text:
    STUBBLEFIELD et al. v. COOPER.
    No. 3497.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 26, 1930.
    Rehearing Denied Jan. 7, 1931.

      Hugh L. Umphres, of Amarillo, for appellants.
    Cooper & Lumpkin, of Amarillo, for ap-pellee.
   JACKSON, J.

Paul W. Cooper instituted this suit in the district court of Potter county, Tex., against J. E. Stubblefield, E. M. Pittman, M. A. Crum, and L. A. McKercher, to recover on a promissory note for the principal sum of $1,090, dated February 1, 1927, executed by the defendants, payable tp E. Cooper at Amarillo, Tex., bearing interest at the rate of 8 per cent, per annum, and containing the usual 10 per cent, attorneys’ fee clause.

Plaintiff alleged the transfer and assignment of the note to him on September 17,1927, before maturity, by E. Cooper for a valuable consideration, the default of the defendants, the placing the note in the hands of attorneys for collection, and sought judgment for the sum of $1,000, with interest and attorneys’ fees.

The defendants, in addition to a general demurrer and general denial, pleaded in answer that the note sued on was executed in pursuance to a written contract between E. Cooper as first party and the defendants as second party, whereby the defendants were obligated to indemnify said E. Cooper against •being compelled to pay and deliver to J. E. Pitts an escrow deposit of $1,000 under the provisions of another written contract entered into by E. Cooper and J. E. Pitts, which last contract was copied into the contract between E. Cooper and the defendants.

The defendants alleged:

That, under the terms and conditions of the contract between them and E. Cooper, they agreed to pay the $1,000, or so much thereof as the said Cooper was compelled to pay. That if E. Cooper was able to compromise for a less sum, the defendants were to pay only the amount of such compromise, and, if it was determined that E. Cooper was liable for all or any part of the escrow deposit, the defendants should have the right to negotiate and consummate any compromise they could with ,T. E. Pitts relative to the payment of said $1,000.

That it was contemplated that the question of whether E. Cooper would be compelled to pay said deposit should be determined by a suit and the defendants given the opportunity to defend such suit. That the defendants would have defended such suit but had no notice thereof, E. Cooper having, on some hind of an agreement between himself and J. E. Pitts, disposed of the matter. That the plaintiff is the son and attorney in fact of the said E. Cooper, and had full notice and knowledge of such contracts and>all the facts herein pleaded long prior to the time he acquired the note in suit, and took it with all the equities and defenses that might have been urged against the payee.

The defendants by trial amendment alleged *hat E. Cooper was not compelled to pay the $1,000 to J. E. Pitts; that he made no compromise to pay a less amount, and that it was never determined that the said E. Cooper was liable for said $1,000 or any part thereof; that E. Cooper brought suit in the district court of Potter county, Tex., against J. E. Pitts, Roy Williams, and the Amarillo National Bank for the recovery of said $1,000 without advising the defendants thereof; that without their knowledge, by agreement, he allowed -judgment to be entered against himself and in favor of J. E. Pitts and Roy Williams for said $1,000, and the money was on the same day paid by the Amarillo National Bank to J. E. Pitts and Roy Williams by virtue of said agreed judgment, on account of which facts and the allegations in the original answer the defendants are not liable on the note, plaintiff having full knowledge of all such facts at all times.

Plaintiff replied to the trial amendment by general demurrer, special exceptions, general denial, and alleged that the note sued on was executed February 1, 1927, and the contract between defendants and E. Cooper purported .to have been executed January 26, 1927, and that such contract constitutes no part of the note sued on, and is in no manner connected therewith; that the note bears interest from date at the rate of 8 per cent, per annum, provides for attorneys’ fees in the event of default in the payment thereof, and the contract relied on by the defendants limits their liability to the specific sum of $1,000.

The plaintiff dismissed his suit as to the defendants M. A. Crum and L. A. McKerelier, and the court directed a verdict in favor of the plaintiff Paul E. Cooper and against the defendants J. E. Stubblefield and E. M. Pittman, for the principal, interest, and attorneys’ fees provided for in the note.

In compliance with the instructions of the court, the jury rendered a verdict in the sum of $1,366.40 in favor of the plaintiff, and the court entered his judgment in accordance therewith, from which judgment this appeal is prosecuted,

The appellants, by "several assignments which we will consider together, a-ssail as error the action of the trial court in directing a verdict against them because the pleadings and evidence presented controverted issues of fact which, if determined by the jury in their favor, would have constituted a defense to the note.

In determining whether directing a verdict in favor of appellee was error, only the testimony offered by the appellants will be considered. Massie v. Hutcheson (Tex. Civ. App.) 296 S. W. 939; First National Bank et al. v. Rush (Tex. Com. App.) 210 S. W. 521.

The testimony shows that appellee was the son of E. Cooper; that they were partners in certain business in Montana and that the oil properties referred to on their letterheads “is this Texas property”; that the appellee was the agent of, looked -after, and tended to, his father’s business in Texas, including oil properties; that all the transactions in the record related to oil properties. The. testimony tends to show tha-t appellee had spoken to both of the appellants about the note which he designated and said is “my dad’s note,” and he had it for collection. Appellant Stubblefield testified that in his conversation he advised appellee that he understood the $1,000 had not been returned, and asked appellee if it had been, and also asked him about the contract.

The testimony also tends to show that the note sued on’ by the appellee and the contract relied on by appellants were executed and delivered at the same time and constituted one and the same transaction. The contract between E. Cooper, who was first party, and appellants, who were second parties, bears date of January 26, 1927, and, among other things, provides, in effect, that second parties agree to pay to first party the sum of $1,000 in case and upon the condition that first party is compelled to pay to J. E. Pitts the escrow money of $1,000; that, if the first party is able to effect a compromise with Pitts for a lesser amount, the second parties shall be liable for the amount only of the compromise; that, if it be determined that first party is liable to pay Pitts any or. all of said escrow money, second parties shall have the right to undertake and consummate any compromise they may be able to effect with Pitts, and in no event shall second parties be bound to pay a greater sum than $1,000.

The contract between E. Cooper and J. E. Pitts, so far as necessary to this appeal* pro.vides, In substance, that the said Cooper has sold certain land, which is described, to J. E. Pitts, for the sum of $8,000; that the said Pitts has deposited in the Amarillo National Bank $1,000 to be paid to Cooper as liquidated damages if he refuses to accept the property, provided the abstract which Cooper contracted to furnish shows good and merchantable title to the property.; that Pitts was to have a reasonable time to have the abstract examined, and Cooper was to cure any objections to the title, if possible, and, if not possible to cure such objections, the $1,000 was to be returned to Pitts.

The testimony discloses that on January 10, 1927, E. Cooper, on the contract between himself and Pitts, instituted suit in the district court of Potter county, Tex., against J. E. Pitts, Roy Williams, and the Amarillo National Bank, and sought judgment against said parties for the $1,000 deposited with the bank by J. E. Pitts as provided in the contract; that on June 3, 1927, all the. parties appeared in open court, announced that all matters had been settled between them under “an agreement that the defendants J. E. Pitts and Roy Williams should be entitled to receive from the Amarillo National Bank” the sum of $1,000 deposited on a certain contract for the sale of' an oil and gas lease by E. Cooper to J. E. Pitts, and that on this agreement judgment was entered, and in compliance therewith the $1,000 escrow deposit was by the bank paid to J. E. Pitts and Roy Williams. The testimony tends t-o show that the appellants had no knowledge of the pendency of said suit or the settlement thereof, and were not given an opportunity to contest the suit if they so desired or to compromise for a less amount than the $1,000, and that no effort was made by E. Cooper to effect a compromise by which he could settle for less than $1,000.

The testimony of E. Cooper’s attorney, who filed the suit for him against J. E. Pitts, Roy Williams, and the Amarillo National Bank, is to the effect that, at the time the suit was filed, he did not have access to the correspondence between Cooper and Pitts;- that, when he obtained such correspondence, he learned that the attorney who passed on the title for Pitts had written an opinion making certain demands with reference to the title, and “Mr. Cooper had no opportunity to make and maintain his suit for $1,000.00.” The contract between Cooper and Pitts stipulates that, if the title to the land is good and merchantable, Pitts must accept the land or pay the $1,000 to Cooper as liquidated damages, and that, if any objections to the title were found, E. Cooper was to cure such objections, if possible. There is no testimony that E. Cooper made any effort to cure the objections raised by Pitts’ attorney.

The testimony, in our opinion, was sufficient to raise the issue of whether appellee was an innocent purchaser and whether the note and contract evidenced one and the same transaction, and was so understood and intended by the -parties.

Without intimating how the jury would have determined these issues, but assuming that the jury would have found in favor of appellants, would such findings have constituted a defense to appellee’s note or any part thereof?

“In considering bills and notes as evidencing an agreement between the parties, application is- made of the fundamental rule that other instruments executed at the same time, for the same purpose and in the course of the same transaction are to be construed-therewith — that is, all the papers are given the same effect as.though they were in fact a single instrument. This rule has been applied to a note and a guaranty executed as a part of the same transaction, where the two were negotiated to an innocent holder for value," to a note and mortgage executed at the same time and constituting one and the same contract, and to a written agreement providing for payment of notes out of a special fund and on a specified contingency.’’ 6 Tex. Jur. 644. § 47.

The rule stated above is also announced in 8 C. J. 196, § 327.

“The provisions contained in contemporaneous writings may control the time or manner of payment, or the liability of the parties.” 8 C. J. 197, § 328.

“So it is a defense to an action on a note by the payee against the maker that it was given under an agreement that no suit should be brought thereon against the maker.” 8 C. J. 741, § 1015.

“Conditions in acceptance are to be reasonably construed, according to the presumed intention of the parties. If accepted according to the provisions of a particular contract, «resort must be had to -that contract to ascertain the terms of the acceptance.” 8 O. J. 326, § 501.

See, also, 1 Joyce on Defenses to Commercial Paper, 716, § 520.

