abstract to contain facts as to all the entire judgment. The provisions clearly reflect the intention not to-require every particular of the judgment in-its entirety. All that was designed or is necessary was enumerated. Everything else, not enumerated, must be regarded as deemed unnecessary to the docketing of the judgment. It was simply deemed essential to the creation of a lien that there shall be a judgment which is final and subsisting for the payment of a definite and certain sum of money by the defendants enumerated. It is a fundamental doctrine that a judgment which by its terms cannot be enforced against the property of the defendant by execution cannot become a lien thereon. Hagan v. Chapman, 1 Pennewill (Del.) 445, 41 A. 974. Then, why in the present case is there the necessity of incorporating in the abstract the separate portion and independent branch adjudicating the rights as to the corporate stock? The parties to that branch or section of adjudication are entirely unaffected with the liability of the particular defendants adjudged to be liable to pay the money judgment. The money judgment can be carried into execution without their being personally liable. In the enforcement of a deficiency judgment the execution is not required to run in the name of any defendant except the defendant against whom the personal judgment was rendered. Holt v. Holt (Tex. Civ. App.) 59 S.W.(2d) 324. The two adjudications in the present judgment can be separated and distinguished, the one for the payment of a specific sum of money supporting the lien, while the other does not. Therefore it is believed the judgment lien may not be held invalid upon the ground of noncompliance with the terms of the statute; that the section of the judgment adjudicating payment of a certain specified sum of money furnished the exact course the clerk of the court in which the judgment was rendered was to pursue in making out the transcript or abstract. The construction thus given to the article of the statute under consideration has support in the similar ruling in Fuller v. Hull, 19 Wash. 400, 53 P. 666, 667. In that case the statutory provision required the transcript of the judgment to contain “the names at length of all the parties.” The contention in the case was that the transcript did not comply with the statutory provision mentioned. The court ruled: “It does, however, appear that the names of Samuel Bertelson and Anna M. Bertelson were shown by the transcript. They were the mortgagor's, and the only persons against whom a money judgment was rendered. No personal claim of any character was made against the other parties to the action, and it was not necessary that their names should have appeared upon the transcript.”

In such construction of the statute as given hereinabove, as respects the names of all the defendants the abstract shall contain, the notice thereof given by the present abstract meets legal requirement. As set forth in Spence v. Brown, 86 Tex. 430, 25 S. W. 413, 415: “Most of the requisites of an abstract show that the purpose of its registration is not only to give notice of the right conferred by the record and index, but also to inform all persons interested where they may easily find the judgment itself, with all other papers bearing on the question of its validity. The source of information thus pointed out is a public record, which imports verity, and is not subject to the control of any private, person.”

The omission to include in the abstract that portion of the judgment awarding costs may not be regarded as rendering the lien ineffective. While costs are an incident, yet they are not a part of the amount of a judgment. Houston & T. C. Railway v. Red Cross State Farm, 91 Tex. 628, 45 S. W. 375; Wicker v. Jenkins, 49 Tex. Civ. App. 366, 108 S. W. 188. And the provisions of the article of the statute do not include or apply to costs or a judgment for costs only. Unless cost is distinctively included in the terms of the statute the provisions of the statute creating a judgment lien could not be made to apply to costs or a judgment for costs only.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    MOODY-SEAGRAVES RANCH, Inc., et al. v. BROWN et al.
    No. 9217.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 24, 1934.
    Rehearing Denied March 28, 1934.

      See, also, 59 S.W.(2d) 431.
    Coke R. Stevenson, of Junction, and Herman E. ICleinecke, Jr., and McDonald & Way-man, all of Galveston, for plaintiffs in error.
    Allen, Helm, Jacobs & Settegast, A. M. John, and Stewart & DeLange, all of Houston, Hirshberg, Mueller, Powell & Green, pf San Antonio, Cole, Cole, Patterson & Kemp-er, Phil D. Woodruff, Ewing Werlein, and Holland Bradley, all of Houston, Katherine Stephenson, of Junction, and Robert II. Rice and Henry C. King, Jr., both of San Antonio, for defendants in error.
   MURRAY, Justice.

The issues involved in this suit arose in this manner.

Moody-Seagraves Company, Incorporated, was a holding company, and was in fact the parent corporation of a great number of subsidiary corporations. W. L. Moody III and O. R. Seagraves owned all of the stock of this parent corporation, each owning one-half thereof.

Some time before the controversy involved in this suit arose, O. R. Seagraves purchased more than 13,000 acres of land lying in Kerr and Kimble counties, and, while the title to this land was taken in the name of O. R. Sea-graves, the ranch in truth and in fact belonged to Moody-Seagraves Company, Incorporated. Moody was the president and Sea-graves the vice president of the company, and J. E. Reed was secretary-treasurer..

Seagraves decided to build a ranch home and pleasure- resort on part of this ranch lying in Kerr county. The home was built, all bills were paid by the corporation, and, after final completion, Seagraves was given full title to the property; the cost having been ■charged to him and taken care of by him in ■■some satisfactory manner.

About June, 1930, Moody decided to build ¡a ranch home, or pleasure resort, on that part ■ of the ranch lying in Kimble county. He discussed the matter with Seagraves, who stated that he was pleased with the proposition, and Seagraves assured Moody that the company had sufficient funds on hand to finance the undertaking.

It was agreed, or at least understood, that Moody should proceed to let the contract, and that the corporation would furnish the money, pay the bills as they were presented, and charge such sums to the personal account of Moody.

J. E. Reed, who was the secretary-treasurer of the corporation, was placed in full charge of the building of this home and became the agent of the owner. Reed permitted the Northern Construction Company to build the foundation before any contract was signed; Reed selected and employed the architect, executed the construction contract, and was present at the building site most of the time, taking a very “active part in superintending the work.

On October 3, 1930, the Moody-Seagraves Ranch, Incorporated, a Delaware corporation, was organized, having the same stockholders and officers as Moody-Seagraves Company, with the addition that one Wroe was made assistant secretary-treasurer of the ranch company. The ranch company was deeded the Kerr & Kimble County Ranch, in consideration of the ranch company transferring all of its capital stock to the parent corporation. This deed was dated October 20, 1930, and recorded in Kerr county December 12, 1930. It was recorded in Kimble county April 2, 1932, which was long after the completion of the Moody home.

It is clear that the home had been decided upon and the foundation built before the ranch was deeded to the ranch company. The deed was not recorded in Kerr county until .much of the work on the home had 'been done, ;and not recorded in Kimble county until the ¡home had been completed.

The contract for the house was between W. L. Moody III and Northern Construction Company. J. E. Reed signed the contract for W. L. Moody. Moody glanced over the contract, but never read it carefully.

This suit is the consolidation of two suits. After the consolidation, all parties filed new pleadings, and the suit became an action by ■contractors against owners for certain sums alleged to be due them, respectively, with W. L. Moody III, as owner, asking a Judgment against Northern Construction Company for certain alleged overpayments.

The plaintiffs in error are W. L. Moody III and Moody-Seagraves Ranch, Incorporated. The defendants in error are: W. B. Brown, Building Utilities, Inc., Iron Crafts, Inc., Harland S. Miller, K. F'. Doerner, W. M. Nix, W. W. Thompson, Pyramid Asbestos & Roofing Company, Brown Paint Company, Johnson Motor Company, Chamberlain Metal Weather Strip Company, Martin-Wilder Company, W. H. Taylor, Davis-McIIoes, Inc., and- intervener, Dempster Mill Manufacturing Company.

