صور الصفحة
PDF

(Holland v. Zilliox, 38 Tex. Civ. App. 416, 86 S. W. 36, writ denied), yet it has no authority to divest title thereto out of one of the parties (Tiemann v. Tiemann, 34 Tex. 523; Craig V. Craig, 31 Tex. 203). Of course an equitable partition of the community property may be adjudged decreeing title in each to half of the joint property. But no partition was attempted in the judgment rendered to Vacate Which the action herein was brought. Hence we hold that the trial court properly entertained the Suit, and awarded the relief sought, independent of the question as to Whether the record discloses that appellee had notice in term time of the judgment rendered in the divorce suit. However, the evidence as to this is conflicting, and the Court could reasonably have concluded that appellant did not have actual notice, and had been misled into believing that the suit had been dismissed according to the alleged agreement. [4] We do not think the court erred in excluding the evidence offered by appellant as to the grounds for divorce in the original suit and the testimony which would tend to warrant the original trial court to award the defendant herein the use of such homestead in addition to awarding to her the title and possession of an undivided One-half interest in such homestead, as urged in the fifth assignment. In fact, this Was not the judgment entered. Since all claim for relief was abandoned by appellee except as to the title and the right of possession of the real estate, the propriety and Validity of the judgment granting the divorce and awarding the custody of the minor children to the appellant and awarding her the community personalty ceased to be an issue. The appellant in this last proceeding failed to allege or to sustain by proof the necessity of provision for the support of the minor children. The power of the court granting a decree of divorce to grant to the mother, Who has been awarded the custody of the minor children, the use of the homestead for a designated period, is an equity power to be exercised primarily for the benefit of the minor children in order that the mother, upon whom has been placed the responsibility for their care and support as the head of the family, may be enabled to fulfill that duty. In this state the legal duty of the husband to support his wife ceases upon the severance of the marital bonds, nor has a Court the power to decree that a husband or his property may be subjected to such support after divorce. Permanent alimony is not provided for by Texas statutes. Pape v. Pape, 13 Tex. Civ. App. 99, 35 S. W. 479; Bond v. Bond, 41 Tex. Civ. App. 129, 90 S. W. 1128. But the liability of a father for necessaries for his minor children continues after the legal separation of the parents, though it has been held that a decree in a divorce suit

requiring the father to pay a designated monthly sum for the support of the minor children whose custody has been awarded to the mother is not authorized under the statute. Bond V. Bond, Supra; Ligon V. Ligon, 39 Tex. Civ. App. 392, 87 S. W. 838. Hence the court may only by decree provide for a contribution by the father towards the support of the children awarded to the mother by imposing a use on the father's part of the community estate. However, this subjection is not in the nature of alimony to the mother, but for the support of the children. Therefore when the necessity for such support ceases the reason for Such provision ends. [5] In the instant case, the uncontradicted evidence ShoWS that at the time Of the last trial the two girls were living in Dallas With their father or at the same house, and that they would not live with their mother in Ft. Worth; that one of the girls was Supporting herself, and the father was supporting the other. The boy was with his mother in Ft. Worth. The cause having been reopened, it was competent for the trial court to determine from the evidence before him, not from that introduced at the former hearing as to the necessity for making provision for their support. He evidently determined that matter adversely to appellant. Finding no error the judgment is affirmed.

CUERO COTTON OIL & MFG. CO. v. FEEDERS’ SUPPLY CO. (No. 8800.)

(Court of Civil A# Of Texas. Ft. Worth. Feb. 23, 1918. '' Denied March 30,

1. SALES @->52(5)—MEETING OF MINDS—SUFFICIENCY OF EVIDENCE. In Suit for Seller's breach of alleged contract for sale of cotton Seed oil products, evidence held to support conclusion that there was a meeting of minds creating a valid contract.

2. CORPORATIONS @:503(2)—VENUE—“CAUSE

OF ACTION.”

In suit in T. county against a corporation

domiciled in another county and having no office or representative in T. county, evidence held to show that contract was consummated in T. county, so that court properly overruled plea of privilege, although breach did not occur in such county, in view of Vernon's Sayles' Ann. . Civ. St. 1914, art. 1830, subd. 24, providing that suit against a corporation may be maintained in any county in which cause of action or a part thereof arose; “cause of action” consisting of contract and breach.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Cause of Action.]

