(dissenting).
I respectfully dissent. I do so because in my opinion there was only one judgment which the Trial Court could have rendered *208under this record, the judgment he did render — a judgment for appellees. If this is correct then intermediate errors are of no consequence. 3-B Tex.Jur. Sec. 875.
‘ In my opinion'appellant .failed to prove a cause of action in that she failed to prove that appellees were legally responsible for the advice given by Mr. Weatherred regarding the will of Dr. Cheatham, or at any rate that they were any more legally responsible for such advice than was appellant.
Appellant pleaded that appellees and their attorney, represented to her that the will of Dr. Cheatham was not a valid will and that but for such representations made by appellees and their attorney the instruments involved would not have been executed.
• We quote from appellees’ brief:
“Appellant’s statement of the nature of the case is substantially correct except wherein it states that Appellant signed the instruments that she is seeking to cancel ‘in reliance upon the erroneous opinion of an atto'rney of Ap-pellees that a certain instrument claimed by her to be the last will of her deceased husband Dr. A. B. Chea-tham was not a valid will’ and that she signed such instruments ‘in reliance upon such erroneous opinion.’ The attorney referred to is W. Marcus Weatherred of Coleman,- Texas. He did not render ‘an erroneous opinion’ and Appellant did not rely on ‘an erroneous opinion’ in the execution of such instruments, and the attorney was not, at that time, ‘an attorney o.f Appellees’ but was an attorney that Mrs. Cheatham and the heirs of her deceased husband all consulted together as to the settlement of the Dr. Cheatham estate, all of the parties desiring to stay out of Court and to. secure the services of such attorney in keeping them out of court, and .in settling their property disputes agreeably, and all papers having been drawn in strict accordance with the agreement of all parties, Plaintiff and Defendants, with full knowledge of the facts, and of the rights of the parties.”
The evidence shows that the parties on several occasions went to the office of Mr. Weatherred and sought his advice regarding the purported will and estate of Dr. Cheatham.1 There is no evidence that Mr. Weatherred represented one of these parties any more than he did the others. Under these facts the law is plain as shown by the following.quotation:
“One is not to be held liable for the representations of a third person when there is no evidence to connect him with the making of the representations. And when the principals in a transaction have jointly referred to a third person, who was as much the agent of one • as the other, neither may be charged by’ the other with liability on 'account of such statements, there being no showing of collusion.” 20-A Tex.Jur. p. 131.
In Goodwin v. Daniel, Tex.Civ.App., Dallas, 93 S.W. 534, 536, writ of .error denied, two directors in the same corporation called upon a bookkeeper employed by the corporation to prepare a statement for their use in the sale of corporate stock from one director to the other. The statement was prepared and used by the directors in the stock transaction but it was allegedly false. We quote from the opinion:
“Can the rendering of the statement of the bookkeeper of the millinery company be regarded- any more the *209act of Daniel than that of appellant? We have reached the conclusion that these questions should be answered in the negative. As has been seen, the misrepresentations alleged and relied upon by appellant, alone, as a basis for recovery, are embraced in the written statement of the assets and liabilities of the appellee Daniel Millinery Company, taken from the books of the company and received by appellant in the due course of mail January 6, or 7, 1904. That this statement was prepared and delivered to appellant at the joint request of himself and appel-lee Daniel, and was no more the product of Daniel than appellant, we think conclusively established by the evidence; * * *.
“There is no evidence to sustain the charge of actual fraud, and we think it appears as a fact, established beyond controversy, that the written statement in question, and which appellant claims induced him to part with his stock for the price received, was procured at his own instance, was as much his own statement as it was the statement of appellee Daniel; that, under the circumstances, he should not be heard to complain that he had been misled by said statement to his injury, and obtain relief in either of the respects sought. in this action. Not being distinctively the statement and representation of Daniel, appellant was not. authorized to rely upon it as such, and, whether true or false, we need not inquire, for in such case its truth or falsity becomes unimportant in the disposition of this appeal.”
,, Relief was denied .the, injured director in that case and I believe, a similar ruling should be made here and that there is no occasion to inquire into the validity, of the advice given by Mr. Weatherred.
The contract between the parties here was based on their agreement that Dr. Cheatham died intestate. They had every right to so agree. Wade v. Wade, 140 Tex. 339, 169 S.W.2d 1008. If, as. I believe, such agreement is not subject to the attack upon it made by appellant then the purported will, even if valid, has been legally extinguished and there is no will or purported will to be offered for probate. Stringfellow v. Early, Austin, 15 Tex.Civ.App. 597, 40 S.W. 871. See also Robbins v. Simmons Estate, Tex.Civ.App., Galveston, 252 S.W.2d 970, writ ref. N.R.E. and authorities therein cited.
I would affirm.
. There certainly is no impropriety in-an attorney advising a family group collectively when, as here, the advice is so sought. See Guardian Abstract & Title Co. v. San Antonio Bar Ass’n, Tex.Civ.App., Austin, 278 S.W.2d 618, loc. cit. 620, reversed Tex., 291 S.W.2d 697.