The trial was before the court without the intervention of a Jury, and at the close of all testimony the trial court, in substance, rendered a judgment as follows: (a) Disallowing the contractor’s claim for $17,589.59 and gave a judgment over in favor of W. L. Moody III and Moody-Seagraves Ranch, Incorporated, against Northern Construction Company, the contractor, for $2,558.41; (b) in favor of the other contractors against W. L. Moody III and Moody-Seagraves Ranch, Incorporated, in the aggregate sum of $30,246.36, exclusive of interest; (e) in favor of intervener against Moody and Moody-Seagraves Ranch, Incorporated, for $2,106.19; (d) segregated fifty acres of the ranch surrounding the Moody house, valued it at $750, created an easement or water right in a spring on land adjoining the fifty acres, provided an easement for ingress and egress over a five-mile roadway from the ¡house to the highway, and established and foreclosed a lien thereon for the respective amounts found to be due to the other contractors and intervener; (e) directed the issuance of an order of sale to sell the fifty acres with the easements, free of Mr. Schreiner’s and Mrs. Rigsby’s lien and Moody-Seagraves Ranch, Incorporated’s title, and ordered that out of the proceeds of the sale $750 be paid to Mr. Schreiner and Mrs. Rigsby in settlement of their vendor’s lien note, and the balance ratably applied to the judgments in favor of the other contractors and intervener; (f) denied recovery against Reed and wife, and quieted their title.

Defendants in error furnished labor and material for the home, and are seeking to hold the ranch company and Moody for the payment of their claims, also to establish a lien on the improvements and a portion of the ranch. To “determine their rights in the premises it becomes necessary to construe the contract.

The main question to he determined is whether or not the Northern Construction Company was an independent contractor for a finished job for a certain stipulated sum, or whether or not this is a cost plus contract, in which the contractor became the agent of the owner and the owner became directly responsible to persons or firms furnishing labor and material.

The contract consisted of an agreement, general conditions agreement, and the plans and specifications. The plans and specifications do not appear in the record, so we'are only concerned with the two documents, one called the agreement and the other the general conditions.

Article 4 of the agreement reads ás follows:

“Fee for Services
“In consideration of the performance of the contract, the owner agrees to pay the contractor, in current funds, as compensation for his services hereunder 10% of the contract price ($-) which shall be paid as follows: fee to he made a part of each monthly estimate.
“See reverse side of this sheet for addenda to Art. 4.”

The addenda to article 4 reads as follows:

“The contractor guarantees that the total contract price of all work as shown on plans and called for in specifications is not to exceed $147,683.65.
“The contractor further agrees that any saving below the a'bove stipulated price shall revert to the owner.
“It is mutually understood and agreed that any additions other than called for in the present plans and specifications shall be entered into in writing by both parties before ■being added to the above mentioned contract price. This is also to be applicable to any changes made of more costly material for what are now specified and agreed upon at the time of the signing of this contract; and it is mutually understood and agreed that no credit or allowance shall be made to contractor for additional charges unless same are in writing, signed by the owner or his agent.
“It is further mutually understood and agreed that the compensation to be paid contractor by owner under this contract shall not exceed $12,500.00.”

In construing the meaning of the above article, in the light of other provisions of the contract, the negotiations leading up to its execution and the manner in which the contract was treated by the parties and the manner of their operation thereunder, we conclude that article 4 was intended to fix the maximum fee which the contractor could receive under the contract, and was not intend.-' ed to make the contractor an independent contractor for a finished job and responsible-only to the owner for the result to be obtained. Gilbert Mfg. Co. v. Connellee (Tex. Com. App.) 265 S. W. 375; Dallas National Bank v. Peaslee-Gaulbert Co. (Tex. Civ. App.) 35 SW.(2d) 221.

Article 7, in part, is as follows:

“Costs to be paid Direct by Owner
“In addition to items of cost noted in Article 5 for which the owner reimburses the contractor, the owner shall pay all costs as-follows:
“(a) * * *
“(b) The amounts of all separate contracts.-. “(c) * ’* *
“(d) ⅜ * * ”

The agreement further provides?

“Art. 10 Separate Contracts'
“All portions of the work that the Contrae* tor’s organization has not been aecustomfed to-perform or that the Owner may direct, shall-be executed' under separate contracts let by-the Owner direct. In such cases either the-Contractor shall ask for bids from contractors approved by the Architect and shall deliver such bids to him, or the Architect shall-' procure such bids himself, and in either case?the Owner shall- determine, with the advice the Contractor and subject to the approval of the Owner, the award and amount of the accepted bid. The Owner shall contract for such work direct with such approved bidders in accordance with the terms of this agree- ■ ment and the General Conditions of the Contract, which Conditions shall, for the purposes of such contracts, stand as printed or written and not be subject to the modifications set forth herein.
“The Contractor, being fully responsible for. the general management of the building operation, shall have full directing authority over-the execution of the separate contracts.
“The separate Contractors shall not only, cooperate with each other, as provided in Article 35 of the General Conditions- of the Contract, but they shall conform to all directions of the Contractor in regard to the progress - of the work.”

It appears from article 7b and' articlé -10;' first, that they are- repugnant to the idea that ■ Northern Construction Company was an-independent contractor; and, second, that, re--gardless of the meaning of the addenda to article 4, the owner obligated himself to pay-directly to tlie separate contractors tlie amount of -their just claims.

In Gilbert Mfg. Co. v. Connollee (Tex. Com. App.) 265 S. W. 375, we find the following language : “The material issue tendered in plaintiff’s petition in the trial court is whether defendant authorized the I-Iolmboe Company [as his agent] to purchase the material furnished and agreed to [be used in his building and promised to] pay for same. If it did, he would be liable for the debt, and the mere fact that under his contract the Holmboe Company was an independent contractor in the construction of the building would not defeat his liability.”

We follow this holding, and under it there can be no question but what Moody was directly responsible to all separate contractors. The only remaining question is whether or not defendants in error are separate contractors. Plaintiffs in error admit that Dempster Mill Manufacturing Company and Davis-McHoes, Inc., are separate contractors, but deny that the other defendants in error occupy that position.

We conclude that the other defendants in error are also separate contractors. The contract provides that all work not customarily done by Northern Construction Company is to be done by separate contracts. The record shows that all of the work done by all defendants in error was work not done by Northern Construction Company. Each defendant in error submitted an estimate to Northern Construction Company, and same was either signed or initialed by Reed before the work was dono. It will be remembered that Reed was acting for Moody III. As a matter of fact, he was Moody’s alter ego. We therefore hold that, under article 7b and article 10 of the contract, Moody is liable to defendants in error for the full amount of their claims.

The next question presented is, Were defendants in error entitled to the lien established by the judgment? We conclude that they were. It is true that the legal title to the land at the time the work was begun was in O. R. Seagraves, who was holding same as trustee for Moody-Seagraves Company. It was- later transferred to the ranch company. W. D. Moody III never at any time held title to the property upon which he built this home. However,, all of the stockholders, officers, and directors of both corporations knew of the plan. Moody, the president of both companies, executed the contract; Moody-Seagraves Company advanced all the money and paid all that was paid, amounting to over $160,000. J. E. Reed, secretary-treasurer of both corporations, was on the ground and supervised the construction from beginning to almost the finish-. One Wroe, who was the only paid officer of the ranch company, was on the ground and assisted in every way possible, checked pay rolls, kept books, and even let some separate contracts. Under such circumstances, the i-aneh company is estopped to deny that Moody owned the land upon which the improvements were placed. We conclude the trial court properly established and foreclosed the lien on the house, fifty acres of land, and the water and road easements.

