Keller v. Keller

• Decision Date: 03 November 1938
• Docket Number: No. 10625.,10625.
• Citation: 122 S.W.2d 270
• Parties: KELLER v. KELLER.
• Court: Texas Court of Appeals

122 S.W.2d 270

KELLER v. KELLER.

No. 10625.

Court of Civil Appeals of Texas. Galveston.

November 3, 1938.

Rehearing Denied December 8, 1938.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Action by Mrs. Jessie P. Keller against Hugh R. Keller, the plaintiff's former husband, to recover reparation from defendant on account of certain items of property which plaintiff alleged formed a part of their community estate and was not included or accounted for in division of property made at the time of divorce. From an adverse judgment, the plaintiff appeals.

Affirmed in part, and in part reversed and rendered.

J. C. Hutcheson, III., of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellant.

Williams, Lee, Sears & Kennerly, of Houston (Geo. D. Sears, of Houston, of counsel), for appellee.

CODY, Justice.

This is a suit by appellant, the former wife of appellee, to recover reparation from him on account of certain items of property which she alleged formed a part of their community estate, and that it was not included, nor accounted for, in the division of their property, which was had at the time of their divorce some two years before the institution of this suit.

In contemplation of divorce appellant and appellee entered into an agreement dividing specified items of community property, and setting aside to appellant her separate property, on November 16, 1933. This agreement was incorporated in the divorce decree which was rendered on December 22, 1933. The agreement has no general or residuary clause awarding to either party any property not therein included. The following three items of property were not, eo nomine, included in the settlement, nor in the decree embodying the settlement, and appellant alleged that they were community property, and that she and appellee remained the owners of such property after their divorce, unaffected by the settlement agreement and decree.

First Item: An indebtedness of $21,000 owing to appellee at the time of such settlement by the Cooper-Keller Oil Company, which was paid to appellee in full, five days after the divorce decree.

Second Item: An item of $20,000 owing to appellee by the Cooper-Keller Oil Company as salary for the year 1933, and which was paid to him in full about the end of 1934.

Third Item: 50 shares of the capital stock of the Cooper-Keller Oil Company, of the value of $46,250.

As to the first two items it is appellant's contention that they were not included in the settlement agreement because she knew nothing of them; that appellee concealed their existence from her. As to the fifty shares of stock, appellant concedes that it was the intention of the parties that it should have gone to appellee by the terms of the agreement, for she knew that one-half of the shares of the capital stock was the community property of herself and appellee, but by a mutual mistake it was supposed that the capital stock consisted of 100 shares, whereas, in reality, it consisted of 200 shares, so that in apportioning the stock in the corporation to appellee the parties should have described it as 100 shares, instead of 50 shares, as they in fact did. She concedes that this error should have been corrected by reforming the settlement agreement, except that she asserts appellee has cut himself off from the right to this equitable remedy, by having deceived her with respect to items No. 1 and No. 2. She claims, therefore, that as to the remaining 50 shares of stock, that she must be decreed an interest therein, or receive reparation therefor, in consequence of appellee having no right to have the settlement agreement reformed to carry into effect the mutual understanding that appellee should have all the stock in Cooper-Keller Company.

If the items of property No. 1 and No. 2 were community property at the time of the divorce, and were not taken into account in the division of the property between appellant and appellee, neither she nor he were debarred of their rights therein by such division. Gray v. Thomas, 83 Tex. 246, 18 S.W. 721. And this is true even though the reason for not doing so was mere inadvertence. Kirberg v. Worrell, Tex.Com.App., 44 S.W.2d 940. So, if as to items 1 and 2, the proof established that they were community property at the time of the divorce, and that they were not taken into account in the division of the property, appellant was not debarred of her rights therein, by the settlement, or by the decree which embodies the settlement.

It will be noted that each of the items for which appellant is seeking reparation is connected in some way with the Cooper-Keller Company. Concerning this company the trial court made comprehensive findings of fact which are much too long to be reproduced, and, from the view we take of the case, many of them are immaterial. The substance of such as are material is this: For some eight years before the settlement agreement, appellee engaged in the oil brokerage business. For several years this business was carried on as a partnership under the name of Cooper-Keller Oil Company, appellee being full partner of B. P. Cooper. In the last of 1931, the business was incorporated with a capital stock of $20,000, divided into 200 shares of stock, 100 shares of which belonged to the community of appellant and appellee, and the other half belonged to Cooper, though no stock was actually issued until December, 1934. During the years 1932, 1933, and 1934 the corporation speculated heavily in crude oil, buying it to rise. Its loans from banks in September of 1933 totalled $103,000. By reason of rises in the market, and of sales, these bank loans had been reduced to $40,000 in November, 1933. During this speculation Cooper advanced the corporation $31,000, and appellee advanced it $21,000, and these sums were also invested in buying crude. These two items were carried on the books as notes payable to Cooper and to Keller, respectively, though no notes covering them were actually executed. The trial court has found as fact that there was no intent on the part of appellee to perpetrate any fraud on appellant with respect to this item of $21,000. It was immaterial whether the failure to take this item into account was the result of any intent to defraud appellant or not, as we have already indicated, if it was community property and was not in fact taken into account in the division of the property. And that it was not taken into account, eo nomine, is undisputed. In fact it is undisputed that Cooper, appellee's associate, fearing that appellant would learn of this $21,000 loan, and demand that it be paid at a critical period in the Company's speculation, deliberately, and with the knowledge and consent of appellee, had the Company's books changed to make it appear that this $21,000 loan had been made to the Company by himself. The court below further found, under the heading of findings of fact, "The $21,000.00 book item was so much intertwined with the business in its then hazardous condition that it could not be and was not dealt with separately from his (appellee's) stock ownership." This we believe to be in reality a conclusion of law arrived at by the court from the facts found by him, and a conclusion of law that is erroneous. The court had found that this $21,000 advance had been used to purchase crude oil, just as the bank loans had been employed. Had the speculation been unsuccessful, and the corporation had become insolvent, appellant and appellee, in virtue of the $21,000, loan would have occupied the status of creditor of the corporation, and would have been entitled to participate in the payments made by such corporation to the creditors. No doubt the bank loans became intertwined with the business of the Company, indeed the money was borrowed in order that it might be intertwined with the business of the Company. But the bank loans were duly paid off, and the $21,000 advance was also duly repaid to appellee, and repaid to him five days after entry of the divorce decree. Whether this advance constituted a debt, or not, was a question of law, and not a question of fact, and we have no doubt that, as a matter of law, the $21,000 was a debt. And, since as to community, a husband is in a restricted sense a trustee for his wife, bound to good faith (McMurray v. McMurray, 67 Tex. 665, 4 S.W. 357), he should have disclosed this item: and when he received payment of it, to the extent of one-half of it, he received it in trust for appellant.

The trial court has found that item No. 2, which was set up on the books of the Cooper-Keller Company as salary due appellee, was not salary in fact, but that the entry was made in order to lessen income tax. As we understand the finding of the trial court, this entry of $20,000 on the books of the corporation as salary due from it to appellee for the year 1933 was made in reality in anticipation...