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    E. A. Franklin v. L. Smith and R. A. Harvin.
    (Case No. 2955.)
    1, Pleadings — Plea of failure of consideration.—A plea of failure of the consideration of a note sued on, setting up: “ That the plaintiff, being the inventor and patentee of divers enumerated useful and valuable articles, had. before the execution of the note sued on, conveyed to a certain joint stock company the right and proprietorship of said patent right; that said stock company consisted of six shares, of which the plaintiff, for himself and his brother, retained two shares, and conveyed to John M. Lockett one share, to Henry E. Lockett one share, and to the defendants , each one share; in consideration of which conveyance and the further consideration hereinafter stated, the said John M. and Henry E. Lockett each paid and contracted to pay the sum of $1,500; the defendants each paying the sum of $1,000 in cash, and for the remaining $500, the amount due by them, they joined in "executing the note sued on.” “ That as part of the consideration of the money so paid and agreed to be paid by the defendants, and the said John and Henry Lockett, to the plaintiff, the several parties to said joint stock association then and there appointed the aforesaid Henry E. Lockett their lawful agent and attorney in fact to proceed to the city of New York and other northern cities with a view to procuring the manufacture and sale, of the said several inventions, on royalty or otherwise in his discretion; that to induce the said H. E. Lockett to undertake the said service on behalf of said joint association, it was then and there agreed by and between all the said parties that each share should contribute and pay towards ‘the salary of the said H. E. Lockett the sum of $200, and it was expressly agreed that the plaintiff, representing two of said one-sixth shares, should then and there pay to said H. E. Lockett the sum of $400; that in pursuance of said agreement, the defendants and the other parties, save and except the plaintiff, did pay over to said H. E. Lockett their said quotas of $200, but the plaintiff wholly failed and refused to pay the sum so agreed to be paid by him. By reason whereof the said H. E. Lockett, after expending large sums of money of his own and these defendants, became and was unable to carry out the objects and purposes of his said appointment and undertaking, and was compelled to return home without having sold or disposed of any portion of said inventions, without having realized any money whatever therefrom; wherefore they became damaged in the sum of $3,000, and the consideration of said note, they allege, has wholly failed.” “That it was the agreement and understanding of the parties, both at the time the note sued on was executed, and before and afterwards, that the payment thereof was not to be demanded of the defendants until the net profits accruing to the defendants from the manufacture and sale of said inventions shall be sufficient to discharge the said note, and in case no such profits should ever accrue to the defendants, then said note was to become and be absolutely null and void, and the defendants say that no profits whatever have accrued to them from such sale and manufacture, and this they are ready to verify,” —is insufficient, and overruling exceptions to it was erroneous.

      2. Want of consideration — Contract.— Without contradicting or varying the terms of an instrument in writing, absolute on its face, it is admissible for the defendant to establish, by competent evidence, that it was delivered in pursuance of an agreement that no liability should accrue for its payment until the happening of events connected with its consideration.
    '3. Varying terms of written contract by parol.—Parol testimony is inadmissible to prove an agreement or understanding between the plaintiff and defendant, that the note sued on was only to be paid out of proceeds of sales of patents on inventions, and that if no such proceeds were ev.er realized, the note was not to be paid at ' all, because varying and contradicting the plain terms of the written contract as expressed in the note.
    4. Opening and concluding argument — Burden of proof — Want of consideration.— Where the defendant pleads want of consideration in a note, the burden of proof is upon the plaintiff to satisfy the jury, upon the whole evidence, that the note was supported by a sufficient consideration, and it is error to permit the defendant to begin the evidence, and open and conclude the argument to the jury. Delano v. Bartlett, 6 Cush., 367; Powers v. Russell, 13 Pick., 76; Small v. Clewley, 63 Maine (16 Amer. Rep.), 413.
    5. Charge of the court.— Unless from the record of the trial it is manifest that the verdict was a correct one, notwithstanding an erroneous charge, a judgment will be reversed whenever an erroneous instruction upon a material point has been given which may have influenced the jury, although the exidence may appear to the appellate court to be sufficient to sustain the verdict. Mims v. Mitchell, 1 Tex., 443; King v. Bremond, 35 Tex., 637; Vaughan v. The State, 31 Tex., 753; Bailey v. Mills, 37 Tex., 438; Belt v. Raguet, id., 473; Chandler v. Fulton, 10 Tex., 21.
    Appeal from Washington. Tried beloiv before the lion. I. B. McFarland.
    E. A. Franklin, the appellant, brought suit July 8, 1873, against L. Smith and R. A. Harvin, on their joint note for $1,000, payable one day after date to the order of the plaintiff, with ten per. cent, interest from 1st September, 1872, dated June 26th of same year. The defendants answered, and at a subsequent term of the court amended their several answers by a joint answer, whereby they withdrew their plea of general denial, and distinctly state that they rely on their plea of failure of consideration; and, amending their former plea of failure of consideration, allege that the note sued on was executed and delivered upon the consideration therein specified, and no other; that the consideration had failed by reason of the failure of the plaintiff to comply with his undertakings in the premises, to their damage $2,000, which they plead in set-off and reconvention.
    The plaintiff excepted to the answer; the exceptions were partially sustained, viz., to the extent of so much of the answer as set up a claim for damages in reconvention, and it was overruled as to the remaining parts of the answer. Trial before a jury; verdict for defendants, and judgment accordingly. Motion for new trial filed by the plaintiff, which was overruled; plaintiff appealed, and assigns as error:
    1. The court erred in overruling plaintiff’s exceptions to defendants’ answer.
    2. In permitting the defendants to begin the evidence, and to open and conclude the argument to the jury.
    3. In admitting evidence to go to the jury over plaintiff’s objections, as is shown by bill of exceptions.
    4. The charges given and refused by the court.

      Oiddings <& Morris, for appellant.

      ¡Sayles & Bassett, for appellees.
   Walker, P. J.

We will consider the first assignment of error, viz., that the court erred in overruling plaintiff’s exceptions to defendants’ answer. As has been seen, the exceptions were overruled only so far as they related to the defense of a failure of consideration. The answer setting up that as a defense, alleged that the plaintiff, being the inventor and patentee of divers enumerated useful and valuable articles, had, before the execution of the note sued on, conveyed to a certain joint stock company the right and proprietorship of said patent right; that said stock company consisted of six shares, of which the plaintiff, for himself and his brother, retained two shares, and conveyed to John M. Lockett one share, to Henry E. Lockett one share, and to the defendants each one share; in consideration of which convejmnce, and the further consideration hereafter stated, the said John M. and Henry E. Lockett, and the defendants, each paid and contracted to pay the sum of $1,500;-the defendants each paying the sum of $1,000 in cash, and for the remaining $500 of the amount due by them they joined in executing the note sued on.

That as a part of the consideration of the money so paid and agreed to be paid by the defendants and the said John and Henry Lockett to the plaintiff, the several parties to the said joint stock association then and there appointed the aforesaid Henry E. Lockett their lawful agent and attorney in fact, to proceed to the city of Hew York, and other northern cities, with a view to procuring the manufacture and sale of the said several inventions on royalty or otherwise in his discretion.

That to induce the said H. E. Lockett to undertake the said service on behalf of said joint association, it was then and there agreed by and between all the said parties, that each share should contribute and pay towards the salary of the said H. E. Lockett the sum of $200,- and it was expressly agreed that the plaintiff, representing two of said one-sixth shares, should then and there pay to said H. E. Lockett the sum of $400. That in pursuance of said agreement the defendants and the other parties, save and except the plaintiff, did pay over to the said H. E. Lockett their said quotas of $200, but the plaintiff wholly failed and refused to pay the sum so agreed to be paid by him. By reason whereof the said H. E. Lockett, after expending large sums of money of his own and these defendants, became and was unable- to carry out the objects and purposes of his said appointment and undertaking, and was compelled to return home without having sold or disposed of any portion of the said inventions, without having' realized any money whatever therefrom; wherefore they became damaged in the sum of $5,000, and the consideration of^the said note, they allege, has wholly failed.