It is contended that the pleadings are not sufficient to support the lien on the easements. The pleadings asked for much more than fifty acres of land. The fact that the trial court did not give defendants in error the land asked for, but only certain easements thereon, does not render their pleadings insufficient. The evidence was sufficient to show that the right to these easements was necessary for a proper enjoyment of the home they had helped to construct.

We conclude that the personal judgment against the ranch company was not proper. Moody was not acting for the ranch company, but for himself. The ranch company could not be held upon the doctrine of undisclosed principal. The agent and the undisclosed principal cannot both be held.

The corporate fiction cannot be disregarded, for there never was any fraud or wrong undertaken or intended. As explained by W. L. Moody III, there never would have been any trouble about the matter except for tlie depression and his resulting financial embarrassment.

It has not been possible to mention all of the evidence bearing upon the various propositions discussed. The statement of facts is composed of some 1,800 pages, and we have been compelled to confine ourselves to what we considered some of the most important facts.

There was conflicting evidence on some of the facts stated, but, as this was a trial before the court, without the intervention of a jury, and no findings of fact or conclusions of law being filed, it is our duty to uphold the judgment of the trial court, if there is evidence to support his implied findings.

For the reasons above stated, it follows that plaintiffs in error’s first assignment of error will be overruled; assignments of error 2 to 6 are rendered immaterial; assignments 7 and 8 are sustained; assignment 9 is overruled; assignment 10 is sustained; assignments 11 and 12 are overruled; assignment 13 is ren-derecl immaterial; assignments 14, 15, 1®, IT and IS are overruled.

Tlie judgment of the trial court will be affirmed, except that part which grants a personal judgment, against the Moody-Seagraves Ranch, Incorporated, which will be reversed and here rendered that no personal judgment' be decreed against the ranch company.

On Motions for Rehearing and to Retax Costs.

We have considered motions for rehearing filed by plaintiffs in error and defendants in error, and they will be overruled.

Defendants in error have filed motions to retax costs, which we have concluded should be granted.

W. L. Moody III has wholly failed to justify his appeal in this case, and should pay all costs incident to this appeal, except such as were separately and independently caused by the appeal of Moody-Seagraves Ranch, Inc. We estimate the costs separately and independently caused by the Moody-Seagraves Ranch, Ine., to be $100, and this amount will be taxed against defendants in error herein. All other costs of this appeal will be taxed against W. L.'Moody III.

Defendants in error’s motions to retax costs will be granted and adjudged as above indicated.


author: FLY, Chief Justice.

text:
    A. J. McCOLL LAND CO. et al. v. HEDGES.
    No. 9276.
    Court of Civil Appeals of Texas. San Antonio.
    March 7, 1934.
    Rehearing Denied April 4, 1934.
    McDaniel, Fulton & Thrasher and R. M. Bounds, all of McAllen, for appellants.
    L. L. Gragg, of MÍeAllen, for appellee.
   FLY, Chief Justice.

This suit was instituted by J. ,B. Hedges, appellee, against A. J. MeColl Land Company, a corporation, and McAllen Development Company, a corporation, alleging that appel-lee had purchased from C. E. Lambert, an agent of appellants, an assignment 'of certain fees claimed by Lambert as commission for selling real estate for the corporations.

The cause was tried by the court without a jury and judgment rendered in favor of ap-pellee for the sum of $3,332.12.

The evidence showed that Lambert entered into a written cohtract with A. J. MeColl Land Company, by which he was to receive 10 per cent, net commission on all sales of land made by him.

Lambert made a number of sales and transferred his claim for commission against the MeColl Land Company to appellee. It was the claim of appellee that the McAllen Development Company was associated with the A. J. MeColl Land Company as a partner or otherwise'in the sales of land made by Lambert and was liable to him jointly with the A. J. MeColl Land Company. The written contract with Lambert was not signed by the McAllen Development Company but by the MeColl Land Company alone.

Both appellants allege that the request provided for by article 2247, R. S. 1925, as amended by Acts 1931, c. 76, § 1 (Vernon's Ann. Civ. St. art. 2247), was made to the trial judge for findings .of fact and conclusions of law. The request was made in writing on the part of one of the appellants, and after thirty days, there being no compliance with the request, a second request for the findings of fact was made to the judge. To these requests the trial judge made no response whatever and failed and refused to make his findings of fact and conclusions of law. The parties complied fully with the terms of the statute in procuring findings of fact and conclusions of law, but the trial judge either negligently or disobediently declined or failed to comply with the duties required of him by the statute. The parties filed full statement of the facts in the court below which has been sent to this court on appeal, and it is insisted by appellee that the making and filing of a statement of facts was a waiver of any ground for complaint that appellants might have for the failure of the judge to comply with the statutes. There are decisions of some of the Courts of Civil Appeals which hold flatly that agreeing to a statement of facts, after a trial judge had refused to file his findings of fact, would be a waiver of any complaint against the failure of the trial judge to file his findings of fact. Guadalupe Co. v. Poth (Tex. Civ. App.) 153 S. W. 919; 3 Tex. Jur. § 350, p. 508; Riley v. Austin, 112 Tex. 216, 245 S. W. 907. However, the older decisions bn the question seem to have been modified and qualified by later decisions in which it is stated that the mere agreeing to and filing of a statement of facts will not destroy the right to complain unless it appears from the record that appellant has suffered no injury by the failure or refusal of the trial judge to file 'his findings of fact. Casualty Reciprocal Exch. v. Underwood (Tex. Civ. App.) 33 S.W.(2d) 585. Applying that rule to the facts in this case, we 'hold that it is not apparent that appellants were not injured by the failure to file the findings of fact. Further than that we are of the opinion that the' statement of facts shows that both of appellants were probably injured by the failure to file the findings of fact. For instance, appellee relied on his allegations that the parties were so associated in business that Lambert, by being employed as the agent of the McColl Land Company, 'became the agent of the McAllen Development Company; No connection is shown between Lambert and the Me Allen Development Company in the making of the contract for commissions, which was signed by Lambert and the McColl Land Company alone. The facts fail to disclose that Lambert at any time acted under the orders and instructions of the McAllen Development Company, but was the agent alone of the McColl Land Company.

The allegations as to the relationship existing between the two corporations are vague and indefinite and fail to show how- the two companies acted together in the sale of lands. In one part of the pleadings it is stated that the McColl Land Company sold lands for the McAllen Development Company just as it might have done for any person or corporation desiring to sell land. It became a vital question to both of appellants to ascertain the ground upon which the trial judge based his opinion that both corporations were acting together in some capacity not apparent.

Under the circumstances the findings of fact of the trial judge might have revealed the grounds upon which he acted in charging both appellants to be liable for the commissions due Lambert.

"We are of the opinion that under the facts of the case appellants had cause of complaint against the denial of the trial judge to comply with the statute and give them his findings of fact and conclusions of law. We therefore hold that the filing of the statement of facts did not waive any complaint that appellants had against the trial judge’s failure tó file his findings of fact and that under the circumstances the error of the judge was such as to demand a reversal of the judgment rendered by him.