3. d'. Q:580 – PLACE OF PAYMENT – “F.

The term “free on board,” or “f. o. b.” is one generally understood and recognized by shippers to mean delivery of the goods without charge for drayage or other expenses previous to the loading, and has nothing to do with the fixing of the time or place of payment of the agreed purchase price, and does not bind the purchaser to pay at the place of shipment, but

6: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

merely binds him to accept the property delivered on board the cars at that point (citing Words and Phrases, Second Series, F. O. B). 4. CONTRACTS (32145 – CONSUMMATION PLACE. If the communications leading up to the Contract are had over the telephone, the contract is deemed to have been made at the place where the offer of one is accepted by the other.

5. CORPORATIONS Q=503(2)—VENUE. Since under Vernon's Sayles' Ann. Civ. St. 1914, art. 1830, subd. 24, the “cause of action” consists of the contract and the breach, and the contract was made in T. county, the requirement of the subdivision that part of cause of action must have arisen in county where suit is sought to be maintained has been satisfied.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by the Feeders’ Supply Company against the Cuero Cotton Oil & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Lockett, Jr., of Ft. Worth, and H. W. Wallace, of Cuero, for appellant. Bouldin & Lattimore, of Ft. Worth, for appellee.

BUCK, J. This suit was instituted by appellee, Feeders' Supply Company, against the appellant, Cuero Cotton Oil & Manufacturing Company, in the Forty-Eighth district COurt Of Tarrant COunty to recoVer damageS alleged to have been sustained by the alleged breach by appellant of an alleged express contract for the Sale by appellant and purchase by appellee of certain cotton Seed oil mill products. Appellant duly filed its plea of privilege to be sued in De Witt county, its domicile, and subject thereto answered by demurrer and plea, denying the existence of the alleged contract. In its Original petition, plaintiff alleged that the contract was made over the telephone, and by its terms “plaintiff purchased from defendant 300 tons of prime screened cracked cake or meal, 200 tons for prompt shipment, which expression is a common one in this sort of business, and means within ten days from date Of purchase, and 100 tons to be delivered at any time up to September 15, 1916.” Plaintiff admitted in Course of trial that none Of the exceptions to exclusive venue in the county

of the domicile of defendant existed in this

cause, except that it was not admitted that the exceptions contained in subdivision 24, article 1830, Vernon's Sayles' Tex. Civ. Statutes, did not exist. This article reads in part as follows: “Suits against any private corporation, association or joint stock company may be” maintained “in any county in which the cause of action, or a part thereof, arose, or in which such corporation, association or company has an agency or representative, or in which its original office is situated.” From a judgment in favor of plaintiff in the Sum of $525, the defendant has appealed. [1] There are only two assignments pre

Lattimore,

sented in appellant's brief. The first attacks the judgment of the court below on the ground that the undisputed evidence fails to Show that any contract and agreement was made by the defendant company With the plaintiff company, as alleged by plaintiff, and that the undisputed evidence shows that the minds Of the parties did not meet upon an agreement so as to create in law a binding contract. While the evidence was conflicting aS to the nature and purport Of the conversation between D. G. Dumas, representing the appellee company, a corporation, and Thornton Hamilton, representing appellant company, also a Corporation, yet we are of the Opinion that, taking the evidence in its Strongest probative effect in favor of appellee, which the trial court had a right to do, Such evidence is sufficient to sustain the contention that contract was entered into by the parties over the phone. As it will be necesSary for us to refer to certain phases of the evidence in our discussion of the second asSignment, which evidence in our opinion supports the conclusion reached by the trial Court that a contract was made, we will not undertake to discuss at length each assignment separately. Dumas testified in part as follows:

“I was representing the Feeders’ Supply Company during the month of August, 1916, and up to the present time, in the capacity of local manager. In August, 1916, I received from the Cuero Cotton Oil & Manufacturing Company the following letter: “Cuero, Texas, August 8, 1916, The Feeders' Supply Company, Ft. Worth, Texas—Gentlemen: We offer you, subject to , your, immediate wire, acceptance and prior sales, all or any part of 300 tons of prime screened cracked cake or meal, at your option, for August and first half of September shipment at $28.75 per ton, f. o. b. Cuero, net to us. We guarantee this meal or cake to have 51 per cent. protein and fat combined. This price is strictly in line with the export market. Yours very truly, Cuero Cotton Oil & Mfg. Co., per Thornton Hamilton.' * * * I called Mr. Hamilton over the phone and asked him if he could give me some of the cake he had quoted me, prompt shipment, as I had some orders on my desk, and needed some for prompt shipment, and he told me he could. The first thing when I called him, I asked him if the offer stated in the letter was still open, or if he had sold the stuff, and he said he had not, and when he agreed to give me some on prompt shipment, I told him that I Would take the entire amount of 300 tons, as mentioned in his letter, at the price stated in the letter.

“After I told Mr. Hamilton I would take this cake or meal, he said he had sent his analysis to the chemist, but had not received a report from it; that during the years previous he had made some shipments as prime that did not grade up to prime and that he came near to getting into trouble about it, and that he did not want to get into trouble this time; if he was not making prime, he did not want to ship it as prime, and I told him that I did not want it unless prime, and that I would give him the privilege of canceling, provided his analysis showed that he was making a lower grade than prime meal or cake. I asked him when he expected to receive his analysis and he says, “Tomorrow or not later than the day following. I then told him that I would give him until the

[ocr errors]

day following, which would be the 11th, and if he found he was making a lower grade than prime to wire me; otherwise I would consider the purchase made. I did not receive any wire from Mr. Hamilton in regard to the matter, nor any information from him as to whether his cake or meal was prime or better, until it must have been the 12th of August, that I received a letter from him, after I had wired him on the 11th ; I then received a letter from him in which he stated that the cake was prime or better. I never received any wire from Mr. Hamilton to the effect he was not making prime

cake.

“After I had this conversation over the phone with Mr. Hamilton, I, waited until the 11th, which was the time limit which I had given him to hear from his analysis, and then, not hear: ing anything from him to the contrary, I wired him in orders for three cars, for prompt shipment, concerning which I had phoned him. *k : In reply to this telegram I received a telegram from the Cuero Mills, in which he said he had no contract. It is my recollection I received that wire on the 12th. I never received any of this cake or meal which I purchased from the Cuero Oil & Manufacturing Company. I made a further demand on the Cuero Cotton Oil & Manufacturing Company for this shipment, after my telegram above referred to. * * * In this conversation over the phone, Mr. Hamilton told me he could let me have as much as 150 or 200 tons of prompt, and I told him I did not need that amount. The balance of the cake was to be shipped the last half of August or the first of September, at $28.75 per ton.”

[2, 3] It is undisputed that appellant had no Office, agent, or representative in Tarrant County at the time of this contract Or at the time of the filing of the suit. If plaintiff below was entitled to maintain this suit in Tarrant COunty it must be On the theory that the offer made by appellant in its letter of August 8, 1916, was accepted by appellee without change on its part of the terms contained in the letter, or that a different proposition Was made Over the phone by appellant's agent and accepted by appellee’S agent at Ft. Worth. It Will be remembered that this letter offered the cake or meal for shipment “for August and first half of September Shipment $28.75 per ton, f. O. b. Cuero, net to us.” The term “free on board,” or “f. O. b.,” is one generally understood and recOgnized by Shippers to mean delivery of the goods without charge for drayage or other expenses previous to the loading, and has nothing to do With the fixing Of the time Or place of payment of the agreed purchase price and does not bind the purchaser to pay at the place of Shipment, but merely binds him to accept the property delivered On board the cars at that point. Russell & Co. V. Heitmann & Co., 86 S. W. 75, and Other cases cited in 2 Words & Phrases, p. 658 et seq. The term thus used did not imply that the Shipper Should pay the freight, or that it should deliver the shipment at any point in Tarrant county. In fact, the appellee's direction for Shipment, as contained in his telegram of 8—11—1916, was that one car Was to be shipped to Topeka, and one to Terra Cotta, Kan., and a third to Big Spring, Tex.

