Dreeben v. Whitehurst

• Court: Texas Court of Appeals
• Writing for the Court: Vaughan
• Citation: Dreeben v. Whitehurst, 45 S.W.2d 705 (Tex. App. 1931)
• Decision Date: 07 November 1931
• Docket Number: No. 10858.,10858.
• Parties: DREEBEN v. WHITEHURST.<SMALL><SUP>*</SUP></SMALL>

Page 705

45 S.W.2d 705

DREEBEN v. WHITEHURST.^*

No. 10858.

Court of Civil Appeals of Texas. Dallas.

November 7, 1931.

Dissenting Opinion November 18, 1931.

Rehearing Denied January 9, 1932.

Error from District Court, Dallas County; Royall R. Watkins, Judge.

Action by C. M. Whitehurst against Mrs. Octavine Dreeben. Judgment for plaintiff, and defendant brings error.

Affirmed.

McCormick, Bromberg, Leftwich & Carrington, of Dallas, for plaintiff in error.

Eugene De Bogory, of Dallas, for defendant in error.

VAUGHAN, J.

For convenience the parties to this suit will be referred to as follows: Defendant in error, C. M. Whitehurst, as plaintiff, and plaintiff in error, Mrs. Octavine Dreeben, as defendant.

On January 21, 1929, plaintiff instituted this suit in the court below against defendant, alleging that he was a practicing attorney; that defendant had consulted him "with reference to the recovery of a certain tract of land" which had been "qualifiedly sold" to the county of Dallas on October 2, 1920, by a conveyance of that date which was copied in haec verba in his petition, and further alleged that plaintiff retained him to "reinvest" in her the title to the real estate conveyed by said instrument; that he had several consultations with the commissioners' court of said county of Dallas, through which he secured an order to be passed by said court directing the civil engineer of said county to inspect said land to ascertain whether it was underlaid with gravel; that after six weeks of effort he procured an order to be passed by said commissioners' court by which, in substance: "* * * The defendant should have a reconveyance of said 80 acres, for which the County had paid $30,000.00, and out of which land the County had only removed about $1,250.00 worth of gravel, and the County was to retain four acres of the ground upon which they had theretofore opened up a gravel pit, but which four acres did not contain gravel usable by the County, more than a very unconsequential amount, if any, and the gravel on said four acres was, this plaintiff alleges, of no value; thereby he had enriched the defendant to the extent of approximately $28,750.00, and caused to the defendant only the expense of his fee and the loss of four acres of ground. That while said matter was being discussed on or about the 22nd day of November, 1928, and after plaintiff had performed said service in defendant's behalf, the question of a fee was mentioned, and because of the fact that no fee was agreed upon between the parties, this plaintiff stated to the defendant that he would only expect what the services were reasonably worth. * * * That his remuneration would be contingent upon the result of his efforts, that is, that no fee would be due or payable to this plaintiff in the event he was not successful in recovering said land from Dallas County. * * *"

Plaintiff further alleged: "That the provisions of said order met with the approval of the defendant and she was well satisfied with the result of plaintiff's efforts in her behalf * * * but before final approval of it the fee to be charged became the subject of discussion. When it was suggested by this plaintiff that one-fourth of the land recovered or one-fourth of its value, would be a reasonable fee the defendant * * * said she would have nothing further to do with the matter, and * * * discharged the plaintiff."

Plaintiff further alleged that said commissioners' court entered an order precisely as drawn by him with the sole addition that the 4-acre tract, after the gravel had been extracted therefrom, should revert to defendant; that said order was the result of his activities; that the value of the land was $40,000 and the reasonable value of his services was one-fourth of the value of the land so recovered. The prayer was for the recovery of $5,000.

Defendant's answer consisted of a general demurrer, special exception reading as follows, "* * * It is nowhere shown in said contract or in said petition whereby there was any recovery or attempted recovery for a tract of land consisting of 80 acres from Dallas County, Texas," and a general denial.

Following are the special issues submitted and answers made thereto by the jury:

"No. 1: Do you find and believe from a preponderance of the evidence that the plaintiff, Whitehurst, was employed as an attorney by the defendant, Mrs. Dreeben, to represent her before the Commissioners' Court of Dallas County, Texas, to secure a release of the land in question? Answer: Yes.

"No. 2: Do you find and believe from a preponderance of the evidence that the plaintiff represented the defendant before the Commissioners' Court, in her behalf, to secure the release of the land in question? Answer: Yes.