It is therefore ordered that the judgment of the lower court be reversed and the cause remanded.


author: LOONEY, Justice.

text:
    GRIFFITH v. TIPPS.
    No. 11679.
    Court of Civil Appeals of Texas. Dallas.
    March 10, 1934.
    Rehearing Withdrawn April 4, 1934.

      Parker V. Lucas, of Dallas, for appellant.
    Leonard R. Winborn and Currie Mc-Cuteheon, both of Dallas, for appellee.
   LOONEY, Justice.

On original submission we reversed the judgment below, on the idea that, after indulging reasonable intendments, the petition alleged a cause of action justifying a review of the original case; hence that the court below erred in dismissing the bill on general demurrer. In arriving at this decision, we had nothing before us except the bill of review, but now have the entire record of the original case, brought up on certiorari, by appellee, pending action on his motion for rehearing. After a careful reconsideration, for reasons which will be stated, the conclusion is reached that we erred in not affirming the judgment of the court below.

As grounds for review, appellant alleged facts showing the origin of a note for $1,800 held by appellee against her, secured by lien on real estate in the city of Dallas, alleged certain defenses, credits, and offsets, reducing the amount due on the note to $639.50 and interest, which she expressed a willingness to pay, but that appellee, refusing to allow these credits and offsets, advertised her real estate for sale under the trust deed, whereupon appellant sought and obtained an injunction restraining such sale, to which action appellee answered and moved to dissolve the injunction; that the case was tried before the court, without a jury, and at its conclusion the attorneys and the trial judge had a discussion at the judge’s desk, out of hearing of appellant, and after the conference she was informed by her attorney that she had won and need not worry any more about the suit, but that, as a matter of fact, the trial court made no decision at the time, but three days later rendered judgment against appellant for $1,182.52, with foreclosure on the real estate; that she had no knowledge of the existence of the judgment until her property was advertised for sale, thereupon she instituted these proceedings, seeking cancellation of the judgment and the establishment of her said defenses, credits, and offsets.

In view of appellant’s admission that she was indebted to appellee in the sum of $639.50 and interest, we do not think she could have understood from anything her attorney said that she had won the lawsuit outright and need not worry, for she must have known that judgment was rendered for, at least, the amount admitted to be due.

However that may be, the decisive question is this: Does appellant show that the judgment as actually rendered resulted either from accident, mistake, or fraud? Por unless it appears that the judgment is unsupported by pleadings, she failed in this respect On this point we held, on original submission, that while the allegations of the bill were somewhat confused and indefinite, yet by clothing them with favorable intendments they stated, in effect, that the judgment was not supported by pleadings, thus bringing the case, as wé thought, under the general doctrine announced by Judge Talbot, in Kruegel v. Cobb, 58 Tex. Civ. App. 449, 124 S. W. 723, 726, who said: “If, in such a case, it appears that the judgment was obtained by fraud, accident, or mistake, without any want of diligence on the part of the person against whom it was rendered, or by either of such means the complaining party, without his fault or neglect, was denied a meritorious defense, our district courts, in the exercise of their equitable powers, may reopen the case, and by a re-examination of it on its merits grant such relief as equity and justice may demand. Overton v. Blum, 50 Tex. 417; McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357. * * * ”

However, the petition in the instant case does not purport to set out the proceedings in the original cause, nor is the petition accompanied by the pleadings and judgment in said cause. Under the authorities, we think it was incumbent upon appellant to fully plead, or in proper manner to exhibit, the proceedings had in the original cause; otherwise, nothing was presented to the trial court except bare allegations in the nature of conclusions. The remissness of appellant in this respect, we think, justified the court in dismissing the bill on general demurrer. This doctrine was announced by our Supreme Court, in the early case of Randon v. Cartwright, 3 Tex. 267, 269, in language by Judge Wheeler, as follows: “The petition in the ease before us does not recite the former bill or petition, and the proceedings thereon. It does not even purport to contain a statement of the entire proceedings in the original cause, which, according to the authorities cited, constitute properly the record in that cause. * * * They do not accompany the transcript, and it no where appears that they were even before the District Court, when that court sustained the demurrer to the petition. But if these ‘papers and proceedings’ were before the District Court, they are not brought before this court, and hence it does not appear that they presented a ease proper for the relief sought upon the petition of the complainant. To have authorized a reversal of the judgment, it was incumbent on the appellant to have so brought up the record, as to show that the entire proceedings in the case sought to be reviewed, were before the court below upon his petition; and that they presented a case proper for relief by a bill of review. This, the appellant has not done. And since it does not appear from the record before us, that the case was properly presented to the District Court by the petition of the complainant; or, if properly before the court, that the proceedings in that case presented a case proper for a review, it is manifest that we cannot undertake to determine that the court erred in sustaining the demurrer.” In Republic Supply Co. v. Weaver (Tex. Civ. App.) 235 S. W. 684, 685 (a review case), Judge Dunklin for the Eort Worth Court said: “In the absence of such copies (of proceedings in the original case), nothing was presented to the trial judge but the bare Conclusions' of the pleader. * * *" In Johnson v. Templeton, 60 Tex. 238, the Supreme Court said that the pleadings and issues of the original suit and its result must be set forth distinctly and clearly to enable the court to determine with reasonable certainty the issue in controversy. The doctrine, varying somewhat in different jurisdictions, but on principle the same everywhere, is announced in 21 C. J. 741, § 897, as follows: “The bill must set out the pleadings in the former suit, and the proceedings had thereon, including the decree, and the facts on which the decree is based, but not the evidence in the original cansé. These requirements are obviously necessary in a bill of review for error apparent, as the record now takes the place of the recitals of the decree under the ancient English chancery practice. Most of the cases announcing the rule involve bills based on error apparent, but the rule is generally laid down in terms sufficiently general to apply also to a bill based on new matter, and the necessity of setting out the original record has been expressly recognized as applying to a bill for new matter. Similarly, the reason for the rule that it is not necessary to set out the evidence in the original suit is obvious so far as applied to a bill for error apparent, as the evidence is not considered on such a bill. But the rule is generally declared in terms sufficiently broad to include a bill based on newly discovered evidence. The practice is not uniform as to the extent to which the record of the former suit must be set out, the rule being variously declared to be that such record must be set out in full, or that it must be substantially recited, or that the bill must set forth so much of the record as will fully exhibit the error complained of. Transcripts of the record cannot take the place of allegations, although the practice of accompanying the bill with eerti-fled copies of the whole record is sometimes favored, or even required. A fortiori, a mere reference to the former record is insufficient.”

In the light of these authorities, we are of opinion that the court below did not err in dismissing the bill on general demurrer.

