*1 438 appeals contending
Plaintiff points, on 3 here only reflects defendant owned 301.77 rendering summary (or trial 295) court erred acres. judgment because: discrepancy With in quantity
1) a fact There was issue as to whether (or acres more than 38%) between the
the listing agreement description card agreement, and the land contract, owned, entire written which description or memoran- defendant parties; fatally defective, dum between agreement and the unen- forceable. 2) listing agreement card contained The contention is overruled. description sufficient fact to raise a description issue as to whether is correct. unerringly would “lead an identi- Affirmed. tract.” fiable Plaintiff asserts con under its first
tention that defendant delivered to it at signing agreement, listing time of documents,
additional these docu may descrip
ments be looked aid to to listing agreement.
tion set in the out reject the contention. The contract can LANGFORD, III, Appellant, P. P. specifi enlarged by not be documents not v. cally referred to v. the contract. Rosen SHAMBURGER, Jr., Individually CCA, Er.Ref., 104; Phelps, 160 S.W. Wil Trustee, Appellee. Fisher, son v. 150. Tex. No. 16810. Plaintiff’s second contention is that Appeals Court of Civil of Texas. listing agreement de- itself furnishes such Fort Worth. scription description, or reference to such April 14, 1967. preclude judgment. summary as to Rehearing 30, 1967. Denied June adequate requiring The rule an de
scription under the Real Estate Dealer’s 6573a,
License Article Sec. Ver Ann.Tex.Civ.St,
non’s is the same as
governing the construction of the Statute Frauds, Article Tidwell V.A.T.S. Cheshier, 153
v. 265 S.W.2d writing
It is that “the must furnish within
itself, existing some other reference to
writing, means or data
particular conveyed land to be certainty.” with reasonable Wil
identified Fisher, supra.
son v. listing agreement
It is true signed
defendant contained several ele description and
ments of reference to Company.
oil lease to Meredith & Co. Oil agreement the land is described in
But acres, approximately 488 record *2 daughter, Dorothy Shamburger. She married Pierce Their Jr. Langford
children Pierce (appellant III here), Langford and Langford. Stan Sue *3 son, Shamburger, C. D. (ap- Jr. pellee). family pertained the This was status as grandchildren to the children and of C. D. Shamburger, and his wife as of Novem- Sr. 11, 1943, ber date of the first trust herein- after described. Pеery, Jameson, Kearby Wilson & Sr., Shamburger, very Mr. C. D. was
Peery, Falls, appellant. Wichita for businessman, primari- astute and successful ly engaged in the cattle and lumber busi- Nelson, Robertson, Montgomery & Co., Lumber Shamburger ness. The C. D. Robertson, Spence, Ernest Martin & Ri- Inc., he owned in of which excess of 80% Falls, chie, Martin, and Howard L. Wichita stock, parent compa- of the the lumber was appellee. for ny which did business with some 27 branch companies lumber located North Texas LANGDON, Justice. and Oklahoma. He owned ranch lands in 30,000 Texline, Texas, 'excess of acres near OPINION Paducah, County, a ranch at Cottle large He ran Texas. herds of cattle on III, Langford, This is a P. suit P. these ranches. pellant, beneficiary, against the C. D. Jr., Shamburger, individually, and as trus- Sr., Shamburger, Mr. made numerous tee of the P. III P. Trust and as gifts personal property of land and to all Independent Executor of the Estates C. three of his children at various times. Sr., Shamburger, D. (Alma) Mrs. C. D. Among gifts daughters, Grayce the his Sr., Shamburger, appellee, for an account- Dorothy Langford, Clark and were several ing money allegedly to interest on bor- hundred (Or gifts head cattle. were trust; rowed from the for interest on trust through made resрective them to their hus- funds which were invested not trus- bands.) gift After this to them Mr. Sham- tee; proceeds or trust said to have been Sr., burger, prevailed upon daughters his commingled with those of the trustee and respective and their husbands to create a profits realized through the trustees naming him as trustee and placing self-dealing with trust funds. Trial was with him these several hundred head of cat- jury, had before a and based tle for the children, use and benefit of their jury’s findings, the District Court entered grandchildren. This trust was created judgment for appellee. We reverse the on November Shamburger, C. D. 1943. court below and remand Jr., was a trustee or co-trustee under the case for a new trial. this trust. exclusively by It handled C. was D. Shamburger, Sr. Shamburger, C. Sr., D. wife, and his Shamburger, Alma Falls, of Wichita Tex- 31, 1946, On December P. Langford, P. as, parents were the of three children as Jr., joined wife, Dorothy Lang- S. follows: ford, E. B. Clark and D. Sham- C. (1)A daughter, Gracye Shamburger. Sr., burger, prior revoked trust of Nov- Clark, Eugene She married Their Sr. son ember Contemporaneously Clark, is Eugene their revocation of the 1943 these Jr. run whereby co-trustees would trusts out parties created three new same land on cattle their own cattlе as well prior trust for the benefit the assets of