Under the assumption that the jury would have found these issues in favor of appellants, the note sued on and the contract relied upon by the appellants should, under these authorities, be construed as evidencing one and the same transaction and construed as if the provisions of both were contained in -one instrument. This we think would constitute a conditional contract. To collect the note, the conditions stipulated in the contract should be complied with.

Chief Justice Cureton, speaking for the Supreme Court in Ferguson v. Mansfield et al., 114 Tex. 112, 263 S. W. 894, 900, says: “It is quite elementary that an instrument payable upon a condition which does not import an absolute liability is not payable until that condition has happened.”

The testimony that the attorney who examined the title for J. 'E. Pitts made certain demands relative to the title before it would be acceptable and the testimony of the attorney bringing the suit for E. Cooper against Pitts et al. to recover the escrow deposit of $1,000 was, we presume, offered to show that the title wias not good and merchantable, and, while this evidence was heard without objection, this incompetent testimony could not form the basis of a finding by the court that the title to the land was not good and merchantable. Henry et al. v. Phillips, 105 Tex. 459, 151 S. W. 533. This testimony, if entitled to any consideration under the law, which we doubt, was not of sufficient probative force to authorize the finding that the title was not good and merchantable.

Chief Justice Gaines, for the Supreme Court in Brackenridge v. Claridge et al., 91 Tex. 527, 44 S. W. 819, 821, 43 L. R. A. 593, in speaking of defective land titles, says: “The evidence relied on is that of the attorney of the proposed purchaser, who testified that it was not good. His conclusion necessarily involved his opinion as to the law of the title. The opinion of counsel, however able and learned, is not evidence. The court must determine the law for itself.”

See, also, Kitchen v. Lloyd (Tex. Civ. App.) 14 S.W.(2d) 335.

Under this record, appellants knew of no understanding between Pitts and E. Cooper save and except what was disclosed in the written agreement which was made a part of their contract with E. Cooper, and any understanding between Pitts and Cooper of which appellants had no notice would not be enforceable against them. Appellee’s contention that the provisions of the contract are so contradictory and repugnant to the note that the two cannot be construed together, is, in our opinion, under the authorities untenable. The note and contract both being in writing, the law controlling contemporaneous oral agreements made relative to notes is not applicable. In our opinion, the contract and note, if construed together, discloses that the execution and delivery of the note was conditional and for a special purpose. Negotiable Instruments Act, article 5932, § 16, R. C. S.

In Rector v. Evans, 6 S.W.(2d) 105, 107, the Commission of Appeals says:

“Evans’ pleading includes charges of an agreement that the note would be destroyed or returned to him if it turned out that Rector should not be able to get a judgment on the other claims and that he failed to get that judgment. If those charges be true, there was, we think, delivery Tor a special purpose only;’ i. e., for holding by Rector to abide results in the other cases, with surrender or destruction of the ‘note’ (paper as well as obligation) if he lost in those cases.”

The record discloses that the judgment against E. Cooper in his suit against Pitts, Williams, and the bank was entered by agreement, and was, in effect, an admission that E. Cooper was not entitled to recover the deposit of $1,000. The testimony tends to show that this agreed judgment was entered without the knowledge or consent of appellants and without their having been afforded an opportunity to compromise the claim with Pitts. This agreed judgment and settlement would not be sufficient to defeat the defenses of appellants. 1 Joyce on Defenses to Commercial Paper, 681, § 495.

In our opinion, the court erred in directing a verdict against appellants, and the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: GALLAGHER, O. J.

license: Public Domain

text:
    KILLINGSWORTH v. GENERAL MOTORS ACCEPTANCE CORPORATION et al.
    No. 1030.
    Court of Civil Appeals of Texas. Waco.
    March 26, 1931.
    W. T. Thomason, of Wortham, for appellant.
    A. C. Buckner, of Houston, and A. B. Gep-pert, of Teague, for appellees.
   GALLAGHER, O. J.

Appellant J. H. Killingsworth, a resident of Navarro county, Tex., sued appellees, General Motors Acceptance’ Corporation, hereinafter called Acceptance Corporation, and Hearne-Wilson Chevrolet Company, hereinafter called Chevrolet Company, both corporations, in the district court of Freestone county, and for cause of action alleged that appellees had unlawfully taken possession of his automobile and converted the same to their own use and benefit. He sought to recover both actual and exemplary damages for such conversion.

Appellant alleged that on or about October 25, 1929, the Chevrolet Company sold to him a Chevrolet sedan for $853.50; that the seller agreed to accept, and did accept, his old car at the agreed valuation of $425 in lieu of a cash payment; that the remainder of the purchase price was to be paid by him in monthly installments of $36 each, beginning on December 5, 1930; that the seller undertook to prepare in triplicate a contract embodying the terms so agreed upon; that the seller did prepare one copy of such contract by filling the blanks in its regular sales contract form according to such agreement; that the seller stated to him that the blanks in the two remaining copies would be filled in the same manner; that, relying thereon, he, at the request of the seller, signed the copy so prepared and two additional blank forms of such contract; that the seller delivered to him the completed copy and retained the two signed by him ip blank: that the seller, in violation of said agreement, filled out one of said forms signed by him in blank as aforesaid, • so as to make the first installment of the deferred payments due December B, 1929, and one each month thereafter. -Appellant set out in his petition in detail the terms and provisions of said sales contract. Said provisions, so far as material herein, were that the deferred payments should begin on December 5, 1930-; that such payments should' be made 'at the office of General Motors Acceptance Corporation designated by it; that title to the property should not pass to the purchaser until the purchase money had been paid in full; that the assignee of such contract should be entitled to all the rights of the seller thereunder ; that, under certain contingencies, not necessary to recite, the holder thereof might declare all unpaid installments thereon immediately due and payable; that, if the purchaser failed to comply with the terms thereof, the seller, or any officer of the law, should have the right to take immediate possession of the automobile and resell the same at public or private sale; that the proceeds of the sale should be applied first to the expense of retaking the property, and then to the discharge of the balance of purchase money then due; that any surplus after satisfying such demands should be paid to the purchaser ; that, in case such proceeds were insufficient to satisfy the purchase money unpaid, the purchaser should be liable therefor. Appellant further alleged that on or about December 15, 1920-, the Acceptance Corporation mailed a notice to him that an installment of $36 was due on said contract ; that on or about January 5, 1930, it mailed him a second notice, claiming that $72 was then due on said contract; that representatives of the Chevrolet Company sent for him to come to their office in Wortham, and demanded payment of said sum of $72; that they agreed to store, the automobile in their garage at Wortham until they could get the matter adjusted with the Acceptance Corporation; that they promised him he should not lose his automobile because of the substantial payment he had made thereon; that, relying on said representations, he left his car with them; that thereafter, on or about January 5, 1930, said corporations unlawfully took possession of his automobile and converted the same to their own use and benefit. Appellant further' alleged that his car at the time of such conversion was of the reasonable cash value of $853.50, and sought to recover such sum as actual damages, and the further sum of $1,926.75 as punitive damages.

Appellee Chevrolet Company pleaded only a general denial.

Appellee Acceptance Corporation pleaded a" general denial, and, in addition thereto, pleaded specially that it purchased said sales contract from said Chevrolet Company before maturity in good faith and for value, and without notice of any infirmity therein, and especially without notice of the matters alleged by appellant; that it was therefore a holder thereof in due course; that by the terms thereof the first installment became due December 5, 1929; that appellant failed to pay the same; that for such default it had declared the entire amount due and payable, as authorized by the terms thereof; that it did not repossess said automobile nor conspire with its codefendant to repossess the same. It attached a purported copy of said sales contract to its answer.

The case was tried to a jury, which, in response to a peremptory instruction by the court, returned a verdict in favor of both defendants. The court, bn the’ 19th of July, 1930, rendered judgment thereon that ap>-pellant take nothing by his suit, and that appellees go thence without day and recover their costs. Said judgment is here presented for review.

Opinion.

Appellant presents a proposition complaining of the action of the court in refusing to permit him to introduce in evidence the copy of the sales contract filled out, signed and delivered to him at the time he purchased the automobile. Appellant testified that he bought the automobile from the Chevrolet Company on October 25,1929; that the purchase price agreed upon was $S53.50; that the seller took his old car, gave him credit for $425.00 therefor, and agreed to wait for the remainder of the purchase price until the' fall of 1930. The witness thereupon produced a copy of the sales contract and testified to the execution thereof. The provisions thereof were substantially as alleged in appellant’s petition. According to the terms thereof, the remainder of the purchase price was to be paid in installments of $36 each, beginning December 5, 1930. At the top thereof appeared the words, “Duplicate Original, To Be Delivered To Purchaser.” The concluding paragraph recited that it was executed in triplicate, one copy of which was delivered to, and retained by, the purchaser. It was dated October 25, 1929. Appellant testified that at the time he signed the same the seller presented to him two other instruments in the same form, and promised and agreed that the blanks therein would be filled the same as the copy which appellant had just read and signed; that he relied on such promise and agreement, and signed both of the same in blank. Appellant’s testimony in this connection was un-controverted. The president of the Chevrolet Company, who represented said corporation in making said sale and preparing said contract, ■testified that he delivered one copy thereof to appellant, one copy to General Motors Acceptance Corporation, and that he sent the third to the county clerk of Navarro county to be filed as a chattel mortgage. Appellees objected to the introduction of appellant’s copy of said sales contract on the sole ground that the original sales contract was the best evidence. The court sustained said objection. Where an original instrument or writing is made or executed in duplicate or in a greater number of counterparts, each duplicate or counterpart is primary evidence, and is admissible without the necessity of producing the other copy or copies or accounting therefor. 22 O. J. p. 1023, § 1313, and authorities cited in note 59; 10 R. O. L. p. 924, par. 86, and authorities cited in note 17. When a variance is discovered between such duplicates, which of the same correctly recites the actual contract is a question of fact to he determined from all the evidence. The court erred in excluding appellant’s copy of the sales contract. The triplicate copy of said contract filed as a chattel mortgage in Navarro county, or a properly certified copy thereof, offered in evidence and excluded, was also admissible as tending to prove that the real contract agreed upon between appellant and the seller of said automobile was that payment of installments on the remainder of the purchase price should' begin December 5,1930, as contended by appellant. Said sales contract was not a negotiable instrument. The copy thereof delivered to the Acceptance Corporation was subject in its hands to all defenses which might have been urged against it in the hands of the Chevrolet Company.