The answer further stated that the agreement and understanding of the plaintiff and the defendants, both at the time the note sued on was executed, and before and after-wards, and the same entered into the consideration of the said note and of the money paid by the defendants to the plaintiff as aforesaid, was, that the parties should respectively contribute and place in the hands of Henry E. Lockett as agent an agreed amount, to wit, $500, towards procuring the manufacture and sale of the-aforesaid patents and inventions; that the defendants paid their parts of the said fund, and that the plaintiff wholly failed and refused to pay his part thereof, and that his said failure prevented the sale and manufacture of the said articles, to the defendants’ damage $2,500, which they plead in offset and reconvention. And that it was the agreement and understanding of the parties, both at the time the note sued on was exécuted, and before and afterwards, that payment thereof was not to be demanded of the defendants until the net profits accruing to the defendants from the manufacture and sale of said inventions shall be sufficient to discharge the said note, and in case no such profits should ever accrue to the defendants, then said note was to become and be absolutely null and void; and the defendants say that no profits whatever have accrued to them from such sale and manufacture, and this they are ready to verify.

The plaintiff excepted generally, and for special cause of exception says, that it appears from the defendants’ answer that their claim or grounds of defense are founded upon an alleged breach of contract between the general members of a joint stock company composed of plantiff, defendants, H. E. Lockett and John M. Lockett. The remaining speoifications relate to the defendants’ pleas in set-off and reconvention, which were sustained and need not be set out in this place.

The appellant’s first assignment of errors is that the court erred in not sustaining his exceptions to the entire answer.

The plea of failure of consideration does not set out with distinctness, if indeed it was meant to so aver, that the purchase by the defendants, as members of said joint stock company, of the said two shares in the patent rights, was part and parcel of an entire contract with the plaintiff, whereby the latter agreed to convey said shares and also to contribute by his investments of cash means to the manufacture of the articles, or else to provide in the same manner for their sale under royalties, nor does it allege that both .said conveyance and said contributions together formed the inducement to the purchase of the shares thus bought by them. Under such allegations, if the plaintiff had failed to comply on his part, it would afford ground for a rescission of the contract, and damages for a breach of the same, and consequently support a plea of failure of consideration. The language used in the ' plea is very general, and the allegations are indistinct in respect to this branch of the plea. The inference from its allegations is admissible that the interests of the patentee were conveyed to the defendants and other members of the joint stock company, and that said company, of which the plaintiff composed a part, agreed to take the steps referred to in the plea to utilize and render profitable their investment in the said patent rights; and that whilst §1,500 was to have been paid by each shareholder in consideration of the plaintiff’s sale of said shares, and also of an agreement on his part to contribute towards putting the articles in market, that, nevertheless, the sale of said shares may have been a distinct transaction, supported by a separate consideration, not dependent on the other parts of the dealings in respect to the manufacture of the articles. If such were the case, the right of the plaintiff would exist to recover on such portion of the contract.as he had completely fulfilled, and there could be no total failure of consideration; it could attach only to such parts of the transactions as he had not fulfilled. The plea, however, does not distinguish between the several parts of the plaintiff’s undertakings'; and at the same time it admits conveyances to the defendants of rights to valuable inventions, and does not offer to cancel them, nor does the answer allege the relative value of the purchased shares to the value of whatever else, besides, they may have lost or suffered damage.

The allegations on their face negative the conclusion that there was a total failure of consideration of the note sued on. In order to render such a plea available against this note, it is necessary to allege facts which show that every part of the inducement upon which it was executed has failed to be performed by the plaintiff. If, for example, the contract of the parties had originally been such, that the amount of the note ($500 on each share) was not to have been paid except on condition that the manufactured articles or sales "thereof should produce to the defendants a net profit sufficient to meet the same, and afterwards the terms were varied, whereby this note was to be executed on the condition that the plaintiff should make certain advanees which he failed to make, and that thereby the consideration of the note failed; in such case, the defense of a total failure of consideration would apply, and no recovery could be had upon the note, whatever might be the remaining rights and equities of the parties respectively under the original and other transactions of the parties. Under the pleadings as they stand, the consideration in gross is stated as being the amount agreed on for all the acts performed and to be performed by the plaintiff, without making a sufficiently distinct discrimination as to the relative considerations of each, nor sufficiently eliminating the consideration of the note sued on from the conveyance of valuable interests to the defendants, of which they are still possessed, and which they do not offer to reconvey to the plaintiff; the answer repels the idea of a total failure of consideration, so far as the entire .transaction between the parties may be considered, and it fails to show a state of facts from which it may be clearly seen that there is a total failure of consideration in the note sued on, because it is shown to have been a part of the consideration for shares which may be nearly or quite of the value of $1,500 each. There are, it is true, allegations from which it might be surmiseql that, inasmuch as it was agreed before, at the time, and after the execution of the note, that it was not to be paid except out of the net profits, that, therefore, this note wras based upon a separate and distinct consideration and contract from the general consideration which the other parts of the answer averred; but the allegation referred to is rather the suggestion of fact on which a conjecture or inference may be based, than direct affirmative allegation of facts distinctly showing that the consideration of this note was based upon conditions which withdrew it from any connection or dependency upon the united considerations of the contract, as it is described to be in the answer. The appellees’ counsel in their brief, however, treat this part of the answer as a separate defense; if such is its character it cannot be looked to in order to aid the plea of failure of consideration; and it may have been prepared and intended as a separate plea setting up the defense that this suit was prematurely brought, no cause of action having yet arisen upon it. This part of the answer follows in consecutive order the preceding allegations of the answer setting up a failure of consideration, and is not introduced in the form and manner which would indicate it to be a separate plea, nor does it purport in terms to be so intended. If intended as a separate defense, it ought to have been distinctly and fully pleaded as such, with such allegations of fact as to render it a complete and independent plea, without the necessity of.reading the other plea to render its meaning intelligible or consistent. From a casual reading of the pleadings and judgment of the court, the inference arises that the answer of the defendant rested alone on a failure of consideration after the exception was sustained to the plea in reconvention.

Viewing this part of the answer, then, as a separate plea, we conclude that' the remaining parts of defendants’ amended answer were insufficient, and that the demurrer of the plaintiff to it ought to have been sustained. On another trial the defendants should amend their answer so as to distinctly and clearly set up their several defenses, so as to meet - the deficiencies and defects which we have herein indicated.

The assignments of errors involve the consideration of many of the instructions given and refused to a portion of the charge of the court. It will not be necessary to consider seriatim the points thus presented, nor further to discuss them than may seem essential to determine a proper result on this appeal, and to indicate a rule on some of the questions with reference to another trial. The court instructed the jury, at the instance of plaintiff, as follows: “ The defendants allege a part of the consideration for which t]ie note was given was that plaintiff agreed to contribute certain sums of money to H. E. Lockett as the agent of the joint stock company composed of plaintiff, defendants, H. E. and John M. Lockett, to visit New York and other northern cities to dispose of the inventions the company owned, and that he failed to contribute said sums; and this alleged failure to so contribute is the failure of consideration set up by the defendants.”

“ This is a question involving the interests of the joint stock company and cannot be set up by defendants as a defense to this suit; neither can the defendants set up a breach of contract between Franklin and H. E. Lockett as a defense to plaintiff’s action against them.”

The foregoing instruction, after correctly defining the elements which constituted the defense, set up by defendants, of a failure of consideration, in terms not less definite and specific directs the jury that it cannot be set up as a defense to this suit, and gives also the reason upon which the court bases the conclusion.

In the charge of the court the jury are thus directed: “ If you believe from the evidence that the consideration for which the note was given was the same as that set out in the defendants’ answer, and if you further believe from the evidence that said consideration has failed, you will find for the defendants; otherwise you will find for the plaintiff the amount of the note and interest.”

The previous instruction informed the jury as to every fact concerning which they were to inquire under the direction of the charge last quoted, and that upon that state of facts they would not find for the defendants, and could not so find. The instructions to the jury are not reconcilable with each other. Under the court’s instruction, there was no other supposable state of facts on which to base a defense of failure of consideration than those specified in the answer, which they were charged would not support the defense of failure of consideration. The main charge, however, implied, if it can be made in anywise consistent with the other instruction, that there remained some other facts in the case on which might be predicated,a defensive plea of failure of consideration, and the jury were thus left to determine from the testimony what they were.

There were not, however, any other facts which they could properly consider in that connection, and yet in view of the evidence in the case, which extended over a large area of controverted facts, we cannot say they were not misled by these conflicting charges to them, and that the plaintiff was thereby prejudiced by them in the result of the trial.

