author: FUNDERBURK, Justice.

text:
    DEAN v. WHITE.
    No. 1237.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 16, 1934.
    Rehearing Denied March 16, 1934.
    Hal Browne and David Weintraub, both of San Antonio, for appellant.
    T. B. Moursund and W. W. Palmer, both of San Antonio, for appellee.
   FUNDERBURK, Justice.

N. H. White sued Joe Dean, Jr., to recover $330 claimed to be due as a broker’s commission. for procuring a lessee for certain property belonging to the defendant. The pleadings seem to have been construed by the parties as sufficient to authorize recovery upon either an express or an implied contract. The jury to whom the case was submitted upon special issues found one essential element of an express contract against the contention of the plaintiff. Judgment was rendered for tlie plaintiff for $200. Tlie defendant lias appealed.

There is no statement of facts. The only question presented for our decision is one involving the, sufficiency of the verdict to support the judgment. The verdict under the pleadings absolved the defendant from any liability other than upon an implied contract. If there was any implied con- , tract, it was necessarily one involving the employment of the plaintiff to perform the services of procuring' a tenant or lessee for defendant. Burgher & Co. v. Floore, 107 Tex. 112, 174 S. W. 819; Fordtran v. Stowers, 52 Tex. Civ. App. 226, 113 S. W. 631. One of tlie issues joined by the pleadings was whether there was any such contract. The determination of that issue was essential to support a judgment.

One issue submitted to the jury, with their finding thereon, was as follows: “Do you find from a preponderance of the evidence that during the month of May, 1931 defendant Joe Dean, Jr. listed his property with plaintiff N. H. White for lease and rental?” Answer: “Yes.” This, we think, was a finding that plaintiff was employed to perform for defendant the services of procuring a tenant or lessee for him. If, standing alone, there would be any doubt about it, the matter is made certain when the question and answer are read in the light of the definition of the word “listed,” as given by the court for the guidance of the jury in answering the issue. The definition given was: “ ‘Listed’ is where an owner informs a real estate broker of his wish to lease and rent property upon stated terms and invokes his (broker’s) professional services in that respect.” The verdict of the jury upon this issue, together with the verdict upon all the other issues, omitting the one presently to be mentioned, required a judgment for plaintiff such as was rendered.

Another issue submitted and the answer thereto were as follows: '“Did defendant Joe Dean, Jr. at the time alleged in plaintiff’s petition employ the plaintiff N. H. White as a real estate broker to secure for defendant a lessee for the property described in plaintiff’s petition?” Answer: “No.” Plaintiff had alleged that it' was “during the month of May, 1931,” that the property had been “listed.” Plaintiff also alleged that about September 3, 1931, he had procured a “lessee.” It is just as clear that the verdict upon the last-named issue, together with that upon the others, omitting the one first above mentioned, required a judgment for the defendant, as that the verdict upon the first-mentioned issue and the others, except this,, required a judgment for the plaintiff. The two interrogatories are but different forms of submission of the same material • issue. The answer to each is a contradiction and a denial of the answer to the1 oth-1 er. Conflicting findings upon material issues will not support a judgment. Morrison v. Western Union Telegraph Co. (Tex. Civ. App.) 35 S.W.(2d) 215, and authorities cited.

• It follows that, in our opinion, the judgment of the court below should be reversed and the cause remanded, which is accordingly so ordered.


source: Caselaw Access Project

author: BOND, Justice.

license: Public Domain

text:
    ST. LOUIS, S. F. & T. RY. CO. v. GORE et ux.
    No. 11435.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 17, 1934.
    Rehearing Denied March 17, 1934.

      Head, Dillard, Maxey-Freeman & Me-Reynolds and Jesse. F. Holt, all of Sherman, and Allen & Gambill, of Fort Worth, for appellants.
    John D. Reese, of McKinney, for appellee.
   BOND, Justice.

This action was brought by appellees, W. F. Gore and wife, Arreen Gore, against appellant, St. Louis, San Francisco & Texas Railway Company, in the district court of .Collin county, to recover damages for injuries alleged to have been sustained by said Arreen Gore, through the negligence of the operatives of one of appellant’s trains. It will serve ho useful purpose to set out the pleadings of the respective parties; suffice to state that, the issues of negligence, proximate cause, and contributory negligence are therein fully joined. The parties will be designated as in the trial court.

The gravamen of appellant’s appeal is that the evidence does not support the findings of the jury, on which judgment was rendered. In this we are constrained to agree, and further conclude that Mrs. Gore’s version of the occurrence places her recovery beyond cavil. Taking her testimony at its full worth, though contradicted and impeached in many particulars, it is in substance that, on August 2, 1930, she and her two children were going to Kemp, Tex., and, as she was attempting to board defendant’s train at Prosper, on account of same not being equipped with a step box, she was compelled to step up about thirty inches to the lower step of the car, and, while her right foot was on the step, the conductor released his hold on her arm, causing her to become overbalanced, fall backward and, to avoid a complete fall, catch hold of the train ‘handrail, resulting in her becoming strained and sick. She further testified that, after recovering a balanced position on the step, she went into the coach, sat down in the smoking compartment, and, being dizzy, sick, and feeling a vomiting sensation, reclined on the seat; that the conductor came through, picked up her grip, and invited her to go into the next compartment; that she did not tell the conductor she was Sick or injured while boarding the train, and stated that apparently he did not know of her condition; that, when she got to Dallas, the conductor again came through the coach, got her suitcase, and, as she started out, two ladies and her oldest child' (about 8 years of age), were leaving the car ahead of her, and, as they were stepping from the train, she observed a brakeman assisting them by taking hold of their arms or hands; that, in line with his duty, she expected to receive such assistance, but instead the brakeman had his back to them, talking to the two ladies; that she made no request for aid, and the brakeman was not apprised of her illness; that, as she descended and reached the second step from the top, holding to her child’s hand, without warning, the child jumped, jerking her forward and, in her sick and dizzy Condition, became overbalanced and fell backward to the step, causing her injuries.

The record reveals that Mrs. Gore was 38 years of age, robust and amply able to care for herself, and that her two children were also in good health; that the conductor, in taking her baggage, left her unincumbered with luggage; that there were no defects in the steps; that the train equipment was in perfect condition; and that the bottom step was conveniently low, only eight inches from the top of the platform.

The case was submitted to a jury on special issues, resulting in its finding, in substance, that Arreen Gore was not injured while boarding the train at Prosper, but while getting off of the train at Dallas; that she and her child needed assistance in alighting from the train, and that such assistance was reasonably apparent to defendant’s trainman; that the train operatives failed to render them assistance, and that such failure was negligence and a proximate cause of the injuries complained of. The jury further found that Ar-reen Gore was not guilty of contributory negligence in alighting from the train, and that her injuries were not the result of an unavoidable accident. On the above finding, judgment was rendered for plaintiff in the sum of $825.

The suit is declared by plaintiffs upon two alleged injuries, one at Prosper, when Mrs. Gore boarded the train, and the other at Dallas, when attempting to leave it. As stated, the jury rejected her alleged injuries at Prosper, and we think its verdict thereon is fully supported by the testimony.

Negligence is a failure of duty, an omission to do something which a reasonably prudent person would have done. Unless, under the circumstances of this case, appellant’s agent was under some duty to go up the steps to the assistance of Mrs. Gore and her child, his failure to do so does not give rise to a cause of action in favor of plaintiffs. In our opinion, it would indeed be stating a harsh rule to hold that a railroad trainman is required to leave his accustomed post of duty to assist passengers, where the need of such assistance is unknown to him. Under what theory then may it be reasonably contended that the company’s agent knew or should have known of the circumstances calling for any other than the assistance usually rendered at the foot of the steps?

It is of the essence of actionable negligence that (1) the person to be charged should have had knowledge that there was a duty for him to perform; (2) to reasonably anticipate that injury would result from a failure to perform that duty; and (3) the injury must result from such failure. When these three essential elements are united, they constitute actionable negligence, and the absence of either of these elements renders the evidence insufficient. So, can it be reasonably contended that the act of the child, in jumping from - the steps while holding to her mother’s hand, thereby causing Mrs. Gore to be jerked and forcibly fall on the steps, could have been reasonably anticipated by defendant, in the exercise of the high degree of care incumbent upon railway companies? We think not. The child’s act, unattended by any act or omission on the part of defendant’s agent, undoubtedly was the sole proximate cause of the injuries complained of. The test universally applied, as to whether a negligent act is a proximate cause of the injury, is whether, in the light of all the attending circumstances, the injuries were such as ought reasonably to have been anticipated as a consequence of the act. See Payne v. Robey (Tex. Com. App.) 257 S. W. 873. The jumping of the child and the jerking of appellee wás the intervention of an independent, unforeseen, and unexpected cause, with which neither the lack nor omission of duty on the part of defendant’s agent, directly or proximately, co-operated, and was the sole cause of the resultant injuries.

While ordinarily it is a question of fact as to whether an intervening act or agency, causing or contributing to the injury, ought to have been foreseen by the one upon whom a duty rests, yet this record, in our opinion, reveals the inescapable conclusion, that no such issue exists in this case. The failure of the company’s agent to assist Mrs. Gore and her child in descending the train steps, could not co-operate with the act of the child’s jumping. She jumped of her own volition; her jumping caused the resultant injuries, for which defendant could not, in any way, be responsible.

