Abbildungen der Seite
PDF
EPUB
[ocr errors][merged small][ocr errors]

by the trial court in favor of the plaintiffs, which was affirmed hy the court of civil appeals.

The following article of the Revised Statutes prescribes the mode by which a husband and wife may convey real estate, the separate property of the wife: "Art. 635. The husband and wife shall join in the conveyance of real estate, the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband, before some officer authorized by law to take acknowledgments to deeds for the purpose of being recorded and certified to, in the mode pointed out in article 4643."

The term "conveyance" as used in the above article signifies the deed which transfers the title from the wife to the purchaser: McCabe v. Heirs of Hunter, 7 Mo. 357. The word "join” means that the husband and wife must unite--that is, act together in the execution of the deed. The question involved in this case is, Must the husband and wife each in person execute the same paper, deed or power of attorney to make the conveyance their joint act?

It has been settled by this court that the husband and wife need not personally sign the deed, but may jointly appoint an agent by a power of attorney, duly executed by them, who, acting for both, can make a valid conveyance of the wife's separate real estate: Patton v. King, 26 Tex. 685, 81 Am. Dec. 596; Warren v. Jones, 69 Tex. 462, 6 S. W. 775. In each of the cases cited, the husband and wife appointed an agent by a power of attorney, 344 jointly executed by them, and this court held that the conveyance made by such agent was valid.

It has likewise been held by this court that the husband and wife need not execute the conveyance at the same time, but the husband having signed and acknowledged a deed conveyo ing his wife's separate real estate, she may at a subsequent time sign and acknowledge the same instrument and thereby make it effective from the time of her signature and acknowledgment: Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 913. In the case last cited, the husband held a power

of attorney from his wife empowering him to sell certain land, lier separate estate, which he conveyed, signing his wife's name by himself as agent and his own name as her husband. Two years after that date the wife signed and acknowledged the same deed and the court of civil appeals of the fifth district held the deed to be valid from the

[ocr errors][ocr errors]

time of her signature and acknowledgment. This court refused a writ of error in that case, thereby adopting the opinion of the court of civil appeals, there being but one question presented by the application. It is likewise established by this court that the husband may empower the wife to sell her separate real estate, acting for herself and as his agent: Rogers v. Roberts, 13 Tex. Civ. App. 190, 35 S. W. 76. In that case the court likewise refused a writ of error, there being but the one question presented by the application. We conclude that a married woman, by a power of attorney executed and acknowledged by her alone, may authorize a third person to sell and convey her land, and that such person acting with the husband can convey her separate real estate.

John T. Moore and his wife joined in the deed to Smithey as effectually as if both had been represented by Autry, or Moore had been represented by his wife, she acting for herself. The privy acknowledgment of the power of attorney guarded the wife against undue influence by her husband, and she had the right to revoke the power at any time before the deed was delivered. The power of attorney was inoperative until the husband joined in the deed which secured his right to manage the property. Every beneficial purpose of the law was acconi plished: Patton v. King, 26 Tex, 685, 84 Am. Dec. 596. The trial court erred in excluding the power of attorney and deed, for which the judgment must be reversed. We cannot render judgment because the evidence was excluded, therefore the cause will be remanded, the defendant in error to pay all costs of the court of civil appeals and of this court.

Reversed and remanded,

Powers of Attorney by married woman are discussed in the monographic note to Security Sav. Bank v. Smith, 84 Am. St. Rep. 761. 772,

Am. St. Rep., Vol. 97-58

[ocr errors]
[ocr errors][ocr errors]

RAYMOND v. YARRINGTON.

[96 Tex. 443, 72 S. W. 580, 73 8. W. 800.) CONTRACTS not to Engage in Business—When construed to be Joint and several.-A contract by two parties signed in their individual names, agreeing not to enter into or conduct a milling business within a designated territory without the permission of J. H. or his assigns, binds each of such parties not to engage in such business, and is violated when one of them so engages, and both there. upon become liable for the resulting damages. (pp. 917, 921.)

CONTRACT—Liability of Third Person for Causing Breach of. Where one knowingly induces another to break his contract with a third person, such third person has a right of action against the one 80 causing such breach for the damages resulting therefrom. (p. 920.)

DAMAGES for Violating a Contract-Vagueness of Evidence -When does not Preclude a Recovery.-Where a contract not to engage in a specified business has been violated, he who is damaged thereby is not precluded from recovering by the fact that his evi: dence does not show to what extent his business was diminished by the violation of the contract not to compete with him. To require accuracy in such a case would be to deny a remedy for the wrong. (p. 922.)

[ocr errors]

James W. McClendon and Fiset & Miller, for the plaintiff in

121 the

error.