There was evidence before the jury, introduced by the defendants, to establish that it was the understanding and agreement, after, at, and before the execution of the note, that it was to be paid out of proceeds of the sales of the inventions, and that the plaintiff should pay his part of the manufacturing fund, and of H. E. Lockett’s expenses in going north; also that the original consideration of the purchase of the shares was §1,000 for each share, and $500 in addition, to be payable only on the condition that the same could be realized out of sales of the manufactured articles. On both of these propositions the evidence was, however, conflicting. The answer did not set up the facts embraced in the latter proposition, and on the former,1 the court did not give to the jury any charge or instruction as to any rule of law applicable to such a defense. There were, it is true, instructions having reference to the character of evidence which, would be admissible and non-admissible under it, but no charge or instruction which instructed the jury as to the rule of law applicable to it, nor as to how they should find in respect to it under the evidence before them. Under those circumstances, the jury may have concluded that to the evidence relating to the one or the other, or to both of these subjects, the charge of the judge was intended to apply, which ¡^instructed them to find for the defendants if they believed from the evidence the consideration of the note had failed. If they did so find under such an interpretation of the seemingly incompatible charges given to them, they would have found either upon an issue not made by the pleadings, or else they would have found without any instruction on the law applicable to the question, and would have wholly mistaken the charge, intended to be applicable alone to the defense of failure of consideration, for an entirely different defense.

There remains another supposable alternative, viz., that the jury intentionally and understandingly disregarded the charge which instructed them that the matters set up as a failure of consideration could not entitle the defendants to recover. If they did do so, they acted upon their own interpretation of an insufficient plea, which set before them an incorrect standard of what constituted a total failure of consideration; and if, besides this, they cast themselves loose from the tutelage of their proper adviser, their conclusions, thus manifested, supply no means of determining by what process they were attained; and in order to support a verdict rendered under such circumstances, it would be required that from the record of the trial it is manifest that it was a correct one, notwithstanding the erroneousness of the charge. Mims v. Mitchell, 1 Tex., 443; King v. Bremond, 25 Tex., 637; Vaughan v. The State, 21 Tex., 752. If, however, an erroneous charge or charges have been given to the jury, which may have influenced the finding, and in the absence of which the finding might have been different, a new trial will be granted, although the court may be satisfied with the verdict. Chandler v. Fulton, 10 Tex., 21.

In view of the confusion of ideas, and the embarrassing perplexities, in which we must suppose the minds of the jurors to have been involved in considering the conflicting evidence which was- submitted to them, and that there was evidence tending to support a finding for either party, we feel required to say that the conflicting charges of the court in relation to the failure of consideration, and the want of any definite charge directing the jury as to the proper application of the evidence which related to the defense that this suit was prematurely brought, may have misled them into misinterpretations and misapplications of the evidence to the law, to the injury of the plaintiff. We cannot say that the verdict is right, under the evidence and pleadings, notwithstanding the errors to which we have pointed.

A judgment will be reversed whenever there is an erroneous instruction upon a material point which may have influenced the jury, although the evidence may appear to the appellate court to be sufficient to sustain the verdict. Bailey v. Mills, 27 Tex., 438; and see, also, Belt v. Raguet, 27 Tex., 472; Chandler v. Fulton, 10 Tex., 21, in relation tó a similar rule applicable to contradictory charges which may have misled the jury. '

There are numerous assignments of error, presenting questions of evidence and practice; but we will not attempt to discuss them all, nor to notice more of them than a proper direction to another trial may seem to require.

The objections taken by the plaintiff to the admissibility of parol testimony to prove that it was the agreement and understanding between the plaintiff and the defendants that the note • was only to be paid out of proceeds of sales of patents or inventions, and that, if no such proceeds were ever realized, the note was not to be paid at all, because it sought to vary and contradict the plain terms as expressed in the note, were well taken. The rule of law on this subject is too well settled to require discussion or to need a reference to authorities. The availability of • a defense predicated upon such a supposed state of facts is to be distinguished from the kind of evidence whereby it may be established. The evidence which was offered and allowed was plainly to establish a contract directly and essentially variant from the specific and absolute promise contained in the note, to pay the amount thereof unconditionally and on a day certain. The cases to which we are referred in the brief of the counsel for the appellees do not qualify the general rule, so far as that rule relates to this case. The bill of exceptions recites “ that the defendants offered to prove by the witnesses Smith and J. ¡M¡. and H. E. Lockett, that there was a parol agreement and understanding,” etc., as has been already recited; which was quite a different one from that which was evidenced by the note. The purpose of the rule would be wholly frustrated if it might be thus disregarded by introducing in the place of the writing the parol evidence referred to. It is needless to pause to point out the inapplicability of the decisions made in the cases above alluded to; they illustrate numerous instances where parol evidence is admissible in connection with and relating to written instruments, under rules of law as well established and as elementary as the general principle which excludes it for the purpose of contradicting or varying the terms of a written contract.

The objections of plaintiff to the receipt óffered by defendants and admitted by the court were not well taken. The evidence was admissible as circumstantial evidence, not to dispute or contradict the fact that the note itself imported, according to its recitals, a promise to pay absolutely, but that it may have thus been written and delivered upon an understanding and agreement that it should not be paid, nor be enforceable at law as between the parties until the sales of inventions, or money enough was realized out of such sales to pay the amount. ¡Notwithstanding" the execution of an instrument absolute on its face, without contradicting of varying its terms, it may be’thus made and delivered under such circumstances and existing facts as to' give it a different legal effect, of to invest the maker'with certain equities which may be protected. By competent evidence, it was admissible for the defendants to establish, if they could, that this note was delivered in pursuance of a consideration and under an agreement that no liability should accrue for its payment until the happening of the events which were indicated in the receipt. The receipt, if connected with the consideration of the note, might tend, as one link, to establish a chain of circumstances which might maintain the general proposition that the payment of the note in the hands of the original payee could not be demanded at the date of the institution of the suit; at all events, to the extent of Harvin’s portion of said note. Of course, such evidence would be inconclusive, and might be rebutted and explained; the issue at last being,.what was the contract and consideration upon which the note sued on was made and delivered.

In respect to assignments of error which relate to the giving and refusal of divers enumerated instructions to the jury, it may be said that they relate mainly to principles and rules of evidence and pleadings, sought by the plaintiff to be made available in the shape of instructions, the effect of which would, if given, serve to neutralize or qualify certain evidence before the jury. In view of the conclusion we have arrived at in respect to the merits of this appeal, and of the exposition already made of our views on the essential features of the questions pertaining to the rights of both parties, we conceive that we may pass over without notice the remaining assignments referred to without comment. To do otherwise would hardly be profitable to the parties on another trial.

The appellant assigns as error that the court erred in permitting the defendants to begin the evidence, and to open and conclude the argument to the jury, over the objections of his counsel, who urged as grounds therefor, that the defendants did not admit by their answer their liability on the note, but expressly denied it; also, that upon the whole case, the burden of proof was on the plaintiff to show defendants’ liability; and that under the pleadings the plaintiff had the right to open and conclude the argument to the jury, and to begin the evidence.

The defendants had, as has been seen, withdrawn the general denial, and the court had sustained the plaintiff’s exceptions to the answer so far as it set up a plea in set-off and reconvention; the remaining issues being that of failure of consideration, and that the note was payable on condition— on the happening of an event which had not transpired. The last-named issue devolved the burden upon the plaintiff of vindicating his allegation by evidence that the note was in fact due and payable according to its terms, and that at the date of the institution of his suit there existed a valid cause of action upon it. The defendants’ pleadings did not admit that there was then, or had ever been, a valid cause of action upon the note. The authorities well maintain that the defense of a want of consideration in a promissory note does not relieve the plaintiff from the burden of proof to satisfy the jury upon the whole evidence that the note was supported by a sufficient consideration. The burden does not shift, although the weight of evidence may alternately preponderate on the one side or the other. The burden of proof remains on the plaintiff, unless the defendant sets up a new and distinct issue, as payment, for instance, confessing the original contract, and seeking to avoid it. Delano v. Bartlett, 6 Cush., 367; Powers v. Russell, 13 Pick., 76; Small v. Clewley, 62 Me. (16 Amer. Rep., 412), and the authorities cited in the last-named case.

The authorities are not wholly coincident in respect to the application of this rule to the defense of failure of consideration (see Small v. Clewley, supra), but in this case, on that point, it is remarked: “In Delano v. Bartlett, 6 Cush., 368, a distinction is made in respect to the burden of proof, between a want of consideration and a failure of it; while in Burnham v. Allen, 1 Gray, 496, no such distinction is taken by Chief Justice Shaw.”

It is not necessary to determine the rule as to its application to the defense of failure of consideration, although high authority would seem to sanction the opinion that it would apply alike to that as to the defense of a want of consideration. It is sufficient to rest our conclusion upon the other issue in the case which has been already discussed.' We are of the opinion that this assignment of error is well taken, and that the plaintiff’s counsel was entitled to open and conclude the argument to the jury.