But we think there existed an additional good and sufficient reason justifying the action of the court, which will now be discussed. Under well-established general rules, a court is authorized to take judicial knowledge of the record and prior proceedings in the same suit (17 Tex. Jur. 201, § 27); of the record of a previous suit between the same parties (Id., § 28); also the record of proceedings in any ancillary suit (Id., § 29). Our appellate courts have lengthened the rule of judicial knowledge to permit cognizance of the record of other appealed cases involving the same subject-matter between same parties, and even in circumstances where the parties were not altogether identical. See Allen v. Thomson (Tex. Civ. App.) 156 S. W. 304; Edgar v. McDonald (Tex. Civ. App.) 106 S. W. 1135; Hake v. Dilworth (Tex. Civ. App.) 54 S.W.(2d) 583; Bickle v. City of Panhandle (Tex. Civ. App.) 43 S.W.(2d) 640. But the pertinent question here is: Does the rule extend to a review proceeding, so as to permit judicial cognizance of the record of the original cause? A review proceedings, in a sense is an original action, in that, it- lies only after judgment and the end of the term, and requires process to enforce appearance of parties in same manner as in an original action; but, in another sense, is a dependent proceeding, in that, it seeks a new trial of the original cause; so, it seems £hat a review proceeding can be classed neither as wholly original nor as wholly dependent, but partakes of the nature of both, 21 C. J. pp. 723, 724, § 886. However, we do not think the authority or propriety of courts taking judicial knowledge of the record of an original case brought under review is an open question, and certainly there could be no better evidence of the issues litigated, or the sufficiency of pleadings to sustain the judgment sought to be reviewed, than the pleadings themselves. In Hobbs v. Boyd (Tex. Civ. App.) 292 S. W. 947, 949 (a review case), Judge Fly, for the San Antonio Court, said: “This cause was tried in the same court in which the disabilities (of minority) were removed, and. we doubt not that the judge had the authority to take cognizance of the records of his own court.” To the same effect, see Republic Supply Co. v. Weaver (Tex. Civ. App.) 235 S. W. 684, by the Forth Worth Court. The same rule obtains in federal courts. In Shelton v. Van Kleeck, 106 U. S. 535, 1 S. Ct. 491, 27 Ct. Ed. 270, Chief Justice Waite said: “The only questions open for examination on a bill of review for error of law appearing on the face of the record are such as arise on the pleadings, proceedings, and decree, without reference to the evidence in the cause. This has been many times decided in this court.” Similarly, in Quinton v. Neville (C. C. A.) 152 F. 879, 882, Circuit Judge Adams said: “The function of a bill of review is to obtain a reversal of a decree by the court which rendered it either for error of law apparent on the record or to secure a rehearing of the facts, on a showing of newly discovered evidence. 2 Daniell’s Ch. Pl. & Pr. (5th Ed.) p. 1576. When the bill is for the purpose first mentioned, consideration can be given to the record of the original cause only * * *."

So, considering the record of the original case, as we must assume the trial court did, it is revealed that all credits, offsets, and defenses to appellee’s debt, urged in the bill, were also pleaded by appellant in the original cause, and were there litigated, resulting in the judgment sought to be reviewed, and we must indulge the presumption that the evidence adduced at the trial sustained the judgment.

SO', it appearing that appellant’s allegation, to the effect that the judgment sought to be reviewed was not warranted by pleading, is contradicted by and inconsistent with the record of the original case, hence was not admitted as true by the demurrer, but will be considered merely as the conclusion of the pleader. In Snow v. Cook (Tex. Civ. App.) 278 S. W. 520 (a review case) the San Antonio Court, through Judge Smith, used the following pertinent language: “In testing the sufficiency of appellant’s petition, the allegations contained therein shall be taken as true in so far as they are' not in conflict with the facts disclosed in the record of the original cause, which has been brought up, and of which the trial court properly took judicial notice; but the pertinent facts disclosed by that record will be taken as true when in conflict with the allegations in plaintiff’s petition. From these sources we will endeavor to state the case made, for the puipose of determining the force of the general demurrer urged thereto by the defendant below.” In Shelton v. Van Kleeck, supra, Chief Justice Waite announced the same rule, as follows: “A demurrer admits only such facts as are properly pleaded. As questions of fact are not open for re-examination on a bill of review for errors in law, tlie truth of any fact averred in a bill of review inconsistent with the decree is not admitted by a demurrer, because no error can be assigned on such a fact, and it is, therefore, not properly pleaded * ⅞ #.>’ Also in Quinton v. Neville, supra, Circuit Judge Adams said: “* * * and any facts averred in the bill of review inconsistent with the pleadings and decree in the main case can have no effect in determining its correctness.”

We think the following roles may be deduced from the authorities: That in order for a bill of review to be good against a general demurrer, it should recite distinctly and clearly the pleadings, issues, and result of the original suit, so as to enable the court to determine with reasonable certainty the issues involved in the controversy; that in such proceeding the court is authorized to take judicial knowledge of the record of the original cause; and that any fact averred in the bill, inconsistent with or contradictory of the pleadings or judgment in the main case, will be given no effect in determining the legal sufficiency of the bill.

In harmony with the views above expressed, appellee’s motion for rehearing is sustained, our former decision set aside, the original opinion withdrawn, and judgment is now rendered for appellee affirming the judgment of the court below.

Affirmed.


author: JACKSON, Justice.

text:
    STEVENSON et al. v. ABERNATHY et al.
    No. 4165.
    Court of Civil Appeals of Texas. Amarillo.
    March 5, 1934.
    Rehearing Denied April 2, 1934.
    Woodruff & Holloway, of Brownwood, for appellant.
    Vickers & Campbell, of Lubbock, for appel-lees.
   JACKSON, Justice.

The agreement in the record reveals the following facts:

M. G. Abernathy and Mollie D. Abernathy, the appellees, are and were husband and wife on all the dates involved in this litigation.

On April 14, 1921, W. C. Jackson conveyed to M. G. Abernathy, the south three-fourths of lot 11 in block 16 of the city of Breckenridge, Stephens county, for a consideration of $15,-000 cash and a note for $15,000, executed by M. G. Abernathy and payable to W. C. Jackson, who retained a vendor’s lien against the property to secure the payment of said note. On May 20,1921, the deed was filed for record and said note was transferred by W. C. Jackson to the United Home Builders of America, and on the same day M. G. Abernathy and Mollie D. Abernathy executed their deed of trust against the property and delivered it to the United Home Builders, securing an installment note given in renewal and extension of the said $15,000 vendor’s lien note.

“The original cash consideration of $15,-000.00 paid at the time of the execution of said deed to M. G. Abernathy, as well as the subsequent payments on the' deed of trust note above mentioned, were paid out of the separate property of Mollie D. Abernathy and all of said unpaid note was to be paid by Mollie D. Abernathy out of her separate property and the land above described constituted her separate property; and on May 21, 1921, M. G. Abernathy, by warranty deed, conveyed said land to said Mollie D. Abernathy, reciting as a consideration therefor that said land had been paid for out of her separate funds.

“On March 23, 1927, G. G. Wright, duly qualified receiver of the United Home Builders of America, recovered judgment, which judgment was reformed and affirmed by the Dallas Court of Civil Appeals, whereby the said G. G. Wright, receiver, recovered judgment in the sum of Eight Thousand, Two Hundred and Thirty-Eour and 93/100 ($8,-234.93), against M. G. Abernathy as the balance due on said deed of trust note and foreclosing the deed of trust lien on said property as against Mollie D. Abernathy and M. G. Abernathy, the date of the final judgment of the Court of Civil Appeals being March 17, 1928.
“In order to secure the money to-pay off such judgment and to prevent a sale of said property thereunder, the defendant, Mollie D. Abernathy, filed with the Farm & Home Savings & Loan Association of Missouri, her application for a loan in the sum of Eight Thousand ($8,000.00) Dollars on June 2, 1928, and secured a commitment by the agent of said Company for the granting of said loan, which application appears in the record in this case. Said note was to he paid by Mollie D. Abernathy out of her separate funds and estate and no community funds were to be paid on said note.”