them, pay grandchildren Langford and a trust three of the children use appellant, rentals Clark, including Each of the new Eugene Jr. ownership of grasslands. corpus of the Langford trusts as the disassociated completely was grassland (1/3) one-third interest trust an undivided From property. from the Langford inter- allocated the in the cattle in ex- paid was through 1956 trust, together with original under est land. for his $22,000.00 rental from cess any money derived increase and their benefit cattle sales. Each new trust for known as acquired property D. grаndchildren appointed C. Sham- Compa- Lumber Shamburger-Langford Shamburger, Jr., burger, Sr. Walters, One-third ny Oklahoma. *4 co-trustees, possession take of and to other appellant’s and the by the trust owned properties. control the manage and sister, Stan, brother, by and his two-thirds terms, the 1946 In’ addition to its other Sue, respectively. provided: further No. 5 contends appellant point his The any and “The trustees successor Court erred in not sustain- the District that adequate all times maintain and at shall in limine was directed motion ing his comprehensive records items showing all of that he had еxclusion of evidence to the income, property, expenditures and re- judg- in which in two other cases been sued serves, posted shall to date which record him; that his against had been taken ments accurately and shall show the condition of gifts had numerous grandfather made calendar the trust estate of each close he family; that of him and members his year, and of each fiscal month calendar or trip airplane half a dozen took an to some posting place during and such shall take countries; an purchased that different suсceeding and at the end of the immediate had expensive sports car camera and calendar month. By points expensive lake his built house. N 6, 7, 8, 9, 10, complains 14, appellant 12 and of in evidence permitting the court’s action “No trustee shall ever be liable for jury mat- introduced before the on the be. act of omission or commission unless such (above listed) ters in his mo- contained act is result or of negligence of in permitting tion limine and in evidence bad faith defalca- trustee’s own paid $22,- that been he had in excess tion, indi- and no trustee shаll be liable ever By points in 000.00 rentals his land. vidually any obligation of the trust.” urges 16 he permitting error in argue defendant such matters. Sr., Shamburger, C. D. C. Sham- and D. accepted
burger, Jr., appointment as co- agree We appellant. with the agreed the trust and to be bound trustees of in limine motion to exclude con evidence provisions handling in its terms cerning such extraneous matters newly trust estate. created trust was have been sustained. Such evidence and subject irrevocable and Tex- made to our arguments based thereon had no bear 7425b, Art. as Trust Vernon’s Ann. ing upon the mеrits of the case or the ulti Civ.St. jury mate fact issues which had to de the property In addition to covered objections termine thereto should have Sr., Shamburger, given had been sustained. grandchildren each of his several thousand Appellant, land. P. acres of P. trial At best the was involved highly III, 4,292 given grassland was acres of near in technical nature. The extraneous matter Texline, Arrangements Texas. were made jury introduced before the was calculated allegedly pay account willing to it. The enlighten were rather than to to confuse Company Lumber Shamburger evi- owed purpose to served such
only other then reply, was and, upon his affirmative minds prejudice be to dence would just like pay account that com- if he would and to asked by its introduction jury suit Naylor where paid the account argument he had injury by permitting pound this taken brought and been had emphasizing prejudice. against him. permitted to objection appellee was Over money argues since Appellee that appellant built a lake prove had pay judgments, appel- these $37,956.56 was advanced and that a cost of hоuse at mon- for the required account paid him rentals grandfather had lant’s stipu- limine, appellant ey. In his motion $22,000.00 grassland for his excess any conten- make 4,292 he would not lated that given him This acres land. advancing appellee for against tion part as fol- argument followed was pay judgments. for such sums lows: court, open out- stipulated in Appellant also Shamburger, made Plain- “C. D. Sr. jury, presence side the rich,- tiff evidence shows it. appellee against contention making no * * thing. We know know one ad- concerning judgments these or monies years after it was these cir- pay them Under *5 vanced to off. * * * part of Plaintiff. Now this is not cumstances, it are the that we of you; gift outright his mind this is of clearly trial court to sub- error the by grandfather. land to this Plaintiff jury. these mit issues on matters to ** * leasing P. III is this P. case, Upon it retrial of this got grand- land that he from this gift a dealing in mind that we here with kept father, 4292 grassland, acres of * * * an express distinguished trust as from an personally. that can he use He Appellant is trust. implied or constructive given had them the then