Thomason v. Rogers

CONNER, C. J. Appellees instituted this suit in. the district court of Clay county against appellant, alleging that he had in March, 1904, sold 267 acres of land situated in Clay county for the sum of $2,000, one-half of which belonged to appellees, and which appellant had never accounted for, but had fraudulently converted to his own use. Appellant presented a plea of privilege to be sued in Jeff Davis county, the county of his residence. He also pleaded the general denial, and specially to the effect that prior to 1904 he had been employed by appellees and others to sue for and recover certain lands belonging to them situated in Clay county, Tex., under an agreement to receive as compensation for his services one-half of all lands recovered, or one-half of the pro *1041 ceeds if recovered and sold, lie having at the time received a power of attorney authorizing him to so sell; that by virtue of such employment he sued for and recovered the land in controversy as well also as several other tracts situated in Clay county; that he had sold the land in question as alleged by appel-lees, and out of the proceeds belonging to the appellees had first deducted certain costs and expenses incurred by him during the litigation and amounting to more than $100, and had applied the remainder in satisfaction of his fee. The case was tried before the court without a jury, and judgment rendered in favor of the appellees for the sum of $726.95, together with costs. The appeal presents in different forms but two questions that are deemed tó be material. [1, 2] Appellant first insists that the court erred in overruling his plea of privilege. The assignment under which this question is raised is based upon a bill of exception to the action of the court in refusing to determine the plea of privilege before hearing the cause upon the merits, which is an altogether different question from the one presented in the assignment, and one which we regard as of no materiality. But, regardless of the insufficiency of the presentation, we feel unable to say that the court erred in overruling the plea of privilege. While it is undisputed that appellant at the date of the institution of the suit was a resident of Jeff Davis county, yet it is further undisputed that on or about the date alleged appellant sold the tract of land described in the plaintiff’s petition for the sum of $2,-000, receiving property estimated as of the cash value of $500, and $1,500 in notes, which he afterwards collected. It is further undisputed that appellant appropriated the whole of the sum for which the land was so sold to his own use and benefit. The land had been recovered for and was owned by appellees and' others, and they were undoubtedly entitled to receive from appellant one-half of the proceeds of the sale. Appellant urges that the appropriation was some time after the sale and occurred in counties other than Clay, and by virtue of the claim now made that he was entitled to so appropriate appellees’ part of the proceeds in compensation for his services in the suits mentioned. But we think it clear that, under the contract with appellees, the extent of appellant’s right was to receive one-half of each separate tract of land recovered or in event Of a sale of any tract one-half of the proceeds, and that his duty to his clients upon the sale of the land in question was to have forthwith reported the sale and remitted to them their part of the purchase price, less perhaps such expenses as he would have been entitled to charge them, but this appellant did not do. On the contrary, appellees’ testimony is to the effect that the sale was never reported to them; notwithstanding they had repeatedly written appellant during the course of several years to learn the status of their interests. Under such circumstances, we do not think we can disturb the evident conclusion of the trial court to the effect that a legal fraud upon appellees was committed, and that the intent to so commit such fraud must be inferred to have existed at the time and place of the sale of the land in Clay county when and where appellant received the cash consideration and the notes afterwards converted to his own use. If such conclusions be correct, and of this we have no doubt, the suit against appellant was properly prosecuted in Clay county by virtue of the. seventh clause of article 1830, Revised Statutes 1911, which provides that: “In all cases of fraud, and in case of defalcation of public officers, in which cases suit may be instituted in the county in which the fraud was committed, or where the defalcation occurred, or where the defendant has his domicile.” [3] Second. Appellant insists that the court’s "judgment against him on the merits is not sustained by the evidence, but we think we must also overrule all assignments involving this question. Appellant’s only serious contention, as it seems to us, is that he had the right to appropriate appellees’ part of the proceeds of the sale of the land in satisfaction of his fee, and he has cited a number of authorities as supporting this contention. The authorities, however, we think are inapplicable here. They’ relate to cases in which some specified sum as fee had been agreed upon, and where the attorney having received money of his client was permitted to appropriate it in satisfaction of the fee agreed upon, but here no such state of facts exists. In the case before us, as before stated, appellant’s greatest fight was to receive one-half of each separate tract of land recovered by him, or one-half of the proceeds of any single tract sold. We do not see how it can be seriously contended that he would have the right to appropriate the whole of the proceeds of the tract of land involved in this controversy merely because his interest in other tracts not so sold was of as great a value as the amount of the proceeds converted. To so permit appellant to do would be to enable him to dictate his own terms of partition and to appropriate money in lieu of land against appellees’ consent. [4] It is also urged that appellees’ claim was barred by limitation, but the evidence seems to be against appellant on this issue. Appellees’ testimony, as before stated, was to the effect that for a number of years following the sale of the land in 1904 they had repeatedly written to appellant seeking information as to what had been done with their lands, thát appellant wholly failed to answer such inquiries, and that appellees did not learn of the sale in question until after they had instituted an independent investí- *1042 gation less than two years prior to the institution of this suit. [5] There is also a contention that appellant should have been allowéd to deduct from appellees’ part .of the proceeds certain expenses, but the question has not been presented as an independent proposition, but under.an assignment alleging that the court erred in. rendering any judgment, and this assignment we cannot sustain. : ■ We conclude that all assignments of error must be overruled, and the judgment affirmed.