[ocr errors]

While jurists have found some difficulty in defining the term “cause of action,” yet in construing the expression in the subdiviSion of the statute upon which the claim of Venue in Tarrant county is based it has been held that a “cause of action” is made up of the contract and its breach. Railway V. Hill, 63 Tex. 381, 51 Am. Rep. 642; Iron Works v. Reeves & Co., 43 Tex. Civ. App. 254, 95 S. W. 739. The breach of the con. tract did not take place in Tarrant county, because the breach, if any, arose upon the failure to deliver f. o. b. cars at Cuero within the time Specified. [4] If the communications leading up to the contract are had over the telephone, the Contract is deemed to have been made at the place where the offer of one is accepted by the other. 1 Elliott on Contracts, § 62, p. 92; Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 74 Pac. 855, 65 L. R. A. 90. This holding follows the general rule that a contract is made Where the acceptance of the offer is given. Insurance Co. v. Harris, 94 Tex. 25, 57 S. W. 635, 86 Am. St. Rep. 813; 1 Elliott On Contracts, § 62, p. 91. The issue then preSents itself for Our consideration, Tid Dumas, for the appellee, accept, without change or qualification, the offer made in the letter of August 8th ? According to this letter the Cuero Mill would have had the right to ship the cake or meal at any time during the remaining days of August and the first half of September. In order to constitute the acceptance, appellee must have agreed to accept shipment “for August and first half of September.” Dumas, for appellee, testified: “In my conversation with Mr. Hamilton, in the first place, he told me he could let me have as much as 150 or 200 tons of prompt if I wanted it, and I told him that I had these orders or inquiries that I had to fill with prompt," and that is the reason I called him over the

phone, was to see if he could give me some prompt with which to fill these orders.”

As was said in the case of Washington v. Rosario Min. & Mill. Co., 28 Tex. Civ. App. 430, 67 S. W. 459:

“The rule is unvarying, and the authorities uniform, that in order to constitute an acceptance of an option, or an offer to sell, the acceptance must be unconditional. There must be no new terms imposed, and no departure from those offered.”

Ordinarily, where a delivery is to be made Within a certain period, Say Within a designated mOnth, the Seller has until the last day of the named period to make delivery. 35 Cyc. 177; Magnolia Cotton Oil Co. v. Continental Oil & Cotton Co., 183 S. W. 10. Therefore, if Dumas, over the phone, stipulated that in Order for him to accept the offer contained in the letter he must have a part of the 300 tons as a “prompt” shipment, Such stipulation constituted a counter offer On his part to pay the price required by appellant, if a part of the shipment could be made “prompt.” The agreement On the part of Hamilton, acting for appellant, to this Change Would consummate the contract, and this agreement Or acceptance having been made at Cuero, the venue would properly be in De Witt county, even under the rule that a contract Over the telephone is Consummated in the county where the acceptance is given. Bank of Yolo V. Sperry Flour Co., Supra. But the evidence justifies a conclusion SuStaining the judgment of the trial court that Dumas, upon calling up Hamilton at Cuero, first asked him if he could ship a part of the 300 tons as “prompt,” and that Hamilton replied that he could, 150 to 200 tons; that thereupon Dumas agreed to take the 300 tons at the price made in the letter of August 8th. The testimony of Dumas heretofore quoted in this opinion, as well as other portions of his testimony of like import, would justify that conclusion. Dumas testified:

“The terms of the purchase which I made over the phone, in my conversation with Mr. Hamilton, were in accordance with a letter I had received from the Cuero Mill. $28.75, f. o. b. Cuero; shipment the last half of August or the first half of September. I cannot give the conversation verbatim, but I have stated the substance of it; it was in accordance with the terms specified in the letter, with the added agreement that he was to let me have some of the cake for “prompt' shipment; I had some orders on my desk which called for prompt shipment. But with that exception the contract over the phone was in accordance with the letter from the Cuero Cotton Oil & Manufacturing Company. * * *”

[5] The contract was made by the acceptance of the offer. If there was an offer on the part of Hamilton, acting for appellant, to ship a part of the 300 tons in accordance with Dumas' expressed wishes and need, and Tumas then accepted this changed offer, and Such acceptance consummated the Contract sued on, it would seem that the judgment Of the trial Court must be Sustained. Since the cause of action consists of the contract and its breach and the contract was made in Tarrant county, it would appear that the statutory requirement that at least a part of the cause Of action must. have arisen in the County where Suit is Sought to be maintained, has been satisfied.