In our opinion, the judgment on the findings of the juiy is insufficiently supported by legal testimony, and is manifestly contrary to law, thus requiring this court to ignore the verdict on which the judgment was rendered. As stated above, the injured party has placed the version of the occurrence beyond a recovery, thus making the issue of her injuries at Dallas a question of law. So we therefore conclude that the judgment of the court below should be reversed and here rendered for defendant

Reversed and rendered.


author: PBLPHREY, Chief Justice.

text:
    MURCHISON v. HARDIN et al.
    No. 2926.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 15, 1934.
    Rehearing Denied March 15, 1934.
    Second Motion for Rehearing Denied March 22, 1934.
    Toddie L. Wynne, Jack T. Life, and Wynne & Wynne, all of Athens, for appellant.
    Bishop & Holland, of Athens, for appellees.
   PBLPHREY, Chief Justice.

On March 9, 1931, a note for $3,000, payable to the First State Bank of Murchison, Tex., was executed by J. T. Hardin. R. E. Saxon’s signature also appears on the note. The note matured on December 31,1931, and, as far as the record here shows, was never renewed. On May 17, 1932, the bank assigned all of its property, both real and personal, to the Henderson County Investment Company, a corporation, it being agreed that the Henderson County Investment Company should pay all the bank’s indebtedness, except $7,300 due the Federal Reserve Bank at Dallas, and $10,000 due the Reconstruction Finance Corporation. Listed among the assets of the bank was the ■ above-mentioned note. On the same day the Henderson County Investment Company assigned to appellant here all of its property upon the consideration that he would assume and obligate himself to pay to the individual depositors of the First State Bank of Murchison their individual deposits amounting to $52,872.47, less $9,487 paid to certain depositors for stock in the investment company and $7,395.13 due the Federal Reser-tf'e Bank of Dallas. In this assignment it was agreed that, in the event a sufficient amount of money was collected from the assets to pay Murchison his indebtedness together with the expenses incurred in the handling and collection of such assets, then the remaining portion of the properties was to be returned to the investment company.

January 24, 1933, Murchison filed this suit, upon the note above mentioned, against Hardin and Saxon, seeking to recover the sum of $3,000 principal, $324.17 interest, and $332.-41 attorney’s fees.

Hardin and Saxon,-in answer to the suit, alleged the Henderson County Investment Company to be the owner of the note and that it was a necessary party to the suit to collect same; that Murchison was not the unconditional owner of the note, and that, if he had any interest in the note, which was denied, it was only as a lienholder.

Saxon further alleged that he signed the note solely for the accommodation of the First State Bank of Murchison at the request of and with the distinct understanding between him and the active vice president and cashier of the hank that he would never be called' upon to pay it; that no consideration or benefit ever passed or accrued to him or to any other person except the bank; that he signed the same at the request of the bank after it had been executed by Hard'in in payment of a prior debt of .Hardin which had not been created at his instance.

He then alleged the conveyance by the bank of its assets to the Henderson County Investment Company; the assignment thereof to Murchison; that the property so assigned greatly exceeded in value the liabilities of the bank; and that the Henderson County Investment Company was the actual and beneficial owner of the note.

In reply, Murchison generally denied the allegations of Saxon’s answer, specially denied that he was an accommodation maker of the note, and alleged that Hardin had, prior to the execution of the note sued upon, been indebted to the bank; that the bank had refused to renew the note for Hardin without additional security; that thereupon Saxon signed the note with Hardin and by so doing induced the bank to renew the same. •

Murchison also specially pleaded that Saxon had at all times recognized the note as his obligation and by his acts and conduct in dealing with the note and in dealing with the public with reference thereto had estop-ped himself from pleading a lack of consideration therefor. The several facts depended upon as constituting estoppel were pleaded with particularity.

The Hendérson Cbunty Investment Company intervened, adopted the pleadings of Murchison, and prayed that, in case the court should not find for Murchison, judgment be rendered in its favor against appellees.

Saxon by supplemental answer excepted to the pleas of estoppel.

At the conclusion of the testimony the court instructed the jury to return a verdict in favor of Murchison against Hardin, but in favor of Saxon.

From a judgment that Murchison recover $3,656.58, as against Hardin, and take nothing as against Saxon, Murchison has appealed.

Opinion.

The circumstances surrounding the signing of the note by Saxon were detailed by the witness Asher, who was vice president and cashier of the bank as follows:

“Q. Mr. Asher, I will get you to detail what happened with reference to the procuring of the signature on the note that is involved in this suit? A. Well, to the best of my recollection, the note had been criticized by the" Examiner, as being spurious, insufficiently secured, vthe J. T. Hardin note, and I had promised him when we renewed the note we would get some additional security. And so, I had Tom Hardin come in the office, and told him we would have to get it better secured 'if we carried it on our books, if we didn’t we would have to charge it off the books. We discussed how he could secure it, and possibly I suggested he might get Mr. Rube Saxon to indorse the note with him, if he could it would be all right, and either Mr. Hardin or myself ’phoned Mr. Saxon, and later on he came in the Bank. And I don’t know'whether Mr. Hardin did any talking, or I did the talking — It is my recollection that I did. the talking, explained to Mr. Saxon the condition of the note, and if we carried it that it had to be better secured, if we carried it on our books, or we would have to charge it out, Mr. Saxon hesitated about signing the note. I was anxious to get it signed, and I encouraged Mr. Saxon to sign the note, told him I believed it would work out, and would be paid. And in our conversation, my recollection is, I told Mr. Saxon that so long as I had charge of the Bank we wouldn’t press him, or be hard on him, and we would carry the note along and give Mr. Hardin a chance to pay it, and if it should happen that he had the note to pay that I would see he didn’t lose anything, personally. My reason for that was that I knew under conditions, the sentiment in connection with the closing of the Bank up here, and interlocking stock, if we had any kind of confusion it would mean the loss of our depositors and every thing else, and I was willing, if he was forced on the payment of the note, I would make it good as far as my ability.
“Q. Tell what was said, near as you can remember, with reference to the probability that the Bank would be examined in a few days, on account of the Bank here failing, and the connection between' the two? A. Well, I told Mr. Hardin, I am sure I told Mr. Saxon, that the note would have to be secured, or we would have to charge ,it out upon examination, because it bad been criti-cised, and if it wasn’t secured properly, it would have to be charged oft.”

Mr. Saxon’s version of the signing was:

“Mr. Asher says: ‘Rube, you know that Athens National Bank closed their doors, they are not opening up this morning, and we being a branch bank of the Athens National Bank, I am expecting the Examiner down here any day, right away, at least, we will have an Examiner down here, and the business of the Bank is not in condition for an Examiner to come down and examine it.’ Of course I didn’t know anything about banking, never had any experience, all I ever knew about a bank was my deposit and checking on it, such as that, never had any experience in the working of a bank, or anything, didn’t know anything about it. He says: ‘The Bank is not in any condition to stand an examination.’ And he went on and stated that he had — He said, tho, he made the statement, I had some money in the Bank at the time, he said: T don’t want you to get excited, or anything of that kind,’ and he said: T have got a note here on Tom Hardin, that I want you to sign.’ I said: ‘How much is the note?’ He said: ‘$3,000.00.’ I said: ‘Good God, man, I can’t do anything like that.’ He said: ‘Now, wait, before you say that, if you will sign this note, Rube, I don’t know of anybody else that I could get that would do that, and I am asking you as a friend, I want you to save the Bank, and if you will sign this note I promise you this, as long as I live you will never be bothered on this note.’ And he so insisted and kept on insisting that I finally signed the note under those promises.”

J. T. Hardin testified:

“Q. Now, I am going to get you to detail the jury, as you remember it first telling the time of day, just what conversation took place between you and Mr. Asher, with reference to your $3,000.00 indebtedness owing to the Bank? A. Well, he called me down to his office, to the Bank, early one morning, before sunup, before daylight.”
“Q. Was that on March 9th? A. Yes, sir. And he told me that there had to be something done about my note, that the Athens National Bank had gone under, and he was looking for an Examiner, and said it had to. be fixed some way or another, and I had no other way of fixing it, other than what I had up as security, and I told him I had no way of fixing it, he said: ‘Well, get Rube Saxon to sign that note. I said: ‘Marshall, I don’t want to ask Rube to sign that note.’ He said: ‘Call him down here and we will talk to .him about it.’ And I called Rube and he came down and Marshall talked to him about the note. * * * ”
“Q. What took, place when Mr.' Saxon came down there? A. Well, Marshall just told him the shape the Bank was in.
“Q. Detail the exact language used, near as you can remember it? A. Well, he just said: ‘Rube, the Bank is in bad shape, and Tom has got a $3,000.00 note here, and I believe they are going to close me if I can’t get it fixed some way,’ and said: T want you to sign the note.’ And Rube hesitated about signing it, but he later signed the note.”
“Q. What else, if anything, Mr. Asher said to him about it? A. Well, he told him, Rube didn’t want to sign it, and Marshall told him that he would see he never had to pay the note. Said if he would sign it that he would see that he wouldn’t never have it to pay. * * * if
“Q. Did you ask Mr. Saxon to sign that note? A. No, sir.
“Q. Did you want him to sign it? A. No, I didn’t, for I didn’t know when I could pay it, if I ever could.”

He testified further on cross-examination:

“Q. And when Mr. Asher called you down there did he tell you what the Bank Examiner had said about your note? A. The morning he called me down there, yes, sir.”
“Q. He told you that the Bank Examiner told him that note would have to be further secured, did he? A. Yes, sir.
“Q. Told you if it was not further secured that the Bank- Examiner was going to make them take it out of the Bank, didn’t he? A. No, he told me that if that note wasn’t fixed the Bank would have to close. * * *»
. “Q. And hie suggested to you that you get Mr. Saxon to sign the note? A. Yes, sir.
“Q. You did call Mr. Saxon, didn’t you? A. Yes, sir.
“Q. Mr. Saxon came down there, didn’t he? A. Yes, sir.
“Q. At that time Mr. Asher told Mr. Saxon just what he had told you, didn’t he? A. Yes, sir.
“Q. He told him that the note would have to be renewed, with additional security or the Bank was going to have to close? A. Yes, sir.”

