Hardwicke v. Trinity Universal Ins. Co. , 89 S.W.2d 500 ( 1935 )

FUNDERBURK, Justice.

In this suit C. G. Hardwicke, joined by his wife, sought recovery against Trinity Universal Insurance Company and Universal Automobile Insurance Company for reimbursement for certain expenditures made by him at the alleged request of the defendants upon their alleged agreement and promise to repay the amount thereof. Hardwicke held a policy of insurance issued by the defendants insuring against certain personal liability and property damage in the operation of an automobile' — $25,000 for personal liability and $5,000 for property damage. Dr. D. C. Enloe held a like policy with the defendants, except that the personal liability was for $5,000 and property damage $5,000. On or about January 31, 1932, there was a collision between the two cars resulting in injury to Mrs. Hardwicke and to plaintiffs’ car. According to the findings of the trial judge, before whom the case was tried without a jury, the facts were: That the adjuster for the defendants soon after the collision acknowledged defendants’ liability under the policy of En-loe; declared that the company would pay the plaintiffs; that he thereupon took charge of the automobile belonging to plaintiffs and sent same to Dallas for repairs; that he was in constant touch with the doctors, hospitals, the druggist furnishing the drugs, and with the plaintiff Hardwicke, and directed the latter to keep account of the expenses, to pay same, and promised that the amount so paid would be repaid to plaintiff, and that in all of which the adjuster was acting within the scope of his authority.

It was further found that the expenses incurred, accrued, and paid by Hardwicke in pursuance of such agreement amounted to a total sum of $4,083.-52, which the plaintiff paid. Under the heading of “Conclusions of Law” following the above findings (with others deemed immaterial) is the following: “The court concludes as a matter of law that under the above facts there was no consideration shown for the agreement made, and hence neither of the defendants is liable.” Judgment was entered in accordance with such conclusion in favor of the defendants from which the plaintiffs have appealed.

We think the conclusion of the trial •court was incorrect. The findings of fact themselves show a consideration for the promises of the defendants to repay to Hardwicke the items of expense sought to be recovered. The acceptance of an offer necessary to the formation of a contract may be an act or series of acts. Mr. Williston says it is not true, and never has been true as a general proposition that, where an offeror requests an act in return for his promise and the act is performed that notice to the offeror of the performance is necessary to create a contract. “The performance of the act requested furnishes consideration for the offeror’s promise, and is also an overt manifestation of assent.” 1 Williston on Contracts, p. 117, § 68. It may be granted that had the plaintiff Hardwicke incurred the expenses in question for himself and paid same for himself, the promise of the' defendants to reimburse him would have required something else as a consideration. Such was not the case. According to the findings of the trial judge, defendants acknowledged their liability for the payment of damages which would cover and include certain expenses. The offer to Hardwicke was that if he would incur the expenses, keep account of them, and pay them, that the amount thereof would be repaid to him. Defendants were interested in Mrs. Hardwicke’s receiving good medical attention and nursing, since their possible liability to Enloe might as to the amount thereof be greatly affected thereby. The legal effect of the findings seems to us to be that in order to serve a supposed advantage to themselves the defendants assumed primary liability for the amount of such expenses as would insure that Mrs. Hard-wicke received good medical attention and nursing. The promise, therefore, to Hardwicke to repay the amount of expense bills, to him was, in effect, a promise to reimburse him for the payment of defendants’ own expenses. The situation is no different as we- see it, than it would have been if the defendants had asked some other party to keep account of the expenses and pay them upon their promise of reimbursement. If one primarily liable makes an offer to one secondarily liable to the effect that if the latter will pay the obligation in the first instance the former will repay it to him, can there be any doubt that the very terms of the offer considered With the fact of payment shows the existence of a valid consideration? We think not, and we believe that the rule applicable here is no different. The court’s findings therefore, we think, required judgment for the plaintiffs.

Appellees insist, among other things, that there was no evidence to show that the ¡adjuster was authorized tc> make the agreement. Appellees did not except to the judgment of the court below, nor to the conclusions of fact and law, nor does their brief contain any cross-assignments of error. Under these circumstances, are we authorized to consider whether the evidence supported the findings of fact of the trial judge? After careful consideration in which we have found it necessary to choose between conflicting decisions as authority it is our opinion that the weight of authority sustains the proposition that where an appellant, or plaintiff in error, seeks revision of a judgment with reference to the findings of fact and conclusions <of law duly made and filed by the judge, the appellee, or defendant-in-error, cannot, in the absence of exception having been taken to such conclusions or to the judgment of the court, urge in support of the judgment that the findings of fact were without evidence to support them. Many of the decisions directly so hold, and many more clearly imply that such exception is necessary. Continental Ins. Co. v. Milliken, 64 Tex. 46; Drake v. Davidson, 28 Tex.Civ.App. 184, 66 S.W. 889; Buster v. Warren, 35 Tex.Civ.App. 644, 80 S.W.1063; Meisner v. Taylor, 56 Tex.Civ.App. 187, 120 S.W. 1014; Henderson v. Odessa Building & Finance Co. (Tex.Com.App.) 27 S.W. (2d) 144; Whitis v. Penry (Tex.Civ.App.) 41 S.W. (2d) 736; Bridgewater v. Hooks (Tex.Civ.App.) 159 S.W. 1004; Commonwealth Ins. Co. v. Finegold (Tex.Civ.App.) 183 S.W. 833; Smith v. Ernest, 46 Tex.Civ.App. 247, 102 S.W. 129;, Gibbs v. Eastham (Tex.Civ.App.) 143 S.W. 323; Levy v. Engle Bros. Co. (Tex.Civ.App.) 192 S.W. 548; Jamison v. Alvarado Compress & Warehouse Co., 45 Tex.Civ.App. 263, 99 S.W. 1053; McKee v. Price, 3 Willson, Civ.Cas.Ct.App. § 335; Biggerstaff . v. Murphy (Tex.Civ.App.) 21 S.W. 773; Id., 3 Tex.Civ.App. 363, 22 S.W. 768; Travelers’ Ins. Co. v. Washington (Tex.Civ.App.) 5 S.W. (2d) 783; Compania Bancaria y de Inversiones v. Border Nat. Bank (Tex.Civ.App.) 265 S.W. 599; First Nat. Bank v. South Beaumont Land & Improvement Co., 60 Tex.Civ.App. 315, 128 S.W. 436.

