Strickland v. Pilgrim

• Decision Date: 17 November 1927
• Docket Number: (No. 597.)
• Citation: 300 S.W. 215
• Parties: STRICKLAND v. PILGRIM.
• Court: Texas Court of Appeals

Page 215

300 S.W. 215

STRICKLAND v. PILGRIM.

(No. 597.)

Court of Civil Appeals of Texas. Waco.

November 17, 1927.

Appeal from District Court, Johnson County; Irwin T. Ward, Judge.

Suit by H. M. Pilgrim against Mrs. Lenora Strickland and her husband. Judgment for plaintiff against named defendant, and she appeals. Reversed and remanded as to all parties.

R. A. Kilpatrick and Walker & Baker, all of Cleburne, for appellant.

J. E. Warren and F. E. Johnson, both of Cleburne, for appellee.

STANFORD, J.

This suit was filed by appellee against Dr. D. Strickland and wife, Mrs. Lenora Strickland, to recover $1,246.87 alleged to be due him by Dr. Strickland and wife as a broker's commission for the exchange of lands. In response to special issues the jury found:

"(1) That the plaintiff, H. M. Pilgrim, was the procuring cause of the trade that was finally consummated between the defendants Dr. Strickland and wife, Lenora Strickland, and Vermillion and Thomas.

"(2) That Dr. Strickland and H. M. Pilgrim did not agree that H. M. Pilgrim would represent Dr. Strickland in the closing out of the deal for the exchange of the Strickland properties in Johnson county for the Thomas and Vermillion land in Deaf Smith county for a consideration of $500."

On these findings and several other findings incorporated in its judgment, the court rendered judgment in favor of Dr. D. Strickland, but against Mrs. Lenora Strickland, in favor of appellee, H. M. Pilgrim, for $1,246.87. Mrs. Strickland has appealed, and presents the record here for review. A more complete statement of the case will be made in our disposition of appellant's assignments.

Under several assignments, appellant contends, in effect, that neither the pleadings nor evidence authorized the judgment against her, in that there was no allegation that the services rendered by appellee were rendered for the benefit of her separate property, and no evidence to establish such fact. Under other assignments appellant contends the findings of the court to the effect that the property traded to Vermillion and Thomas was the separate property of appellant, and that the contract of exchange was made for the benefit of her separate property, are without evidence to support same. We will consider these questions together. Appellee's petition, among other things, alleged, in substance, that it came to his knowledge, after the contract of exchange was signed by D. Strickland and Vermillion and Thomas, "that the title to said lands located in Johnson county was in the defendant Lenora Strickland, and that, in exchange of said property with said Vermillion and Thomas, the defendant Lenora Strickland had the deed to the Deaf Smith county land made to her;" that the plaintiff performed the services of procuring purchasers willing to exchange lands on terms satisfactory to defendants, and who did make said exchange, and the said Lenora Strickland thereby became liable to the plaintiff for the reasonable value of the services for so procuring an exchange of her said property, etc. The above is the substance of appellee's pleading in reference to the question of its sufficiency as an allegation that appellee's services were rendered for the benefit of appellant's separate property. Appellee alleged fully that appellant Lenora Strickland was a married woman, the wife of D. Strickland, and that D. Strickland, for himself and as agent for his wife, Lenora Strickland, listed said land with appellee for sale or exchange. On the trial a part of the deposition of D. Strickland was introduced by appellee as follows:

"I was acting for my wife at the time I made the listing of these lands. I was agent for my wife. * * * It is a fact that I listed with Pilgrim, in the fall of 1926, the tracts of land he has mentioned here in his testimony. I referred to it as my lands. I mean by that, of course, that is the land my wife holds the title to; that is, the Grandview farm, the Brazos River farm, and the Eagan farm."

Appellee also introduced a part of the deposition of Robbins, the Amarillo agent who represented Vermillion and Thomas in the exchange of properties, as follows:

"It seems to me that I heard a conversation between Dr. Strickland and Vermillion and Thomas in which Dr. Strickland said to them, `Deed this land (the six sections in Deaf Smith county) to my wife, Mrs. Strickland, and not to me,' but do not say for sure about that."

There is no evidence that Mrs. Strickland was present when this conversation occurred. Appellee testified in part as follows:

"I was claiming off of him and Mrs. Strickland 2½ per cent. of that amount, that is what they had agreed to pay me, 2½ per cent. I had talked to Mrs. Strickland about these trades. She had talked to me a number of times. As to whether or not Mrs. Strickland knew this Thomas and Vermillion trade was being made, about all there was to it was this: She expressed herself as hoping that I would be able to make the trades for her, and that Dr. Strickland said he was sure I would be able to make them, or something to that effect. I couldn't remember exactly what Mrs. Strickland did say, but something to that effect. * * * That deed (to the Plains lands) was made to Mrs. Strickland. As to when I learned that the Johnson county lands were in Mrs. Strickland's name, when the deeds were to be written Dr. Strickland told me he wanted the deeds to be made to his wife; that he kept all of his property in her name."

Appellee's petition having alleged that appellant was a married woman at the time the alleged services were rendered by appellee and at the time this suit was brought, in order to entitle him to a judgment against her, the burden was upon appellee to plead and prove facts necessary to bring the case within the class of liabilities for which a married woman may be personally liable. There is neither pleading nor evidence that the lands in Johnson county, conveyed by D. Strickland and appellant, his wife, to Vermillion and Thomas, were the separate property of appellant; neither is there pleading or evidence that the Plains lands received in exchange for the Johnson county lands were conveyed to her separate use; nor was there pleading or evidence that the contract with appellee or the services rendered by him thereunder were for the benefit of appellant's separate estate. Gamel et al. v. City Nat. Bank (Tex. Com. App.) 258 S. W. 1043; Mills v. Frost Nat. Bank (Tex. Civ. App.) 208 S. W. 698; Menard v. Sydnor, 29 Tex. 257; Smith v. Brownson & Co., 53 Tex. 271. It is true appellee alleged that the title to said lands located in Johnson county was in appellant Lenora Strickland. It is also true Dr. Strickland...