Mollie D. Abernathy furnished the abstract, and after the title requirements were met, the loan was finally consummated on September 20, 1928, and she and M. Gr. Abernathy, “said M. G. Abernathy joining his wife in the note and deed of trust as a formal requirement to make them legal under the law,” executed to the Farm & Home Savings & Loan Association their note for the sum of $8,000 and executed their deed of trust on said property, and Mollie D. Abernathy received from said Farm & Home Savings &' Loan Association for said note the sum of $8,000, and the debt was satisfied therewith.

She made the payments to said company to March, 1931, at which time she defaulted, and said company foreclosed its deed of trust on said property and at the salé thereunder, purchased the property for the sum of $5,000, which was duly credited on the $8,000 note of the appellees. After crediting all payments made and the price at which the property was purchased at the sale, there remained unpaid on March 1, 1932, the sum of $1,824.94, which, plus interest from said date and the attorney’s fees, left unpaid.at the trial $2,196.63.

Suit was instituted in the district court of Lubbock county by R. E. Stevenson, as receiver for the Farm & Home Savings & Loan Association of Missouri, to recover a joint and several judgment against appellees for said unpaid balance. While the case was pending, the receiver was discharged by order of the district court of Travis county, and the Farm & Home Savings & Loan Association was by-order. of the district court of Lubbock county, substituted as plaintiff.

The ease was submitted to the court without the intervention of a jury and plaintiff was denied a recovery, from which action it prosecutes this appeal.

Appellant contends that since the note of Mrs. Mollie D. Abernathy was for money borrowed to pay off a judgment lien and prevent the sale of separate property in which she had a substantial equity, she was personally liable on the note, although a married woman, because the money was for the protection of her separate estate and incident to her right to manage and control the same.

The appellees’ contention is that as Mrs. Mollie D. Abernathy was a married woman, only the property covered by the lien could be subjected to the payment of the indebtedness and she could not be held personally liable for the unsatisfied balance appellant seeks to recover in this suit.

The record discloses that Mrs. Mollie D.. Abernathy had, by payments made out of her separate funds, acquired a substantial equity in the lot and the improvements thereon- and held the equitable title thereto, subject to the-payment of the balance of the purchase money. That the lien securing the payment of said balance had been reduced to a judgment, and to prevent the sale of the lot and improvements, she executed her note and a deed of trust on said property and obtained the $8,000 with which said judgment was satisfied. That she defaulted in the payment of said $8,000; the property was duly and prop-1 erly sold under the deed of trust and purchased by appellant for $5,000, leaving the unpaid balance involved in this controversy.

In discussing the personal liability of a. married woman for the unpaid purchase money of land in which she owned an equity, the Supreme Court, in Parthenia Lynch et al. v. Robert M. Elkes, 21 Tex. 229, says: “It is-manifest at a glance that if obligations of this character were enforced against the property generally of a feme covert, she might be suddenly reduced to penury and the shield of her disability be rendered wholly worthless if not. converted into an instrument for her destruction.”

In Johnson et al. v. Scott (Tex. Civ. App.) 208 S. W. 671, 674 (writ denied), the court, referring to the statutory rights of a married woman, uses this language: “That statute was never intended to grant power to married women to bind themselves personally for purchase money of property, whether at the instant of acquiring an equity, or after the acquisition thereof. And such power, existing by implication as an incident of ownership, to which appellee is relegated in view of the omission of the provision above discussed, is of course very limited, and could not possibly authorize her to bind herself personally for purchase money of property.”

Judge Speer, in his Law of Marital Rights in Texas (3d Ed.) par. 191, says:

“A distinction must be borne in mind between the power to own property and the power to contract for 'its acquisition.
“It has always been held that the wife is liable for purchase money only when the articles purchased were necessaries or for the benefit of her separate property. It has never been thought that she has the right to buy indiscriminately what she pleases, and bind herself or her husband. She was held not liable upon a note signed jointly with her husband for the hire of a slave, no other fact appearing to indicate that the contract was one she could make. Her contract liability for unpaid purchase money for land is governed by precisely this principle. While under our peculiar system of land laws the superior title to land sold is said to remain with the vendor until the final payment of the purchase money, lands purchased by her on credit remain liable at all times to be subjected to the payment of this purchase money ; she is not personally liable. The land only can be recovered, and nothing further. The law will not permit the whole of her estate to be jeopardized, probably sacrificed, in her attempt to make additional purchases. She merely holds the land subject to the vendor’s lien, but is in no way responsible for the purchase money, even if the deed be made to her and she sign the purchase money notes, for the vice of the transaction is in her want of capacity to make an enforceable contract in any form.”

In 23 Tex. Jur. 218, § 183, the writer states: “Viewed as a contract merely, the wife is never liable upon her promise, unless the promise be predicated upon a contract which she is authorized by law to make. It has always been denied that the contract of a married woman to pay the purchase price of property at a future time is enforceable as a personal obligation. This is the rule, whether the purchase be of personal property or land. In the case of personalty, where no lien is expressly retained, the title passes, whether the deferred purchase price is paid by her or not. In the case of real estate, under the Texas system the superior title — so called— remains with the seller and will pass to the buyer upon performance by him; but where the buyer is a married woman, and she makes default, the seller’s only recourse is to the security. There is no personal liability on the part of the woman, and this is true whatever may be the form of the transaction, that is, whether the deed be made to her and she sign the purchase-money notes or not, for the vice of the transaction is in her want of capacity to make an enforceable contract thus to pay.” 1

The law as announced by the foregoing authorities, so far as our investigation has disclosed, has been followed by an unbroken line of authorities in this state. Mills v. Frost National Bank (Tex. Civ. App.) 208 S. W. 698, writ refused; Benjamin v. Youngblood (Tex. Civ. App.) 207 S. W. 687, writ refused; Baxter v. Baxter (Tex. Civ. App.) 225 S. W. 204; Roe v. Hall (Tex. Civ. App.) 241 S. W. 708; Burleson v. Graves (Tex. Civ. App.) 255 S. W. 1013; Ware v. Hall (Tex. Civ. App.) 273 S. W. 925; Hadad v. Ellison (Tex. Civ. App.) 283 S. W. 193; Becker v. Goodman-Kantz Furniture Co. (Tex. Civ. App.) 13 S.W.(2d) 735; Guest v. Cox (Tex. Civ. App.) 34 S.W.(2d) 301; Daniel v. Sayle (Tex. Civ. App.) 40 S.W.(2d) 1101.

If, as the courts hold, owning an equity in real estate or personal property in her separate right does not authorize a married woman to bind herself personally for the protection or preservation of such equity, then the authority given her by statute (Vernon’s Ann. Oiv. St. art. 4614 et seq.) to manage and control her separate property would not empower her to create a personal obligation in the management and control of such equity.

Appellant urges as error the action of the trial court in holding that M. G. Abernathy was not personally liable on said note.

Mrs. Mollie D. Abernathy alone made application. for the loan and made the payments thereon until she defaulted. It was agreed that she was to pay the note out of her separate funds, that no community funds were to be used in the payment thereof, and that M. G. Abernathy joined in the note and deed of trust as a formal requirement under the law. 'Under the agreed facts M. G. Abernathy, the husband, was not personally liable on the note. Givens v. Davis (Tex. Civ. App.) 227 S. W. 367; McBride v. Witwer, 60 Tex. Civ. App. 223, 127 S. W. 902; Benjamin v. Youngblood, supra.