It also appears from the record here that, within a few days after Saxon had signed the note in question, he. went to Asher and tried to get liis name off the note; that Asher then entered into an agreement with him to deed him his (Asher’s) home as a protection against loss resulting from the signing of the notip.; that later a deed to the property was executed by Asher and his wife, and some time thei’eafter Saxon deeded the property back to them, and they executed $1,500 in vendor’s lien notes payable to Saxon, which notes he still held at the time of the trial. It further appears that Hardin transferred his life insurance policy to Saxon as an added protection to him.

Prom the above-quoted statements of those present when Saxon signed the note, we think it clearly appears that he signed the note as an accommodation to the bank. The fact that he was a depositor of the bank at such time, and that he might have sustained some loss if the bank had closed, would not be sufficient consideration for the execution of the note by him; especially would this be true, where there is not even a hint in the testimony that in signing the note Saxon had in mind the protection of his deposit.

The character of accommodation paper is not changed by the fact that the accommodation party has taken security for the loan of his credit, 8 O. J. § 402, p. 255; therefore, the rights of the parties here are not affected by the fact that Saxon took "the deed from Asher and wife and the transfer of the insurance policy from Hardin.

It is well settled that an accommodation party is not liable to the party accommodated, 6 Tex. Jur. § 106, p. 726; First National Bank v. Winfree (Tex. Civ. App.) 24 S.W.(2d) 768; Central Nat. Bank v. Lawson (Tex. Com. App.) 27 S.W.(2d) 125, affirming (Civ. App.) 7 S.W.(2d) 915; nor to one who holds merely the title of such party, First Nat. Bank v. Chandler (Tex. Civ. App.) 58 S.W.(2d) 1056.

In the case at bar the Henderson County Improvement Company received the note here sued on after it was past due, this fact appearing from the list attached to the transfer.

The note was also past due when Murchison acquired title to it.

These facts being true, the note was subject to any defense which might have been urged against the bank, one of which being the defense of accommodation maker. As against Murchison, Saxon had a good defense, unless by some act of his he has es-topped himself from asserting it. Murchison testified that he discussed the note in question with Saxon before the depositors were paid, and admitted that Saxon told him the circumstances under which he signed the note. Murchison therefore knew that there was no consideration paid to Saxon for the execution of the note, and that as matters then stood Saxon was not liable.

Murchison was not induced to purchase the note in question by any concealment or representation as to the note sued on or the facts surrounding its signing by Saxon; therefore, there arose no estoppel in favor of Murehison.

The promise which Murchison testified Saxon made that in the final analysis he would pay the note was without consideration and, consequently, cannot become the basis of a recovery.

Under the facts we think Murchison was the proper party plaintiff, and that the Henderson County Investment Company was not a necessary party to the suit.

We feel that what we have said disposes of the various questions presented, and that all of the assignments should be overruled.

The judgment is affirmed..

On Motion for Rehearing.

Appellant in his motion for rehearing questions our holding in the- original opinion that the evidence showed Saxon to be an accommodation maker of the note in suit, and refers us to the testimony of Saxon appearing on page 152 of the statement of facts.

We were fully aware of the testimony now referred to, but concluded then, and are of the opinion now, that the statement of Saxon had no reference to the execution of the note and his purpose or thoughts at that time.

The statement made by Saxon, as we understand it, referred to what he was thinking on May 7,1932, and not on March 9, 1931, the date on which he signed the note.

With this explanation we think the motion for rehearing should be overruled.


author: MURRAY, Justice.

text:
    BEXAR COUNTY v. TYNAN et al.
    No. 9460.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1934.
    Rehearing Denied March 14, 1934.
    Russell B. Wine, of San Antonio, for appellant.
    Leonard Brown, of San Antonio, for ap>-pellees.
   MURRAY, Justice.

This suit was instituted by Bexar county against county and precinct officers seeking to enjoin them from retaining certain fees of office and requiring them to account for certain alleged excess fees of office.

The county bases its cause of action on House Bill No. 490, passed by the Forty-Third Legislature, and found published in Acts 1933, c. 60, beginning at page 128 (Vernon’s Ann. Civ. St. art. 3912b). The trial judge held this bill to be unconstitutional and void, and refused to issue the injunction as prayed for by the county.

The effect of H. B. 490 is to greatly re-duee the salaries of county and precinct officers in Bexar county, and this appeal presents the one question of the validity of this act.

The cause was submitted upon the following agreed statement of facts:

“It is agreed that on the date of the filing of this suit that the defendants were the duly elected and qualified office holders of Bexar County, holding the respective offices as set out in said plaintiff’s petition. That during the fiscal year 1933, beginning the 1st day of January, 1933, to the 31st day of December, 1933, that all of said defendants have collected certain fees of office and that they expect to make due reports of such fees on or before the 1st day of March, 1934, as required by law, and that all of said officers expect to retain from said fees a salary and compensation allowed them under the statutes in force prior to the adoption of House Bill 490, Chapter 60, passed at the Regular Session of the 43rd Legislature, and that they do not expect to comply with said law in making their reports or in deducting from their said fees and compensation to which they are entitled to, and that from their said fees of office the County of Bexar will be entitled to all excess fees over and above the compensation allowed them by law.
“It is further agreed that House Bill No. 490, passed at the regular session of the 43rd Legislature, was introduced into the Legislature by P. L. Anderson, a Representative from Bexar County, and that said Act, according to its terms, applies only to counties in which the population is as many as Two Hundred Ninety Thousand (290,000) or less than Three Hundred Ten Thousand (310,000); inhabitants, according to the last preceding i Federal census, and that according to the 1930 census, which is the last preceding Federal census, the population of Bexar County was Two Hundred Ninety-two Thousand’ Five Hundred and Thirty-three .(292,533), the’ ‘population of Harris County was Three Hundred Fifty-nine Thousand Three Hundred and Twenty-six (359,326), the population of Dallas County was Three Hundred Twenty-five Thousand Seven Hundred and Ninety-one (325,791), and the population of Tarrant County was . One Hundred Ninety-seven Thousand Five Hundred and Fifty-three (197,553), and that Bexar County was the only County in the State with a population between Two Hundred Ninety Thousand (290,000) and less than Three Hundred Ten Thousand (310,000) inhabitants, according to the last preceding Federal census, and that said Act would apply only to Bexar County and no other County in the State. It is further agreed that no notice of an intention to apply for said Act was published in Bexar County, Texas, and that said Act was passed without any notice of any kind being given.”

It is the contention of the county and precinct officers, who are the appellees herein, that H. B. -490 is unconstitutional and void, in that it is a special and local act of the Legislature passed without notice, attempting to regulate county affairs and fees of office.

Article 3, Constitution of Texas, provides, among other things, as follows:

“Sec. 56. The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing:
“Regulating the affairs of counties, cities, towns, wards or school districts; * * *
“Regulating the fees, or extending the powers and duties of aldermen, justices of the peace, magistrates or constables. * * *
“Sec. 57. No local or special law shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to the introduction into the Legislature of such bill and in the manner to be provided by law. The evidence of such notice having been published, shall be exhibited in the Legislature, before such act shall be passed.”

It is clear that H. B. 490 both regulates county affairs and fees of justices of the peace and constables, and therefore dealt with subjects which section 56 states cannot be done by special and local laws, unless otherwise provided for in the Constitution. Section 57 provides for the passage of such special and local laws only where notice has been given. It is agreed in 'this case that H. B. 490 was passed without notice. Therefore, if this bill is a special and local law, it is unconstitutional and void.

This bill does not expressly provide that it shall apply only to Bexar county. If it contained such a provision, undoubtedly it would be a special and local law. The act does provide that it is to apply only to counties having more than 290,000 and less than 310,000 inhabitants, according to the last preceding federal census. The last preceding federal census is the census of 1930. Reference to this census discloses that Bexar county is the only county which falls within this class. Therefore Bexar county is the only county affected by the bill, at least until another census is taken, which will be in 1940. However, the same Legislature which passed this act passed S. B. No. 209, 43d Leg. (1933) c. 220, p. 734, which became effective January 1,1934, and which act expressly repealed H. B. No. 490. So we find that H. B. No. 490 became effective (if at all) on April 3, 1933, and ceased to be effective January 1, 1934. In other words, the life of the act was never intended by the Legislature to be more than about nine months, and it is clear that during this period it would apply only to Bexar county, and there was no more possibility of it ever applying to any other county than if it had expressly provided that it should apply only to Bexar county.

We conclude that an act of the Legislature which by its terms affects only one county and can never during its effectiveness apply to but one county is a local law, and, where it is admittedly passed without proper notice, it is unconstitutional and void. Womack, etc., v. Carson (Tex. Com. App.) 65 S.W.(2d) 485; City of Fort Worth v. Bobbitt, 121 Tex. 14, 36 S.W.(2d) 470, 41 S.W.(2d) 228; Smith v. State, 120 Tex. Cr. R. 431, 49 S.W.(2d) 739; Fritter v. West (Tex. Civ. App.) 65 S.W.(2d) 414; Altgelt v. Gutzeit, 109 Tex. 123, 201 S. W. 400.

It is contended by appellant that H. B. 490 is not a local law, but a law which applies to all counties of a given class, and that Bexar county just happens to be the only county of this class. It seems to us that the classification is arbitrary and not based upon any proper or just classification. It is pointed out that counties with less inhabitants than Bexar were permitted to pay their county officials a larger salary than Bexar. The same thing was true of counties slightly larger than Bexar. This clearly shows that the classification was arbitrary and not real. The Legislature cannot evade the prohibition of the Constitution by making a law applicable to a pretended class, which is, as manifested by the act, in fact no class.