According to appellant’s testimony, which was not disputed, the copy of such contract in the hands of the Acceptance Corporation was signed by him .under the express promise and agreement that the blanks therein should be filled as in the copy delivered to him. The Chevrolet Company afterwards filled said blanks in the copy delivered by it to the Acceptance Corporation. If its representative did so agree, and violated such agreement in filling the blanks in the copy so delivered, such action was fraudulent, and such copy unenforceable and void. Of course, if the contract actually agreed upon by appellant and the Chevrolet Company was that the payment of installments on the unpaid purchase money should begin December 5, 1930, as recited in the copy of the contract which he testified was delivered to him, and which was offered in evidence and excluded as aforesaid, he was not in default at the time he was induced to surrender said automobile to ap-pellees.

Appellant, for the purpose of showing demand for the surrender of his au-: tomobile, offered in evidence a letter written by his attorney to the Acceptance Corporation. The letter so offered contained a clear and succinct statement of the facts as appellant contended them to exist, and stated that, if some adjustment was not made, he would file suit for possession of his car. Ap-pellees objected to the introduction of such letter on the ground that the statements therein were hearsay. The court sustained the objection. Appellant testified that demand on him. for a payment on his indebtedness for said car was made in December, 1929, and again in January, 1930; that, after the second demand, representatives of the Chevrolet Company said that they did not want to take his car away from him, but, if he would leave it with them, they would store it until they could make it all right with the Acceptance Corporation; that he did leave it with them, and they stored it at their place of business in Wortham. Mr. Hearne of the Chevrolet Company testified that they stored said car for the Acceptance Corporation. The testim'ony showed that said car was thereafter, without notice to appellant and without authority from him, removed from said storage by the employees of the Chevrolet Company and carried to Teague. Appellees did not tender it nor reveal what had been done with it after such removal. We think such testimony tended to show such repudiation of the purported bailment and such acts of control and dominion over appellant’s car as to raise an issue of conversion, regardless of a formal demand for its return. Wagner v. Marple, 10 Tex. Civ. App. 505, 31 S. W. 691, 693 (writ refused); Stidham v. Lewis (Tex. Civ. App.) 23 S.W.(2d) 851, 852, pars. 1 and 2; Block Motor Co. v. Melia (Tex. Civ. App.) 247 S. W. 666, 668, pars. 3 and 4; Gray v. Black (Tex. Civ. App.) 267 S. W. 291, 294, par. 11 (reversed on other grounds [Tex. Com. App.] 280 S. W. 573); American Surety Co. v. Hill County (Tex. Civ. App.) 254 S. W. 241, 245, par. 2. Should appellant deem proof of demand necessary in a subsequent trial, and should offer to read in evidence so much of said letter as recites the purchase of said car, the consideration therefor, the amount of purchase money remaining unpaid, the surrender of the same to the Chevrolet Company, all of which was shown by uncontroverted testimony, and the demand for adjustment upon the alternative of suit by him for possession of the car, the same should be received for the purpose of establishing such demand. Ætna Insurance Co. v. Fitze, 34 Tex. Civ. App. 214, 78 S. W. 370, 371 (writ refused).

The judgment of the trial court is reversed, and the cause remanded.


author: GALLAGHER, C. J.

text:
    FORT WORTH & R. G. RY. CO. v. SAGESER et al.
    No. 1041.
    Court of Civil Appeals of Texas. Waco.
    April 2, 1931.
    Goree, Odell & Allen and Hiner & Pannill, all of Fort Worth, E. T. Miller, of St. Louis, Mo., and Chandler & Keith, of Stephenville, for appellant.
    Oxford & Johnson, of Stephenville, for ap-pellees.
   GALLAGHER, C. J.

This suit was instituted by Mrs. Gladys Sageser, for herself and as next friend for her minor child, Miller Marie Sageser, appellees herein, against Fort Worth & Rip Grande Railway Company, appellant herein, to recover damages sustained by them from the death of Miller Sageser, husband and father of the respective appellees. A prior judgment in their favor was reversed by the Court of Civil Appeals at Eastland. 18 S.W.(2d) 246.

King street in the city of Stephenville ran approximately north and south. It crossed appellant’s railroad at right angles in the suburbs of the city. The deceased, Miller Sages-er, on the morning of December 7, 1927, was traveling south along said street. He was driving a Ford touring car. As he passed over the railroad crossing, the rear end of his ear was struck by an east-bound passenger train, and he received injuries which resulted in his death a short time thereafter.

The case was submitted to a jury on special issues, in response to which it found, in substance, that said train at the time it approached and passed said crossing was being operated at a speed of 35 miles per hour; that such speed at the time and place and under all the circumstances in evidence constituted negligence, and that such negligence was the proximate cause of the death of the deceased; that Mrs. Sageser sustained damages by reason of the death of her husband in the sum of $6,000, and the minor child, Miller Marie Sa-geser, sustained damages by reason of the death of her father in the sum of $3,000. The jury further found that said collision was not the result of an unavoidable accident, and. against appellant’s contention on all the issues of contributory negligence submitted. The court rendered judgment in favor of ap-pellees on said verdict, and appellant presents the record to this court for review.

Opinion.

Appellant presents as ground for reversal the refusal of the court to submit to the jury for. determination the following issues requested by it:

“Requested issue No. 11: Was the deceased, Miller Sageser, negligent, as that term has been defined to you, in driving his automobile on said railroad track in front of defendant’s train at the time and place and under the circumstances in which said deceased did drive the same on to defendant’s track at the time of the accident in question? Answer Yes or No.
“Requested issue No. 11a: If you answer the foregoing special issue in the affirmative, then answer the following:
“Was such negligence, if any, a proximate cause of the death of the said Miller Sageser? Answer Yes or No just as you find.”

The testimony showed that King street was much traveled; that the view to the westward of one traveling south thereon was obstructed for the distance of about a block immediately before reaching the crossing over appellant’s railroad; that a full view of a train approaching from the west could not be had by one so traveling until he had actually gotten onto the railroad right of way; that on the morning of the accident the temperature was near freezing, and a strong high cold wind was blowing from the north; that the side curtains on deceased’s car were up; that there were isinglass windows in such curtains ; that deceased approached the railroad at the rate of 15 or 20 miles per hour; that just before he entered the right of way he slackened his speed to 10 or 12 miles per hour, looked to the right, and proceeded to cross over appellant’s track; 'that an east-bound train struck the rear end of his car just before it cleared the crossing. Estimates of the speed of the train varied from 25 to 40 miles per hour. As before stated, the jury found it was running at the rate of 35 miles per hour. The testimony further showed that Mrs. Sageser, the wife of deceased, was ill at their home about 7 miles south of Stephen-ville, and that said child was born that night. The deceased, with his sister in his car, was returning home to attend his sick wife. Both of them were killed by the collision. Appellant pleaded that the deceased was negligent tn driving his automobile onto its railroad track at the time and place in question in front of its moving train, and that such negligence caused or proximately contributed to cause the collision which resulted in his death. The testimony showed without contradiction that the deceased, at the time and place in question, did drive his automobile onto appellant’s railroad track in front of its approaching train. Appellant sought by its said requested issues to have the jury determine whether such action on his part, under all the circumstances in evidence, constituted negligence, and whether such negligence was a proximate cause of the collision which resulted in his death. Said issue was the most pertinent of all the issues of contributory negligence presented by appellant. It was not covered even substantially by any of the issues submitted by the court. The issues so submitted were, in substance, whether under all the facts and circumstances in evidence the deceased failed to keep a proper lookout for the Approach of appellant’s train, whether he failed to listen for such approach, whether he failed to slacken the speed of his car sufficiently to enable him to look for such approach, whether he had his car under sufficient control to enable him to look for such approach, and whether he was driving at a negligent rate of speed, at the time he approached and attempted to cross over appellant’s track. All said issues were answered adversely to appellant’s contention. None of them involved a finding whether the deceased saw or heard the approaching train but misjudged its distance or its speed and thought he could cross the track in safety before it reached such crossing. The requested issues would have covered this particular and pertinent phase of contributory negligence and should have been submitted. St. Louis, S. F. & T. Ry. Co. v. Allen (Tex. Com. App.) 278 S. W. 186, and authorities there cited; St. Louis, S. F. & T. Ry. Co. v. Wilson (Tex. Com. App.) 279 S. W. 808. The refusal to submit the same requires a reversal of the judgment.

Appellant presents propositions complaining of the fact that J. H. Sageser, the father of the deceased, was not made a party to this suit. Since the judgment of the trial court is reversed, appellees will have an opportunity to amend their petition so as to obviate such complaint before another trial.

The judgment of the trial court is reversed, and the cause remanded.


author: ALEXANDER, J.

text:
    TOWLER et ux. v. STONE et al.
    No. 1045.
    Court of Civil Appeals of Texas. Waco.
    April 2, 1931.
    W. J. Oxford and B. E. Cook, both of Ste-phenville, for appellants.

      Chandler & Keith, of Stephenville, for ap-pellees-
   ALEXANDER, J.

This was a suit by Mrs. Bessie' Stone and husband against E. W. Towler and wife to recover actual and exemplary damages on account of an alleged assault having been committed by the defendant’s wife on Mrs. Bessie Stone. The court submitted the case to a jury on special issues, and, on the answers of the jury, entered judgment for the plaintiffs for actual damages in the sum of $4.00. The defendants appeal.

