*1 аnd remand- The judgment affected is reversed any claim interest which would un- with the cause by declaration, shall ed and no direction dismiss declaration be- necessary parties brought less all are persons parties prejudice rights of * * are fore costs of the court. The proceeding adjudged appellant and against one-half fide actual and bona “There must be an one-half against will controversy judgment as to which the requires adjudicata. case
be res Such a parties be be
that all the interested shall Thea Washington-Detroit
fore the court.” Moore, 673, 229 N.W.
ter Co. v.
Mich.
also,
parte
See,
Ex
619,
Hirsch’s
2d 211. COM DIAL TEMP AIR CONDITIONING & In Dobson v. Ocean Accident Guaran- Appellants, al., PANY et Corporation, 247 N.W.
tee 124 Nеb. 789, 790, had ob- Campbell’s administratrix FAULHABER, Appellee. H. Charles against city of Gil- judgment tained a No. 15669. his death. lespie negligently causing for by falling He into an excavation was killed Appeals of Texas. Court of Civil con-, by in a street made Dobson under Dallas. The city tract with the to install sewer. July 15, 1960. Dobson, claiming that city threatened to sue Rehearing by any Denied Oct. loss sustained he was liable Dobson' city judgment. reason of the Corpo-
sued Accident & Guarantee Ocean Dob-
ration, policy which who had issued a him loss
son contended insured by reason injuries occurring
account excavation, a de-' Dobson asked in-
claratory judgment determining liability from Dob- arising for loss
surer’s city. liability city The
son’s “It party that suit. court said: case the trial court in this clear to determine con- jurisdictiоn no
had plaintiffs city of
troversy between city party not a
Gillespie, because No rendered
to this action. city, binding upon would be court upon city, binding if not neither upon plaintiffs binding it be
would any liability
respect claimed them Hence, that, it city. follows
by attempted judg- to render a court trial conformity prayer plain- with the
inment petition, it would not terminate the
tiff’s controversy.”
uncertainty or *3 Hart’t,
Tobolowsky, Schlinger & Bla- Dallas, lock, appellants. Knape, Dallas, T. Wilbur tin, and a his claims release of all DIXON, Chief Justice. Conditioning Temp Air and Dial suit filed H. Faulhaber Appellee Charles $1,828. Company for a consideration Condition- Temp Air Dial in 1957 Mar- S. Hugh corporation, Company, ing are portions The material the release president tin, individually and as as follows: individually Graham, Tip corporation, and payment of “In consideration of corporation. vice-president of Hugh Martin to S. $1828.00 Art. under Appellee sought damages receipt is here- undersigned, of which resulting from Ann.Civ.St. Vernon’s *4 I, Faul- H. acknowledged, Charles corpora- him of alleged sale to fraudulent haber, Hugh S. hereby do transfer to 1951. in purchased tion which he stock my (all Martin 65 shares of stock party as a Tip was later dismissed Graham Temp Air Condi- stock) in Dial litigation. to the Co., private corporation, and tioning a based judgment a March 1959 On accept payment for full said sum in of favor in a verdict was rendered stock, claims, in salary all and said $5,000 was $15,000, appellee which for of complete full all and and settlement of $10,000 for exem- damages and for actual singular action, claims of causes plary damages. nature and kind or demands of up whatever which I have had On Faulhaber December 1951 hereof, Hugh against date the said him Air bought Lone 60 shares of stock in Star individually, Martin, against the S. Company a consideration Conditioning Temp Conditioning Dial Air Co being $6,000, amount of his check for that employed; I do have been and payable company. On that madе hereby in of the above consideration company was name of same date the Martin, give Hugh amount individ- S. Engineering changed to Martin-Johnson ually, Temp Dial Air Condi- and the Company. certif- In 1952 a October stock Co., complete tioning full release and icate 65 shares of stock in Martin-John- claims, acquittance salary and from all Company Engineering son was issued action, every and from all and of cause appellee, representing the 60 shares stock of claim and demand the said bought in December 1951 and shares five Hugh Martin, individually, S. bought Ivy from for a later Stewart Joe Temp Conditioning Dial Air as Co. September In 1955 consideration of $500. up aforesaid to the date hereof. company changed the name of Temp Conditioning Company. Dial Air my “To which witness hand this the The charter amendment shows February, day 28 1957. of was then Board one of three members of the Faulhaber H. “/s/Charles Directors, being of the other two members appellant Tip The Graham. “Approved: capital company be of the was recited to Braecklein William O $100,000, paid all in. “/s/ “Attorney for Charles Faulhaber.” Appellee сharges Faulhaber various acts part pres- of misconduct on the of Martin as statutory The instrument bears acknowl- company. ident of the As a result he em- edgment Faulhaber taken before ployed lawyer February On 1957. notary public. Jacks, Mary Louise February 28, Temp Dial Air 1957' Condi- objections Appellee name, levelled, has to each tioning Company, change after a appellants’ points says day that same doing ceased business. On them, present, we appellee, attorney should with his executed consider rples from departurеs. all to Mar- of certain for the sale of eged( .contract stock 86 the trial such it must held example asserts briefing. he For made im- court follow (1)point does No. One plied under T.R.C.P. findings Rule 279 nature
correct statement misrepresen- regard to said fraudulent merely abstraction case, and an (2) is tations. for de- present real does not
cision in a
manner.