“The classification adopted must rest in. real or substantial distinctions, which renders one class, in truth, distinct or different from another class. * * * There must exist a reasonable justification for the classification ; that is, the basis of the classification invoked must have a direct relation to .the purpose of the law.” McQuillin on Municipal Corporations, vol. 1, pp. 498, 499.

Appellees call our attention to article 6824 of the Revised Civil Statutes 1925, as amended by Acts 1931, c. 7, § 1 (Vernon’s Ann. Civ. St. art. 6824), which provides: “The salaries of officers shall not be increased nor .diminished during the term of office of the officers entitled thereto,” and contend that H. D. 490 is contrary to this provision of the law. This contention will not be discussed by us, as the cause is amply disposed of under the holding above enunciated.

The order of the trial judge refusing to issue the injunction will be affirmed;


author: WALTHALL, Justice.

text:
    HEMPHILL v. JANDREW.
    No. 2948.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 15, 1934.
    Rehearing Denied March 8, 1934.
    Touchstone, Wight, Gormley & Price and Robert B. Holland, all of Dallas, for appellant.
    Logan Ford and Worsham, Rollins, Bur-ford, Ryburn & Hineks, all of Dallas, for ap-pellee.
   WALTHALL, Justice.

On the 13th day of April, 1932, Hon. W. M. Taylor, judge of the Fourteenth district court of Dallas county, Tex., in cause styled Herbert W. Jester v. American Motors Finance Company, appointed appellee, H. A. Jandrew, receiver of the American Motors Finance Company, with authority and direction to take possession of all the properties, assets, real and personal, and to administer same under the authority and pursuant to the orders of his court. The receiver duly qualified as such receiver, and at all times thereafter has been acting in such capacity. Previous to the receivership, appellant, A. G. Hemphill, represented the American Motors Finance Company in Lamb county, Tex. Subsequent to the receivership and prior-to the matters hereinafter stated, Receiver Jandrow employed appellant, Hemphill, to represent him in the matters of the receivership in Lamb county in collecting various notes and accounts secured by chattel mortgages on automobiles which comprised a portion of the said receivership estate.

Thereafter appellee, receiver, made demand upon appellant, Hemphill, that he turn over to him the sums of money and automobiles which appellant had collected and repossessed. Appellant refused to do so. Subsequently to said demand and refusal appel-lee filed his application in the receivership proceeding in Dallas county, praying for: (I) An order of the court directing appellant to deliver to appellee all moneys and chattels in his possession which appellant had collected and repossessed xoursuant to an arrangement which he may have had with American Motors Finance Company, or its receiver; (2) for an order requiring appellant to appear, at the time stated, and show cause why he should not be held in contempt of the Fourteenth district court of Dallas county, for failure to deliver to the receiver the moneys and properties described in said application; (3) for an injunction enjoining appellant, his agents, employees, etc., from repossessing or taking into 'his or their possession any mon- - eys or properties of any character whatsoever belonging to the American Motors Finance Company, or of which appellee as receiver is entitled to possession, and enjoining appellant from disposing of certain chattels and properties described other than delivering same to appellee; and enjoining appellant from interfering in any manner with the assets of the American Motors Finance Company in receivership, and appellee, its receiver, in his administration of the estate. The court granted the application and directed the issuance of said writ of injunction, and stated the time and place for appellant to appear and show cause why he should not be held in contempt of the court for failure to deliver and remit to appellee said moneys and properties.

Appellant was duly served with citation, writ of injunction, and writ of possession.

In due time appellant filed his plea of privilege to be sued in Lamb county, the county of his residence.

Appellee in due time filed his controverting affidavit, first, in the nature of a general demurrer to the plea of privilege; second, the appointment of appellee as receiver of said estate of American Motors Finance Company, and his qualification, with authority and direction to take possession of all of its properties, and to institute such suit or suits as in his judgment might be necessary and advantageous in the performance of his duties as receiver; appellant’s refusal to deliver on demand said moneys and properties, the filing of appellee’s said application for injunction, etc., and the court’s orders, and stating appellee’s contentions to the effect that the suit is not within the meaning of article 1995 of the venue statute (Vernon’s Ann. Civ. St.); that the district court of Dallas county is the only court having jurisdiction of the parties and the venue, and, for reasons stated, the plea of privilege should be overruled. The controverting affidavit further states the purpose of the suit against appellant to be to recover the moneys and properties described in the original petition, that petition being made a part of the controverting affidavit, and to enjoin appellant from collecting additional sums of money and repossessing additional properties under a written contract, stating its date, between American Motors Finance Company, appellant, and J. E. Barnes, trading in the name' of Hemphill & Baz-nes Insui-anee Agency, and which contract was subsequently transferred to, and the duties contained therein assumed by, appellant, and which written contract expressly provides that it is enforceable in Dallas county, Tex. The contesting affidavit further refers to and recites other written contracts between appellant and representatives of American Motors Finance Company, all prior in time to the receivership, in the matter of the business o.f American Motors Finance Company, and which contracts by their term are performed in Dallas county. For reasons stated, appellee submits that the venue of this proceeding is in Dallas county.

The court on the hearing of the plea, of privilege and the controverting affidavit made no order as to appellee’s general demurrer, but overruled appellant’s plea of privilege, to which ruling appellant duly excepted, and prosecutes this appeal.

Opinion.

The above statement of the nature and result of the suit or controversy in the district court of Dallas county between appellant and appellee sufficiently indicates the points at issue on this appeal.

Appellant, A. G. Hemphill, at all the times involved here, was a resident of, and had his domicile in, Lamb county, Tex., and in the suit duly filed and presented his plea of privilege to be sued in Lamb county.

The sufficiency of the plea is not controverted.

Appellant submits that it was error for the trial court to overrule his plea of privilege to be sued in Lamb county, the county of his residence, under the uncontroverted facts in the case.

The record shows that on April 13, 1932, Herbert W. Jester, as plaintiff, brought suit in the district court of Dallas county, Tex., against American Motors Finance Company, a corporation, as defendant, and in that suit prayed for and secured the appointment of a receiver for the defendant corporation, with full powers to settle its affairs, collect its outstanding debts, and divide the moneys and other properties belonging to the defendant among the stockholders, etc. In that suit the court appointed appellee, H. A. Jandrew, receiver of the defendant corporation and of its properties and assets of every kind, on his giving bond, and ordered the appointed receiver forthwith to take charge of the estate, property, and effects of every kind, and vested appellee with power to prosecute and defend any and all claims or suits, and to appoint such agents or employees under him as he (the receiver) may deem pecessary and appropriate, and to discharge any such agent or employee, and to fix their compensation, etc. It was further ordered that the receiver' keep a record of all, receipts, expenses, and disbursements, etc., and make reports of same; and further ordered that all other pe'rsons be enjoined from interfering with the receiver’s possession of said assets. Other orders are shown 'by the record as to other parties not affecting the matters here.

The record shows that on September 26, 1932, the proceedings in this particular instance were filed in that case, Herbert W. Jester v. American Motors Finance Company, 'by the receiver, in which he makes application to the court for an order directing appellant, A. G. Hemphill, to deliver to him, receiver, certain personal property described; for an injunction restraining appellant from interfering with the receiver in the administration of the said estate; and for an order-directing him to show cause why he should not be held in contempt for failure to turn over the property described. The application for such orders, briefly stated, shows: Hemphill’s residence to be in Lamb county; appellee’s appointment and qualification, as receiver; that on April 22, 1926, the American Motors Finance Company entered into a written contract with appellant and J. A. Barnes, of Lamb county, wherein they were appointed correspondents of said company, the said contract of appointment making provision for compensation of appellant and Barnes in the matter of the business referred to them in said contract. Subsequently on the 7th day of December, 1927, Barnes transferred his interest to appellant; in the contract appellant was to assume all liabilities of Hemphill and Barnes agency and to receive the benefits therefrom; the American Motors Finance Company agreed to said transfer and assignment, and accepted appellant as its agent under said contract. The contract is lengthy, and we need not state its terms at length; the duties of appellant, Hemphill, under said contract included the disbursing and collection of funds 'belonging to the American Motors Finance Company or Jester, the execution of certain instructions, settlement with delinquents, and the transaction of other business incident to said contract; after stipulating certain mutual obligations under said contract,' it provided: “Should it be 'or become necessary to take action under the terms of this obligation, then such action may be had in the courts of Dallas County, Texas, where, for all purposes, this instrument is made enforceable.”

The record shows that, pursuant to the terms' of said contract, appellant entered upon his duties thereunder.

After the receivership, the receiver verbally employed appellant to aid him in the connection of accounts due and payable to the American Motors Finance Company in Lamb county, and to repossess such automobiles as the receiver may direct, upon which said company had á lien as security for certain notes purchased of appellant under said contract with the receiver; any moneys so collected appellant was to remit to the receiver’s office at Dallas.

Without stating the matters in detail, the evidence shows that appellant had made, disposition of some of the automobiles, had repossessed some, that he had some automobiles and some money in his possession, or under his control, and that both the American Motors Finance Company under the old contract and the receiver under the new contract owed or was indebted to him in some amount.

Under the above condition at the time of the hearing on the plea, appellee submits several' counter propositions to the effect that appellant, having in his possession the assets of the company receivership, may, by sum-inary proceedings filed in tlie original receivership proceeding, be required to deliver to ■the receiver possession of such properties, and may be punished for contempt for failure to -do so, and that the district court of Dallas ■county, having jurisdiction of such receivership, administering the estate through its ■.receiver, has exclusive jurisdiction of such ■summary proceedings, and that no other court "has concurrent or other jurisdiction to entertain such proceedings, or to order or to interfere with the receiver in any way, or to settle or adjust his accounts; that all such matters are ancillary to the original receivership proceedings, and the venue of the same is determined by that of the main suit.