land first and upon implications to relying establish cattle, put they their own trust cattle on relationship relаtionship. of the trust land, graze let them on the land —neat idea. by established as matter of law is a * * * always I have is heard that blood expressed provisions of the instrument water, evidently thicker than it but isn’t as obligations imposed itself. The and duties money, thick as and so here he comes back upon him upon imposed were those court, wanting into and is get to sue and express of trust. an money, more not satisfied with what has been based that little lake cabin down there 956.56. Where The further “The ‡ upon [*] >9 undisputed testimony shows that this improper evidence: him argument do you get wаs then that grandfather. cost figure? made, $37,- trust instrument lieve This is incumbent that the While constructive fraud as is the trustee from négligence a trustee was it is true vital distinction between actual in the appellant or bad that this case guilty liability except faith, language of purports to re- pointed actual fraud. it is still not to establish out of the Well, dispute you know he had a little Pomeroy language: in the following Henry Naylor, and he to be sued before “The element of actual distinguishing Henry pay Naylor, he would so there went * * * always fraud is between untruth $11,145.70.” parties transaction, the two sо
Even the trial court had ruled out may misrepre- after actual fraud reduced Naylor judgment, appellee get sought sentations and This untruth concealments. * * * virtually jury through evidence before an- intention- at law must be falsehood; Appellant al, other if in intention is equity means. was asked he —a Trust, 143 Slay v. Burnett Untruth is not distin- not so essential. Supreme fraud; Court (1945), constructive guishing element “intent to defraud” again declares beneficiary: recovery is immaterial to simply a term fraud “Constructive is matters, to defraud and intent transactions, “These variety plied great damage to the conspiracy injury or in form or either having little resemblance the determi- beneficiary, are in immaterial nature, equity wrong- regards which ** * It liability nation in this case. ful, or it attributes the same simi- this kind re- is well settled that in a suit of from ac- lar those which follow effects as covery beneficiary may be had even fraud, gives the tual and for which it same though damages suffered no granted or similar relief as cases though even have acted Pomeroy’s Equity Jurispru- real fraud.” good faith.” dence, Ed., 3, 922,1941. 5th Vol. § Jurisprudence Texas rule is sum- Story legal or constructive fraud: calls marized follows: “It has been defined as an act which relation, “Any abuse of confidential inquiry law fraudulent without declares misappropriation property of the of another * * * necessity its into motive. therein, or participation unconscion- phase considering this of the law arises dealing whereby able prop- the transfer of frequently most in controversies which erty obtained, constitutes fraud in the persons grow dealings out of between when eyes equity.” Tex.Jur.2d, court fiduciary occupies one or confidential rela- p. 461, Constructive Fraud. § Story’s Equity tions to the other.” Juris- prudence, Ed., 1918, 14th Vol. consist- legal more principle There no guarded
ently jealously applied or more *6 Supreme applies Our Court of Texas has to than that which our Courts long recognized why a benefici fiduciary. reasons Cardozo conduct of a Justice case, ary, in this is not the rule in this perhaps expressed best has required prove to to actual fraud recover regard: defalcating
from a trustee: in a permissible of “Many forms conduct “ forbidding ‘The acting rule conflict between workaday for those at arm’s world duty respecter persons. interest is no of fi- length, to those bound are forbidden imputes It fraud, something constructive because the held to duciary ties. trustee is temptation fraud, facility actual market the morals of the stricter than it, of And concealing great. honesty alone, are so it im- punctilio but the place. Not alike, putes it sensitive, all who come within its is of an the most then honor scope, much open however or however little to this there has standard behavior. As suspicion Equity of actual fraud. “does developed unbending a tradition that bearing not so rigidity much consider the hard- Uncomprоmising inveterate. ship particular its doctrine equity cases as been of courts of when the attitude importance preventing does the gen- petitioned to the rule of undivid- undermine mischief, public may eral be brought loyalty by ‘disintegrating ed erosion’ of * * about means secret and inaccessible to particular exceptions. Only thus judicial scrutiny, dangerous from the influ- has level of conduct for fiduciaries been arising ences from the higher confidential relation kept level than that trodden at a principle of the parties.” applies, “The consciously It will be low- crowd. not purchaser may however innocent be in by any judgment ered court.” ’ ” McCord, Salmon, 458, case.” Nabours v. 97 164 Meinhard v. 249 N.Y. 595,600 526,80 545-546,62 (1904). Tex. S.W. N.E. 1(1928). A.L.R.