[Opinion delivered May 17, 1880.]

We conclude, upon the whole case before us, that there is error in the judgment, and that it shall be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: A. S. Walker, J.

license: Public Domain

text:
    Isabella A. Spruill v. Luke Spruill.
    (Case No. 4148.)
    I. Divorce — Sufficiency of petition.— In suits for divorce on the ground of “cruelty” and “outrageous conduct,” the jury or court should pass upon the effect the specific charges have or are likely to have upon the plaintiff, whether or not it be insupportable; and to sustain a demurrer to a wife’s petition for divorce, alleging on the part of her husband towards her “a studied course of insults,” “publicly charging her with taking his money,” “cursing her” and calling her “a strumpet and a bitch,” is erroneous. Taylor v. Taylor, 18 Tex., 578; Sheffield v. Sheffield, 3 Tex., 87; Rogers v. Rogers, 6 Tex., 545; Pinkard v. Pinkard, 14 Tex., 357; Sharman v. Sharman, 18 Tex., 525; Wright v. Wright, 6 Tex., 18.
    Appeal from Oaldwell. Tried below before the Hon. L. W. Moore.
    March 15, 1879, Isabella Spruill brought suit against her ¡husband, Luke Spruill, for a divorce, alleging acts and conduct which are termed outrages, rendering their living together as husband and wife insupportable.
    The petition alleged substantially their residence; marriage August 6,1857; proper demeanor on part of plaintiff during their married life; that for several years last past, by a studied course of insults, outrages and cruel treatment of plaintiff, defendant has rendered their living together as husband and wife insupportable to her; that October 2,1877, in the presence of their family and their neighbors, and for the purpose of annoying her and wounding her feelings, defendant had, without provocation, said to plaintiff that she “was always making and keeping up a fuss, was-worthless and of no account, and that he cared nothing for her.” That October, 1878, when a hired woman at their home had been and was quarreling with and annoying plaintiff, the defendant took the part of said hireling, cursing and swearing at plaintiff, repeating the charge which was false, that she was always keeping up a fuss, that she was of no account (using an oath), and that he “ cared nothing for her.”
    On March 1, 1879, in presence of their family and neighbors, the defendant called plaintiff “ a damned strumpet and bitch; ” and at the same time defendant had stated falsely that he had put his money in her hands, and that “she had made way with said money, and that he could not get it,” meaning and intending to charge her with stealing it; repeating such charge against her and her son by a former marriage; and March 4, 1879, in presence of their family, defendant had abused and cursed her, repeated the charge that she had taken and made way with his money, and that her said son had done the same thing; intending to charge that plaintiff and her son had stolen his money.
    A general demurrer was sustained, and final judgment rendered for defendant. The plaintiff appeals.

      Nix eft Story and Hutchison (ft Franlelin, for appellant:

      Ireland (ft Burgess, for appellee!
   A. S. Walker, J.

Our statutes regulating the granting of divorces require a general finding by the jury or court trying the case upon the effect upon the injured party the alleged acts of cruelty, etc., may produce.

That such finding is required shows that the terms “excesses, cruel treatment or outrages towards the other ” may have a meaning colored by the moral, mental and aesthetic nature and culture of the parties immediately interested; so as, in fact, a given act may or may not seriously affect the relations between the parties, the effect in law shall be measured by the same rule in determining whether the act renders the further living together as husband and wife insupportable.

In this case we are not informed, save by the general allegation that the wife has demeaned herself properly, that she is or is not of a coarse nature, vulgar in association in habits, so that the effect of any specified harshness of demeanor on the part of the husband would not affect her so as to invoke aid from the laws of the state. ISTor does it appear by express allegations that from her moral nature, mental culture or refinement in sentiment such conduct as detailed in the petition would of necessity have had any particularly depressing or injurious effect upon her.

We are called on in this appeal to decide that, under no testimony which could properly be admitted under the allegations in the petition, could it be shown that the effect of the alleged acts upon the plaintiff were such as, under the law, is termed “ cruelty ” or “ outrageous conduct.”

The wife’s deportment, her character and surroundings.-' would properly be investigated; whether the acts, if proven, were wanton on his part, or provoked by her treatment of him; or even, as suggested by counsel, the interchange of such epithets was of such frequent occurrence as to mean nothing but a very ordinary domestic broil.

The jury or court, from the evidence to the specific charges, and applying the acts proven to the rule of conduct between the parties, as ascertained by the proof as in fact existing, should pass upon the truth of the specific charges, and upon the actual effect they have, or are likely to have, upon the plaintiff, whether or not it be insupportable.

While great powers are given to the district judges in refusing divorces, still, upon the finding of a jury upon the plaintiff’s case, if a divorce be refused appeal will lie, and the supreme court mity reverse and render the divorce upon the verdict. Taylor v. Taylor, 18 Tex., 578.

[Opinion delivered May 17, 1880.]

Several allegations made in the petition are of acts which have been held sufficient to support evidence of cruelty. “ The studied course of insults,” etc. (Sheffield v. Sheffield, 3 Tex., 87); “ publicly charging her with taking his money ” (Nogees v. Nogees, 7 Tex., 538); the coarse and brutal charge of infidelity that she was “ a strumpet and a bitch ” (Pinkard v. Pinkard, 14 Tex., 357; Sharman v. Sharman, 18 Tex., 525, 526; Wright v. Wright, 6 Tex., 18); the cursing, etc. (Wright v. Wright, 6 Tex., 18, and cases there cited).

We have no hesitation in deciding that the allegation that defendant had called his wife a strumpet, if supported by testimony showing that it was publicly and earnestly made to a wife of virtue and delicacy, accompanied by the repeated (as alleged) declarations to her of his want of care for her, and his aggravating taunts as to her conduct, would, in many instances, render a living together insupportable. If the charges and effect were found, such injured woman would be entitled to the law’s protection in granting her a divorce.

It was error, therefore, to sustain the demurrer.

The facts alleged respecting the tract of land do not show a necessity for judicial aid outside of the proceedings for ■divorce. The same protection can be had directly under the registration laws. B. S., 4345, 4346, 4347.

For the error in sustaining the demurrer, the judgment ■below should be reversed.

Beveksed and remanded.


author: Walkek, P. J.

text:
    M. Roe v. D. Dailey et al.
    (Case No. 3589.)
    1. Petition—Injunction.—If the equities of a bill for injunction are fully answered by tlie defendant so as to entitle him to ask a dissolution of the injunction, the petition should nevertheless be continued over for trial, if it discloses a good cause of action. Fulgham v. Chevallier, 10 Tex., 518; Dearborn v. Phillips, 21 Tex., 448; Floyd v. Turner, 23 Tex., 292; Houghton v. Berry, 3 Tex., 235; Eccles v.
      Daniels, 16 Tex., 136; McDonald v. Tinnon, 20 Tex., 243; High on Inj., 885.
    3. Injunction.—Where the plaintiff’s title is derived through a married woman, tlie conveyance to her having been made during the marriage, if it was in fact her separate property, injunction will lie to restrain a sheriff’s sale thereof under a judgment against the husband, because the law presumes it to be community property, and subject to the payment of the husband’s debts, and the sheriff’s sale would cast a cloud upon the title, the invalidity of which could only be shown dehors the record. Huston v. Curl, 8 Tex., 239; Mitchell v. Marr, 26 Tex., 330; Smith v. Boquet, 27 Tex., 512; Dunham v. Chatham, 21 Tex., 244; Kirk v. Navigation Co., 49 Tex., 213; High on Inj., secs. 370, 373.
    Appeal from Dallas. Tried below before the Hon. Z. Hunt.
    The opinion states the case.

      Ramsey da Helm and Cabell da Edwards, for appellant.