Appellee further submits that, where appellant by written contract with the American Motors Finance Company had agreed that ■should it become necessary to take action under the terms of that obligation, such action may be had in the courts of Dallas county, where, for all purposes, that instrument is made enforceable, and, where by verbal contract appellant was obligated to remit certain moneys collected to the county in which the receivership is pending, the Dallas court has the venue.

We concur in appellee’s contention that the appointing court, through its receiver, is (entitled to the custody of the estate and business in a receivership, and has exclusive ju-■rfediction as to all matters o-f mere administration of the estate in receivership, but ■we think it well settled that such exclusive jurisdiction cannot be extended so as to embrace the regulatory laws of the state, nor actions brought by the receiver from the op■eration of statutes controlling the venue of ■' jurisdiction. The rule of decision is well stat•ed.by the Dallas Court of Civil Appeals in Allred et al. v. Hudson, 62 S.W.(2d) 230, Nelson v. Thompson, 64 S.W.(2d) 373, 375, and cases there referred to.

In I. C. Surginer v. Owen M. Murray, Receiver, 67 S.W.(2d) 449, this court had occasion to review some of the questions presented here. We think we need do no more than refer to the above cases since they are in point and express onr views on the questions therein discussed.

The other questions presented would mot, we think, change the result. The fact that appellee brought this proceeding against ■appellant as incidental to the original suit of Jester v. American Motors Finance Company ■would not have the effect to fix the venue of the suit in Dallas county if the venue otherwise would properly be in Lamb county. As said by Judge Jones in Nelson v. Thompson, supra: “The fact, therefore, that appellee as receiver instituted this suit in the district court in which the receivership is pending, is not a potent element in determining the venue or prior jurisdiction of the Dallas district court in this suit,” and for the reason there stated. Also Bowles v. Mitchell (Tex. Com. App.) 245 S. W. 74; Kirk v. Murray, Receiver (Tex. Civ. App.) 67 S.W.(2d) 385. Without quoting from the above cases, they sustain appellant’s contention on the points thus far discussed. We think it clear that the receiver, where he desires to obtain possession of property in the hands of a stranger to the receivership, claiming adversely, could bring the action apart from the receivership or make the third party a party to the receivership suit and have the receivership extended to him. Ex parte Renfro, 115 Tex. 83, 273 S.W. 813, 40 A. L. R. 900.

But we think that neither method of bringing the suit could in any way affect the venue of the suit. Nor does the injunction or the contempt proceedings. The contract between appellee and appellant is verbal. The contract between the American Motors Finance Company and appellant, under a former employment, was in writing and provides: “Should it he or become necessary to take action under the terms of this obligation, then such action may be bad in the courts of Dallas County, Texas, where, for all .purposes, this instrument is made enforceable.”

Appellee insists that his suit is on the written contract between appellant and American Motors Finance Company, from which it appears the above quotation is taken. Without quoting the petition at length, we do not find it referred to in any way in the petition asking for the appointment of the receiver and the dissolution of the corporation; he had no occasion to do so at that time. We find the written contract referred to and embraced in the ancillary proceedings filed on September 26, 1932, in which the receiver applies for injunction and other orders, among them to show cause against contempt proceedings. After stating the written contract, appellee alleged that, pursuant to the terms and conditions therein stated, appellant entered upon the duties therein provided. The pleading then stated the receivership and the employment of appellant by the receiver, and his duties thereunder, and his refusal to turn over to appellee the collections and the automobiles repossessed by him, to his damage. Then follow, in this proceeding, statements of facts as the basis for the injunction and other orders requested. In his prayer appellee does ask that appellant be directed to turn over, remit, and deliver to appellee all sums of money, chattels, automobiles, etc., in his possession, pursuant to any arrangement which he may have had with the American Motors Finance Company or its receiver.

Appellee’s contesting affidavit proceeds upon the' theory that the court in which the receivership is pending is the only court having jurisdiction; states again the receiver’s application for the sevferal orders above referred to; and specially states that “said application is not a suit within the meaning of article 1995”; “that this application is addressed peculiarly and particularly to the discretion of the court under whose authority the assets of the receivership is to be administered”; and that the plea of privilege is without merit. Again the controverting affidavit states that “this is a suit by and between Herbert W. Jester, plaintiff, and American Motors Finance Company,” and that “the application of the receiver against the said A. G. Hemphill is an incident to the receivership proceedings and is ancillary to the original action filed herein, and this court having' venue of the receivership proceedings by reason of the petition and answer, of Herbert W. Jester and American Motors Finance Company, has jurisdiction, * * * and is the only court having jurisdiction of the parties and the venue of such application, * * * and the plea of privilege filed herein as a matter of law should be overruled.” The controverting plea then states that the venue of this suit “⅜ * * is properly laid in said court by reason of said written terms and agreements in said contract and each of them, which by their terms are expressly performable in Dallas County, Texas, as provided for in Section 5, Article 1995."

Taking the above statements together, we construe them to mean that appellee’s suit is not based upon the written contract between appellant and Jester and American Motors Finance Company which provides that action on that contract may be had in Dallas county. But, should it be held otherwise, it seems to us that the written contract, by its terms, may not at the time of the suit be held to be a continuing contract even between the parties to it. It provides that: “This contract may, at the option of the first party, (Hemphill) be declared null and void.” That is the contract relied upon by appellee as giving venue in Dallas county. Referring to that and other contracts between appellant and American Motors Finance Company, appellant testified:

“Question: Your other contract was terminated at that time?
“Answer: These contracts in evidence' there, had been cancelled by agreement two-years ago.”
“Question: That was the agreement with Mr. Jester?
“Answer: Yes, sir; I had not been operating under those contracts for two years before the receivership.”

The court apparently sustained an objection to the above questions and answers, but they are directly in point, and, under the above-quoted provision of the contract, terminated the contract.

We have concluded the court was in erroi in overruling the plea of privilege. The case is reversed and judgment here rendered that the plea be sustained and the venue be changed to the district court of Lamb county.


author: LANE, Justice.

text:
    McELROY v. ELLEDGE et al.
    No. 9918.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 27, 1934.
    Rehearing Denied March 15, 1934.
    A. D. Dyess and Paul Strong, both of Houston, for appellant.

      • Vinson, Elkins, Sweeton & Weems, of Houston, for appellees.
   LANE, Justice.

T. K. McElroy brought this suit against Raymond P. Elledge and Vernon L. Elledge to recover the sum of $3,054.68 as damages, which he alleged he suffered by reason of a breach by defendants of a partnership agreement, which said agreement had been entered into between said parties, or, in the alternative, for a breach of an employment contract entered into between him and. Raymond P. Elledge and Vernon Elledge.

Plaintiff alleged:

Í. That in February, 1928, plaintiff became a member of the firm of Elledge, McElroy & Elledge, attorneys.

2. That preceding plaintiff’s entry in said firm, his father, W. A. McElroy, organized the -Houston Building & Roan Association while plaintiff was still in school.

3. That plaintiff’s father, W. A. McElroy, had the operating contract for said Building & Loan Association, giving the said W. A. McElroy the entire control and management thereof.

4. That about the year 1925 said W. A. McElroy made an agreement with Raymond P. Elledge whereby he was made general attorney for said "Building & Loan Association on a year to year contract, the compensation to be the fees which he would receive for the legal work of said association and its clients.

5. That said W. A. McElroy, father of plaintiff, acting as plaintiff’s agent, informed Raymond P. Elledge, just before 1928, that plaintiff would soon finish his law course and be admitted to the practice of law and that he wanted it agreed and understood that the plaintiff, T. K. McElroy, upon his being admitted to the bar, should become associated with said Raymond P. and Vernon Elledge in the practice of law.

6. That Raymond P. Elledge agreed that plaintiff should become associated with said law firm under the firm name of Elledge, McElroy & Elledge, general attorneys for the Houston Building & Loan Association, and that plaintiff should be entitled to one-fourth of the net profits received by said firm as fees as general attorneys for said association.

7. That plaintiff, acting on said agreement, became a member of said firm.

S. That at the time of joining said firm it was agreed that Raymond P. Elledge had his own clients and that plaintiff should assist Raymond P. Elledge in attending to the business of the personal clients of Raymond P. Elledge, for which plaintiff was to receive no additional compensation; also; that plaintiff might have his own individual clients, the fees from which should be his own, unless he called in Raymond P. Elledge to assist him in said business. It was further agreed that business might come to the firm as firm business, in. which event the fees therefrom should be shared on a reasonable and proper basis to be agreed upon at the time thereof.

9. In pursuance of said agreement, plaintiff received for the months of February to July, inclusive, 1928, as his one-fourth of the profits from the business of the Houston Building & Loan Association under said agreement, the sum of $1,950.07.

10. Prior to July 26, 1928, there was no firm business, save and except that of probating the Martin ’will.

11. That about June 1, 1928, negotiations were begun by the said association with the plaintiff’s father, W. A. McElroy, for the purchase of the operating contract owned by the said W. A. McElroy. That "W. A. McElroy at the time thereof asked Raymond P. Elledge what effect the sale of his contract would have on the attorneyship contract of T. K. McElroy, to which Raymond P. Elledge replied, “Absolutely none.”

12. That plaintiff himself asked Raymond P. Elledge what effect the surrender of the contract would have upon his status as attorney, and was told that it would be unchanged ; that plaintiff’s work had been satisfactory ; but that Raymond P. Elledge thought it should be agreed that they increase the salary paid to his brother, Vernon L. Elledge, on January 1st,' succeeding, to which suggestion plaintiff agreed.