444 Peckham, 120 “Except provided v. 132Tex. 11 of this Section Johnson (1938), (Corporate A.L.R. 720 the late depositing 120 trustee trust speaking Supreme Hickman self) corporate for our with trustee shall funds Justice quoted approvingly Court from Car- to itself or an affiliate lend funds Justice * * * pronounced ; any noncorporate dozo’s Meinhard nor shall trus- governing fiduciary relationships himself, the rule tee lend funds to or to his rel- ative, employee, partner, in this employer, State: or other 7425b, 10, p. Art. business associate.” § persons fiduciary “When enter into rela- 228. law, consents, tions each as a matter of have his the other meas- Bogert says: conduct towards loyalties ured of the finer standards loy- duty “The trustee violate the equity. exacted courts of That is a alty by lending funds to He himself. sound not be rule and should whittled down brings play private a conflict of thus into by exceptions.” representative interests. As lender it duty possible get the best terms is his said, our courts From what have interest, maturity. security, As question liability it follows that the of a impulse naturally in the direc- debtor defalcating fiduciary can be ascertained as getting tion of lowest rate jury. a matter of law without reference to a advantageous and often on other terms not exculpatory language of the trust in himself, If he the lender. lends purporting strument in this case to relieve give impartial judgment cannot as to the liability except from trustee * * * adequacy security offered. negligence and bad faith cannot be used to misapplication excuse the from the formal loan a trustee “If there is no but or mishandling of trust funds. Here the mingles the trust funds his own per borrowed trust funds business, private uses them in his the tran- sonal benefit and failed to invest substan be treated as a breach of trust saction can tial sums of trust monies. We think the theories, namely, on either that of of two regard correct rule of law this is stated property, disloy- conversion of City Royalty in Wichita Co. v. Nat. Bank Trustees, alty.” Bogert & 2d Ed. Trusts Falls, of Wichita 127 Tex. 89 S.W.2d (J), p. : Slay Trust, v. Burnett *7 broad, powers “The but trustee’s the court held: (1945), 187S.W.2d 377 * * * stipulation declaration no “ profit make a from the ‘Trustees cannot susceptible is of the construction that them, by using to trust funds committed prop- privileged to use the trust is any speculation, trade or kind of erty or credit his own benefit. While business; they put nor can nor in their own responsible, 'only he to be held for his of an- funds into the trade business corrupt breach of trust and own wilful and other, they re- stipulation under shall a any judgment,’ not for honest error of profit advantage. a bonus or other ceive property has no in the trust or its interest cases, the trustees must account all such interest, managing other than a in- such every from the use of dollar received terest as a certificate be evidenced they absolutely trust-money will be ownership.” any responsible if it is lost in such for it ” transactions.’ contrary public It would be permit policy language of this State also, incumbent the trus It is to authorize self- of a instrument trust put productive use and tee to trust funds Trust Act dealing by trustee. Our Texas a pe- to do so within a reasonable the failure provides: 445 ap person- the fact Neither would render the time can riod of fail pellant knowledge the trustee’s general The had interest. chargeable with ally necessarily relieve ure funds as fоl- to invest trust been stated regard has rule in this here liability. are not the trustee from lows: length transaction. dealing an arm’s with applied money cannot be trust “Where relationship be taken fiduciary must time short immediately or within either determining into whether account duty of trust, it is the purposes of the requisite degree beneficiary exercised the productive to the fund to make the trustee Courseview, Incorporated v. diligence. it in que by investment cestui Co., Phillips Petroleum Tex. 312 158 invest security, duty to proper and a some S.W.2d (1957). 197 implication direc- by necessary from arisеs testify permitted witness was or income.” 57 pay over the interest tion to what the ranch records reflected as Texline 143,p. Tex.Jur.2d, § involving handling transactions delay in the investment of “Unreasonable profits property, allocation of funds, directed invest- the settlor has where expenses trusts, credits, etc. to the various avoided; reinvestment, must be ment or evidence) record best (the itself personally otherwise the trustee will be produced never available to nor made Tex.Jur.2d, chargeable interest.” 