"No. 3: Do you find and believe from a preponderance of the evidence that the services, if any, of the plaintiff, before the Commissioners' Court, were successful, if any, in securing an order of the Commissioners' Court to release the land in question to the defendant? Answer: Yes.

"No. 4: From a preponderance of the evidence before you, what do you find and believe is a reasonable sum, if any, if presently paid in cash, the plaintiff Whitehurst is entitled to receive, for services rendered, if any, to the defendant, Mrs. Dreeben, before the Commissioners' Court, in securing the release of the land in question, if you find and believe that the plaintiff has rendered any services? Answer: $2,500.00."

On this verdict January 9, 1930, the court rendered judgment in favor of plaintiff against defendant for the sum of $2,500, with interest thereon at 6 per cent. per annum from date, and for all costs of suit. Said findings being amply supported by the evidence are adopted by this court as findings of fact.

Appellant's third proposition, viz., "If the efforts of plaintiff were of any value to defendant, such value was only nominal, and the amount allowed was grossly excessive," based upon the following assignment of error, "The court erred because the verdict is excessive, and because the verdict is grossly excessive, in that the uncontroverted evidence shows that the plaintiff's services for the defendant were not worth more than $10, or in any event only a nominal sum," presents in most general terms the excessiveness of the verdict of the jury and the judgment rendered thereon.

From the above it is clear that it is not pointed out in what respect the amount of the verdict, under the facts, is claimed to be excessive. Rules for Courts of Civil Appeals, par. 26, 94 Tex. 659; City of Galveston v. Devlin, 84 Tex. 319, 19 S. W. 395; Missouri, K. & T. Ry. Co. v. Patterson (Tex. Com. App.) 228 S. W. 119; International & G. N. R. Co. v. McVey (Tex. Civ. App.) 81 S. W. 991, 1001; San Antonio, U. & G. Ry. Co. v. Storey (Tex. Civ. App.) 172 S. W. 188; Houston & T. C. R. Co. v. Shults (Tex. Civ. App.) 78 S. W. 45. We therefore hold that said assignment is too general for the proposition based thereon to be considered, same being too indefinite and uncertain.

Appellant's remaining propositions, viz.:

"(1) The instrument executed by the defendant and her husband, now deceased, had the legal effect to convey to Dallas County an interest in minerals in place, and constituted, therefore, a conveyance of an interest in land;

"(2) By statute, article 1577, the Commissioners' Court could not divest the title of Dallas County by an order, and could not dispose of the real estate of the County except by the appointment of a commissioner to sell the same at public auction." —are so related that same will be reviewed and discussed as presenting but one question. This discussion will require a careful consideration of the following material provisions of the instrument of date October 2, 1920, viz:

"Intent. Party of the first part being desirous of obtaining and securing gravel for the construction of roads in Dallas County, Texas, and parties of the second part being desirous of selling and disposing of certain gravel which is owned by them, the parties of the second part agrees and contracts to sell to the party of the first part certain gravel at the following location and upon the following conditions and terms.

"Location. Situated in the County of Dallas * * * and being a part of one certain 40 acre tract of land * * * deeded to Octavine Dreeben by K. F. B. Schau, and more fully described as follows: (Here follows field notes of four acres of land),"

"Quantity and Conditions of Removal. The party of the first part agrees to remove from the above described property, seventy thousand (70,000) cubic yards of gravel, installing and operating, free from expense to the parties of the second part, such equipment, machinery, tools, and organization as are necessary for such removal, provided the land above described will furnish such seventy thousand (70,000) cubic yards of gravel; but in the event the land above described fails to furnish the seventy thousand (70,000) cubic yards of gravel; then and in that event the party of the first part is granted the privilege and right to enlarge the workings or pit on adjacent land belonging to the parties of the second part at this time, to such an extent that the seventy thousand (70,000) cubic yards of gravel may be obtained, but such enlargement or increase shall not involve additional payment or compensation of any nature whatsoever by the party of the first part to the parties of the second part, and party of the first part is hereby granted the rights in and to such additional land, if any, as may be necessary to furnish the full amount of seventy thousand (70,000) cubic yards of gravel. Parties of the second part hereby grant and give to the party of the first part easements and rights-of-way, not less than twenty feet (20') in width, such as may be necessary for removing and transporting the gravel from the pits, said rights-of-way being the most convenient routes and to be selected by the party of the first...