concrete
agree with
cannot
alleged
representations
fraudulent
objections
overruled.
Appellee’s
are
alleged
independent
grounds
of de
appeal, as
appellants’ points on
While
form,
legal
fense
effect of the release.
as to
drawn,
open to
are
criticism
Not
submitted,
particular
having
out
they clearly
in substance
defense
appeal.
must be held to have been waived.
appellants’
specific
grounds
T.R.C.P.;
Ratcliffe,
Ormsby
Rule
proceed
consider
Therefore
shall
1084; Long
Tex.
City
S.W.2d
of Civil
Rules
Texas
them. Rule
Austin,
Tex.Civ.App.,
Procedure.
*5
Further,
appellee
though
pleadings,
in his
appellee Faul-
undisputed that
It is
and brief
general charges
makes
of fraud in
Feb
on
written release
haber,
the
executed
procurement
the
and execution of the re-
he had
28,
so
1957,
doing
that in
ruary
and
lease, he
point
does not
evidence
out
attorney.
own
advice
his
the
and
services
in
support
the
in
record
such charges.
knowledge
had full
At this time he
Quite
he,
contrary
himself,
testified'
claims he
appellants, which
against
claims
by
February 15,
that
about
1957 he had'
recovery of this
for his
relies on as a basis
appellant
to
ceased
believe
Martin.
was-
It
Therefore,
aside
set
until
judgment.
Martin
suggested
appellee
then
who
that
appel-
aas
bar
stand
release must
employ
should
attorney
an
to advise him ira
sale
regard to the fraudulent
claim
lee’s
in
matters
to
pertaining
the settlement which
is the
stock,
claim
corporation
if
parties
were negotiating.
Sometime
appellants.
suit
appellee’s
basis
17,
February
between
February-
1957 and
Co., 144
Ins.
General
&
Hart v. Traders
21,
employed
attorney,
Wom
493;
v.
Atkins
146,
Tex.
189 S.W.2d
Braecklein,
William O.
he
whom consulted
688.
S.W.2d
ble, Tex.Civ.App., 300
regard
in
his settlement with
Martin
in
claims
that
one
no
significant
it is
think
and his execution of the
It
release.
will
release
testimony that
pleadings or
be obsеrved that
the written release was
that
on
was
tried
case
not
The
ambiguous.
acknowledged
signed
by appellee
and
before
theory.
notary public,
and that
the instrument
the im-
obviously recognized
Appellee
signed approval
also
written
bears the
in his second
release
portance
appellee’s attorney.
that he was
alleged
he
petition
amended
Appellants’
first
on
is that
by certain
(1)
the release
caused
execute
the court erred
failing to direct
ver-
him
misrepresentations made to
fraudulent
appellant
special'
dict for
and in submitting
16, 1957 and
February
between
jury
No.
to the
Issue
Six
as there was no>
release was
the date the
February
insufficient
evidence
evidence to
or
by certain threats which
executed;
(2)
and
such issue.
and du-
“persuasion, coercion
amount
Six,
No.
and the jury’s
ress.”
Issue
were as follows:
answer
submitted to the
No
preponderance,
you
“Do
from a
find
alleged
to the
fraudulent
reference
with
evidence,
that
pro-
regard
Charles
misrepresentations
Faulhaber,
sign
caused
H.
execution of
release.
and
curement
28, 1957,
February
by-
dated
Appellee
that
absence
release
contends
n duress?
Association, Tex.Civ.App., 105
An-
Insurance
‘yes’
‘no’.