Appellee urges that at the time of the phone conversation between Dumas and Hamilton Dumas merely inquired as to whether, under the offer as made by appellant in the letter, a sufficient shipment of “prompt” would be allowed to fill the orders that appellee then had On hand. And that an inquiry does not constitute a counter offer. Appellee cites Stevenson v. McLean, 6 Eng. Rul. CaS. 82, 49 L. J. Q. B. N. S. 701. This case is cited in 9 Cyc. in a footnote on page 269. The text of the Cyc. there uses the following language:

“If an offer is accepted as made, the acceptance is not conditional and does not vary from the offer, because of inquiries whether the offerer will change his terms, or as to future acts, or the expression of a hope or suggestion,” etc.

But even if the judgment cannot be SuStained on this theory, we are of the Opinion that it should be sustained on the ground that the contract was consummated by the acceptance of Dumas given in Tarrant county. It is true that no right of action arose until the breach had occurred, and that the alleged breach occurred in De Witt county, arising by reason of the failure of the defendant company to load f. o. b. the shipment of three cars ordered by plaintiff. “The right of action springs from the cause of action, but does not accrue until all of the facts Which constitute the CauSe have OCCurred.” 1 C. J. p. 946, and the authorities cited under footnote 38; 1 Bouvier's Dict. 436. That the defendant may not by his own Wrongful breach determine the venue of a cause of action arising under a contract consummated in a county other than that of defendant's domicile is decided in Peach River Lumber Co. v. Ayers (writ of error denied) 41 Tex. Civ. App. 334, 91 S. W. 387, cited in 40 Cyc. p. 84. See Harvey v. Parkersburg Ins. Co., 37 W. Va. 272, 16 S. E. 580. In discussing the meaning of the term “arose” or “arises” used in connection with the expressions “the cause of action arose,” or the “cause of action arises,” the Supreme Court of Oklahoma, in Doughty v. Funk, 15 Okl. 643, 84 Pac. 484, 4 L. R. A. (N. S.) 1029, says: “We cannot, therefore, in determining the meaning of the phrase under consideration, hold , that a cause of action has arisen only when the remedy and the right occur at the same time. But we do hold that a cause of action arises when the obligation was created which gave rise to a right of action as soon as such right accrued thereon.” The question of venue here involved is not one entirely without difficulty, but we have concluded that under the authorities cited the trial court properly overruled defendant's plea of privilege. All assignments are overruled, and the judgment is affirmed. Affirmed.

BOWERS v. BENNETT et al.

(Court of Civil Appeals of Texas. April 18, 1918.)

HOMESTEAD 3->115(3)—IMPROVEMENTS—TRUST DEED–SALE.

A husband and wife owning property entered into a written contract for the building . of a house thereon, and agreed that the builder should have a mechanic's lien, for labor and material, the building cost to be paid in yearly installments of $400, for which they gave five notes for $400 each, secured by deed of trust, providing that on default in the payment of any part of the indebtedness the trustee might sell the property and apply the proceeds thereon, and a purchaser from the owners assumed the notes, and the property was sold under the trust deed. Const. art. 16, § 50, and Rev. St. 1911, art. 5631, permit the sale of a homestead to enforce a mechanic's lien only when the work and material are contracted for in writing with the consent of the wife, and

(No. 7577.) Galveston.

Rev. St. 1911, art. 5630, provides that a sale to enforce a mechanic's lien must be upon judgment rendered by some court of competent jurisdiction, foreclosing the lien and ordering a Sale. Held, that the sale under the deed of trust was a sale under a contract, and not a statutory lien, and was valid.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Suit by Annie L. Bowers against Herbert Bennett and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Atkinson, Graham & Atkinson, of Houston, for appellant. Fred R. Switzer, of Houston, for appellees.