There was evidence to show that the appellant P. W. Towler had erected a gate across a third-class road that ran through his farm. The gate had been left open on several occasions. On the occasion in question, the ap-pellee Mrs. Bessie Stone drove through the gate and had started to drive away without closing it. Mrs. Towler, who was .stationed near by, presented a double-barrel shotgun, and ordered Mrs. Stone to “shut the gate.” Mrs. Stone testified that she had never before met Mrs. Towler, and that the act of drawing the gun on her made her so nervous that she was unable to shut the gate without the assistance of Mrs. Towler. She further testified that, as the result of -the alleged assault, her nervous system was severely shocked and her health impaired for several weeks thereafter.

Appellants complain of the action of the court in permitting counsel for the appellees to elicit from Mrs. Towler and her daughter, on cross-examination, and from the witness Eades, evidence showing that shortly after the alleged assault Mrs. Towler had a similar encounter with Mr. Eades, who was attempting to pass through the gate without closing it, and that she committed an assault on him in the same manner. The appellees had alleged that the assault on Mrs. Stone was committed willfully and with malice, and sought to recover exemplary damages as a result thereof. Mrs. Towler had testified that on the occasion in question, she had been hunting for rabbits and squirrels and had her gun with her for that purpose, and that she had stopped under a tree near the gate merely to rest, and without any intention or premeditated design of injuring or harassing any one who attempted to leave the gate open. She denied presenting the gun in a threatening manner.

As a general rule, evidence of the commission of other crimes is not admissible as evidence of the commission of the crime in question. However, where malice or the intent with which an act is done is an issue, other similar acts of the accused may be shown for the purpose of establishing motive, design, or intent, especially where such other acts are of a similar nature and so connected with the transaction under consideration, in point of time, and in the manner of committing sanie, as that they may all be regarded as a part of the same system. 5 G. J. 668; 2 R. O. L. 565, 566 ; Smith v. Roberts (Tex. Civ. App.) 218 S. W. 27; Dwyer v. Bassett, 1 Tex. Civ. App. 513, 21 S. W. 621; Raby v. Frank, 12 Tex. Civ. App. 125, 34 S. W. 777; Overstreet v. State, 68 Tex. Cr. R. 238, 150 S. W. 899, par. 5; Overstreet v. State, 67 Tex. Cr. R. 565, 150 S. W. 630, par. 5; Myers v. Martin, 168 Ark. 1028, 272 S. W. 856; McCaskey Register Co. v. McCurry, 181 Ark. 649, 26 S.W.(2d) 1108; Snow v. State, 106 Tex. Cr. R. 222, 291 S. W. 558, par. 5. The appellees were seeking to recover exemplary damages, and it was necessary for them to establish a .malicious intent. Mrs. Towler had denied any intent to use the gun in a threatening manner. It was her contention that it was a mere coincidence that she happened to have her gun with her, and that she was near the gate when Mrs. Stone attempted to pass through it. On the other hand, it was the contention of ap-pellee that Mrs. Towler had carried her gun with her and had concealed herself near the gate for the express purpose of compelling people, by force or threats, to close the gate. There is evidence that the assault on Eades occurred at the same place and in the same manner and for the same purpose and within thirty minutes after the alleged assault on Mrs. Stone. Eades testified that, when he went through the gate, Mrs. Towler was concealed behind some bushes, and that she immediately appeared and presented -the gun in a threatening manner, and commanded him to “shut the gate.” This evidence was admissible to establish a system on the part of Mrs. Towler. It was evidence of a willful intent-on her part to use the gun in a threatening-manner to enforce obedience to her commands. There was no error in admitting this testimony.

The appellants also complain of the action of the court in refusing their special requested issue, as follows: “Did the defendant, Mrs. Towler, at the time and place alleged in plaintiff’s petition, believe she had the right to require said gate to be kept closed. Answer yes or no, just as you find.”-

The issue as submitted was a mere eviden-tiary issue, and it was not error for the court to refuse to submit the same.

We have examined all other assignments, and, finding no error, the judgment of the trial court is affirmed.


author: CONNER, C. J.

text:
    COUNTY BOARD OF SCHOOL TRUSTEES OF YOUNG COUNTY et al. v. BULLOCK COMMON SCHOOL DIST. NO. 12 et al.
    No. 12508.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 3, 1931.
    Rehearing Denied Feb. 21, 1931.
    Marshall & King, Fred T. Arnold, and S. A. Penix, all of Graham, for appellants.
    C. W. Johnson, Jr., of Graham, for appel-lees.
   CONNER, C. J.

On the 27th day of May, 1930, the county board of school trustees of Young county, acting upon a petition purporting to have been signed by a majority of the qualified voters of a portion (being less than 10 per cent.). of the Bullock common school district No. 12, detached from the Bullock common school district No. 12 about 1,629 acres of land, and annexed the same to the Graham independent school district, said board acting under and by authority conferred upon it in House Bill No. 25, chapter 47 of the Acts of the First Called Session of the 41st Legislature (Ver'non’s Ann. Civ. St. art. 2742f). The change in the boundary of the Bullock common school district No. 12 affected less than 10 per cent, of the territory of said common school district, and the trustees’ order of annexation further recited that all the things necessary and prerequisite for the entering of the said order had been done. The plaintiffs below, without having first sought an appeal from the action of the county school trustees to the state superintendent, and from the state superintendent to the state board of education, I>roceeded to file this suit, on the 6th day. of August, 1930, wherein the Bullock common school district No. 12 of Young county, T'ex., by and through its .trustees and a number of citizens and taxpayers of said district, styled themselves plaintiffs, sued the county board of school trustees of Young county, Tex., the Graham independent school district, the county school superintendent of Young county, Tex., and the tax collector of the Graham independent school district, and the tax collector of Young county, alleging, in substance, the following facts, to wit:

1. That two of the county board members were not duly elected and were usurping power and rights of a county school trustee, and that a quorum was not present on May 27, 1930, at the time the order in question was passed.

2. Fraud in securing the signatures to the petition, and that the voters were not qualified.

3. That no notice to the Bullock common school district trustees, as provided in section 2, chapter 109 of the Acts of the First Called Session of the 41st Legislature (Vernon's Ann. Civ. St. art. 2742e), was given to said trustees.

4. That the law under which the annexation was made is unconstitutional, and that the Graham independent school district was a bonded district.

5. That the county board of school trustees abused their discretion, and that the consolidation was not for the best interest of education, and that the territory annexed was not contiguous.

The defendants answered by (a) plea to thi, jurisdiction; (b) plea in abatement; (c) general demurrer; (d) denial of agency under oath and a general denial. The plea to the jurisdiction and the plea in abatement and the general, demurrer were all on the 19th day of September, 1930, overruled, and on the 24th day of September, 1930, the court submitted the cause on its merits to the jury upon one special issue as to whether or not the trustees of the Bullock common school district had notice of the meeting of the county board of school trustees on May 27, 1930, and the jury answered that the trustees of said Bullock common school district had not been so notified, whereupon the court entered judgi ment for the plaintiffs, annulling the order of annexation made by the county board of school trustees on the 27th day of May, 1930; and permanently enjoined the Graham independent school district and its trustees from exercising any dominion or control over the territory that had by said order of May 27, 1930, been detached from the Bullock common school district and annexed to the Graham independent school district, from collecting any taxes from said territory; to which action of the court the defendants excepted and gave notice of appeal, and thereafter seasonably filed its appeal bond and perfected the appeal as made and provided by law; this cause is now before this court for review and correction.

The vital questions presented on this appeal are dependent in part on the construction "and validity of the following acts of the 41st Legislature at its First Called Session, which, so far as pertinent, read as follows:

“Authorizing County Board to Detach Territory from One School District and Attach it to Another. H. B. No. 25.

“Chapter 47.
“An Act authorizing the County Board of Trustees of each organized county to detach from one and add to another school district territory contiguous to the common boundary line of the districts affected ; providing for the adjustment of outstanding indebtedness; repealing laws in conflict; and declaring an emergency.
“Be it enacted by the Legislature of the State of Texas:
“Section 1. In each county of this State the County Board of Trustees shall have the authority, when duly, iietitioned as herein provided, to detach from and annex to any school district territory contiguous to the common boundary line of the two districts; provided the Board of Trustees of the district to which the. annexation is to be made approves, by majority vote, the proposed transfer of territory and provided, further, that where the territory to be detached exceeds ten per cent (10%) of the entire district the petition must be signed by a majority of the trustees of said district in addition to a majority of the qualified voters of the territory to be detached. The petition shall give the metes and bounds of the territory to be detached from the one and added to the other district and must be signed by a majority of the qualified voters residing in the said territory so detached. Upon receipt of the said petition, duly signed, and upon notice of the approval of the proposed annexation by the Board of Trustees of the district to which the territory is to be added, the County Board of Trustees shall pass an order transferring the said territory and redefining the boundaries of the districts affected by said transfer, the said order to be recorded in the Minutes of the County Board of Trustees. Provided that no school district shall be reduced to an area of less than nine square miles.
“Sec. 2. Any outstanding indebtedness affected by changes in the boundaries of school districts shall be adjusted by the County Board of Trustees as provided in Sections 10, 11 and 12, of Chapter 84, Acts of the 40th Legislature, First Called Session.
“Sec. S. All laws and parts of laws, General and Special, in conflict herewith are hereby repealed, and Sections 1, 2, 3, and 4 of Chapter 84, Acts of the 40th Legislature, First Called Session, and Article 2765, Revised Civil Statutes, 1925, are specifically repealed.”
“H. B. No. 220.
“Chapter 109.
“An Act. validating the actions of the County Board of School Trustees in changing boundary lines of Common School Districts in counties having a population of not less than 9,000 nor more than 9,010, according to the United States Federal census of 1920; giving the County Board of School Trustees in all counties authority to make changes in all Common School Districts, to create Common School Districts, to subdivide districts; providing in case any provision of this Act shall be held unconstitutional or invalid then such holdings shall not affect the remaining provisions; and declaring an emergency.
“Be it enacted by the Legislature of the State of Texas: * * *
“Sec. 2. That on and after the passage of this Act the County Board of School Trustees in any county in this State shall have authority and full power to create Common School Districts, to subdivide districts, and to change boundary lines of any or all Common School Districts legally coming under the jurisdiction of the County Board of School Trustees, subject tó the supervision of the District Court having jurisdiction over the county where the County Board is appointed or elected ; provided that before any changes may be made in boundary lines of school districts the trustees of the Common School Districts affected shall be notified to appear before the County Board for a hearing, and after said hearing, or the date set for said hearing, the County Board of Trustees may pass such order or orders as will carry out the provisions of this Act; provided, further, that the trustees of the districts affected may appeal from the decision of the County Board to the District Court.”