The judgment is affirmed.


author: JOHNSON, Chief Justice.

text:
    CAPPS et al. v. JOINER et al.
    No. 4435.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 13, 1934.
    Rehearing Denied March 15, 1934.
    Pollard, Beauchamp, Lawrence & Lux, of Tyler, for plaintiffs in error.
    MeBntire, James & Clower, of Tyler, and D. A. Frank, of Dallas, for defendants in er-rar.
   JOHNSON, Chief Justice.

Plaintiffs in error were plaintiffs in the trial court, and defendants in error were defendants in the trial court, and will be referred to as plaintiffs and defendants.

In this suit plaintiffs, L. W. Capps, G. O. Golightly, R. C. McElmury, and the Alexander & Smith Oil Company, sued defendants, C. M. Joiner, individually and as trustee, and H. L. Hunt, trustee, to secure specific performance on the part of C. M. Joiner of his contract, dated October 1, 1930, to assign a certain oil and gas lease. In the alternative plaintiffs prayed for damages for loss of the leasehold interest contracted to be assigned to plaintiffs by O. M. Joiner covering forty aares of land described, located in Rusk county. H. L. Hunt was made party defendant to the suit for the reason that he had subsequently purchased the land from O. M. Joiner, individually and as trustee, by instrument of date November 26, 1930. It being the contention of plaintiffs that, by virtue of the terms of the instrument under which H. L. Hunt acquired title from C. M. Joiner, H. L. Hunt was not and could not claim to be an innocent purchaser; and plaintiffs sought to have the cloud removed from the title cast thereon by the conveyance to H. L. Hunt. H. L. Hunt specially pleaded the defense of innocent purchaser. A trial was had- to a jury and, upon findings of the jury in answer to special issues submitted, the court rendered judgment in favor of defendants and against plaintiffs. Prom this judgment the plaintiffs have perfected their writ of error to this court.

The contract was entered into by C. M. Joiner as party of the first part, Alexander & Smith Oil Company and B. W. Capps, parties of the second part, and G. O. Golightly and R. O. McBlmury, party of the third part, (he pertinent terms of which are:

“Whereas party of the first part is owner and holder of a certain oil and gas lease (describing it) * * * and
“Whereas party of the second part is desirous of drilling or causing to be drilled a well on said above-described tract under the terms and conditions contained herein; and
“Whereas party of the third part in consideration of its services as brokers herein are to share in this deal;
“Now, Therefore, Know All Men By These Presents: That for and in consideration of the covenants and agreements herein contained, and the benefits accruing to each party of this contract, that first party hereto covenants, agrees, obligates and binds himself:
“First: To deliver to second party hereto an assignment to a full ⅞ oil, gas and mineral lease, covering the north 20 acres of the above described 40 acre tract, showing good and merchantable title to said lease;
“Second; To deliver to third party hereto, an assignment to an undivided one-half interest in and to the south 20 acres of the above described 40 acre tract; said assignment to said south 20 acres to 'retain unto the said first party a ⅛2 overriding royalty, and further, to retain to said first party a sum equal to $16,000.00, to be paid out of the first oil produced from said south 20 acres, after paying all royalties accruing under the terms of said lease and/or assignment;
“Third: To deliver above-mentioned assignment when said second parties have accepted title as good and merchantable, in the opinion of their attorney, within 15 days from date hereof; and shall have in good faith, started operations for the drilling of a well, as specifically set out herein, within 15 days from date of said acceptance; said well to be drilled on the south 20 acres of the above described 40 acre tract; under the terms and conditions as outlined below; and
“Whereas second parties hereto, in consideration of the promises and covenants and agreements herein contained, agree, obligate and bind themselves;
“First: Upon examination and acceptance of title to said above described tract, as above outlined, to furnish at their own cost and expense, derrick, rig, and equipment necessary to drill and complete said well at their own cost and expense, to a depth sufficient to test the Woodbine Sand, or 3600 feet; unless oil or gas in paying quantities is found at a lesser depth; in case a well producing oil or gas in paying quantities be had, to connect same ' to the top of the ground ready for flow tanks.
“Second: To drill said well in a good and workmanlike manner and to give to all parties hereto, logs and any other information requested while said well is being drilled.”

It is the contention of the plaintiffs that O. M, Joiner breached the above contract by failing to execute and deliver the assignment or to furnish plaintiffs with an abstract or any other evidence showing good and merchantable title to the land, within the fifteen days specified in the contract, or at any other time; by reason of which it is claimed that plaintiffs are entitled to the equitable remedy of specific performance, decreeing title out of C. M. Joiner and into plaintiffs, or, in the alternative, they aire entitled to the legal remedy of damages.

It is the contention of the defendants that O. M. Joiner was not by the terms of the contract obligated to furnish an abstract of other evidence showing good title to the land, but that it was the duty of plaintiffs to satisfy themselves as to Joiner’s title by such means and in such manner as they saw fit. It is the further contention of the defendants that the contract between Joiner and the plaintiffs is not such as specific performance will be enforced, foir the reasons contended (1) that the contract is unilateral, in that it is dependent “upon examination and acceptance of title by parties of the second part”; and (2) that the promise on the part of parties of the second part to drill the oil well and furnish a log- thereof was an obligation to perform personal services.

Plaintiffs have presented a number of assignments of error, but we shall discuss the points raised, which, from the view we have taken, determine the case: First, whether or not C. M. Joiner was obligated by the contract to furnish an abstract or other evidence showing good and merchantable title to the land; second, whether or not plaintiffs were entitled to the remedy of specific perfonrmance; and, third, what is the measure of plaintiffs’ damages, in the event it is determined that C. M. Joiner breached the contract by failing to furnish an abstract or other evidence showing good title, and should it be further determined that plaintiffs are not entitled to the remedy of specific performance.

It is thought that by the terms of the contract obligating C. M. Joiner to deliver to plaintiffs an assignment of the leasehold interest specified in the contract “showing good and merchantable title to said lease” within fifteen days from the date of the contract clearly imposes the duty upon C. M. Joiner to accompany his assignment of the leasehold interest, contracted to be assigned and delivered to plaintiffs, with an abstract, or other proper evidence, showing good and merchantable title to the leasehold in C. M. Joined. We do not think that evidence of the universal custom of such transactions is a requisite to the construction we have placed upon the terms of the contract in this respect; however, if such need be, it was shown by the evidence and found by the jury that it was the custom in such transactions for the vendor to furnish an abstract showing a good and merchantable title. Gulf Production Co. v. Cruse (Tex. Com. App.) 271 S. W. 886; Easley v. Continental Casualty Co. (Tex. Com. App.) 296 S. W. 487; Alexander v. Heidenheimer (Tex. Com. App.) 221 S. W. 942; Dawson v. Malone (Tex. Civ. App.) 283 S. W. 634; 10 Tex. Juir. § 170, p. 295. It is undisputed that C. M. Joiner did not execute the assignment provided for in the contract and that he did not furnish an abstract, or any other showing whatever of title to the land to plaintiffs, within the fifteen days specified in the contract, or at any other time. We are of the opinion that in this particular C. M. Joiner was in default and thereby breached the contract.

We do not think that defendants’ contention to the effect that the contract was unilateral, for want of unconditional promise of performance on part of plaintiffs, can be sustained. The terms of the contract, providing “that the assignment should be delivered when plaintiffs have accepted title as good and merchantable in the opinion of their attorneys,” would not in any wise authorize plaintiffs or their attorneys to have arbitraarily rejected a good and merchantable title when tendered by C. M. Joiner. Mathews v. Caldwell (Tex. Com. App.) 258 S. W. 810. In this respect the performance of the contract was not optional on the part of plaintiffs; hence not unilateral.