      R. W. Goldthwaite, for appellees.
   Walkek, P. J.

The appellant instituted his suit against the appellees to enjoin the sale of three certain city lots contiguous to each other, under an execution in favor of appellee D. Dailey, against one Pleasant Taylor, issued and levied on said lots as the property of said Taylor, to satisfy a judgment in the district court of Dallas county in favor of said Dailey against said Taylor, rendered in July, A. D. 1874. The petition alleges that said lots were acquired by conveyances made in pursuance of purchases made by the appellant from Mrs. Haney P. Taylor, the wife of said Pleasant Taylor, of one of the lots, and from one Aunspaugh, the vendee of said Mrs. Taylor, of the other two lots, in good faith and for a valuable consideration, by deeds duly recorded, at dates and periods subsequent to the date of said judgment; that said Haney P. Taylor acquired the said lots by purchase with her separate individual means, at the price of $400, by deed of conveyance made to her on the 30th day of September, A. D. 1872, and duly recorded in said county on the next succeeding day; that she went into the possession of the same, using, enjoying and receiving the rents, revenues and profits of the same until the sale to the plaintiff ; that the said lots were her separate property, and that her husband never had any interest in the property; and that petitioner, relying upon his title, has placed valuable and lasting improvements on the lots, which have greatly enhanced their value. The petition alleges that the threatened sale thereof, under said levy, will create a cloud on his title, and cause him irreparable injury, and will disturb him in the quiet enjoyment of his property, and that the sale, if so made, will cause his property to greatly depreciate in value, and will prevent him from alienating it for its fair value until said cloud could be removed; whereas said property has hitherto constantly increased in valuation from the time of his purchase up to the time of filing his petition. The petition was sworn to by petitioner directly as to matters stated of his own knowledge, and as to his belief in respect to those facts alleged on information of others; in addition thereto, was attached the affidavit of Mrs. Raney P. Taylor, which stated that the property was purchased with her own means from William Wolf, and that it was her separate property. The writ of injunction prayed for was granted.

The defendant, Dailey, filed an answer to the merits, consisting of a demurrer, and an answer to the facts sworn to, and supported by several affidavits of other persons; the plaintiff also filed several counter-affidavits of a like character.

The defendant filed, also, a motion to dissolve the injunction and to dismiss the bill on numerous grounds; they involve, however, the questions as to the sufficiency of the bill to entitle the plaintiff to the remedy of injunction, and whether the answers of defendant have met and answered the equities of the bill, and they need not be enumerated.

It does not appear that a jury was waived and the cause submitted to the judge, but that the cause was disposed of finally on the hearing of motion to dissolve and dismiss. The motion was sustained, the injunction dissolved and the cause dismissed. The judgment recites that the affidavits in support of the motion were heard in connection with the motion on its hearing, but it does not appear from the record that the parties agreed to submit the issues of fact to be determined on the affidavits by the judge, in the place of a trial of the merits of the case. There is no statement of facts nor bill of exceptions in the record.

The plaintiff appealed, and assigns as error the action of the court in dissolving the injunction, dismissing the petition, and in not retaining the cause for final trial upon its merits.

If the equities of the bill for injunction were fully answered by the defendant, so as to entitle him to ask a dissolution of the injunction, nevertheless, the petition should, if it disclosed a good cause of action, have been continued over for trial. Fulgham v. Chevallier, 10 Tex., 518; Dearborn v. Phillips, 21 Tex., 448; Floyd v. Turner, 23 Tex., 292. Or, if the plaintiff’s petition were defective, he was entitled to amend and present such facts as would entitle him to a decree on the trial upon the merits. Houston v. Berry, 3 Tex., 235; Eccles v. Daniels, 16 Tex., 136; McDonald v. Tinnon, 20 Tex., 245.

“ It is erroneous to dismiss the bill upon dissolving the injunction, and complainant has the right to proceed to a final •hearing of the case as if no injunction had been prayed or granted.” High on Inj., sec. 889. But where the injunction is dissolved upon a ground which in its nature is such as to show that it was granted for a cause which did not warrant the remedy sought, and the petition contained no other cause of action to require the cause to be returned on the docket, the dismissal would probably follow the dissolution. Gibson v. Moore, 22 Tex., 616. It follows from these propositions that unless the petition failed to state a cause of action, or failed to state facts upon which, by amending the petition, a good cause of action might be based, the court erred in dismissing the plaintiff’s petition.

It would appear from the briefs and arguments of counsel that the case had been determined in the district court from the application to the motion of the rules of law propounded in the case of Carlin v. Hudson, 12 Tex., 202. We conceive the merits of the plaintiff’s action do not depend upon the principle of law therein asserted by our supreme court, but rest upon his right to prevent by injunction a cloud being cast upon his title; concerning which head of remedial and preventive justice Mr. High says: “ The prevention of a cloud upon title is a salutary branch of the jurisdiction of equity, recognized by all the authorities and founded upon the clearest principles of right and justice.” High on Inj., sec. 269. The application of the doctrine to a fitting case is presented in that which is made by the plaintiff’s petition. The character of title which the purchaser at sheriff’s sale under the levy in question would acquire, under the various tests which determine whether it would be such as to constitute a cloud, and entitle the true owner to the remedy of injunction whereby to prevent it, is apparent. Thus, the plaintiff’s title is one which is derived through a married woman; the conveyance to her was made during the marriage, and notwithstanding it was duly recorded it is presumed by the law to belong to the community, and to be subject to the payment of the husband’s debts. Huston v. Curl, 8 Tex., 239; Mitchell v. Marr, 26 Tex., 329; Smith v. Boquet, 27 Tex., 511; Dunham v. Chatham, 21 Tex., 244. Nor is a purchaser from the husband put upon inquiry as to any equity she might have in respect to it, but is protected, if he buys in ignorance of her claim to it as her separate property. Kirk v. Navigation Co., 49 Tex., 213. And so the judgment of the defendant against Pleasant Taylor ostensibly took a lien upon the lots, and the title of the purchaser at sheriff’s sale would apparently have been good against the vendee of Mrs. Taylor, who (the vendee) acquired title subsequently to the date of the lien. Supposing the property to be in fact the separate property of Mrs. Taylor, and therefore not subject to the judgment, and that it had no lien on the lots as is alleged, and admitted by the motion for the purposes of this question, it follows that the plaintiff holds a perfect title against one which is apparently better, but is only apparently so. Thus is cast upon a good title a cloud, and the invalidity of the title acquired at sheriff’s sale can only be shown by evidence dehors the record. In that state of case equity grants re- » lief. High on Inj., sec. 272. If the invalidity of the title was apparent on its face the reverse of that rule obtains, and equity will-not interpose. Id., sec. 272.

[Opinion delivered May 17, 1880.]

“It has been held that if the sale which it is sought to restrain is such that in an action of ejectment, brought by the purchaser under the sale, the real owner of the- property would be obliged to offer evidence to defeat a recovery, then such a cloud would be raised as to warrant the interference of equity to prevent the sale.” High on Inj., sec. 270, citing Pixley v. Huggins, 15 Cal., 127.

Evidently such a rule applies to the facts of this case; and the necessity for equitable relief seems to be a corollary from the adverse legal presumption which the law allows in respect to the rights of the wife to her separate property, whenever their proper vindication against it requires the remedy to be invoked.

It is competent, of course, to permit the vendee of the wife to show, in support of his title, the true character of hers, and therefore to establish, if he can, that it was her separate property, and that there was no lien upon it created by the defendant’s judgment.

We conclude, upon the whole case, that there was error in the judgment of the district court, and determine that the same shall be reversed and the cause remanded.

Eeversed and remanded.


author: A., S. Walker, J.