Both of the above acts were made effective on the same day, to wit, May 24, 1929.

Appellants first insist that the court below was without jurisdiction to hear and determine the plaintiffs’ cause of action without having first exhausted remedies of appeal to the state superintendent and the state board of education. The case of Jennings v. Carson (Tex. Com. App.) 220 S. W. 1090, and others of a similar trend, are cited in support of the contention. That decision was written by Section A of our Commission of Appeals in construing previous statutes, some of which were apparently conflicting and approved by the Supreme Court. The general ruling was, under article 2682, Rev. Civ. Statutes, giving “general supervisory control” to district courts, and article 2686, providing that appeals from decision of the “County Superintendent” should lie to the “County School Trustees and from the said county trustees to the State Superintendent and thence to the State Board of Education,” that appeals from the action of the county school trustees refusing to form a school district under the articles cited in the opinion should first be made from the lower to the higher school authorities before the jurisdiction of the district court could be invoked. Other cases are cited in behalf of appellants as of the same effect, such as Warren v. Sanger Independent School District, 116 Tex. 183, 288 S. W. 159; Johnson v. City of Dallas (Tex. Civ. App.) 291 S. W. 972; South San Antonio Ind. School District v. Martine (Tex. Civ. App.) 275 S. W. 265; Stinson v. Graham (Tex. Civ. App.) 286 S. W. 264. In determining the weight to be given these decisions, it will be well to consider the Act of the Legislature, approved March 15, 1927 (Vernon’s Ann. Civ. St. art. 2686), amending article 2686, whereby it was declared, in effect, that parties desiring to appeal from the county hoard of school trustees were given the right to elect to appeal to any court having proper jurisdiction of the subject matter; or to the state superintendent of public instruction, etc. See Laws of 40th Legislature, page 128, c. 83.

However, without considering the effect of the amendment just referred to, the case of Chastain v. Mauldin, 32 S.W.(2d) 235, Chief Justice McClendon, of the Austin Court of Civil Appeals, points out exceptions to the rule now insisted upon as being those involving the constitutionality of a statute under which a school board acts, those in which no statutory authority is given for the act complained of, and those in which property or funds belonging to the school district are about to be diverted, citing the cases which so rule. See, also, Freeport Ind. School District v. Common School District, 115 Tex. 133, 277 S. W. 97; Henderson v. Miller (Tex. Civ. App.) 286 S. W. 501.

County School Trustees are declared to constitute bodies corporate by article 2683, Rev. Civ. Statutes, and are charged by law with 'the management of the affairs of their districts and the protection of their best interests, and their right and duty to do so is distinctly upheld in the case last above cited. Both parties to the present litigation attack the validity of the law now involved and above quoted.

The plaintiffs alleged, among other things, in substance and as quoted, that House Bill No. 25, chapter 47, “does not give the County Board of School Trustees authority to detach territory from a common school district and attach the same to an independent school district, * * * for the reason that the caption of House Bill No. 25 is insufficient * ⅜ ⅞ to change the manner of adding to or taking from the territory of an independent school district.”

Appellants insist, in subdivision 0 of their proposition No. 3, that: “House Bill No. 220, being chapter 109, First Called Session of the 41st Legislature of the State of Texas, General and Special Laws page 259, Acts of the iñrst Called Session of the 41st Legislature which adjourned May 21, 1929, is unconstitutional in that it deals with more than one subject and fails to express in its caption the provision with reference to notice.”

It is evident that a determination of the questions so presented require an exercise of judicial functions clearly not committed by the Constitution or the laws to the administrative officers of the public schools. Wide general powers are given to the state Legislature by section 1, article 7, of our Constitution, in establishing and making suitable provision for the support and maintenance of a sufficient system of public free schools, and without doubt it may establish such administrative agencies as may be necessary to attain the end in view, which was a general diffusion of knowledge among our people. See Webb County v. Board of School Trustees, 95 Tex. 137, 65 S. W. 878; Schley v. Maddox (Tex. Civ. App.) 22 S. W. 998, 999, House 'Bill 220, hereinbefore quoted, is the latest expression of the Legislature relating to the subject, and it, if valid, as we think, and as we shall hereinafter aLtempt to show, expressly confers the right of appeal to the district courts. We accordingly conclude that the contention that the court below was without jurisdiction must be overruled.

The case was tried before a jury and submitted upon a single issue, which, together with the jury’s answer thereto, is as follows: “Do you find from a preponderance of the evidence that the trustees of Bullock Common School District No. 12 were not notified of the meeting of the Young County School Board to be held in Graham, Texas, on May 27, 1930? Answer: Yes.”

Appellants urge that the court erred in submitting the issue of notice to the trustees of appellee district for the reason that notice, if necessary, must be presumed as a matter of law, or, if not, that the recitation in the order complained of that all prerequisites of the law had been complied with is conclusive ; and, finally, that the requirement for notice contained in House Bill No. 220 is without force, in that the bill is void as to notice, since that purpose is not expressed in the bill, and for the further reason that the bill seeks to deal with more than one subject.

These, questions, we think, may be disposed of more briefly. By the terms of House Bill No. 220, notice to the trustees of the Bullock common school district was plainly required, and the county board, which entered the order under consideration, evidently understood that such notice was necessary, for the order recites that notice was duly given. As it seems to us, notice to those trustees with an opportunity to be heard was essential. It may well be said that a diminution of the territory of the Bullock school district, thus decreasing the district’s financial ability, could not, without due notice and opportunity to be heard, be taken away under the due process clauses of the state and federal Oonstitutions. Indeed, the legislative intent in the enactment of House Bill No. 220 may well be said to have been to thus supply a fatal omission in House Bill No. 25. It was not necessary, we think, to the validity of House Bill No. 220, that the purpose to require notice should be expressed in the caption, nor do we think that act invalid on the ground that it deals with more than one subject. Section 35 of article 3 of the Constitution provides that: “No bill (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title.”

But it is uniformly held that a liberal construction will be applied in determining whether or not a statute violates this section. And it is to be noticed that the section only forbids a duplication of subjects. It has long since been held that a specification of the means by which the object of the act is to be accomplished does not infringe this section of the constitution. See Hays v. Porter, 27 Tex. 92; Tadlock v. Eccles, 20 Tex. 782, 73 Am. Dec. 213. In Duncan v. Taylor, 63 Tex. 645, it was held that, under an act of 1879, relating to the assignment of insolvent debtors for the benefit of creditors, in which was included a section, invalidating all liens on stock of goods exposed for sale, in the course of trade, does not violate this section. In Giddings v. San Antonio, 47 Tex. 553, 26 Am. Rep. 321, it was held that, where that part objected to can be considered as connected with or subsidiary to the main object, expressed in its title, it will be constitutional. In Johnson v. Martin, 75 Tex. 40, 12 S. W. 321, it was held that this section only requires the general or ultimate object to be stated in the title, and not the details by which the object is to be obtained. See also, McMeans v. Finley, 88 Tex. 521, 32 S. W. 524; Singleton v. State, 53 Tex. Cr. R. 625, 111 S. W. 736. We have no doubt of the constitutional validity of House Bill No. 220. That bill, as before suggested, was supplementary to House Bill No. 25, and the requirement for notice we think plainly germane to the objects to be attained by these two bills. In no part of either bill do we find a provision to the effect that a recitation in the order of the eonnty board of school trustees would be even prima facie evidence of the fact that notice was given, and it does not. appear that appellants relied upon any such contention on the trial below, for they attempted to prove the fact of notice by the introduction of witnesses who testified that cards were written and addressed to the trustees of the Bullock school district, notifying them that a meeting of the county school board was to be held where proceedings in which they were interested would be had. Each of the trustees of the Bullock school district, however, testified, without contradiction, that they received no such notice and were entirely without knowledge of the fact of the meeting, and, as already stated, the jury so found. We think the trial court entirely correct in his ruling that the proceedings under consideration were invalid for want of proper notice to the trustees of the Bullock school district.

In the case of Davis v. Petroleum Casualty Co. (Tex. Civ. App.) 13 S.W.(2d) 981, 982, the court quoted the following from 20 R. C. L. p. 356, § 20: “Mailing of notice to a person at his known address within the state may be authorized as a mode of service, but in the absence of a statute authorizing the service of a notice by mail, a notice so served is ineffective unless it is received, though where the notice was properly mailed its receipt will be presumed in the absence of evidence to the contrary. * * * ¶¾⅛ presumption may be overcome by evidence that the. notice never was in fact received.”

In the case of McClure v. Georgia Casualty Co. (Tex. Com. App.) 251 S. W. 800, 801, it is said: “These provisions [referring to notice under Compensation Act] of the law were before this court in a recent case for construction, and we held that, when a statute directs that notice shall be given, but is silent with reference to the manner of giving the same, personal service of such notice upon the person to whom it is required to be given is necessary.”

Appellees by cross-action have assigned error to the action of the court in refusing to permit them to show by evidence tendered that the petition upon which the county board of school trustees acted had not been signed by the required number of qualified voters of the territory sought to be detached. But we think the question so presented, as well as others presented by appellees and also by appellants, may be passed without consideration or determination as immaterial, in view of our conclusions heretofore stated.

We conclude that the judgment below should be in all things affirmed.


author: COBBS, J.

text:
    GUTIERREZ et al. v. MARTINEZ et al.
    No. 8574.
    Court of Civil Appeals of Texas. San Antonio.
    March 25, 1931.
    Rehearing Denied April 15, 1931.
    W. W: Winslow and Gibson & Blaekshear, all of Laredo, for appellants.
    Mann, Neel & Mann, of Laredo, for appel-lees.
   COBBS, J.