57 § pellant. on re- question arise Should this 148, p. 533. trial produced. records should this tax re- pertinent connection income Appellee argues that turns or made produced likewise years knowledge (4) at four least ma- relevancy available to the extent of any yielding funds were not teriality Marks, shown. v. See Maresca interest. the four (4) Both and two 1962), (Tex.Sup., 300-301 year urged statutes of limitation are and 20 and authorities 8§ Tex.Jur.2d recovery appellant. bar to The evidence pro- cited as to placed upon limitations justify did not case the submission duction of such records. any jury issue as to the statutes of limi If it is established cause on of this retrial statute, tations. In order to toll the there that the trustee mingled mixed and repudia must be a clear and unmistakable funds, funds with his and private the other trustee, tion of the trust and such re then we believe that proof burden of pudiation brought must be home ben on those standing in the trustee’s shoes eficiary. repudiation No such is found in segregate &e privately property owned this case. The correct rule in this connec from that which was held in trust. Eaton tion in 54 A.L.R.2d, is well stated p. Husted, v. 172 S.W.2d 23: 493 (1943). Nor do we think a trustee “The authorities are generally well who has not steadfastly performed fidu- agreed that for repudiation trustee’s of an ciary duties is entitled to receive com- express trust to be sufficient to set the stat- pensation for his services: *8 ute of in limitations motion in his favor and “ * * * compensation has been refused against beneficiary, the repudiation the where the trustee failed to use ordinary plain, must be strong, unequivocal. and * * * care in his administration, failed * * * Generally speaking, it be an must keep to proper records of trust administra- open repudiation, and to be sufficient and * * * tion, failed to invest proper- effective must have been brought home to * * * ty, mingled trust property with his the beneficiary.” ** own, guilty of disloyalty to In this connection the appellee the (trustee) beneficiaries in that he acted for his ” * * * stated unequivocally that he repu- had not own selfish interest. Bogert diated the trust here involved. Trustees, Trusts Ed., 2d “Accounting appointed by a court performed sometimes of Court Compensation,” (Power The ac- appropriate. clearly seems p. auditor Compensation), Deny to Reduce need be stated рarties to the counts between
(408-410). to trial court permit the way in as to such a remanded. Reversed the resolvement determine what effect on the case. will have legal issues the REHEARING MOTION FOR ON to connection, that resort suggest we this help- Appellee’s extremely might be carefully pretrial procedure examined have We par- Rehearing, but we as to the as well persuasive Motion for ful the trial court original opinion is our concluded that ties. have simply not believe from We do
correct. findings that the of this record state that the are still оf We the admis- jury relied on because of can be plaintiff’s failure to sustain trial court’s inflammatory, highly preju- sion of certain in to exclude certain extra motion limine concerning dicial and inadmissible evidence constituted prejudicial evidence neous and appellant’s personal habits. We have appellant especially since error, reversible the trial court certain attempted furnish be that no issues would stipulated legal principles which should applicable in his mo covered raised matters govern upon him retrial of the cause. however, appellee, tion. Counsel for way holding in such a as to construed repeat our firm belief that in a suit any accounting deny infor him the use brought by accounting for an the benefici- defensively on mation which could be used trust, court, express ary of an the trial stating the trustee in accounts behalf of the jury, without the assistance of can deter- any prop parties. If there are between mine whether the trustee’s actions are er set-offs or credits with which violation of In this instrument. this, course, entitled, should taken connectiоn, pointed we out have the vital into account the trial court his find distinction kind between the of trust we $4,077.04 ings. Certainly appel- which (express) resulting have this case and a says appellant lee him owes because of a very constructive existence of completely unrelated to ad transaction depends upon the determination of ministration of one such item to the trust is questions. fact upon be considered retrial. But this does conclude that fi- If the trial court appellee given per should be mean that occurred, then find- duciary have breaches mission to evidence such as that