*1 832 receiver, attention; superintendent, May- labor and and efforts ceiver’s is expended field and The evidence silent in the Grisham. and skill needed by to the than their rendered Wade other performance imposed, and services of the duties receiver, and ex- consultation with the business value measured standards; common tent of activity, integ this is shown. The extent serv- not degree and Chancery ices and the Master rity, dispatch with which work of and 386, spent by time is not clear. The p. him attor- receivership conducted.” S3 is C.J. neys employed had weighed in the receiver thereto- measures to be Sec. 629. The by plaintiff employed fore been and receivership pro defend- attorney’s fees in fixing ant, respectively, are, extent, in the suit and their large the same ceedings to a spective from this source was not fixing receiver’s fees which are considered either, shown. Ascertainment of such also fixing In the allowances to fees. weighed compensation fixing to be their principle consideration governing is that the fees in this rea estate. so should be allowed measured of their sefviccs rendered. value sonable foregoing condition of the record S.W.2d 265, State, Tex.Civ.App., 105 v. Pink does not finally pass enable this court 617; p. p. Sec. Sec. compensation and determine the C.J. Client, Attorney pages and C.J.S., § allowed each. 1080, 1081. remanded, cause is reversed and direction another and more com- the above are When considerations plete hearing performed here, on the services to the facts weighed compensation awarded each be fixed in ac- and at so made to receiver allowances principles cordance with the torneys observa- are unwarranted the services tions hereinabove made. The total amount allowed each monthly extending on a basis was calculated approximately forty-two period of over a monthly rate of re months $250 Grisham, ceiver, Mayfield $100 plant operated This Wade. was not $25 in operate attempt was made other no under the two-months lease to Van receivership an Nest. continued status after the first months. inactive twelve practi growing Litigation out same cally during twelve CITY been concluded the first STATE BANK & TRUST OF Mc CO. justify calcula months. This would not ALLEN UNITED PAPERBOARD CO., I to be allowed receiver at tion of fees nc. monthly torneys throughout at the same rate period forty-two months of time. $20,128.90 the ratio of to the When San Antonio. or value the estate 11, 1940. considered, of such unreasonableness attorneys be- to the receiver and allowances patent. further allowances comes in excess made are benefits which the from the efforts of the re- estate derived attorneys. Metro- ceiver politan Levassor Ky. 23, Fire Ins. Howe, 752, 755; supra; Roberts v. Brand Denson, State, supra. Pink v. not This record disclose under does Norman, superin
which court order tendent, rendered services. The character of his services extent and the ac definitely tually spent him shown. testimony given hearing dealt general terms with character of serv spent collectively by performed
ices and time *2 appears It that the bank was financing the Company under Products an ar- whereby containers, rangement such as cans cartons, used connection products, placed its the sale of in a bonded warehouse in McAllen. money against bank then advanced ware-
house and would release needed, upon payment containers when specified of certain sums. Riona on hand a amount of bottled considerable grapefruit juice negotia- and entered into 100,- appellant tions with manufacture approximately $1,300. costing 000 cartons specially were to be made cartons These juice so as to hold several bottles of display products of Riona advertisements Appellant refused to thereon. account, July upon open cartons and on products company the fol- wrote the lowing letter: 7th,
“July
Company
“Riona Products
“McAllen, Texas
“Gentlemen:
McAllen, for
E.
Chas.
July
which
your
“We
pellant.
100,000
is in
order for
cartons
reference to
Tisdale, McAllen,
Oxford
W. C.
approximately
which will
$1300.-
Oxford,
Edinburg,
you
we note
ask if
which letter
your
satisfactory with us if
immediately
guar-
their bank
NORVELL, Justice.
one half the amount of
covering
from judgment
order.
Hidalgo
the District Court of
County, Tex-
“With reference to
you
this we wired
as, awarding appellee,
Paperboard
United
morning
follows:
Inc.,
Company,
“
July fifth
‘Yours
assume that bank
Company
City
State Bank
antee is commercial
letter of credit
and Trust
of McAllen. The bank
have bank forward same at
once
appealed.
alone
Appellee’s
has
cause of
immediately proceed
will
with order’
action
far as the bank is concerned
arrangements
“If
suitable to us is made
grounded upon
the following letter:
bank,
by your
immediately proceed
will
we
“McAllen, Texas
completion
with the order
will
“July 9, 1938
shipment of entire order
make
on
Sight
to Bill
Paperboard
Lading.
Draft attached
“United
“171 Madison Avenue
“We are anxious to
with this
York,
“New
New York
hope
we
your
order and
will hear from
“Gentlemen:
return mail.
“Referring
your
7th,
July
very truly,
“Yours
1938, addressed to Riona Products Com-
Daniel,
E.
“Chas.