This suit was brought by appellants, the children and heirs of Jose Encarnación Gutierrez, the adopted son and heir of Gregoria Martinez de Gutierrez, against appellees, the heirs of the brothers and sisters of said Gregoria Martinez, for partition of 5,280.7 acres of land out of the Bias Maria grant in Zapata county, Tex., originally granted to Antonio Martinez Gutierrez, the father of said Gregoria Martinez and the ancestors of appellees.

Appellees answered with general demurrer to appellants’ third amended petition, which the court sustained, and, appellants having refused to further amend, the case is here on appeal.

This case on the demurrer must be tested by the sufficiency of the petition. As the court sustained tlie demurrer to the petition, it must of consequence be given its fullest force and effect, as though the facts alleged had been proven. The demurrer admits the allegations that plaintiffs and defendants were joint owners in fee simple of the property described; that plaintiffs were the owners of an undivided one-fourth part thereof; that defendants were the owners of an undivided three-fourths thereof; that plaintiffs and defendants were the sole owners of said land and premises; and that the estimated value thereof was $50,000. The allegations setting out the chain of title to the property, that Gregoria Martinez was one of the children and heirs of the original grantee, the law relating to the method of adoption in the state of Tamaulipas, Mexico, the precise compliance with that law by the said Gregoria Martinez and her husband Benigno Gutierrez'in adopting plaintiffs’ ancestor, Jose En-carnación Trevino (thereafter known as Jose Encarnación Gutierrez), the death of said Gregoria Martinez without other heirs and of Jose Encarnación Gutierrez, and the fact that plaintiffs are the sole children of the latter, present a good cause of action to which the general demurrer should not have been sustained.

Appellants having alleged a judicial act of adoption done by a court of competent jurisdiction, having jurisdiction over the individual whose status was to be fixed, and having before it all parties and facts necessary to exercise that jurisdiction, and having inquired into and determined that the adopting parties had all the qualities and circumstances necessary to adopt, and said court having decreed the adoption, such judicial act and decree was a judgment in rem, binding upon all the world, and is not now, after a period of 80 years, open to a collateral attack upon the issue of fact that the parties did not have the qualities necessary to adopt.

There was no defect apparent on the face of the petition, and, even though appellees upon proof of certain facts not alleged in the petition could defeat the same, it was not subject to general demurrer, and the demurrer should not have been sustained.

The petition shows on its face all that was necessary to be alleged in a suit for partition, which, on account of appellees’ answer, became a suit in trespass to try the title. If the petition had alleged other disputable facts, that would not have subjected it to a general demurrer.

The allegations of facts show that Bias Maria grant was granted by the Grown of Spain to Antonio Martinez Gutierrez, and confirmed to his heirs by the state of Texas; that said Antonio Martinez Gutierrez died intestate leaving nine children, of whom one was Gregoria Martinez, whose share and interest is claimed by appellants; that said Gregoria Martinez married Benigno Gutierrez and was never married to any other person, and that no children were born to her of said marriage. That the law in force in the state of Tamaulipas, Mexico, in 1851, was the law in Spain, which up to the year 1846 was in force as well in the territory now embracing Webb and Zapata counties as the territory of the present republic of Mexico, and provided for the manner of adoption.

The petition alleges the most exact and precise compliance with that law by Gregoria Martinez and Benigno Gutierrez, her husband. That they, each acting with the consent and approval of the other, together with Juan Trevino and Magdalena Ramirez and the said Jose Encarnación Trevino, appeared before a judge in the city of Guerrero, state of Tamaulipas, Mexico, and the said Juan Trevino and .Magdalena Ramirez stated that they desired to give their child Jose Encarnación in adoption to the said Gregoria Martinez and Benigno Gutierrez, and the said Gregoria Martinez and Benigno Gutierrez stated that they would receive said child in adoption, and the said child, Jose Encarnación, consenting by remaining silent and not contradicting, and said judge then determined that the said Gregoria Martinez and Benigno Gutierrez had the qualities and circumstances necessary to adoption, and that the adoption would be advantageous and useful to the said child Jose Encarnación, and authorized the adoption of said child as sought; and the said Juan Trevino and his wife, Magdalena Ramirez, then took the child Jose Encarna-ción by the hand and delivered it to the said Gregoria Martinez and Benigno Gutierrez, who received the child as their adopted child, and the public scribe, by order of the judge, issued in proper form a public document certifying to the act of adoption; that the public document so issued has been lost or destroyed, and appellants gave notice to ap-pellees to produce it upon the trial, etc.

It was further alleged that Gregoria Martinez died without other heirs, and that appellants are all the children and the sole heirs of said Jose Encarnación, also deceased, and as such own the share and interest of said Gregoria Martinez in said Bias Maria grant.

While the record fails to disclose the significant and peculiar grounds for sustaining the demurrer, we think the court agreed with the contention of appellees that the adoption could not have been made in Mexico in the manner and at the time in question.

The particular rule of Mexican and Spanish law upon which appellees relied was a statement from various writers that “no woman can adopt unless she has lost a son in battle and has the consent of the king.” Competent Mexican lawyers have testified that the specified reference is to a single woman and has no application in the case of a married woman acting with the consent of her husband. The rule of law laid down by the authorities seems to be that neither spouse shall adopt without the consent of the other, indicating that with that consent either or both spouses may adopt in the usual manner.

This question was before the Mexican court in 1851, and it was then decided adversely to appellees’ present contention. No appeal was taken and the judgment decreeing the status of Gregoria Martinez and her adopted son became final.

In ruling on demurrers the court will loolc alone to the pleading, Coons v. Green, 55 Tex. Civ. App. 612, 120 S. W. 1108, and every reasonable intendment shall be indulged in favor of the sufficiency of the pleading excepted to. Rule 17 for District Courts.

Adoption, like marriage, fixes a legal status and establishes the fact that the person adopted is in law an heir of the adopter. 1 Tex. Jur. Title Adoption, 745; McColpin v. McColpin (Tex. Civ. App.) 77 S. W. 238.

A judicial adoption proceeding is one which creates the status. ' It is therefore one which is in rem and is conclusive against the world. Freeman on Judgments (5th Ed.) par. 1421.

This conclusiveness relates to the precise status adjudicated, and to that extent the decree is not open to collateral attack. Miller v. Foster, 76 Tex. 479, 13 S. W. 529.

It cannot be collaterally attacked for errors apparent of record. Thus a decree probating a will cannot be collaterally impeached because the will is on its face invalid. Neither is a decree of distribution subject to such an attack because it manifestly departs from the terms of the will. Freeman on Judg-' ments (5th Ed.) par. 1531.

The inquiry as to the validity of a judgment in rem pronounced by a foreign court is limited to determining whether the forum rei sitse proceeded according to its own municipal laws in pronouncing such judgment of decree. If it did, the decree is binding on the world. Errors of law, even though they appear on the face of the record, will not be considered, for their consideration would involve the exercise of appellate jurisdiction. Freeman on Judgments, par. 1532.

If the Mexican court erred in finding and decreeing that Gregoria Martinez had all the qualities necessary to adopt, that would be an error of law which could not affect the validity or binding effect of the judgment, and such an error cannot be corrected now, nor the erroneous judgment avoided on collateral attack. Van Matre v. Sankey et al., 148 Ill. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196.

An adoption in one state 'according to the laws of that state will entitle such adopted heir to inherit property in this State. 1 Tex. Jur. Adoption, par. '745.

The law of another state, except in so far as the contrary is alleged, is presumed to be the same as that of this state. This rule is equally true in matters relating to adoption. White v. Richeson (Tex. Civ. App.) 94 S. W. 202.

In Texas “any person” may adopt another. R. S. 1925, art. 42.

This has been the' law since January 16, 1850. See Hartley’s Digest, p. 88.

And “any person” includes a married woman. De Beque v. Ligon (Tex. Civ. App.) 286 S. W. 749; Bell v. Thomsen, 116 Tex. 325, 273 S. W. 1109, 1 S.W.(2d) 1118.

It must be remembered every legal intendment is indulged in favor of a petition attacked by general demurrer. The facts here show that there is a valid decree, a judgment in rem, of a Mexican court establishing the status of Jose Encarnación as the adopted son and heir of Gregoria Martinez. Armendiaz v. Serna, 40 Tex. 291.

As the petition did not disclose the laws of Mexico, it could not be tested as to its sufficiency by them upon demurrer. It did not allege that there was a foreign law governing the contract, nor did it state what that law was, and the court could not judicially know of it, and the lex fori would govern the case from necessity, for no other law can be presumed.

There were no facts introduced in evidence, since no law will be presumed, for no Mexican law will be considered that was not introduced in evidence, and none was pleaded or proven. It was necessary to allege the laws of Mexico on the subject, because the laws of Mexico might differ from those of Texas. A compliance with the Mexican laws was alleged.

The amended petition contained all the necessary allegations for a partition suit. The chain of title set out .by appellants is complete ; the main contention of appellees being that there was no legal and proper act and proceeding to secure the adoption.

The petition alleges a valid judicial decree of adoption. What the proof may show is another question, not now before the court, but it appears from the evidence that Gregoria Martinez and her husband acknowledged Jose Encarnación as their adopted son at his baptism in 1851, and again when they gave their consent to his marriage, in 1871. At least that judicial act of adoption cannot be attacked by a showing that the Mexican court erred in its application of its law or in its knowledge of facts on which it based its decision.

After an examination of the record and the very full and carefully prepared briefs of the parties, and an examination of the cited authorities available, we are satisfied the court erred in sustaining the demurrer, and for that reason the judgment is reversed, and the cause remanded for another trial.

FLY, O. J., and SMITH, J.