PLEASANTS, C. J. The facts upon which this litigation arOSe are undisputed and are as follows:

On February 12, 1909, W. S. Jackson and his Wife, Margaret Jackson, Who OWned the property involved in this suit, entered into a written contract with J. R. Brubaker to build for them a residence upon the property and agreed to pay him for the material and labor used in the construction of said residence the sum of $2,000, and for the payment of which sum it was agreed and stipulated in the COntract that Brubaker Should have a materialman’s, mechanic's, and laborer's lien On the property. This contract was duly executed and acknowledged by all the parties thereto. On the Same day, and as a part Of the same transaction, there Was an aSsignment by Brubaker of his right to the $2,000 compensation due him upon the COmpletion of his contract, together With the liens given in the contract to secure the same, to B. A. Everts, who then agreed with the Jacksons that the $2,000 should be paid in yearly installments of $400, with interest at the rate of 8 per cent, per annum. In pursuance of this agreement the Jacksons executed five notes for $400 each, payable to the order of B. A. Everts in 1, 2, 3, 4, and 5 years, respectively, from date, and to secure the payment of these notes executed a deed Of trust in Which E. L. Dennis WaS appointed trustee. The deed of trust recited the facts above Stated, and authorized the trustee in event of default in the payment of any part of the indebtedness thereby Secured to sell the property after advertising the sale in the manner required by the statute and apply the proceeds to the payment of the indebtedness.

The residence was constructed by Brubaker in accordance With the COntract, and WaS Occupied by the Jacksons as their homestead until June 17, 1911, when they sold it to J. L. Bowers for the sum of $4,000. Of this amount BOWerS paid $2,100 in Cash, and assumed the payment of three of the $400 notes in favor of Everts, which Were then unpaid. He also executed two notes for $350 each in favor of the Jacksons, and secured by a vendor's lien on the property. These two notes Were paid by J. L. BOWers

On September 20, 1911. J. L. Bowers married the appellant herein on May 21, 1912, and the property Was Occupied by him and appellant as their homestead until his death in April, 1916. Prior to August, 1915, J. L. Bowers paid all of the $400 notes above mentioned, except the fifth and last one, and paid $100 on that, leaving a balance of $300 and interest due thereOn. On the date last named Everts transferred and assigned the unpaid note to V. H. Roos. The balance due On this note remained unpaid, and at the request of the holder, A. C. Van Welzer, who was appointed substitute trustee, the said , E. L., Dennis having died, advertised the property for sale in accordance with the terms of the trust deed. After due advertisement the property was sold on September 7, 1915, and the appellee herein became the purchaser for the sum of $363. At the time of this sale appellant with her husband, J. L. Bowers, lived on this property, and has Continued to reside thereon. The appellee is the daughter of J. L. Bowers by his former Wife, and was living with the appellant and said Bowers at the time she purchased the property. She did not record her deed from the trustee, Wan Welzer, until February 20, 1916. Shortly after the record of this deed, J. L. Bowers having theretofore died, appellant brought this Suit against Jessie Mae Bennett and her husband, Herbert Bennett, and the trustee Van Vel"Zer, to Cancel the deed executed by Van Velzer to Mrs. Bennett and to recover possession of the property. In her petition appellant Offers to redeem, and tenders into court the amount paid by Mrs. Bennett for the property with interest. The trial in the Court below Without a jury resulted in a judgment in favor of defendants. The first assignment of error presented in appellant's brief and the proposition Submitted thereunder are as follows:

“The court erred in holding that the sale made by A. C. Van Velzer, substitute trustee, September 7, 1915, to satisfy said balance due On said mechanic's and materialman’s lien, was valid and binding under said deed of trust dated April 1, 1909, because under article 5630 of the Revised Statutes of Texas such sales can only be made upon judgment of a court of competent jurisdiction foreclosing said lien and ordering the property sold, and said sale was and is Void.”

“Every sale of real estate made to satisfy a mechanic'S and materialman's lien must be upon judgment rendered by a court of competent jurisdiction foreclosing Such lien and Ordering Sale of such property, and said property cannot be sold by the trustee or substitute trustee under the powers conferred in a deed of trust given on said property to secure the indebtedness thereon, but said mortgage lien created by said deed of trust must be foreclosed upon judgment rendered by a court of competent jurisdiction ordering said property sold, otherwise the sale by the trustee or substitute trustee and the trustee's deed are void and do not pass title.”

The exact question presented by this assignment has been decided by our Supreme Court adversely to appellant's contention.

« السابقةمتابعة »