author: HICKMAN, C. J.

text:
    PELFREY v. JORDAN.
    No. 839.
    Court of Civil Appeals of Texas. Eastland.
    March 20, 1931.
    Samuel C. Harris, of Lovington, N. M., for appellant.
    W. H. Garrett, of Colorado, Tex., for appel-lee.
   HICKMAN, C. J.

This case has not been briefed by either party. A motion by appellee to dismiss the appeal on account of the failure of appellant to file briefs was overruled at a former day of this term. The rules have been definitely interpreted by the Supreme Court in Haynes v. J. M. Radford Gro. Co., 118 Tex. 277, 14 S.W.(2d) 811, to vest a discretion in Courts of Civil Appeals, when appellant fails to file briefs. Under this hplding we are authorized either to dismiss the appeal, or to inspect the record to determine whether fundamental error appears thereon. Should no fundamental error appear after inspection, we are authorized to affirm the judgment of the trial court, but should reverse that judgment if fundamental error does appear. In passing upon appellee’s motion to dismiss we determined to inspect the'record, so that, if fundamental error appeared, appellant could have the benefit thereof. Accordingly, we have inspected this record and it discloses the following:

The action was for rent alleged to be due under a written contract, and for the foreclosure of a contract lien upon personal property, given to secure the rent. The case was tried before the court without the aid of a jury, and no findings of fact or conclusions of law were requested. The petition declares upon an indebtedness for an amount within the jurisdiction of the county court, and alleges the value of the personal property upon which foreclosure was sought to be $566.12. The petition therefore affirmatively discloses that the trial court had jurisdiction to hear and determine the cause. No essential allegation is omitted from the petition. The judgment was rendered during a regular term of the court, after answer filed by appellant, and for an amount less than that claimed in the petition. It therefore appears that no fundamental error was committed in the rendition of this judgment, and, since we can consider no other question in the absence of a brief, it is our order that the judgment of the trial court be affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    COUGER v. GRIFFIN.
    No. 12427.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 14, 1931.
    Rehearing Denied March 14, 1931.
    McParlane & McParlane,, of Graham, for appellant.
    Pred T.. Arnold, of Graham, for appellee.
   DUNKLIN, J.

John Vernon Couger instituted this suit against Dr. H. E. Griffin to recover an amount claimed to be due on an open account for fence posts alleged to have been sold and delivered to defendant. The only complaint made on his appeal is of the action of the trial judge in allowing certain offsets and credits which exceeded the account sued on.

The account sued on was for fence posts sold to the defendant by John Couger, who transferred and assigned the account to John Vernon Couger, plaintiff; and the offsets and credits which were allowed the defendant were held to be chargeable originally against John Couger, and likewise against the plaintiff as his assignee. Those offsets consisted of $2,616.27, money, advanced; $241.50, professional services; and $1,590.48, amount due on a promissory note executed by John Couger in favor of defendant.

The account sued on was an unverified open account, and the only answer filed by defendant consisted of a general demurrer, a general denial, and the following special answer:

“And for special answer herein, this defendant denies that he is indebted to John Couger in any sum whatever and says that on the contrary the said John Couger is indebted to him. That if the said John Couger has sold and transferred an account to his' son John Vernon Couger against this defendant for the sum of $1772.02, then that said transfer was without any consideration to support it for the reason that this defendant is not indebted to John Couger in any sum and was not indebted to him in any sum whatever at the time of the transfer of said account if there was one. Wherefore, this defendant asks to be released with his costs.”

By assignments of error appellant complains of the admission of testimony offered by defendant to prove those credits and offsets for lack of a sufficient pleading by the defendant as a basis therefor. Por the same reason appellant also complains of the submission of special issues in answer to which those credits were found by the jury, which were objected to at the time of the trial on the ground stated.