text:
    Eliza M. Ranney et al. v. Geo. M. Hogan et al.
    (Case No. 4068.)
    1. Registration — Innocent .purchaser.—Under the registration laws (Pas. Dig., 4994) the lien fixed by a creditor, by the levy of an execution upon land, is superior to the title conveyed by a prior unregistered deed, even if the deed should be recorded between the levy and sale; and a subsequent purchaser, without notice, for a valuable consideration, is entitled to a like protection. The title of a bona fide purchaser cannot be destroyed by the subsequent registration, and before the registration of his deed, of the prior claim, or title. Grace v. Wade, 45 Tex., 527; Simpson v. Chapman, 46 Tex., 564; Grimes v. Hobson, 46 Tex., 419; Borden v. McRae, 46 Tex., 461: Watson v. Chalk, 11 Tex., 94; Guilbeau v. Mays, 15 Tex., 415; Watkins v. Edwards, 23 Tex., 447; Ayers v. Duprey, 27 Tex., 606; Hawley v. Bullock, 29 Tex., 222; Flanagan v. Oberthier, 50 Tex., 383’; Wade on Notice, sec. 241.
    2. Contracts for land — Registration.—A contract in relation to land may be recorded, and that it is but the evidence of an equitable title, and not of equal dignity to a deed, does not give it immunity against the rights of a subsequent purchaser. Pas. Dig., 4989.
    3. Trustee — Purchaser without notice.—The conveyance of one holding land in trust, to a purchaser without notice, for a valuable consideration, passes the legal title discharged of the trust. Wethered v. Boon, 17 Tex., 146, 147; Perry on Trusts, sec. 218; 1 Story’s Eq. Jur., sec. 46c; Adams onEq., 5th Am. ed., p. 191; Fry on Specific Per., 2d Am. ed., p. 389.
    Appeal from Ellis. Tried before the Hon. Geo. H. Aldridge.
    In 1867 Eliza Ranney and her husband filed their suit in the district court of Ellis county for title to certain lands, against Geo. M. Hogan, 1ST. B. Anderson and others.
    The petition alleged a contract, of date May 27, 1858, between Hogan and one Reuben Manning, by which Hogan agreed to locate and obtain patent for land under a certificate named, for eleven and one-half labors, for which, when patent should be issued, Manning was to convey to Hogan five hundred and eleven acres; that March 16, 1861, Hogan, in consideration of §1,122.80 then paid, executed to plaintiff a conveyance for said locative interest, authorizing Manning to convey same to plaintiff, and further obligating himself to comply with his contract to perfect the title to the patent, etc.; that the land had been located and patent obtained March 25,1875; that 31st March, 1876, Manning had “ complied with his part of said contract by conveying to Hogan five hundred and eleven acres as his locative interest” (describing same); that thereby Hogan became bound to convey same to plaintiff; that “she relied on Hogan as her agent to perfect her title to this land; ” that she learned in 1876 that Hogan was disputing her title; that Hogan had placed on record deeds for the land, one for one hundred and ninety and one-half acres to Blackman, and a deed for two hundred and twenty-seven and one-half acres to defendant Anderson. Judgment asked for title, canceling, etc., and general relief; Hogan pleaded outstanding title, his bankruptcy, and disclaimed. Blackman also disclaimed. Anderson was made a party. As to Anderson’s claim plaintiffs alleged that it was fraudulent; no consideration had been paid, and that he had notice of title of plaintiffs at his purchase; that it was placed on record subsequent to the registration of plaintiffs’ claim; that Anderson’s claim was an equity only and inferior to the equity by plaintiffs, etc. By amendment plaintiffs denied that Anderson had ever been in possession of the lands; prayed that the legal title be divested out of defendants and vested in plaintiffs.
    June 7, 1879, Anderson demurred; pleaded not guilty; that he was a purchaser in good faith, without notice and for value paid, of two hundred and twenty-seven and one-half acres, describing the tract, by deed executed to him by Geo. M. Hogan, June 15, 1876.
    June 7, 1879, the cause was tried without a jury. Decree for Anderson for the land claimed by him in his plea of iona fide purchaser; for plaintiff for the remainder of the land against Blackman and Hogan, and for costs.
    The plaintiff appealed.
    The plaintiff read (over objection that the execution of same was not proven, nor had it been recorded) the contract for the location, unlocated balance of the Alphonso Steele certificate for eleven and a half labors, of date May 27,1858, as alleged, between Manning and Hogan.
    On the back of the former document, and proved for and duly placed on record September 26, 1877, was conveyance of Hogan of his locative interest aforesaid to plaintiff, Eliza Ranney, acknowledging receipt of the purchase money, and bearing date March 16, 1860.
    Also from record, and over same objection as to first document not being proved for record, was read the duplicate of the original contract of May 27, 1858, kept by Manning, and in connection, and on same paper, a power of attorney from •Manning to John Manning, of date February 21, 1867, and recorded April 14, 1876.
    Deed from Manning to Hogan for said locative interest, mside by John Manning, attorney in fact, of date March 31, 1876. Filed for record April 14, 1876.
    The defendant then read in evidence the patent for the eleven and a- half labors, of date March 29, 1875. Deed from Hogan to defendant, FT. B. Anderson, of date June 15, 1876, in consideration (recited) of $568.75, for the two hundred and twenty-seven and one-half acres described in his plea. Filed for record April 27, 1878.
    Anderson testified “that he purchased the land described in his deed, paying for the same a valuable consideration, the same mentioned in his deed; that he had no knowledge of plaintiff’s claim, or the claim of any one else against said land, at the time of his purchase, nor until he was notified by the filing of this suit.”
    The appellants assign errors as follows:
    1. “ Because the evidence showed that although the said Anderson was an innocent purchaser of the land in controversy, he was a subsequent purchaser to plaintiff, Eliza Ranney, of same land, and her deed from the common vendor, Hogan, was registered for record long prior to the registration of the deed of the defendant, who was the second vendee.”
    2. “ Because the title owned and held by plaintiff, Ranney, by virtue of her contract with the common vendor, Hogan to the land in controversy, was not such a title as brought it within the purview of the registration statutes, and it was not necessary to give actual or constructive notice by registration.”
    3. “ Because at the time defendant Anderson purchased the land from the common vendor, Hogan, the latter had no title, legal or equitable, to said land, and the legal title subsequently acquired by said Hogan related back and operated in favor of the plaintiff, and not to the benefit of the defendant Anderson, who was a subsequent vendee.”

      F. N. Read and Albert Langley, for appellants.

      Amzi Bradshaw, for appellees.
   A., S. Walker, J.

1. The first assignment presents the proposition that the title of a bona fide purchaser would be destroyed by the subsequent registration, and before the registration of his deed, of the prior claim or title.

By the registration laws, all bargains, sales . . . and other conveyances whatever of any lands, tenements, . . shall be void as to all creditors and subsequent purchasers without notice, unless they shall be acknowledged or proved, and lodged with the clerk, to be recorded according to the provisions of this act.” Pas. Dig., 4988.

Such instruments shall take effect and be valid as to all subsequent purchasers for a valuable consideration without notice, and as to all creditors, from the time and when such instrument shall be so acknowledged, proved or certified and delivered to such clerk to be recorded, and from that time only.” Pas. Dig., 4994.

Under this law the lien fixed by a creditor by the levy of an execution upon land has been sustained against a prior unregistered deed. Grace v. Wade, 45 Tex., 527; Simpson v. Chapman, 46 Tex., 564; Grimes v. Hobson, 46 Tex., 419; Borden v. McRae, 46 Tex., 416. In the litter case it is said the protection would extend against such deed registered between the levy and sale.

The subsequent purchaser without notice and for a valuable consideration is entitled to like protection. By the statute they have equal rights, and which have been recognized. Watson v. Chalk, 11 Tex., 94; Guilbeau v. Mays, 15 Tex., 415; Watkins v. Edwards, 23 Tex., 447; Ayers v, Duprey, 27 Tex., 606; Hawley v. Bullock, 29 Tex., 222; Flanagan v. Oberthier, 50 Tex., 383; Wade on Notice, sec. 241.

Taking these decisions as affording the evidence of the construction of the statute, we cannot regard it an open question whether the title obtained by. a bona fide purchaser is subject to be defeated by any subsequent act of the holder of the unregistered deed.

There is nothing in the terms of the law nor in any decisions upon it which countenances the view that the unregistered deed, declared by the statute void as to such purchaser, can be validated as against him by securing its earlier registration.

2. The documents constituting the claim of title of the plaintiff to the land were at least contracts “ in relation to lands,” and may have been recorded. Pas. Dig., 4989. That they wére but evidence of an equitable claim to the land, and not of equal dignity to a deed, did not give immunity against the rights of the subsequent purchaser.

3. Granting the fullest equity to plaintiff, the legal title in the land did pass by Hanning’s deed to Hogan, who, on such assumption, took as trustee of plaintiff; still the conveyance by him to Anderson, for a valuable consideration without notice, passed the legal title discharged of the trust. Wethered v. Boon, 17 Tex., 146, 147; Guilbeau v. Mays, 15 Tex., 415; Hawley v. Bullock, 29 Tex., 222; Perry on. Trusts, sec. 218; 1 Story’s Eq. Jur., sec. 46c; Adams on Eq. (5th Am. ed.), p. 191; Fry on Specific Per. (2d Am. ed.), p. 389.

It is doubtful whether, under the testimony, plaintiff was entitled as against Anderson to specific performance in the absence of his proof of good faith. She did not show by testimony good against him that she had paid a valuable consideration in her purchase, which seems a necessary part of the plaintiff’s case in such suits. Hogan’s receipt for the purchase money was probably good against him, but was probably not against Anderson. Short v. Price, 17 Tex., 397; Watkins v. Edwards, 23 Tex., 447; Adams’ Eq., 186, and authorities.

[Opinion delivered May 17, 1880.]

There being no error in the record, the judgment below should be affirmed.