Tudor v. Hodges, 71 Tex. 392, 9 S. W. 443, 444, has a number of times been cited as authority for the proposition that the above rule has no application when a statement of facts, as is the case here, accompanies the record. See Connellee v. Roberts, 1 Tex.Civ.App. 363, 23 S.W. 187; Byrd v. Perry, 7 Tex.Civ.App. 378, 26 S.W. 749; Gillespie v. Crawford (Tex.Civ.App.) 42 S.W. 621; Moore v. Blagge (Tex.Civ.App.) 34 S. W. 311; Tillman v. Peoples, 28 Tex.Civ.App. 233, 67 S.W. 201; Hahl v. Kellogg, 42 Tex.Civ.App. 636, 94 S. W. 389; Savage v. Umphries (Tex.Civ.App.) 118 S.W. 893; Lieber v. Nicholson (Tex.Com.App.) 206 S.W. 512; O’Neil v. O’Neil (Tex.Civ.App.) 77 S.W.(2d) 554. The last-cited case was by this court, and the holding upon the point is now believed to have been error and will be overruled. In addition to the decisions more directly supporting the proposition that such exception is necessary are the following which imply such necessity: Hess & Skinner Engineering Co. v. Turney, 109 Tex. 208, 203 S.W. 593; Voight v. Mackle, 71 Tex. 78, 8 S. W. 623; Temple Hill Development Co. v. Lindholm (Tex.Com.App.) 231 S.W. 321; Reed v. Murphy (Tex.Civ.App.) 276 S.W. 951; Edwards v. Youngblood (Tex.Civ.App.) 160 S.W. 288; Arlington Heights Realty Co. v. Citizens’ Ry. & Light Co. (Tex.Civ.App.) 160 S.W. 1109; De Bruin v. Santo Domingo Land & Irrigation Co. (Tex.Civ.App.) 194 S.W. 654; Cornelius v. Harris (Tex.Civ.App.) 163 S.W. 346; Supreme Ruling, etc., v. Ericson (Tex.Civ.App.) 131 S.W. 92; Bond v. Garrison, 59 Tex.Civ.App. 620, 127 S.W. 839; Smith v. Abadie (Tex.Civ.App.) 67 S.W. 1077; Brenton & McKay v. Peck, 39 Tex.Civ.App. 224, 87 S.W. 898; Wilkins v. Burns (Tex.Civ.App.) 25 S.W. 431.

In Tudor v. Hodges, supra, it was stated that the rule declared in Continental Ins. Co. v. Milliken, supra, “does not apply in a case like this, but only in cases where no statement of facts nor bills of exception .are filed.” (Italics ours.) Therefore, the case does not hold that exceptions are not necessary if there be a statement of facts. The action of the Supreme Court in refusing writs of error subsequently to the decision in Tudor v. Hodges, supra, in cases such as Drake v. Davidson, and Buster v. Warren, supra, wherein it had been declared mandatory, even where there were statements of facts, that either the conclusions of fact and law, or the judgment be excepted to, leads us to conclude that that line of authorities should be regarded as correctly declaring the law.

Even if the judgment or the conclusions of fact and law had been excepted to, or it should be held to be unnecessary to except, we think that for appellees to challenge the existence of evidence to support the findings it .would be necessary to urge cross-assignments of error. As we had occasion to hold in Panhandle & S. F. Ry. Co. v. Burt, 71 S.W. (2d) 390, one of the functions of assignments of error is to waive all other errors not assigned except fundamental errors. No assignment of error in this case challenges the sufficiency or existence of evidence to support the findings of the trial judge. If there was no such evidence, the error in the finding was not fundamental error which this court is authorized to consider in the absence of an assignment. Its consideration would involve the reading of the entire statement of facts, that being one of the most conclusive tests as to whether or not an alleged error be fundamental.

Since the findings of the court below were in all things sufficient to enable the court to render judgment for the plaintiff and would have required such judgment but for the erroneous conclusion regarding consideration, it is our opinion that the judgment of the court below should be reversed, and judgment here rendered for the plaintiffs for the sum of $4,083.52, and it is accordingly so ordered.