Humble Oil & Refining Co. v. Johnston

• Decision Date: 01 March 1928
• Docket Number: (No. 582.)
• Citation: 5 S.W.2d 836
• Parties: HUMBLE OIL & REFINING CO. v. JOHNSTON et al.
• Court: Texas Court of Appeals

5 S.W.2d 836

HUMBLE OIL & REFINING CO. v. JOHNSTON et al.

(No. 582.)

Court of Civil Appeals of Texas. Waco.

March 1, 1928.

Rehearing Denied April 26, 1928.

Error from Navarro County Court; Warren Hicks, Judge.

Action by J. W. Johnston against the Humble Oil & Refining Company and others, wherein named defendant filed a cross-action against remaining defendants. Judgment for plaintiff, and named defendant brings error. Affirmed.

R. E. Seagler, of Houston, and H. B. Daviss, of Corsicana, for plaintiff in error.

R. M. Tilley, of Austin, and J. S. Simkins, of Corsicana, for defendants in error.

BARCUS, J.

Appellee J. W. Johnston filed this suit against appellant, Humble Oil & Refining Company, and against E. W. Jarman, W. C. Guyler, L. A. Smith, H. H. Groneman, and C. A. Groneman, to recover $308 which appellee Johnston alleged was due him by the partnership of Jarman, Smith & Guyler as a commission which he had earned in the sale of certain mineral estates belonging to them to appellant, Humble Oil & Refining Company. He alleged that appellant had purchased from said Jarman, Smith & Guyler certain mineral estates for $3,080; that he was entitled to a 10 per cent. commission thereon, and that said parties had given him a written order on appellant for said amount, and had thereby transferred to him the sum of $308 of the purchase price, which appellant was to, and had promised to, pay said owners for said mineral estates. Appellee Johnston further alleges that, after he had obtained said order and assignment, he filed the same with appellant, and that thereafter appellant, in disregard of said transfer, assignment, and order, paid all of said funds to H. H. and C. A. Groneman. E. W. Jarman filed a waiver of service, and the Humble Oil & Refining Company filed answer. Appellee Johnston dismissed as to all defendants except appellant and E. W. Jarman, alleging as the reason therefor that all of them were nonresidents of Texas, and were notoriously insolvent. Appellant in an amended answer asked by way of cross-action, in event judgment was rendered against it, for judgment over against Jarman, Smith & Guyler and H. H. and C. A. Groneman, on the allegation that it had paid all the purchase money for said mineral estate to H. H. and C. A. Groneman on the order of Jarman Smith & Guyler. No service, however, was obtained by appellant on its cross-action. The cause was tried to the court, and resulted in judgment being entered for appellee Johnston against appellant and E. W. Jarman, jointly and severally, for the sum of $308.

Appellant alone appeals, and by its first three propositions contends that the trial court committed fundamental error in failing and refusing to render judgment for it over against its codefendants on its cross-action. All these assignments are overruled, for the reason that appellant had not obtained service on any of said defendants, and none of them had filed answer, and the trial court therefore had no jurisdiction over said parties, and could not render any judgment which in any way affected their rights.

Appellant, by its fourth, fifth, sixth, and seventh propositions contends that the trial court committed fundamental error in rendering judgment against it, for the reason that appellee Johnston's petition did not allege any cause of action against it. Appellant contends that, in order for an assignment of a portion of the funds which it owed to Jarman, Smith & Guyler to be effective and binding upon it, it was necessary for it to accept said assignment and transfer and promise and agree in writing to pay the same. We overrule appellant's contentions. It seems to be the well-settled principle of law in this state that an assignment of a portion of a chose in action for a valuable consideration is good in equity, and that it may be made either by direct transfer or by an order drawn upon the particular fund. Harris Co. v. Campbell, 68 Tex. 22, 3 S. W. 243, 2 Am. St. Rep. 467; Neeley v. Grayson County Nat. Bank, 25 Tex. Civ. App. 513, 61 S. W. 559; Clay-Butler Lumber Co. v. Pickering Lumber Co. (Tex. Civ. App.) 264 S. W. 267; Id. (Tex. Com. App.) 276 S. W. 664.

Appellant, by his eighth and last proposition, contends that the trial court committed fundamental error in failing and refusing to file findings of fact and conclusions of law. We overrule this assignment. Appellant does not, under this or any other proposition, attempt to show that it was in any way injured by the failure of the trial court to file its findings of fact and conclusions of law. The record shows that the request for findings of fact and conclusions of law was seasonably made, and that the court did, on the thirteenth, instead of the tenth, day after adjournment of court, file a full and complete findings of fact and conclusions of law. The transcript, which was filed in the appellate court six months before the case was briefed, contains the findings of fact and conclusions of law as filed by the trial court. Appellant in its assignments of error filed in the trial court nor in its brief filed in this court does not in any way attack the judgment of the court, because it is not supported by the evidence. Neither does it contend that there were any controverted issues of fact to be submitted to the jury. It appears from the record that appellant defended the cause of action on the theory that it was not liable, under the statute of frauds, because it had not accepted in writing the assignment of the portion of the funds which had been made by Jarman, Smith & Guyler to appellee.

We held, in disposing of appellant's assignments 4 to 7, that it was not necessary for appellant to accept the assignment in writing in order to bind it. Appellant in its answer filed stated that it denied the allegations of plaintiff, except those which were alleged and admitted by it. In order for appellee to have recovered judgment in the trial court, it was only necessary for him to show that Jarman, Smith & Guyler were indebted to him, and that appellant was indebted to said Jarman, Smith & Guyler, and that he (appellee) had an assignment or transfer from Jarman, Smith & Guyler of $308 of the funds in the hands of appellant which it owed said parties, and that appellant had actual knowledge of said transfer and assignment before it paid out the funds which it held in its hands belonging to said Jarman Smith & Guyler. In its answer appellant admitted that it owed Jarman, Smith & Guyler $3,147, and that it paid same to Groneman & Groneman in January, 1926, on an order drawn on it by Jarman, Smith & Guyler of date December 11, 1925. It also admitted that in August, 1925, it was informed by appellee that Jarman, Smith & Guyler owed him $308, and that he had an assignment of this amount of the funds which were due by appellant to Jarman, Smith & Guyler, and admitted that it paid the money to Jarman, Smith & Guyler after they had actual notice of the assignment by Jarman, Smith & Guyler to appellee of said amount. The judgment of the trial court finds that Jarman, Smith & Guyler were indebted to appellee for the $308 used for, and specifically finds that appellee had an assignment of $308 of the funds which appellant owed Jarman, Smith & Guyler. The court further finds in its judgment that all the allegations contained in appellee's petition had been established by the testimony.

Our courts seem to hold without question that the failure of the trial court to file findings of fact and conclusions of law will not necessarily require a reversal of the judgment; the correct rule, as we understand it, being stated by the Supreme Court in Riley v. Austin, 112 Tex. 216, 245 S. W. 907, as follows:

"We think that where it appears from the record that a party has not been injured by such failure [filing findings of fact] to act on the part of the trial judge within the time prescribed, and where every contention made by such party has been preserved in the record, he is not entitled to have the case reversed on the bare error assigned."

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