Answer
405;
Pa-
Conklin Missouri
‘yes’.”
swer
Ry. Co.,
cific
Mo.
55 S.W.2d
testimony
in the record
Appellee himself testified that he had told
brought
that
reference
duress
has
Braecklein,
attorney,
appellants’
about
by appellee.
was offered
our attention
lease,
regarding
threat
Braecklein
if
(1)
him
He
that Martin told
testified
perturbed
“didn’t seem to be
about
it.”
would
he
sign
he did
release
Braecklein
testified
he talked to the
lease,
building
company’s
'held liablе on the
landlord and
told
the landlord
years to
which still had three and a half
of trying
had no intention
hold
run;
him that
(2) Martin
told
also
liable
the lease.
Faulhaber,'
if
him,
he would counter-sue
legal
alleged
Further the
statement
Faulhaber,
about
thing
this
to court
‘‘took
lease,
liability under the
does not amount
charged
what I
him with”.
prove
didn’t
signed
to duress
at the
he
time
appellee he
Martin denied
he told
release, appellee
represented
lease,
liable on
but
would be held
legal
said,
counsel. As we have
the state
present
appellee’s
purposes
accept
we must
legal
part
ment was a
conclusion on
as true.
.statement
Appellee
Martin.
the services
attorney.
advice of his
knew
He
opinion
It
our
that as matter
have known that
should
he was
liable
undisputed
facts of
-of law under
Ry.
lease. Texas &
N. O.
Co.
appellants’
-case
statement
Hawkins, Tex.Civ.App., 112 S.W.2d
*6
company
un
be liable on
lease
would
Austin,
al., Tex.Civ.App.,
v.
179
Kinchen
et
release,
con
signed
he
did not
less
924,
Braecklein
S.W.
926.
testified that
expressing a
Martin was
stitute duress.
with the
discussion
landlord he had
his
any
In the
opinion.
legal
absence
that the
informed
other
landlord had
relationship,
any proof of
fiduciary
or
property
only
and would not
uses for the
knowledge
ig
superior
advantage of
taking
individuals,
against
claim
but
make
not
expression
norance,
not amount
such
does
company
release
Knowl
would
too.
Tex.Civ.App.,
v. Rugel,
Mann
to duress.
attorney
ap-
imputed
is to
to
edge of his
585; Safety Casualty
v.
Co.
228 S.W.2d
pellee.
Cowick, Tex.Civ.App.,
Prichard v.
McGee,
121
Tex.
133
127 S.W.2d
689;
Royalty
Mutual
287
Farmers
S.W.2d
Co.,
Ry.
1263;
F.
Panhandle
A.L.R.
& S.
Inc.,
Isaacks,
Syndicate,
Tex.Civ.App.,
v.
O’Neal, Tex.Civ.App.,
S.W.2d 1077.
119
v.
;228 5
138
S.W.2d
Tex.Jur.2d
already stated, aрpellee
have
him
As we
Martin,
testified,
referring
that
to
self
What,
then,
alleged
of the other
he
“be
ceased
February
had
to
duress, namely,
appellant
that
Martin
act of
ap
him”; appellee
that
also testified
lieve
a
against
enter
counter-suit
threatened
sug
negotiating
during
Martin
their
pellant
appellee
appellee if
took the matter
appellee
attorney,
employ an
that
gested
prove
unable
charges
his
court
did.
appellee
which
It is
against Martin?
to be observed that
simply
appellee
threаten
Martin did
think that Martin’s state
Moreover
lawsuit.
he would
said
sue
with
liable
would be
that
ment
if
went
court and
because
not constitute duress
does
lease
Faulhaber
prove
case.
failed
equally available to both
facts
dishonesty
charges of
and miscon
made
knew,
appellee either
or
.parties,
president
Martin as
of the
duct
diligence
reasonable
should
exercise
corporation.
he
not be held
would
known
have
merely
Rugel, Tex.Civ.App.,
statement was
228 Martin’s
as-
v.
Mann
liable.
legal right,
585;
Employers’
the assertion
Duncan
sertion
v. Texas
S.W.2d
рlaintiff,
legal right, though
Faulhaber,
of a
made
the form
would
have
threat,
purchased
not constitute duress.
of a
does
said stock:
Co.,
Ins.
Hubacek v. Manufacturers Cas.
'yes’
“Answer
or
‘no’. Answer:
173;
Tex.Civ.App.,
Kunkel v.
247 S.W.2d
‘yes’.
Clarksville, Tex.
Red River
Bank in
Nat.