introduce to the account- be made as ings will need to during the introduced first trial of this case As stated in our ing aspects of the case. appellant’s as to the conduct which has opinion, appears it that the trustee original nothing to do with determination of the personal bene- funds for his borrowed trust issues in the case. invest substantial sums of fit failed to record, opinion, For the stated in our reasons we moneys. But in view of this can, not believe the statutes of limitation hold matter do prepared аre not to so as a we case, re- under circumstances in this bar the trial and we leave court law by appellant. appellant if the covery But questions Cer- resolve these retrial. fully fairly informed of trus- tainly much were the record leaves to be desired appellant failed stewardship respect the amount of tee’s recoveries question may any protest, make then a fact sought by appellant against whom such but, presented to whether ac- directed previous- recoveries are we If, quiesced of the trustee. оut, the actions ly pointed pertinent accounting re- *9 however, actually benefited the trustee cords should be made available relationship, the confidential we reason of pellee upon Certainly retrial. a statement would be es- do not believe parties between the such as that accounts of the judgment (pp. 158-159 ac- and 9 of the acquiesced in the though he topped even following: transcript) appears the such trustee trustee unless of the tions complete affirmatively a full and dis- made equitable procеeding; “That closure. to the presented herein the evidence demonstrated, clearly Jury Court and again directs our attention Appellee found, that at all times while Jury trust in- exculpatory language of the Shamburger, as a Trustee served Jr. lia- a trustee from relieves strument which III he acted of the P. P. Trust Appel- negligence. bility except for af- management in the of the good faith effect held have in contends that we lee trust, (2) that neither the fairs of the unlawful, exculpatory language is that such Jr., father, Shamburger, D. C. said C. great weight of going contrary thus Shamburger, D. Sr. or estates of C. D. upheld authority in this State which Shamburger, Sr. and Mrs. C. D. Shambur- exculpatory language in other trust similar any ger, used trust funds their Sr. ever holding broad Our so instruments. personal profit. own benefit and That said What we and should not so construed. findings Jury abundantly sup- are exculpatory language held have is that the ported by the evidence in the case and such here under consider- the trust instrument findings adopted by the Court as its self-dealing ation authorize a does not findings respect own to those matters. language trustee. view of of Section * * * That the facts admitted in evi- 7425b, 10 of Trust Article the Tеxas support dence finding, do not a nor did the express further we that the lan- jury find, that the guilty Defendant was guage specifi- of a trust instrument which gross negligence or of bad faith in the man- cally self-dealing by authorizes a trustee agement of the affairs of the present question could serious public a there probative was no evidence of force policy. that the Defendant was guilty ever any Appellee’s defalcation. That on the motion for other rehearing is ac- hand the support cordingly facts overruled. For the reasons stat- conсlusion that the De- fendant, above, Trustee, appellant’s ed motion acted rehearing honestly and in is likewise accordance overruled. with his best judgment in the
management of the trust affairs, which the finds, Court and that he should be relieved DISSENTING OPINION from liability claimed violation of provisions of the Texas Trust byAct ON MOTION FOR REHEARING provisions virtue of the 7425b-24, Article * * thereof; E Subdivision RENFRO, (dissenting). Justice provisions of the Trust Act referred provide competent to above that a court of generosity, But for the foresight and jurisdiction shown, may, wholly for cause grandfather, appellant’s business acumen of or partly trustee, release and a excuse who appel- there would have been no trust for honestly has acted reasonably, from lia- management appellant’s lant. Under the bility provisions for violation of the Uncle, trustees, grandfather and the trust Act. grew from value of a few dol- thousand
lars the time of its creation to a sizeable opinion the record in this case is my fortune the time the trust terminated properly could exercise that the court upon appellant’s reaching age of thir- authority to release and the trus- its excuse ty-five. liability. tee from the claimed day trial, jury
After ten en- court I would affirm of the trial page tered fourteen judgment. pages On court.