13. Thereafter W. A. McElroy sold the operating contract of said Building & Loan Association.

14. About July 15, 1928, Mr. W. 8. Martin, of Port Arthur, Tex., employed the firm of Elledge, McElroy & Elledge to probate the will of the father of W. S. Martin, which plaintiff accepted in behalf of said firm and discussed with Raymond P. Elledge. The filing of such will for probate was not immediately called to the attention of Raymond P. Elledge; whereupon, learning of same, he accused plaintiff of disloyalty and stated that the firm was thereupon dissolved and plaintiff discharged.

15. Plaintiff further alleged the issue of the partnership earnings from the time of his discharge and that they averaged $325 per month.

16. That plaintiff was wrongfully discharged and excluded from participation in the partnership earnings and profits; that such exclusion was wrongful and without justification.

17. Plaintiff further alleged that Raymond P. Elledge was elected annually general attorney for said Building & Loan Association, and that it was anticipated and agreed that plaintiff's connection would| continue and remain in force throughout the contract year during which Raymond P. Elledge was general attorney for said association, and in connection therewith alleged that as consideration to Raymond P. Elledge for the admission of plaintiff, T. K. McElroy, into such firm, W. A. McElroy agreed to turn over to said attorneys $5 additional for each matter transacted for the Building & Loan Association.

18. That the term of such partnership was for one year.

19. That plaintiff endeavored to mitigate his damage, and that his earnings for the months of August to December, 1928, inclusive, were the sum of $172, and that his earnings from January to July, 1929, inclusive, were the sum of $873.90.

20. That plaintiff’s damage by reason of such breach and the loss of his profits therefrom was the sum of $2,854.68, and that in addition thereto plaintiff is damaged' through the loss of one-third part of the Martin will probate fee of $400.

21. Plaintiff prayed that the partnership he dissolved, for an accounting and settlement thereof, and for judgment for his part, of the net profits and fees, for costs of suit and general relief, and, in the alternative, in ease it should be held that plaintiff was an employee only, for like damages, for breach of contract of employment, and general relief.

Defendants answered by. general demurrer, general denial, and by specially alleging:

That when plaintiff became associated with the firm of Elledge, McElroy & Elledge it was understood he was not to participate in any of the personal business of the defendants ; that he was only to receive his portion of the fees from the Building & Loan Association and his personal fees; that it was expressly agreed, that plaintiff should not attempt to control any of the personal business of Raymond P. Elledge; that the handling of the estate of W. A. Martin, die-ceased, was personal business of Raymond P. Elledge, and was so known to plaintiff; that plaintiff solicited the probate of the will of W. A. Martin for himself and attempted to induce the executor thereof to give the business to him and agree to let him participate in the handling' thereof and distribution of the fee therefrom; that such acts of plaintiff were without the knowledge or consent of Raymond P. Elledge; that plaintiff proceeded to handle the probate of the Martin will as a firm matter; that such acts of plaintiff were discovered by Raymond P. Elledge on July 26, 1928, and when the matter was mentioned by Elledge to plaintiff, the latter stated he expected to participate in the fee from the handling of such business, that such business came to the firm of Elledge, McElroy & Elledge as firm business, and that the executor of the estate had stated that the fee was to be divided between plaintiff and defendants in equal proportions; that thereupon Raymond P. El-ledge made inquiry and ascertained from Mr. W. S. Martin, said executor, that such business was intended as the personal business of Raymond P. Elledge; that by reason of the foregoing allegations the defendants were justified in dissolving said firm. Defendants prayed that they go hence without day.

By supplemental petition plaintiff denied generally the allegations of defendants’ answer.

The case went to trial on the 11th day of July, 1932, before a jury, and the court proceeded to hear the evidence offered.

It was shown that prior to January, 1928, and for some time thereafter, W. A. McEl-roy, father of the plaintiff, T. K. McElroy, had entire control and management of the affairs of the Houston Building & Loan Association, which he had theretofore organized; that defendant Raymond P. Elledge was appointed and elected attorney for the said Building & Loan Association by -W. A. McElroy, and by virtue of an agreement had • with said McElroy, whereby said Elledge was .to receive $20 as attorney’s fee fof each contract or loan handled by said association, to be paid out of each $25 fee collected by the association from its members and clients, and whereby it was agreed, at the inception of such agreement, that at some time in the future, plaintiff, T. K. McElroy, was to, come into the legal department of the Houston Building & Loan Association and share in the fees paid by said association to said legal department.

It is shown that Raymond P. Elledge was •appointed and elected general attorney to handle the legal business affairs of said association year by year from the 1st day of January to the Slst day of December, for some years prior to the year 1928, and that -dbring the year 1927, W. A. McElroy, general ■manager of the affairs of said association, ‘discussed with Raymond P. Elledge the association of his son, T. K. McElroy, with Mm (Raymond P. Elledge), and in which discussion said Elledge agreed that such association could be arranged; it is shown that during the latter part of December, 1927, and before the appointment and election of Raymond P. Elledge as said general attorney for 1928, W. A. McElroy again discussed with Raymond P. Elledge and also his brother, Vernon Elledge, who was working with Raymond P. Elledge on a salary, and it was then agreed between W. A. McElroy, acting for the plaintiff, T. K. McElroy, and Raymond P. Elledge, that he (Elledge) should get $5 additional out of the fees paid into the Building Association' by its members and clients, in order to pay to plaintiff, T. K. Mc-Elroy, one-fourth of the net profits of the fees derived from the association, and that in, consideration of such agreement on the part of Raymond P. Elledge, he and Vernon Elledge agreed to associate T. K. McElroy with themselves under the firm name of El-ledge, McElroy & Elledge. It is shown that shortly after such agreement was entered in-tQ it was confirmed between Raymond P. El-ledge and T. K. McElroy, and in pursuancd of such confirmation plaintiff, T. K. McElroy, was taken into association with Raymond P. Elledge about February 1, 1928, under the firm name of Elledge, McElroy & Elledge. It is shown T. K. McElroy worked in said firm and was paid 25 per cent, of the fees received from the Building Association, that ¡being his part of such fees agreed upon by .the parties up to the month of July, 1928. It is shown that in June, 1928, W. A. McElroy, •who organized the Building Association and who was its generál manager, contemplated ¡selling his operating contract back to the association, and inquired of Raymond P. El-ledge what effect such sale if made would have on T.' K. McElroy’s association with him (Elledge). To which inquiry he was told that such sale would in no way affect such ■association. Later the plaintiff, T. K. Mc-Elroy, made a similar inquiry of Raymond IP. Elledge and received the same answer .given his father, except at. that time Raymond P. Elledge said that Vernon Elledge’s salary should be raised at the end of the year, to which T. K. McElroy agreed, it having been agreed between W. A. McElroy, manager, and Raymond P. Elledge that he (Elledge) should get $5 additional out of the fees to be paid by the Building Association in order to enable him to pay T. K. McElroy 25 per cent, of the net profits of the fees received from the Building Association.

As already stated, it is shown that T. K. McElroy entered said firm and performed the services required of him by the firm and that he was paid his 25 per cent, of the fees received from the Building Association up to the month of July, 1928.

Raymond P. Elledge testified that the only difference he had with T. K. McElroy prior to the dissolution or attempted dissolution of the firm of Elledge, McElroy & Elledge was concerning a fee of $300 to be paid for services to be rendered in the probate of the will of W. A. Martin, deceased, who before his death was president of the Martin Lumber Company of Port Arthur. Pie testified that both Mr. Martin and his son, W. S. Martin, were very well known to him; that W. S. Martin is generally known as Stewart Martin; that Stewart conducted the business affairs of the Martin Lumber Company and came into contact with witness quite •often; that because of the fact the Houston Building & Loan Association financed a number of loans on which the paper was owned by Martin Lumber Company. “I also handled not only the character of work which is done in connection with the association loans, but I handled over a period of' a year, or more, a number of matters which were not connected with the business of the Houston Building & Loan Association.” Mr. R. R. ■ Stafford, Jr., was his brother-in-law and was an officer also of the Martin Lumber Company, and Mr. Joe Stroud was secretary of the Martin Lumber Company. “Some time in the early part of July, the date I do not recall, Mr. T. K. McElroy came into the office where my brother and I were, at least we were both there at the time of the conversation, and stated that he had secured a piece of business for us from W. S. Martin, Mr. Stewart Martin. I heard . nothing further about it, that is, we were to be employed. • He said we, meaning himself and .my brother and myself. He used the word firm, and the ■ individuals also, because of the fact that he stated the nature of the employment was such that in order to divide the fee, whatever fee was to be secured from this considerable estate, one-third to himself, one-third to my brother and one-third to me. I heard nothing further of the matter until about July the 25th, when I received a letter from the clerk at Beaumont stating that the application for the probation of the will had been filed and that advertisement had been had and that it was subject now to proof. That was the first time I learned that we even had the will of W. A. Martin, deceased.”

1-Ie testified that T. K. MeElroy did not show him the will of Martin and tell him that he had received it for probate; that the only thing that he knew from him was- he had gone to Port Arthur and had talked with Stewart Martin, and that Mr. Martin had told him that he wanted “us” to probate the will and „to divide the fee, one-third to him, one-third to Vernon Elledge, and one-third to him (Raymond Elledge); that he received notice from the clerk of the probate court, addressed to the firm of Elledge, MeElroy & Elledge, which stated that the application for the probate of the will had been received and filed and that notices had been published; that upon receipt of such notice, he, thinking there was something wrong with it, went to Port Arthur on July 26th in order to ascertain from Stewart Martin what the facts were concerning the matter, and why he had not been advised about fihe probate of the will; that as soon as he returned to Houston he told T. K. Mc-Elroy that because of his act in seeking 'to secure a part of the fee in the probate of the Martin will, to which he was not entitled, and the attitude of the officers and directors of the Building Association, by whom he (the witness) was employed, that it would be necessary to dispense with his services and that the partnership was dissolved. He testified that T. K. MeElroy asked him if the witness had any other complaint to make about any other matter of work, and that he told him that work other than that concerning the Martin will was satisfactory. . .