Treasurer”
McAllen,
pany,
you
request
which
a bank
Akin, president of
Lee
Riona Products
guarantee
representing one-
$650.00
Dees,
this letter
took
to W. W.
purchase price
100,000
half the
cartons
bank,
president
whereupon
vice
Dees
shipped
company.
to letter above set out.
wrote the
guaran-
“This is to advise that we will
hjghly probable
appears
tee the
arrival
$650.00
receipt
misunderstanding
par-
of said
between
truly,
“Yours
spe-
ties. Riona’s order
was
Dees,
one,’
“W. W.
manufactured said
cial
and when
Vice President.”
Hinds,
Tex.Civ.App.,
worthless to
practically
tamers would be
295 S.W.
Hill
Riona. The com-
any processor
Grocery
Mercantile Co. Rotan
undoubtedly
desired-
S.W.
American
purchase price
Surety
Koen,
Co. of New York
49 Tex.
payment of one-half
Civ.App.
started maufactur-
cartons before
*3
hand,
highly
it is
the
ing them. On
application
the
this rule to
facts
in ac-
wrote
that Dees
probable
necessitates,
of this case
a reversal of the
practice
usual
with the bank’s
cordance
trial
judgment-.
court’s
that
account. However
handling the
the trial court is reversed and
liability,
any,
be,
if
the bank’s
may
here
appellee
nothing.
rendered that
take
writing
solely upon a contract
founded
On Motion for Rehearing.
letter to
appellant’s
evidenced
Upon
case,
the trial of
appellee
this
in-
reply
and the bank’s
evidence,
troduced in
stipulation agreed
thereto.
to
involved,
part
all the
which in
appears that the
it
the letter
From
reads as follows: “The merchandise ar-
to Riona was
proposition
pellant’s
Brownsville, Texas,
rived at
August
sight draft attach-
cartons on
said
22nd, 1938,
possession
thereof could
can-
The bank’s letter
lading.
ed to bill
have been obtained Riona Products'Com-
with
being consistent
as
construed
not be
any
upon
thereafter
Riona,
delivery
terms of
transportation
the draft and
charges^
upon
based
liability
pay is
bank’s
dition, namely,
but Riona Products
never receiv-
receipt’
“arrival and
any part
ed
carrier,
of it from the common
ours.)
(Italics
transporta-
reason that
neither the
Edition,
Dictionary, 3d
Law
In Black’s
charges
tion
the amount of the
no.r
draft
act
transac-
receipt is defined as “the
paid.”-
was ever
taking anything de-
accepting
tion of
Appellee contends that we were in er-
livered.”
using
ror
following language
in our
cartons were
if the
that
will be seen
original opinion: “It will be seen that if
lad-
sight draft
bill
with
forwarded
sight
were
with
“received”
not be
they could
ing attached
lading
draft
not
bill of
attached
could
paid.
sight draft was
until the
‘received’
sight
Riona until the
inescapable
this,
conclusion
From
paid.”
draft was
na-
was in the
that
And,
for the first
it is asserted that
proposition.
a counter
ture of
the delivery of the cartons to a common
under the
bank liable
carrier
delivery
Riona,
hold
In order
and con
necessary that sequently
it was
“receipt” by
proposition,
the common
counter
car
strictly with the terms
rier
comply
amounted to a “receipt”
appellee
Riona,
did
meaning
guar
within the
anty.
thereof.
the letter of
conditions
applicable
“receive”
would
Cases
to the law of
that
carT
sales
support
contention,
cited
of this
such
tons.
Heidenheimer,
Alexander
Tex.Com.
that
record shows
the cartons
App., 221 S.W.
and Walker-Smith Co.
sight
terms of
shipped under
draft
«35 contracts, held as “where doubt uncertainty exists as to guaranty], contract meaning of a [of susceptible interpreta rendering to two * * * tions, guar one favorable to the antor, unfavorable, the former the other also, See, interpretation adopted.” sec. 39. Tex.Jur. rule to application of the above precludes case facts of this theory appellee upon advanced accordingly over- hearing. The motion is
ruled. DRY POPULAR GOODS CO.
DUNNING v. El Paso.
Court 1940. Hill, Paso, T. of El appellant. John Kemp, Nagle Smith, Goggin, M. J.
Wyndham White, K. all Paso, El PRICE, Chief Justice. appeal judgment from a of County El Paso Plaintiff, Law. May Dunning, Mildred sought recovery of
damages against defendant, Popular Dry corporation, Goods per- injuries. sonal jury, Trial was to a sub- special issues, mission on dict and on the ver- court in favor of defendant. duly perfected Plaintiff from the for convenience will be des- ignated were in the trial court. action, Plaintiff’s cause of as stated was, substance, petition, that on or day April, 1939, about the she en- department defendant’s tered the Texas Street store from entrance, intending proceed store; to the main floor of the in order for her to so it was -neces-