Afeiemed.


author: Walker, P. J.

text:
    Thomas P. Miller v. McDannell & Co.
    (Case No. 3518.)
    1. Agency—Scope of authority.— The extent of the authority of the agent is to be measured by the nature of the business, the subject-matter of the contract and the varying circumstances of the transactions involved. One who is agent for another in conducting and managing a business establishment which requires timely purchases of stock from time to time has authority to purchase goods for cash or on time, and, if bought on a credit, to contract in the name of his principal to pay for them at the place of delivery, or at any place which might be agreed on with the seller, which would not impose upon the principal conditions of such character that a reasonable mind would fairly infer that the principal would not authorize an agent in the usual course of business to bind him to perform. Story on Agency, sec. 85.
    2. Venue — Contract to pay at a particular place,—Agreeing that goods bought should be paid for “over the counter” at the purchaser’s place of business is a sufficient contract to make the money due therefor payable in the county in which the business is conducted. *
    Appeal from Travis. Tried below before the Hon. J. P. ¡Richardson.
    McDannell & Co. sued appellant by attachment November 11, 1874, in the district court of Travis county, on an account for liquors sold and delivered (much the greater part September 15 and 16, 1874) by McDannell & Co. to Miller. Miller pleaded in abatement that he did not reside in Travis county. Plaintiffs, by amendment, alleged a promise to pay in Travis county. February, 1876, the case was tried, and the issue as to the promise to pay in Travis county was submitted, with other issues, to the jurju A verdict was returned “that the defendant Miller did, by his agent, agree to pay in Travis county for the goods purchased of the plaintiff;” also finding for the amount sued for.
    Judgment was rendered for plaintiffs for the amount and Miller appealed. The case was sent from supreme court to court of appeals, but returned because of a plea in reconvention claiming $2,000 damages for the wrongful suing out of the attachment.
    The appellant relied alone on the insufficiency of the evidence to sustain the finding that .the debt was payable in Travis county.
    Appellant insisted that there was no testimony to sustain the finding of a promise to pay in Travis county.
    The appellees insisted that there was evidence, and .sufficient, to sustain the verdict that there was a promise to pay in Travis county.
    The testimony on that subject was as follows':
    Handle, for McDannell & Co., testified “ that Miller had resided several years in Havasota, and has a family and carries on business there as a merchant. In 1874 he bought what is known as the ‘Austin Saloon and Restaurant’ on Congress avenue, in Austin, Travis county, Texas, and employed witness to manage the same. The business was done in Miller’s name. Miller never resided in Travis county. About September 15, 1874, witness sent one John Hanson, the bar keeper employed in the saloon, to the business house of McDannell & Oo. in Austin, to make some purchases of liquor for the saloon. Hanson returned with some samples, from which witness made a selection, and sent a negro man after the goods. The negro returned with what was ordered and they were placed in the saloon and sold there. Witness knows nothing of what occurred between McDannell and Hanson when he (Hanson) went to purchase the goods. There was no understanding with me to pay for the goods in Travis county. It was only an ordinary transaction, such as occurs with merchants every day. Witness 'authorized Hanson simply to order the goods for the house, and knew of no special contract.”
    Page McDannell, one of the plaintiffs, testified: “About the date of the first item in the account attached to the petition, John Hanson, well known to witness, came to our . store and told" me he wanted to purchase some liquors for Miller’s saloon, on Congress avenue, in Austin. I asked him who Miller was, and he (Hanson) said Mr. Randle represented him and that Miller lived down the country somewhere and would be here soon. I told him that I did not know Miller, but that I did know him, Hanson, and asked him (Hanson) how I was to be paid. He answered that he, Hanson, was going to tend the bar and would have the handling of all the money, and that he, Hanson, would pay me at the bar as he could along, paying $50 or $100 as he, could spare it. That was satisfactory and I gave him the samples. I did not deliver the goods and do not know who received them. Afterwards Hanson paid me $100.” . . “ My understanding was that the money was to be paid at defendant’s saloon, over the counter, in Austin, Travis county, Texas.” . . “I never went to see Randle or any one else before selling the goods.”
    John Hanson testified: “I reside in Austin; know the plaintiff; never saw defendant. I was employed by Mr. Randle, in September, 1874, to keep bar. He told me he was agent for defendant Miller, and that the saloon belonged to Miller, defendant. About September, 15,1874, the day the principal sale was made, Mr. Randle sent me to buy some liquors for the saloon. I went to the house of McDannell & Co. and told the plaintiff McDannell what I wanted. He asked me about the saloon, and I told him it belonged to a man living down the country, about Havasota, named Miller, and that Randle was attending to the business. He (McDannell) said he did not know Miller, and asked how he was to be paid. I told him (McDannell) I was going to tend the bar and would handle all the money and would pay him at the bar, or over the counter, as I could spare it. McDannell said 6 that would be all right.’ I then went back and Mr. Eandle examined the samples and sent for the goods, which were received. I did not tell Eandle my conversation with McDannell. After this I frequently ordered goods. I made the payment of $100 at the saloon. I did not consider that I was making myself surety for Miller, the defendant. It was only an ordinary transaction, excent as I have stated. The saloon is in Travis county.”

      Jno. TV. Robertson, for appellant.

      Terrell c& Walker, for appellees.
   Walker, P. J.

The foregoing agreed statement of the facts and points of this case presents only the question whether there is any evidence to support the verdict of the jury, on the issue of fact whether the defendant, as petition .avers, “contracted with plaintiffs that he would pay for said goods in the city of Austin, Travis county, Texas, and that by the terms of such contract, at and before the delivery to defendant of said goods, the said sums of money they sold for were and are payable in Travis county, Texas.” Eandle being the defendant’s agent for conducting and managing for him a business establishment, which required timely purchases of stock from time to time, and the employment, probably, of servants, and certainly of a bar keeper: the defendant residing elsewhere and confiding the business to the exclusive control of his managing agent, it must be held it was clearly within the scope of Eandle’s authority to purchase the goods for cash, or on time; and if bought on credit, to contract in the name of his principal to pay for them at the place of delivery, or such place as would be consistent with the usual course of dealings in the market among merchants engaged in selling such goods. If there were no invariable custom respecting the place of payment, it would equally lie within the scope of the authority of the agent to contract to pay in behalf of the principal at any place which might be agreed on with the seller, which was not unusual in such transactions, and which would, besides, not impose upon the principal conditions of such a character that a reasonable mind would fairly infer that the principal would not authorize an agent in the usual course of business to bind him to perform. Such a standard of authority seems to be a fair application of the general doctrine that the agent may bind his principal within the scope of his authority; its extent is to be measured by the nature of the business, the subject-matter of the contract, the varying circumstances of the transactions involved, and “often by unexpected and unforeseen emergencies, in which event the authority will, as it were, expand beyond its ordinary limits, and justify even a deviation from its ordinary limitations and import.” “It is laid down as a general principle that it includes, unless the inference is expressly excluded by other circumstances, all the usual modes and means of accomplishing the objects of the agency.” Story on Agency, sec. 85.

The evidence supported the verdict, at least so far as related to Randle’s authority to buy the goods on credit, and there is no evidence tending to show that the promise to pay at Austin, Texas, was out of the usual course of similar transactions in the Austin market. If the contract thus made should have exceeded the agent’s authority, it was susceptible of validation by the principal’s ratification. Story on Agency, 239-260. And as a general rule, where a ratification is established as to a part, it operates as a confirmation of the whole of that particular transaction of the agent. Story on Agency, sec. 250.

“ And not only will the principal be bound by a ratification of the unauthorized act of his agent, but if the latter has improperly substituted another agent under him, the ratification by the principal of the acts of the sub-agent will, to all intents and purposes, bind him in the same manner as if he had originally given to the agent power of substitution.” Id., sec. 249. And so, though the contract were made by ITanson, should he be treated as the direct instrument in making the contract, and its validity should turn, as appellant’s counsel insists in his brief that it does, upon the authority of Hanson to bind the defendant, it would be equally the subject of ratification' and consequent validation as though it had been made by Handle or by the principal himself. The evidence does not disclose whether any information was given to the defendant or not as to this transaction; it is not shown, either, that he was ignorant in relation to it. Men are supposed to be acquainted with accessible facts pertaining directly to their current business interests.

“It is by no means necessary,” says Judge Story, “that there should be any positive or direct confirmation. And for this purpose the acts and conduct of the principal are construed liberally in favor of the agent. . . . Slight circumstances and small matters will sometimes suffice to raise the presumption of a ratification.” Id., 253. The principal, at all events, knew that goods were bought for him, as the necessities of his business required, by his managing agent; that they were sold for his benefit; that he received the proceeds, and made no limitations, nor gave directions as to the terms of contracts of purchase, and on such a state of case it may well be concluded that he ratified the contracts, the advantages of which he so fully adopted, and concerning the terms bf which he is not known to have made even an inquiry, nor to have expressed an objection until payment from him is demanded. “ But,” says Story, “. whenever the acts of and conduct of the principal are inconsistent with any other supposition, the presumption of a ratification becomes, of course, far more violent and conclusive.” Id., sec. 253.