Testifying further, the witness said that his understanding had with W. A. MeElroy, as to what T. K. MeElroy was to receive from the firm, was that he was to receive 25 per cent, of the net amount of money after payment of all expenses incurred in conducting the legal business which he had or which he got after the film was formed; but that it was understood that neither Vernon Elledge nor T. K. MeElroy would have any interest in his individual business which he had at the time, composed of several retainers, nor in any business secured in the futuro as a result of his own effort or resulting from friends giving or sending him business; that they had ao agreement as to the division of moneys coming from firm business; that there was no agreement as to how long this partnership» was to continue. Testifying further, he saidi that T. K. MeElroy did see him about the first, of July, possibly three or four weeks before he was notified that the Mai’tin will had been' filed for probate, and told him that he had' been to Port Arthur and that “we” (meaning the firm) were to get the business of probating, the Martin will; that on the day a Mr. Stroud, a spokesman for Stewart Martin, was in Houston and asked MeElroy to go to Port Arthur to get the Martin will, he was out off. the city; that after MeElroy got back from-Port Arthur he told him that they were going to get the Martin will to probate and that he-said to MeElroy that if “we got the business-it would be a nice piece of business and a nice-fee should be paid”; that MeElroy prepared the application for the probate of the will and-ón such application he (witness) had the same-probated.

T. I-C. MeElroy testified that during the Christmas holidays of 1927 he had a discussion with Mr. Elledge relative to the witness-becoming associated with him on- the basis-that the witness was to come into his office in the latter part of January, 1928; that itr was agreed that his compensation for his-services was to be 25 per cent, of the net fees-coming to the firm of the Houston Building: & Loan Association; that all the business-th'at came to him personally was to be his-•personally, no one else to share in it; that it was agreed that any business that came to Mr. Elledge personally was to be his and that the witness was to have nothing to do> with it, but that a fee which should come to the firm should be a matter for agreement at that time; and that upon that basis he became associated with Mr. Elledge..

Testifying further, the witness- saidi that at the time his father, W A. MeElroy; contemplated selling his interest in tlie Building & Loan Association, he . askedi Mr: Ellfedg© what effect such sale if made would! have ■ on his status with him, and he said that it would have none, that his (the witness’)-services had been satisfactory and so far as he was concerned it would remain unchanged, except' h© thought they should agree to- increase his brother’s salary at the end of the yewr, and that he agreed to that. (Italics ours.) Testifying further, he said that about the-middle-of July, 1928, Mr. Stroud, secretary, of' the-Martin Lumber Company in- Port Arthur; came into the office of his firm- and; came to-see him. (Upon objection- by counsel for El-ledge he was not permitted- to state what was-the conversation -he had with Stroud.) Afe this point counsel for MeElroy sought to-introduce in evidence a letter from Stewart Martin to W. A. McElroy, showing that lie (Martin) had sent Stroud to Houston to see McElroy, which letter was excluded on objection of counsel for Elledge,

The witness testified that he first heard of the Martin will about the first of July, 1928, at that time Mr. Stroud, secretary of the Martin Lumber Company, came into the office and said that Stewart Martin had sent him over to have one of us come over and get his father’s will for probate and that he (witness) told Stroud that he would go to Port Arthur the first thing the next day and that he did go the next day to Port Arthur; that when Stroud came to the office Mr. El-ledge was not in the,office; that when he got to Port Arthur he saw Stewart Martin; and .testifying further he said: “I told him that Mr. Joe Stroud had asked me to come over, to see about probating his father’s will and he said yes, that that was so, and he got the will and we .discussed it there together, t asked him the probable value of -the estate and he said he hadn’t had time to make an estimate of it but that he would do so, and that, is all we discussed at that time, except matters of a friendly nature,' until I got ready to ‘leave, and as he walked to the door with me I asked him how he wanted that will handled, whether he wanted Mr. Elledge to handle it personally or for it to come to the firm, and he said that he thought he was hiring the firm to probate the will and that he did not expect any particular man to do it, that it was his idea and thought that he was employing the firm.”

. , Raymond P. Elledge, being recalled, testified that after the will had been filed for probate he went to Port Arthur to see Stewart Martin and had a discussion with him in regard to this probate of the will, the prospect '.of employment, and under what arrangement the will was to be probated. Testifying further he said:

“When I was in Port Arthur I talked to Mr. Stewart Martin, told him the circum.stances which I knew, which was that Mr. .■Killian McElroy had come back from Port Arthur during the early part of July, or latter part of .June, and stated that he was to •give us the probate of the will. I told him •also that I had heard nothing further from it until on the day before when I learned from .the clerk at Baaumont that the will had been •filed for probate without my knowledge.
“And that the first I knew of the fact that •the will was in our possession or in the possession of anyone of the three associated was when I received the letter from Beaumont. I asked him at that time what Mr. Killian McElroy had said to him When he came to Beaumont and when the will was delivered to him and Mr. Martin stated that he delivered the will to him at the time he was in Port Arthur, that being his place of business during the early part of the month. He further stated that he had talked to Mr. Killian Mc-Elroy about the probate of the will, and the fact that a detailed inventory of the estate of W. A. Martin, deceased, was to be made, for the purpose of checking notes and real estate; that he had delivered the will and told him that he wanted the will probated at once. He further stated that Mr. McElroy told him that on business of this nature that unless it came by reason of his own efforts, or came to him, that he would have no interest in it, no Interest in the fee, and that he wanted to know from Mr. Martin if the will was to be handled so that he could get an interest in the fee, that he thought he was entitled to a one-third interest in the fee to be paid, whatever it was. Mr. Martin told him, according to his statement to me, that he was not interested in how we divided any fee whatsoever; that he had nothing to do with that, would not attempt to tell me how to prorate a fee among myself and my'associates; that he was sending the business to me because of the fact that I had been his friend and attorney and that he expected me, if not personally, to handle it or supervise it, and that he would hold me entirely responsible for the manner in which it was handled and the results obtained.”

That Martin told him that he had sent Stroud to Houston for the purpose of transacting some business with the association, and at the same time for the purpose of seeing him (Elledge) in order that he might come to Port Arthur and discuss with him the probate of the will.

The plaintiff, T. K. McElroy, introduced in evidence a letter from W. S.‘ (Stewart) Martin to W. A. McElroy, father of plaintiff, which reads as follows:

“Dear Mr. McElroy:
"I am very sorry indeed that the matter of handling my father’s estate with the firm of Elledge, McElroy and Elledge has taken the turn that it has. At my father’s death I decided to employ this firm in view of the fact that I was better acquainted with them than any Beaumont lawyers and felt sure the estate would receive the best of attention from this firm due to other business relations.
. “It is very regrettable that this matter! should come up at the same time the change in the management of the Houston Building & Loan Assn, toot place.
“I told Mr. Stroud when he went to Houston to have some member of the firm come over here and get what necessary information they needed to file the will for probate. Your son, Killian, came over and in my office asked me if I wanted him or the firm to handle this matter. I explained to him very definitely that it was to be handled by the entire firm and as to the question as to the fees and how they were to be 'handled, that was left up to individual members of the firm to decide among themselves.
“I feel sure when Killian left my office that he knew the firm of Elledge, MeElroy & El-ledge was handling the estate. In fact in my conversation with Mr. Elledge the other day he also was told by Mr. MeElroy that my wishes were for the firm to handle it.
“If you will allow me to offer my opinion of the trouble in the office, I think that Mr. Elledge was very much displeased that Mr. MeElroy had taken it on himself to file the will for probate without passing it on to him for his approval in view of the fact that he was the senior member of the firm and furthermore I think after you left the Houston Building & Loan Assn, it would have been very hard for your son to have pleased the other members of this law firm.
“As I said in the beginning it is very regrettable indeed that the writer' happens to be a party to this little unpleasant mix-up and I want to assure you that we regret it very ¡much and have always had the kindest of feelings toward you and, while the writer has not known your son personally, it was friendship for you that caused me to place this business with the firm so that he would participate in it.
“I hope that you will handle this information strictly confidential as the writer does not care to be a party to any unpleasantness over this occurrence.
“Very truly yours, W. S. Martin.”

We have gathered the foregoing facts and testimony from a voluminous statement of facts, in question and answer form. We have not stated all the testimony of the witnesses, but we think the statement made contains all facts and testimony pertinent to the issues raised by this appeal.. Upon the pleadings, the facts, and testimony, the trial court instructed a verdict for defendants, Raymond P. Elledge and Vernon L. Elledge. Upon such verdict being returned,' the court rendered judgment decreeing that plaintiff, T. K. Mc-Elroy, take nothing by his suit and that the defendants go hence without day, etc.

T. K. MeElroy has appealed.

Appellant contends for reversal of the judgment that there was ample evidence to support all issues raised by his pleading: (1) The making the contract of partnership or employment; (2) that the duration of such partnership was, by the express agreement of the parties forming the same, or by implication, from about the first day of February, 1928, to the 31st day of December of the same year; (3) that appellees had wrongfully breached the contract of partnership; and (4) the damages suffered by appellant by reason of such breach of said contract. Therefore, the trial court erred in instructing a verdict for appellees.

- We sustain all of- appellant’s contentions:

The appellees’ defense was not established as a matter of law, there being a conflict in the evidence as to whether appellant breached this contract by attempting to secure for the firm the individual business of the appellee Raymond P. Elledge; the appellee Raymond P. Elledge testifying that the probate of the Martin will was his individual business, and the appellant T. K. MeElroy testifying that the probate of the Martin will was firm business.