[ocr errors][ocr errors]

D. W. & D. H. Doom and West & Cochran, for the defendants in error.

446 GAINES, C. J. This suit was brought by plaintiff in error against defendants in error. General and special de murrers to the petition were interposed by all the defendants; and all were sustained, except those of defendant Harwood. His exceptions were overruled, but upon the trial a verdict was instructed in his favor. A judgment was accordingly entered for all the defendants; and it was affirmed on appeal to the court of civil appeals.

We will set out in substance and as briefly as practicable the facts alleged in the petition. In the first paragraph, Yarring. ton, Harwood, MeDowell, Kaufman and the E. 0. Stanard Milling Company, a corporation, are made defendants in the buit, and their respective residences are stated.

In the second paragraph it is alleged that Yarrington and Harwood were partners engaged in a brokerage or agency business and had built up a profitable trade selling flour, meal, bran and other milling products for the defendant corporation and others engaged in a like business; that the firm had con

[ocr errors][ocr errors][merged small][ocr errors]
[ocr errors]

tracts with such corporations and others which gave them an exclusive right to sell the products of their employers in a certain designated territory, of which the city of Austin was a part; but that the contracts were for no definite period of time and were terminable at the pleasure of either party upon notice to the other. It was further alleged that for the consideration of one thousand dollars the defendants Yarrington and Harwood sold to the plaintiff and to his brother, one Frank Raymond, as partners, such agency business in such territory and bound themselves not to conduct at any time thereafter, either individually or as partners, a milling agency business therein; and that the defendant milling company knew of said contract and agreed that the plaintiff and his brother should take the place of Yarrington and Harwood as their agents in the designated territory and should there represent them exclusively in the sale of their products. It was also averred in such paragraph that in the agreement it was stipulated in behalf of the defendant milling company that the plaintiff and his brother should retain defendant Yarrington to assist them in their business for the period of ninety days, and that thereby the defendant milling company impliedly agreed to retain the plaintiff and his brother as their agents in the designated territory for a reasonable time, provided they should prove to be satisfactory agents; and that but for the conduct of the defendants as thereinafter alleged the agency would have continued for a period of five years.

In the third paragraph it is further averred that, in order to deprive the plaintiff and his brother of the advantages to accrue to them under their contract with Yarrington and Har-, wood, the defendants conspired to break up the agency business of plaintiff and his brother in the following manner; that to obtain the one thousand dollars paid for the business, Harwood entered into the contract with the intention of not carrying out his obligation and with the purpose of again entering upon the business of an agency for the sale of mill products in the territory named in the agreement; that "in pursuance of said conspiracy” he began in August, 1898, to sell the products of other mills in such territory, and that about December of that year the defendant milling company limited the territory of Raymond and brother, as their agents, to the city of Austin. That prior to February 1, 1899, defendants McDowell and Kaufman, acting in their own behalf and as agents of the defendant milling company, took part in the

[ocr errors][merged small][ocr errors][merged small]

original illegal purpose of Harwood to violate said contract, and with full knowledge of the rights of the Raymonds, conspired and agreed with him that McDowell and Harwood should take the place of the Raymonds as the agents of the de fendant milling company in the territory designated in the original contract between the Raymonds on the one part and Yarrington and Harwood on the other; and that thereupon the defendant milling company did employ McDowell and Ilarwood as their agents for such territory and did discontinue the employment of the Raymonds. It is also alleged in this paragraph, that about December 1, 1898, the defendant milling company limited the agency of the plaintiff and his brother to the city of Austin, and that they continued to act as agents for such restricted territory until February 1, 1899. Then follow allegations of a loss of profits from the conduct of de fendants in the sum of ten thousand dollars and that their acts were done knowingly and over the protests of the Raymonds, with a claim for exemplary damages.

In the fourth paragraph are found similar allegations as to the destruction of the business of the plaintiff and his brother and the damages, which resulted therefrom, all of which are alleged to have aocrued from a conspiracy on part of defendants McDowell, Kaufman, the milling company and Harwood to cause Harwood to break his contract with the Raymonds.

The fifth paragraph repeats the allegations as to the damages.

The sixth alleges an assignment for value by Frank Raymond of his interest in the cause of action to the plaintiff.

Were the demurrers of the defendants other than Harwood properly sustained? A copy of the written contract between the plaintiff and Yarrington and Harwood is made an exhibit to the amended petition and contains this provision: "We specially agree and bind ourselves not to enter into or conduct a milling agency business in the city of Austin or the territory above designated without the written permission of J. H. Raymond, Jr., or his assigns.” It appears from the averments in the petition that Harwood only engaged in a milling agency business in the prohibited territory after the contract was executed; therefore, unless the contract properly construed bound each of them not to conduct sur business, no cause of action is shown against either of the defendants. Do Yarrington and Harwood, by the contract, bind themselves 448 that neither of them shall sell mil products in the prohibited territory, or merely that both shall not? This question we referred back to the counsel for written arguments and the arguments have been

[ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors]
« ZurückWeiter »