We concur in the result.


author: DESLIE, J.

text:
    PARMLEY et al. v. AYNESWORTH.
    No. 816.
    Court of Civil Appeals of Texas. Eastland.
    March 13, 1931.
    Rehearing Denied April 24, 1931.
    Clyde E. Thomas and Martelle McDonald, both of Big Spring, for appellants.
    James Spiller, of Panhandle, Tracy Smith, of Big Spring, and Hiram IC Aynesworth and Joseph H. Aynesworth, both of Stinnett, for appellee.
   DESLIE, J.

Joseph H. Aynesworth instituted this suit against W. A. Farrar, Dr. L. E. Parmley, First State Bank of Panhandle, Beulah E. Chumbley and husband, Robert E. Chumbley, to recover judgment on a vendor’s lien note for $2,500 executed by Farrar, and a $3,840 personal note executed by Dr. L. E. Parmley. For a valuable consideration the two notes had been assigned to the plaintiff by Beulah E. Chumbley, the former wife of Dr. L. E. Parm-ley. The possession and right to the first .note was awarded by the judgment to said Farrar, the'maker, who, the jury found, purchased it from the pledgee bank, and a judgment was awarded to plaintiff Aynesworth for the balance of the $3,840 note, although the jury failed to find that said Farrar purchased that note also along with the $2,500 note, as he contended. The Chumbleys were dismissed from the suit, and the bank was awarded the sum of money tendered into court by Farrar as the balance on his personal note executed to the bank for the purpose of taking up or paying off Mrs. Chumb-ley’s note, for which the two above notes were placed with the bank as collateral. An appeal is prosecuted from the above judgment by Farrar, Parmley, and the bank.

The plaintiff Aynesworth complains that the court erred: (1) In overruling his motion for an instructed verdict, based principally on the ground that the evidence conclusively showed that Farrar was endeavoring to purchase his own note for less than one-half of its real value; and (2) that the court erred in submitting any issue whatever to the jury, since, under the undisputed testimony, all issues became immaterial, and the plaintiff was entitled to a verdict generally, less the amount paid by Farrar, when he purported, to take up the Chumbley note.-

By cross-assignments Farrar, who sued for the right and possession of both collateral notes, attacks that portion of the judgment adverse to him on the grounds: (I) That the court having submitted certain issues to the jury, which answered some of them favorable to him, and failed to agree upon answers to other issues, the court was without authority to enter its independent judgment on the issues unanswered by the jury; (2) where one purchases a note containing a collateral clause empowering the holder to sell the collateral, the purchaser of the note receives all rights under such clause, together with the lien therewith, including the collateral security; and (3) that -the plaintiff, assignee of the collateral notes, was not entitled to recover on same without tendering the unpaid portion of the Chumbley note, to secure which the collateral was pledged to the bank.

Farrar, by proper pleadings, among other things, alleged: ,(1) That he bought the two collateral notes, and that they were sold to him by the bank under the power of sále contained in a clause of Mrs. Parmley’s note. That clause, in part, reads: “Now, in the event of the non-payment of this note at maturity, the holders hereof are * * * ⅛-vested with * * * authority to use, transfer, hypothecate, sell or convey the same property or any part thereof * * * at public or private sale, with or without notice or demand of any sort, at such place and on such terms as the said holders hereof may deem best * * * and the proceeds of such sale * * * shall be applied to the payment of this note. * * * The surplus, if any, after payment of this note, together with all charges above stated, shall be paid to the drawer of this note. * * * ” And (2) Farrar pleaded in the alternative that if he did not buy the collateral notes, as alleged in his first count, that he then acquired the Chumbley note and thereby became entitled to the two collateral notes as security for the same.

It was further alleged by Farrar that he acquired the Chumbley note in this way; that after it and the two collateral notes had become due and were unpaid, and at a time when the first note amounted to $1,381.84, he, by paying that amount (part of which he borrowed from, the bank, with L. E. Parmley as surety), begame entitled, under his agreement with the bank, to the two collateral notes, purchasing them outright; and that it was agreed then and there by the bank and himself that the two notes should remain in the bank as collateral for an independent loan made to him. These allegations are denied by the bank, which contends that it at no time sold the collateral notes to said Farrar.

In answer to the special issues submitted the jury found; (1) That Farrar, on July 16, 1929, purchased the $2,500 note from the bank; (2) the jury failed to agree on an answer to a like question concerning the $3,-840 note; (3) that the reasonable value of the $2,500 vendor’s lien note was $2,500; (4) that the balance due on the $3,840 note was $2,880.

From the foregoing it is evident that Far-rar’s contention addressed to the action of the trial court in rendering judgment for the plaintiff Aynesworth for the balance of the $3,840 note on an issue submitted to the jury, but unanswered by it, must be sustained, provided the issue was a material one raised by the testimony and pleadings. In other words, the court in such cases is powerless to decide an issue so submitted and which the jury fails or is unable to answer. Gulf C. & S. F. Ry. Co. v. Saunders (Tex. Civ. App.) 286 S. W. 919; Dugger v. Allen (Tex. Civ. App.) 233 S. W. 343; Texas Brewing Co. v. Meyer (Tex. Civ. App.) 38 S. W. 263; Smith v. Pitts, 57 Tex. Civ. App. 97, 122 S. W. 46; Jaco et al. v. W. A. Nash Co. et al. (Tex. Civ. App.) 269 S. W. 1089; Lakewood Heights Co. v. McCuistion (Tex. Civ. App.) 226 S. W. 1109; Dato v. George W. Armstrong & Co. (Tex. Com. App.) 260 S. W. 1024. In such cases the trial court should declare a mistrial. Dato v. George Armstrong & Co., supra. However, we think the first and second issues just mentioned were immatérial,' and therefore should not only have been disregarded by tbo trial court, but should be so treated by this court. Magnolia Petroleum Co. v. Connellee (Tex. Com. App.) 14 S.W.(2d) 1020. Vaughn v. Central State Bank (Tex. Civ. App.) 27 S.W.(2d) 1112(5).

To correctly reflect the issues, some additional facts disclosed by the testimony must be stated. In a divorce proceeding between Dr. L. E. Parmley and his wife, Beulah E. Parmley, the settlement of their property rights resulted in a transfer to her of the title and possession of the $2,500 note, 'together with the execution to her by Dr. L. E. Parmley of his personal note for $3,840, payable in installments of $80 per month, the first installment falling due November 1,1927. The $2,500 note was secured by a first lien on the west Í/2 of section No. 86, block M, ' E. D. & R. R. Co. survey, Dawson county, Tex. Mrs. Parmley, who later married Robert Chumbley, before such second marriage, borrowed from the First State Bank of Panhandle $1,150, executing her promissory note to the bank for that amount. To secure the same she delivered the $2,500 note to the bank, and the $3,840 note was also delivered to the bank, with authority to collect the monthly installments and apply same to her personal note. Under the pleadings and the testimony it is believed that both such notes may be regarded as having been placed with the bank as collateral security for the Mrs. Chumbley note. There seems to be no dispute about this fact.

The pleadings and testimony on the part of the defendant Parmley were in harmony with ■the contention advanced by the defendant Farrar. Whatever the transaction at the time Farrar paid the $1,38L84 and borrowed $1,-000 from the bank, executing his note therefor, that -negotiation did in fact result in the delivery by the bank of the Chumbley note to said Farrar, but the bank did not deliver the two collateral notes to Farrar, but retained possession of the same, and according to the contentions of Farrar and Parmley, as heretofore stated, they were continued with the bank as collateral security for the $1,000 note. At the trial below the bank tendered the $2,500 note into court, and asked the court to dispose of it to the rightful owner, and further stated that it had theretofore delivered the $3,840 note to the plaintiff merely on the condition and for the purpose of allowing collection to be made on same. This note was also tendered into court in so far as the bank was able to do so, and for the same purpose as in the case of the other note.

When the $1,000 note became due, Farrar offered to pay the same, provided the two collateral notes were surrendered to him upon the agreement which he alleges herein. This the bank refused to do. Consequently, when the plaintiff Aynesworth entered this suit to recover on the two notes, less the amount of the Chumbley note, the defendant Farrar answered, tendering into court the amount of his $1,000 note, and ashed the court to adjudge him the rightful owner and entitled to the possession of the two collateral notes, on the theory that he bought them outright from the bank. His alternative plea has heretofore been stated.

We are unable to give any effect to Far-rar’s contention, based upon the theory that he purchased the $2,500 collateral note from the bank. He was the maker of that note. There was no dispute about the amount due thereon. The jury found it was worth $2,500. The testimony conclusively shows that it had a very much greater value. Farrar himself testified: “My note that was attached to the Beulah E. Chumbley note is worth twenty-six or twenty-seven or twenty-eight hundred dollars.”

In defendant Farrar’s pleadings he alleged: “The vendor’s lien note for the sum of $2500.-00, together with interest and attorney’s fees thereon, is of the value of $3,250.00, and the other collateral security note for the principal sum of $3840.00 is of the value, after credits for payments thereon have been made to which the bank is entitled, of the sum of $3000.00.”

If Farrar’s contentions are true, he was purchasing for $1,381.84 his note for less than one-half of its value, to say nothing of the other note valued by him at $3,000 in his pleadings.

Had Farrar gone to the owner of the $2,500 note and proposed to buy it from him for $1,381.84, or any other sum less than its face value, the owner, had he accepted it, would not have been bound by such an agreement, and he could have enforced payment in full. As said in Williston on Contracts, vol. 1, p. 257, § 120: “Accordingly, the agreement of the creditor to discharge the whole debt then and there due, in consideration of the payment of part, is unsupported by a valid consideration.” The text cites many cases as authority for the statement, among them two from Texas. Simmons Hardware Co. v. Adams (Tex. Civ. App.) 147 S. W. 1190; Bergman Produce Co. v. Brown (Tex. Civ. App.) 156 S. W. 1102. To these we add Silvers Box Corporation v. Boynton Lbr. Co. (Tex. Civ. App.) 297 S. W. 1059.

If Farrar was thus unable to purchase his note for such a consideration from the owner thereof, it is equally clear that he would be unable to buy it from the bank for the consideration named. Such a transaction would not bind the rightful' owner of the note.