962;
Civ.App., 202
Cleburne State
S.W.2d
“In considering your
answer to
Bzell, Tex.Civ.App.,
Bank
question you
foregoing
are instructed
297;
Shelton,
Trigg,
al. v.
Tex.Com.
et
State,
fraud in
actionable
Scarborough,
App.,
249 S.W.
Ward
regard
with
to transaction in stock
al., Tex.Com.App.,
et
§9 you “In considering this of the evi- weight a comment on the was persons guilty the are that all authorizes instructed dence. Rule 272 T.R.C.P. fraud, law defined shall be jury as as above the to the trial court instruct person court liable to the for all facts, forbids the defrauded it arising on the but suffered, actual rule on damages evidence. the weight the to comment on the damages giving being the difference between Rule the 277 does not authorize represent- the necessary property enable value of the as instruction which is not ed or pass upon issue as it been worth had jury properly the fact would have the preju- promise the submitted, fulfilled, calculated to and the which is been jury. time parties before actual value the one of the the of the stock at diсe Stores, al., 141 delivery.” et Auto the contract and Boaz v. White’s Further, the Tex. measure Under Art. 4004 V.A.C.S. practice, theory special issue whether of our damages fraud in stock for actionable jury pass on good bad, is to have the sales is the difference between value regard disputed without fact issues property represented it or as would as judgment to effect of their answers promises have been worth had Prac- McDonald, Texas Civil be rendered. fulfilled, property actual value of the tice, 1050) 12.04. (page Secs. 12.02 in at the time the conditiоn it is delivered of the contract. though the It observed will be is defined in term fraud” “actionable agree appellants that is there in issue. instruction, appears it nowhere in no evidence the record of actual a definition There was need for such no value of the in of stock December shares jury’s answers Based on instruction. contract, in the time of the about, was inquired it to the facts they condition delivered judge, jury, decide whether attempt prove Appellants October 1952. Appellants’ present. actionable was fraud by means of a financial statement dated point second sustained. company 1952 that the had sustained June Appellants’ effect third year. heavy during financial loss the fiscal special submit it error to asserts that was statement, though This it referred there no (1) No. eight issue plaintiffs’ Exhibit No. Four was intro- issue; (2) there support evidence to duced into evidence—at least it is not in- it; (3) insufficient evidence to cluded in the exhibits shown in the record. multifarious; phrased issue as Anyway in compa- this case evidence accompanying the *8 (4) the instruction ny’s condition in is not evidence June weight of evi- a the was comment on the damages prescribed by of the of measure dence. Art. 4004V.A.C.S. Appellee Eight, quote any in
Special Issue No. the does not or cite tous accompanying jury’s struction it and evidence as the value the of shares in answer at ti'me of the contract were as follows: between appellants and prepond- from a you “What do find evidence, erance actual of the was the interesting In this connection it is of stock in
value of the 65 shares jury apparently note that was of aware Engineering Com- & Johnson lack of evidence in of issue. Faulhaber, pany purchased by retiring jury After to deliberate the sent delivery or purchase at the time of “If a note to the court as follows: we find of the same ? no evidence a to establish value of stock ‘no dollars’ purchased may we answer “Answer in Answer: ‘No or Dollars. — established in evidence’?”. Dollars’. ‘no value is1 n . punishment, special way of and issue as to be observed that Seven, example public, good for the special No. Eight, like No. compensation may when also include shares of stoсk inquires about 65 re- in the suit. inconvenience and other losses too involved were shares mote to be considered under actual jury permits the framed issue as The damages. it would at which make choice the time a of you at the time “In considering either the stocks: value delivery. The persons making are instructed all purchase, at the time or purchas- representations undisputed promises, false facts show that Air persons Star all deriving in Lone shares of stock the benefit of said ed 60 time a Company. severally Conditioning jointly At fraud shall be way. under corporate reorganization damages, was liable in addi- and in actual changed to Corporation’s thereof, name was persons, knowingly tion all Company. Engineering wilfully repre- making such false Martin-Johnson purchase contract of promises, knowingly time after the sentations or Some in the of stock taking into 60 shares the advantage entered of said fraud corporation delivered damages iatter were shall be liable in exemplary them, becoming accepted later person defrauded, and he in such Board corpоration’s member of jury, amount shall be as assessed Directors. not to exceed the amount the actual damages suffered.” accompany- opinion instruction