Under defendants’ second contention, it is claimed that the terms of the contract called for the performance of “personal services” on the part of the plaintiffs, for which reason the remedy of specific performance would not lie in favor of the defendant C. M. Joiner had he sought it; therefore, for lack of mutuality in its enforcement as to both parties, it would-not lie in favor of the plain"tiff. Mutuality in enforcement as to both parties is essential to support the remedy of specific performance in favor of either party. In Galbreath v. Farrell (Tex. Civ. App.) 249 S. W. 277, 280, it is said: “As we understand the rule under the authorities in cases of this kind, before á court of equity will enforce affirmative promises made by defendant in behalf of the plaintiff, it must also be able to enforce the affirmative promises made by plaintiff in behalf of the defendant. Such court never deems it wise or just to enforce one or more of the promises in a contract until it can enforce all of the contract outstanding at the time of the suit, including the promises of the plaintiff as well as those of the defendant.”

In general the remedy of specific performance does not lie to enforce the terms of a contract obligating performance of personal services; therefore, if the contract obligating plaintiffs to drill the oil well was such as required the performance of personal services on the part of plaintiffs, and upon whose will the performance thereof rests, it cannot be specifically enforced against the plaintiffs, and if it could not be so enforced against plaintiffs, it lacks the essential mutuality and specific performance will not be enforced against defendants. Goodwin, Inc., v. Stuart (Tex. Civ. App.) 52 S.W.(2d) 311. And in the case of Logan v. Elliott (Tex. Civ. App.) 61 S.W(2d) 157, we find the general expression that a contract for the drilling of an oil well is of that nature as will not be specifically enforced, yet, in view of the case on the facts then being considered, it is evident that the expression was not intended to have a general and invariable application to all eases.

A contract to drill an oil well may by its terms, or by reason of the consideration or circumstances under which it was entered into, obligate in performance the personal services on the contracting parties. It does not appear from its terms, or the attending circumstances, that the contract here under consideration was entered into with the particular intent and purpose of obtaining in actual performance the personal services of the obligated parties. We are not of the opinion that such a contract is in its nature alone necessarily a contract for performance of personal service on the part of the contractor, and is not for such reason a contract which a court of equity would under any and all circumstances refuse to enforce performance. In the case of Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.(2d) 27, 32, our Supreme Court, with' reference to the implied covenants obligating the lessee to reasonably develop the premises leased for the mining of oil and gas said: “ * * * Should there be a breach of such covenant for which an action for damages, for any reason, furnishes no adequate remedy, our courts, in the exercise of equitable jurisdiction, will compel the lessee to fully perform his obligation. * * * ”

In the case of Hunt v. State (Tex. Civ. App.) 48 S.W.(2d) 466, 468, a receiver was appointed to drill and develop the property on application of the state as plaintiff, alleging that defendants had failed and neglected to perform their obligation “to develop same, and to account to the state for its royalty,” citing United N. & S. Oil Co. v. Meredith (Tex. Civ. App.) 258 S. W. 650. Numerous authorities may be added to the above, where our courts have through receiverships .undertaken to enforce implied obligations to drill and develop property for oil and gas. Express obligation would not be inapplicable. Hence we think that such a contract is not necessarily in subject-matter alone of that character involving personal services in the respect that a court of equity will for such reason refuse specific performance, if in equity the person applying be otherwise entitled to the remedy. However, we are not of the opinion that the plaintiffs have shown themselves, in the circumstances, entitled to the equitable remedy of specific performance. When C. M. Joiner breached the contract by failing to furnish the abstract or other evidence showing good and merchantable title, plaintiffs had the right to then enforce specific performance if they were then willing to accept such title as Joiner could convey, or plaintiffs had the right to treat the contract as ended and sue for their resulting damage. But, since the terms as well as the subject-matter of the contract and the attending circumstances show that time was of the essence with respect to performance on the part of plaintiffs, then, if they did not choose to treat the contract as ended and sue for the breach, but decided to treat it as continuing and to enforce its specific performance, it was incumbent upon plaintiffs to have shown their willingness to accept such title as Joiner could convey and to have in good faith started operations for the drilling of the well within the time specified in the contract. The value of the lease was subject to fluctuation as result of tests then being made in that general locality. Plaintiffs made no move and took no action with respect to starting operations to drill the well, and did not act indicating their intention to secure specific performance until the filing of their petition, June 25, 1931, when the property had enhanced to great value.

“It is an acknowledged rule of equitable jurisprudence, that a party entitled to a specific conveyance of property, personal or real, will not be permitted to hold back from an assertion of his rights, and speculate upon the chances of such changes as may decide whether it would be to his interest, to have the conveyance made; but he is required to be vigilant and prompt in the assertion of those rights; and, if changes have occurred during this lapse of time, in the value of the property to be conveyed, or in the consideration to be paid, a Court of equity will always refuse its aid, and leave the party to seek redress, where the law had left him, by a suit for the breach of the covenant.” De Cordova v. Smith’s Adm’x, 9 Tex. 129, 58 Am. Dec. 136; Whittenburg v. Groves (Tex. Com. App.) 208 S. W. 901; Scarborough v. Arrant, 25 Tex. 129.

In so far as concerns the remedy of specific performance, we are of the opinion that plaintiffs’ failure to evidence an intention to carry out their obligations in the respect mentioned, in the particular circumstances, was not excused by Joiner’s previous breach of the contract, and that plaintiffs’ failure to perform the obligations imposed upon them by terms of the contract amounted to an election of their remedy to sue for damages. .

It is contended by defendants that the measure of plaintiffs’ damages should be gauged by the customary rule with .respect to the breach of the vendor of his obligation to convey land; that is, the vendee’s measure of damages is the difference between the contract price and the salable-price on the date of the breach of the contract. Bowen v. Speer (Tex. Civ. App.) 166 S. W. 1183; Monroe v. South (Tex. Civ. App.) 64 S. W. 1014; Stinson v. Sneed (Tex. Civ. App.) 163 S. W. 989; Runnels v. Pruitt (Tex. Civ. App.) 204 S. W. 1017; Spencer v. Davis (Tex. Civ. App.) 298 S. W. 443; Broun v. Shannon (Tex. Civ. App.) 290 S. W. 802. We are not of the opinion that the general rule relied on by defendants is the correct measure of damages in this case. In substance, the plaintiffs alleged their damages to be in the loss of the leasehold contracted to be conveyed; that is to say, they base their measure of damage on the loss of their bargain. The loss of their bargain is the value of the leasehold interest contracted to be conveyed on the date C. M. Joiner repudiated his obligation to convey, which is the correct measure of plaintiffs’ damages in the ease. Matthewson v. Pluhman (Tex. Com. App.) 41 S.W.(2d) 204. The jury found the value of the seven-eighths leasehold interest to be of $200 per acre; that is, in the total sum of $6,000.

Wherefore the judgment of the trial court as to H. L. Hunt is affirmed, and in all other respects reversed, and judgment is here rendered in favoir of L. W. Capps and the Alexander & Smith Oil Company and against C. M. Joiner, individually and as trustee, for the sum of $4,000, and in favor of G. O. Go-lightly and R. C. McElmury and against C. M. Joiner individually and as trustee for the sum of $1,687.50. The costs of this- appeal and in the trial court are adjudged against C. M. Joiner.