For another valid reason Farrar was unable to purchase his note under the circumstances pleaded by him. As said in Llano Granite & Marble Co. v. Hollinger (Tex. Com. App.) 212 S. W. 151, 153: “The rule seems to be well settled that a pledgee holding a promissory note or chose in action as collateral security is not authorized to compromise with the person liable thereon and accept less in discharge or satisfaction of the debt than the actual amount due.” Citing numerous authorities, to which may be added: Moses v. Grainger, 106 Tenn. 7, 58 S. W. 1067, 53 L. R. A. 857; Peacock v. Phillips, 247 Ill. 467, 93 N. E. 415, 32 L. R. A. (N. S.) 42; Aulwes v. Farmers’ Bank, 44 S. D. 92, 182 N. W. 528; 49 C. J. p. 952, § 111; 21 R. C. L. 32.

In the well-known work on Collateral Securities by Colebrook, § 96, the rule is thus stated: “The pledgee of negotiable securities as collateral security is not permitted, in the absence of special agreement, in his dealings with the securities, to accept anything less in discharge or satisfaction of them, from the parties bound, than the face value of such paper. * * * Any arrangement whereby the securities are transférred for less than is due thereon to a party already bound for the full amount, is a compromise, notwithstanding a power of sale has been given by the contract of .pledge.”

From the authorities it is obvious that the very transaction, by which Farrar alleges that he acquired by purchase his own note for $2,509, is condemned as an unlawful compromise by the pledgee, in this case the bank, and the original obligor, Fai’rar himself. His contention that he purchased the note must fall.

It is equally as well settled that, where notes held as collateral are surrendered to the maker by the pledgee at a sum considerably less than their face value, the pledgor has his election to bring an action against the pledgee in tort for wrongfully disposing of the collateral, or against the maker to recover the residue of the face of the notes so' surrendered. De Clark v. Waters, 10 Wyo. 31, 65 P. 855.

Further, we think there is to be found in the opinion of Vaughn v. Central State Bank (Tex. Civ. App.) 27 S.W.(2d) 1112, substantial authority for the disposition we shall make of this appeal. As there stated, it may here be stated, also, that the doctrine applicable to the facts of the instant case is stated in 21 R. C. L. p. 675, § 37, as follows: “The primary duty of the pledgee is to return the article pledged to the pledgor, immediately upon the performance of the obligation for which the security was given, or on tender of such performance, and his refusal so to do amounts to a wrongful conversion. And, since the pledgee impliedly agrees faithfully to hold the pledge until the conditions have been performed upon the faith of which the choses in action, goods, or personal chattels have been delivered to him, the rule is general, if not universal, that the wrongful or unauthorized disposition of pledged property by the .pledgee or his agent so as to put it out of his power to redeliver it on payment of the debt which it secures is a conversion for which an action will lie.”

So applying the law to the facts of the instant case, we hold that W. A. Farrar, in paying to the First State Bank of Panhandle ■the amount due on the Chumbley note, discharged that note, and at the same time the two collateral notes here involved were by the same act discharged from the original in-cumbrance, and Mrs. Chumbley or her as-signee became entitled to the return thereof. Our conclusion as a matter of law that Far-rar paid the Mrs. Chumbley note, and thereby released the collateral security, is arrived at on the ground that he either purchased her note or paid it. By the allegations of his petition he did not purchase it, thus conclusively establishing the only other alternative, that he paid it. His testimony stoutly supports said allegations.

As further stated in 21 R. C. L. p. 680, § 41: “⅜ ⅜ * When, however, the principal debt has been paid or proper tender made, the property (the pledge) is discharged out of the incumbrance, and the pledgor or his assignee is entitled to the return of the property pledged or to retain the same if already in his possession.” In 49 C. J. p. 970, § 177, the rule is stated in substantially the same language, and to it is added this: “Where the pledgee realizes enough from a portion of the collaterals to pay the principal debt, his interest in the remaining collaterals is extinguished.” This is especially pertinent in determining the correct disposition to be made of the balance due on the $3,840 note.

Of course, it must be borne in mind that we are here dealing with a situation in which the maker of the collateral note is endeavoring to acquire the,same for less than its admitted value. In such a case it was the duty of the bank to at least exercise ordinary care to collect the collateral notes, or a sufficient amount thereof to satisfy the Chumbley note. The bank could not have compromised the vendor’s lien note with Farrar to the detriment of the plaintiff, had it attempted to do so. The bank having collected from Far-rar a sufficient sum to satisfy its claim against Mrs. Chumbley, it thereafter held the Farrar note, credited with such payment, in trust for Mrs. Chumbley or her assignee, the plaintiff. Hence, it is here held that the sum which he paid the bank, under the circumstances, should be and it was in law merely a payment to the extent thereof upon his own just obligation, evidenced by the vendor’s lien note. That is deemed to be the extent of his rights under the undisputed facts of this case. The Chumbley note being discharged, the $3,840 note likewise became discharged of its incumbrance, entitling the plaintiff to the same.

While, under the facts of this case, the plaintiff was possibly privileged to sue either the bank or the makers of the note, and did by proper alternative pleas present his cause of action against them, nevertheless from the proceedings and the judgment it is evident that he elected to prosecute his suit to judg-inent against the makers of the notes and as against them he is entitled to his judgment.

The application of the above rules and principles to this record requires that the judgment of the trial court be reversed and rendered in part and undisturbed in part. To that end it is the order and decree of this court that the judgment of the trial court awarding W. A. Farrar judgment for the possession and ownership of the $2,500 vendor’s lien note be, and the same is, reversed, and judgment is here rendered that the plaintiff Jos. H. Aynesworth have and recover against the defendant W. A. Farrar the amount of said note, with foreclosure of its lien, less the amount that said Farrar actually paid said bank in the discharge of the Chumbley note on July 16, 1929. In all other respects the judgment remains undisturbed except as to costs. While the bank evidenced considerable confusion in regard to its lawful relation to the collateral notes, yet it appears from the record that the bank substantially succeeded in maintaining the position of impartial stakeholder in regard to the custody of the collateral notes, and since it has tendered them into .the triak court and asked that the possession of the same be awarded to the litigants entitled thereto, it is therefore the order of ’this court that all costs in this and the trial court be adjudged equally against the defendants W. A. Farrar and L. E. Parmley, and the sureties on their respective bonds.

As indicated, the judgment of the trial court is reversed and rendered in part, and left undisturbed in part.

HICKMAN, C. J., not sitting.


author: HICKMAN, C. J.

text:
    BUTMAN et al. v. JONES et al.
    No. 838.
    Court of Civil Appeals of Texas. Eastland.
    March 20, 1931.
    Rehearing Denied April 17, 1931.
    See, also, 24 S.W.(2d) 796.
    Cox & Hayden, of Abilene,-for appellants.
    Stinson, Hair, Brooks & Duke, of Abilene, for appellees.
   HICKMAN, C. J.

This is the second appeal of this case. Our opinion on the former appeal is reported in 24 S.W.(2d) 796. The errors for which we reversed the judgment of the trial court and remanded the cause for another trial are not in the record as it comes to us on this appeal. The suit was brought by certain taxpaying voters of Divide high school district No. 6 of Nolan and Taylor counties to dissolve the said district and to have restored to Dora common school district, one of the districts out of which the high school district was formed, all of the powers formerly possessed by it. The suit also sought to restrain the issuing and selling of bonds voted in the high school district and from levying a tax on the property of appellants.

The district was created under the authority of articles 2922a to 29221, Vernon’s Annotated Texas Statutes. Appellants’ contentions are: First, that the articles under which the district was created are repugnant to various provisions of the Constitution of Texas and to the Fourteenth Amendment of the federal Constitution; and, second, that the trustees were guilty of an abuse of discretion in the creation of the district. We shall consider these two contentions in their order.

All of the questions here presented with reference to the constitutionality of the statutes were presented to this court in the cases of Stinson v. Graham, 286 S. W. 264, and Ivey v. Keeling, 15 S.W.(2d) 1097. In each of these cases our holding was contrary to appellants’ contentions, and in each a writ of error was refused by the Supreme Court. The latter case was sought to be taken to the Supreme Court of the United States, but the appeal thereof was dismissed for the want of a substantial federal question in 281 U. S. 699, 50 S. Ct. 352, 74 L. Ed. 1126. Upon the authority of those decisions, all questions here presented challenging the constitutionality of these statutes are overruled.

We do not find it necessary to consider the various propositions presented upon tho alleged irregularity in the formation of this district. By an act of the Forty-First Legislature, Acts of 1929, page 666, chapter 298, § 2, brought forward in the cumulative annual-pocket part of Vernon’s Civil Statutes as article 2802a, § 2, all rural high school districts heretofore laid out and attempted to be established by the proper officers of any county and heretofore recognized by county’ authorities as school districts are validated in all respects as though they had been duly and legally established in the first instance. The effect .of this validating act was to cure the defects, if any, in the manner of the formation of this district and render the same a valid high school district. Brown v. Truscott Ind. Sch. Dist. (Tex. Com. App.) 34 S.W.(2d) 837; Desdemona Ind. Sch. Dist. v. Howard (Tex. Com. App.) 34 S.W.(2d) 840; Pyote Ind. Sch. Dist. v. Dyer (Tex. Com. App.) 34 S.W.(2d) 578; Lyford Ind. Sch. Dist. v. Willamar Ind. School Dist. (Tex. Com. App.) 34 S.W.(2d) 854; Young v. Edna Ind. School Dist. (Tex. Com. App.) 34 S.W.(2d) 857.

The same Legislature at subsequent special sessions enacted two other validating acts clearly and unmistakably applicable to the district here under attack. These validating acts appear in the 1930 cumulative annual pocket part of Vernon’s Statutes as article 2742i and article 2742j, § 2. If, for any reason, it should be thought that article 2802a is not sufficiently broad in its terms to include the district here attacked, we think the other two subsequent validating acts are without doubt sufficiently broad for that purpose.

The judgment of the trial court sustaining a general demurrer to appellants’ petition will be affirmed.