In our Eight unneces- No. ing Issue improper The issue as drawn is weight of on the sary, and a comment it assumes that some amount must be found' also mention- The instruction the evidence. exemplary damages. permissible It ” thereby defined, “fraud, as above ed give a correct definition the term “ex- accom- the instruction referring the emplary damages” when using an issue Seven, have No. panying issue properly term drawn. But we see no' objectionable. already held was paragraph need for the second of the in- structions which amount to a comment on appellant point asserts In fourth weight Appellants’’ evidence. instruction Nine and the Special Issue No. point fourth is sustained. constituted comment accompanying it evidence. weight of the Appellants presented have a so-called fifth which we regard as Nine, the instruc Special Issue No. urging motion us to reverse and render answer it, jury’s and the accompanying tion in this casе rather than reverse- as follows: and remand for another trial. preponder- you find from a do “What We would be inclined to reverse and evidence, amount ance of judgment because of render failure you allow and exemplary damages grounds to establish setting *9 herein in favor of the assess aside However there the release. are mat- Faulhaber, against H. the de- Charles appellants’ the ters in record of own mak- Temp Conditioning fendants, Dial Air present which difficulties. ing Hugh Company and S. Martin? requested Appellants the court to submit $10,- in dollars. “Answеr Answer: inclusive, Issues Nos. Five One to 000.00. all which have to do with the of release. inquired
“By ‘Exemplary (1) appellee the whether Damages’, term These issues compensation compromised and settled all by allowed claims means law which appellants by damages, the any, in addition to actual if he had execution $1,828; receipt they argue point of the in their and the fifth of the release appel- appeal the appellee represented to that court erred in overruling (2) whether settle their stock and that would sell his This would indicatе that lants he motion. ap- they position took $1,828; whether the (3) all claims for there no support settle evidence to pellants jury would the believed verdict. But $1,828; in their for motion non all claims and his stock obstante sell veredicto and rep- in their appellants on such trial, they whether relied motion for new (4) attack only Special resentations; Issues (S) whether Nos. Six to Nine in- of position ahead preferential a clusive. to secured With reference first the five issues, the of appellants, ahead of creditors in their judgment motion for non $1,828 on Fеb- corporation by receiving they say: obstante veredicto “The first each ruary 28, jury answered five of 1957. these were defensive issues on which of the above issues “no”. these two defendants had the burden proof. They
of did not establish their jury’s affirmative a preponderance defenses Appellee contends that evidence, according of the him jury’s entitled to the to the first five issues answers findings.” an jury’s judgment regardless of to Nine Six to Special Issues Nos.
swers to
again call attention that no one
dealt
the first five issues
inclusive. Since
n onlywith the releasе and
in this case claims the
ambigu
release was
nothing to
ous
its terms. The construction and
appellee’s suit
regarding
with the
do
interpretation of
V.A.C.S.,
instrument was there
damages under Art.
for
question
judge,
fore
of law for the
appellee’s
merit
claim.
we see no
fact
jury.
for the
10-A Tex.Jur.
improper
405. We think it was
to submit
says
further and
goes
But
issues,
they
first
permitted
five
for
requested
appellants
since
submission
express
legal
erroneous
conclusions
they
will not
five issues
of the first
contrary
clear,
unambiguous terms
complain
verdict that
after
allowed
Forrest,
n evidence
Schoenberg
release.
their
was insufficient
Tex.Civ.App.,
On
support appellee’s
the case does not
con-
opinion,
original
As
stated in our
we
tention that
the 'issue No. 7 as submitted
is
February
1958
until the release
multifarious,
in our case
that
aside,
stands
bar
set
instrument
as
properly
it was
regardless
submitted
alleged
against appellee’s claim based on
appellants’ objection.
corporation
him of
earlier fraudulent sale to
the record
stock. We further hеld
merely
While it
been
has
held that
setting aside
adequate grounds for
shows no
evidentiary
may
grouped
facts
sometimes be
really
it
Therefore
becomes
release.
together
issue,
in
long
one
held
it has
of this
immaterial
to the outcome
separately
each ultimate issue must be
relating
whether
Issue No.
objection
submitted if
made
either
fraud,
properly
alleged
the earlier
party
duplicitous
to a
or multifarious sub
subject to the
submitted or whether it was
mission.
In addition to the authorities
multifarious,
we
as
objection that
it was
original opinion
submitted in our
cаll
However,
possibility
in view of the
held.
Thompson
attention to
following:
v.
believe it
of another
of this case we
trial
Robbins,
157 Tex.