The letter from Martin to W. A. MeElroy introduced in evidence shows clearly that Martin turned the will of his father, over to plaintiff, T. K. MeElroy, for probate, as firm business. In such letter it is so declared.

Appellee Raymond P. Elledge testified that the sole reason for appellant’s discharge was that he, in his acts in undertaking: to procure the probate of the Martin will as firm business, violated the terms of partnership agreement and that otherwise appellant’s services and association were entirely satisfactory.

Such conflicting evidence made the issues, raised by the pleadings of the parties, question for the determination of the jury. We therefore conclude that the trial'court committed reversible error in instructing á verdict for appellees.

It is well settled that the refusal of the trial court to submit the case to a jury chosen to try the same is error when the evidence •as to the issues raised is conflicting.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.


author: ELY, Chief Justice.

text:
    LANDRY v. ERKMAN et al.
    No. 9286.
    Court of Civil Appeals of Texas. San Antonio.
    March 7, 1934.
    Carroll L. Thomas and Angus Munro, both of San Benito, for appellant.
    Johnston & Newland, of Harlingen, for ap-pellees.
   ELY, Chief Justice.

This is a suit which originated in a justice’s court in Cameron county by. appellant against appellees, R. Erkman and Georgia B. Ellsworth, to recover possession and title of a certain automobile which appellant claimed to have purchased, in good faith, for value, from Erkman. In the justice’s coui’t and in the county court, to which the case was appealed, judgment was rendered in favor of Georgia B. Ellsworth for title and possession of the automobile and $50 damages against appellant for unlawful" sequestration of the car and preventing her using it on her farm. Erkman was dismissed by appellant from the suit.

There is no statement of facts but the findings of fact of the county judge are to the effect that Geoz’gia B. Ellsworth owned a farm upon which Erkman was employed by the owner, Georgia B. Ellsworth. She needed a car on the farm and intrusted Erkman with $200 with which to pui’chase one for hei’, instructing him to buy it in her name and to z-equii’e a bill of sale to her. Erkman pui’chased the car and took a bill of sale from the seller to him, not mentioning his employer, and he placed the bill of sale on record, as required by law, in his own name. He reported to her that he had bought the car for her, and she was ignorant of the fact that the car had been bought in the name of Erkman and the bill of sale given him and placed of record by him. The car was used by Erkman on the farm in the prosecution of the work of the owner. The purchase of the car was made in June, 1932, and in October, 1932, Erkman borrowed $110 from appellant in this ease and gave him a bill of sale, which in truth and in fact was intended as a mortgage on the automobile of Georgia B. Ellsworth. The latter had no knowledge of the misconduct of Erkman in' reference to the automobile until this suit was instituted. The instrument given by Erkman to appellant was on its face a bill of sale, but the coui’t found that in truth and in fact it was a mortgage on the automobile. Appellant claimed to be the purchaser of the car, and. that the bill of sale was what it purported to be, a conveyance of the car from Erkman to him. He had no knowledge of the claim of Georgia B. Ellsworth at the time the bill of sale was taken. He did not seek to foreclose a lien, in the alternative, on the automobile, but it was a clear suit for title and possession of the automobile which he claimed as his own.

We are to be guided by the findings of fact of the trial judge, in the absence of a statement of facts, "and under his findings appellant had no right to the title and possession of the property, but only held a lien on it, given by Erkman, and which lien appellant did not seek to foreclose. There being an utter failure on the part of appellant to show a right of title and possession in the automobile, he failed to make out his case, and the court properly rendered a judgment against him in favor, of Georgia B. Ellsworth for title and possession of the automobile, and, under the case as presented, we find no error in the action of the court in rendering judgment for $50 damages arising from the issuance and levy of a writ of sequestration by which the rightful owner was deprived of its use and was thereby damaged in the sum found by the court.

The judgment is affirmed.


text:
    LEFTWICH et al. v. MILLAN et al.
    No. 9268.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1934.
    Rehearing Denied March 21, 1934.
    Murphy W. Townsend and R. G. Scurry, both of Dallas, for appellants.
    Jackson & Crawford, of Crystal City, for appellees.
   MURRAY, Justice.

W. R. Millan, individually and as administrator of the estate-of Charles C. Busey, deceased, filed this suit in the district court of Zavalla county, seeking a recovery in the sum of $1,127.13 from D. O. Leftwich, Raymond Asbury, and the Southern Ice & Utilities Company, being the amount of damages claimed as the result of an alleged breach of contract to purchase onion plants.

The original contract was in writing and expressly provided .that appellants Leftwich and Asbury were to pay for the onion plants at Crystal City, Zavalla county, Tex. The Southern Ice & Utilities Company, hereinafter referred to as the Company, was by the terms of the contract stakeholder of $1,000 put up by Leftwich and Asbury and to be paid to appellee Millan and his now deceased partner Busey, as liquidated damages in the event Leftwich and Asbury breached their contract.

Leftwich, Asbury, and the Company filed pleas to be sued in Dallas county, the county of their domicile. Appellees controverted these pleas of privilege, asserting venue on the theory that all of appellants had entered into a written contract to be performed in Zavalla county. Upon a hearing ,the trial judge overruled the pleas of privilege.

It is plain that the pleas of privilege of Leftwich and Asbury should have been overruled, unless the original written contract has been altered or abrogated in some way, for this contract expressly provided that they were to pay for the onion plants at Crystal City. It was the contention of Leftwich and Asbury that the contract had been changed by subsequent agreement and conduct.

There were two witnesses who testified, Millan and Leftwich. The former testified . that the contract had not been changed; the latter that it had. The- trial judge had a right to believe the testimony of either, and as he overruled the pleas it is apparent that he gave weight to the testimony of Millan. The evidence, however, shows that there were six carloads of onion plants shipped under the contract. In each instance a draft was drawn with bill of lading attached which was paid at Dallas, with the exception of the last draft, for the sixth car, which was not paid.

It is contended by appellants that this conduct shows that the contract had been changed and the provision providing for payment in Zavalla county waived. We cannot agree with this contention. The mere shipping of the plants before they were paid for and the drawing of a draft with the bill of lading attached did not conclusively show an intention to waive the provisions for payment in Zavalla county, contained in the written contract. There is no question but what parties may, either by parol agreement, or even by their conduct, vary the terms of a written contract; but the point here is that this conduct was insufficient to show such a variance, and especially is this so where the trier of facts has in effect found against the contention of appellants.

We are cited to the case of Marcus v. Armer, 117 Tex. 368, 5 S.W.(2d) 960, 60 A. L. R. 672, in which it was held that where cotton seed were shipped to Travis county and a draft drawn with bill of lading attached, which is accepted and paid by the purchaser, a written contract is performed in Travis county notwithstanding there was a prior oral agreement to pay for the seed in Burnet county. In other words, the draft with bill of lading attached constituted an offer to vary the original contract and receive payment ip Travis county, which, when accepted by the buyer, became a written contract. In the case at bar the dpaft was not accepted nor paid: at, Dallas. This ,is sufficient to distinguish this, case from, the Marcus Case.

, We take it that each time appellees shipped a- car of plants and drew a draft and sent same to Dallas with bill of lading attached, it was an offer to accept pay for that particular car of plants in Dallas county. When the sixth car was thus shipped and the draft not paid, the offer was rejected by the buyers and no contract entered into but the original written contract left standing to determine the place of payment. We conclude that Leftwich and Asbury, having entered into a written contract to pay for these onion plants in Crystal City, Zavalla county, and the evidence raising a question of fact as to whether or not this contract has been changed or abrogated by subsequent agreement, and the trial judge having impliedly found against appellants upon this issue, the pleas of Leftwich and Asbury were properly overruled.

We next come to the plea of privilege of the Ice Company. We conclude that this plea should not have been overruled. The Ice Company was a stakeholder of the sum of $1,000, to be paid to the growers in the event the buyers breached their contract. The only obligation resting upon the Ice Company was to hold this $1,000 and pay it over to the growers in the event the buyers breached their contract. The Ice Company did not agree to do this in Zavalla county.

The only theory upon which appellees attempted to hold venue of the Ice Company in Zavalla county was under subdivision 5 of article 1995, R. S. 1925, which would require that before the Ice Company could be sued in Zavalla county-it would have to have entered into a written contract to perform an obligation in Zavalla county. There is no obligation which the Ice Company has agreed to perform in Zavalla county. The fact that it was a stakeholder or guarantor for the buyers is not sufficient under the provisions of subdivision five of the venue statute to give venue in Zavalla county. Lindheim v. Muschamp, 72 Tex. 33, 12 S. W. 125; Scarbrough v. Culp (Tex. Civ. App.) 276 S. W. 743; Employers’ Casualty Co. v. Wm. Cameron & Co. (Tex. Civ. App.) 288 S. W. 584; Hamlin v. Ætna Casualty & Surety Co. (Tex. Civ. App.) 13 S.W.(2d) 382.

Article 2020, R. S. 1925, as amended by Acts 1933, 43d Leg., p. 546, ch. 177 (Vernon’s Ann. Civ. St. art. 2020), now provides a practical method for the transfer of a cause of action as to one defendant and the retaining of venue as to other defendants where there is.a severable cause of action as to parties defendant, and the cause of action against the Ice Company being a severable cause of action, the trial court should have sustained its plea of privilege.

The judgment of the trial court will be affirmed wherein it overrules the pleas of privilege of Leftwich and Asbury, but wherein it overrules the plea of privilege of the Ice Company it will be reversed and the cause remanded, with instructions to the trial court to transfer the cause of action against the Ice Company to the district court of Dallas county, Tex.

Affirmed in part, reversed and remanded in part, with instructions.