The circumstances detailed by the witnesses concerning the business of the defendant at Austin — the mode of conducting it — his absence and residence in a distant place from Austin, and his apparent acquiescence in all that was done in his behalf, and his adoption of the purchases, sales, etc., and receipt of proceeds without question, afford evidence — circumstantial evidence — which may have satisfied the jury of his ratification of the contract, if indeed ratification had been necessary. If so, the defendant would be bound by it, whether it had been made by his agent, or by Hanson. We think, however, that the contract of purchase was made by the agent, Handle, through Hanson, his mere messenger, sent to order the goods from the plaintiffs’ business house. The relation of all parties was distinctly made known to the plaintiffs by Hanson, and the sale was made, as requested, of “liquors for Miller’s saloon.” The plaintiffs were informed who Miller was, where he resided, who was his agent, and that Hanson was “ going to tend the bar.” Handle adopted the purchase, and sent a negro for the goods and obtained them. Handle was not informed of the conversation between plaintiffs and Hanson; but he knew that the goods were ordered, and examined the samples which Hanson brought to him. Handle, of course, not paying for the goods at the time of purchase, knew that they were bought on some terms of credit, expressly understood, or arising by implication. If he saw proper not to inquire nor learn the facts, he must be deemed to have acquiesced in the terms of the sale, if those terms were not unusual nor out of the ordinary course of contracts of a similar nature, taking into consideration the fact that his principal lived abroad and relied alone upon him to make purchases, and had had no previous account or dealings with the plaintiffs. His acceptance of the goods, under the circumstances, was a proper circumstance from which the jury may have inferred thd acceptance of the plaintiffs’ terms to sell the goods payable at Austin.

[Opinion delivered May 24, 1880.]

We conclude that there is no error and that the judgment shall be affirmed.

Afeibmed.


author: Quinan, J.

text:
    Amelia R. Solomon et al. v. Joseph Huey, Adm’r.
    (Case No. 2822.)
    1. Non est factum—Intervention.—Where the administrator in a suit on a promissory note against his decedent’s estate is unwilling to make the affidavit required by law to a plea of non est factum, it is proper to permit the widow to intervene in the suit, and make the necessary affidavit to the plea, where the intervention occasions no delay. Eborn v. Zimpelman, 47 Tex., 503; Eccles v. Hill, 13 Tex., 67.
    8. Evidence—Burden of proof—Consideration of a note.—The burden of proof is upon the plaintiff where want of consideration is set up as defense to suit on a note, but the production of the note is prima facie evidence of consideration, which, if not rebutted, is sufficient to maintain the plaintiffs case. It is proper for the defendant to rebut this evidence and avoid the prima facie case so made, and the burden of proof all along is on the plaintiff to satisfy the jury, upon the whole evidence in the case, of the fact of the consideration for the note. 6 Cush., 367; Powers v. Eussel, 13 Pick., 76.
    3. Evidence — Declarations of a party in his own interest.— Declarations of a party in his own favor are not admissible in evidence, when not made in the presence of his adversary, as to admit them would be to permit a man to manufacture evidence in his own favor. Wharton, Ev., 1077.
    Appeal from Uavarro. Tried below before the Hon. F. P. Wood.
    This suit was instituted by appellants against appellee as administrator of J. M. Lindley, deceased, upon a promissory note for $1,000, made by Lindley in favor of appellant, Amelia E. Solomon.
    Defendant answered, pleading the general denial and a want of consideration, and a failure of consideration.
    Mrs. Lindley, the widow of the intestate, filed a petition in. intervention, alleging that the note sued on was not executed by Lindley nor by any.person by him authorized, and further that the administrator was unwilling to make the affidavit required by law to the plea of “ 'non est factum” which she prays to be permitted to do. This plea was duly sworn to.
    The cause was submitted to a jury, who found for the defendant, and there was judgment accordingly, from which the plaintiff appealed.
    It is assigned for error substantially as follows:
    1. The admission of Mrs. Lindley to intervene and plead non est factum.

    2. That the judge erred in this: that by his charge he put the burden of proof of consideration on plaintiff.
    3. In admitting evidence to prove Lindley’s declarations, denying his indebtedness to plaintiff, not in plaintiff’s presence.
    4. That the verdict was contrary to the evidence and the law.

      Sam It. Frost and Wrn. Croft, for appellants.

      Heads dk Beetle, for appellee.
   Quinan, J.

The first objection is not well made.

Mrs. Lindley, as the widow of the intestate, was interested in his estate. If the administrator of the estate was unwilling to make the affidavit necessary for the protection of the estate from the enforcement of an unjust claim against it, either from the want of the necessary information or other cause, it was proper to admit her, better informed, so to do, for the protection of her interest, which otherwise might be jeopardized. And in this case her intervention worked no delay. Eccles v. Hill, 13 Tex., 67.

In Eborn v. Zimpelman, 47 Tex., 503, the right of the heir to make the affidavit to the plea of non est factum with the assent of the administrator was recognized, and we think it a correct practice, and in many cases very necessary to the ends of justice.

The second error assigned is not well taken. In truth the charges of the judge in respect to the burthen of proof were more favorable to appellant than she had a legal right to ask. The court charged the jury “ that the note shows prima facie a consideration, and that the defendant must show that there was no consideration or no sufficient consideration,” and that the burthen of proving a failure of" consideration is upon the defendants; and although the plaintiff show no other consideration than that expressed in the note, unless the defendant show from the evidence that no consideration or no sufficient consideration passed from the plaintiff to Bindley, then you will find for the plaintiff.

This charge is not very accurate, but certainly was not to the prejudice of the plaintiff. The rule in cases of this character, where a want of consideration is set up, is very aptly stated in Delano v. Bartlett, 6 Cush., 367: “ It was incumbent on the plaintiff to prove a consideration for the note which was the foundation of the suit. That was a part of her case, and the burden was on her to establish that fact. But the note itself was prima facie evidence of a consideration, so that by producing the note the plaintiff made a prima facie case. That evidence, if not rebutted, would be sufficient to maintain the plaintiff’s case. Bat it was competent for the defendants to rebut this evidence, and thus to avoid the prima facie case made by her. Accordingly the defendants did offer evidence6to rebut the evidence on the part of the plaintiff, and to show that there was no consideration. The evidence on both sides applied to the affirmative or negative of the same proposition of fact—-a consideration for the. note,— and the plaintiff’s case requiring her to establish that fact, the burden of proof was all along on her to satisfy the jury, upon the whole evidence in the case, of the fact of a consideration for the note. Powers v. Russel, 13 Pick., 76.

The third assignment of error, to the admission of Bindley’s declarations of his non-indebtedness in evidence, is, in our opinion, well taken. In the bill of exceptions taken on this account, the judge explains: “The plaintiffs having been permitted to prove declarations of the intestate made to other persons, and not in the presence of the plaintiffs, the declarations of the intestate made to others, and at other times and places, were admitted by the court by way of rebuttal, being introduced by the defendants.” Manifestly this was error. While the admissions of a party against his interest, made verbally, though always to be received with great caution, are competent testimony, and often of the most satisfactory nature, it does not follow that his declarations in his own interest, made at other times and places, and not in the presence of his adversary, are competent testimony, for that would be to permit a man to manufacture evidence in his own favor. Mr. Wharton says, where, the party seeking to prove admissions in no way altered his position in consequence of their utterance, the party making them can always prove the untruth, but not by introducing subsequent inconsistent declarations. Wharton, Ev., 1077.

[Opinion delivered May 24, 1880.]

It is insisted for the appellee that this testimony admitted was immaterial and could not have misled the jury. We have examined the evidence carefully it was a case of very conflicting testimony. Had the verdict of the jury, upon either of the issues submitted, been for the plaintiff, we would not have been at liberty to disturb it, and we cannot undertake to say upon which of the issues the verdict was found. The testimony of Houston, as to the declarations of Lindley in respect to his indebtedness, being sufferred by the court to go to the jury with his sanction as to its competency to negative the allegation of consideration for the note sued upon, may have very materially influenced their finding. Certainly we cannot say that it did not. And as this was error, the verdict cannot stand.

We are of opinion that the judgment should be reversed and the cause remanded.

Beversed and remanded.