Articles 2014 and 2015, Revised Civil Statutes of 1925, read as follows:

“Art. 2014. When a defendant shall desire to prove payment, counter claim or set-off, he shall file with his plea an account stating distinctly the nature of such payment, counter claim or set-off, and the several items thereof; failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.”
“Art. 2015. Whenever any suit is brought for the recovery of any debt due by judgment, bond, bill or otherwise, the defendant shall he permitted to plead therein any counter claim he may have against the plaintiff, subject to such limitations as may be prescribed by law. The plea setting up such counter claim shall state distinctly the nature and the several items thereof, and shall conform to the ordinary rules of pleading.”

-We believe it manifest that the special answer filed by the defendant was not a sufficient compliance with the provisions of those articles to warrant and admission of the testimony complained of and the submission of the special issues based thereon. The special answer could be given no further effect than that of a general denial, as already pleaded. Stark v. Burkitt, 103 Tex. 437, 120 S. W. 343; Scott v. Texas Construction Co. (Tex. Civ. App.) 55 S. W. 37.

It is equally clear that appellant was in no position to urge the defense of the statute of limitation to the offsets allowed, because he filed no plea of limitation. Article 5540, Rev. Civ. Statutes.

Other assignments of error will not be discussed, because the errors complained of, if any there be, are not likely to arise upon another trial. In this connection we will further suggest that, while plaintiff’s petition is not subject to a general demurrer, we believe it should be amended so as to eliminate therefrom certain evidentiary allegations, which, to say the least, tend to confusion.

For the reasons noted, the judgment will be reversed and the cause remanded.


author: FUNDERBURK, J.

text:
    MESA PRODUCTION CO. v. SAFFEL.
    No. 820.
    Court of Civil Appeals of Texas. Eastland.
    March 20, 1931.
    Rehearing Denied April 10, 1931.
    Lyndsay D.' Hawkins, of Breckenridge, for appellant.
    M. McCullough and Frank Judkins, both of Eastland, for appellee.
   FUNDERBURK, J.

On June 21, 1923, J. M. Saffel, under the name, Waco Casing Crew, recovered judgment against Lyman & Pollard, a copartnership composed of Chas. Y. Lyman and J. A. Pollard, and against Chas. V. Lyman individually, for the sum of ?1,525. 0>n March 29, 1929, said Saffel filed a petition and affidavit for garnishment against Mesa Production Company, a corporation, whose domicile was alleged to be at Breckenridge, in Stephens county, Tex., commanding the garnishee to make answer as to indebtedness, effects, etc., due or 'belonging to Chas. V. Lyman. The petition, among other things, stated that Mesa Production Company, a corporation, “is an incorporated company under the laws of Texas.” Other allegations were to the effect that Chas. V. Lyman was the owner of shares of stock in the corporation, and that M. K. Lyman, wife of Chas. Y. Lyman, also owned stock in the corporation, which was community property of her and the said Chas. V. Lyman. Under leave of the court, garnishee’s original answer was amended. The amended answer first set up a compromise agreement made during the pendency of the suit, whereby the garnishee was to pay the said Saffel $350, and to take care of the fee of its attorney, and plaintiff was to cancel and hold for naught the said judgment of June 21, 1923, which formed the basis of the garnishment proceeding. In the alternative, garnishee answered, as it had originally done, to the general effect that it was not indebted to said Chas. V. Lyman nor his wife, M. K. Lyman; that it had in its possession no effects belonging to either. In compliance with the directions of the statute, it further answered by acknowledging that Chas. V. Lyman was the owner of 4 shares of stock in the corporation of the alleged value of $1 per share, and that Mrs. M. K. Lyman was the owner of 2,495 shares of stock in the corporation, and that same was her separate property.

The answer of the garnishee was not controverted except by a pleading styled “Plaintiff’s First Supplemental Petition,” which consisted of a number of special exceptions to the garnishee’s amended answer, and, in addition thereto, the following: “Subject to the above exceptions this plaintiff denies generally each and every allegation in the garnishee’s answer, save and except the answer to the statutory questions provided in the writ of garnishment, and of this he puts himself upon the country.” This pleading was not verified by affidavit.

Upon these pleadings the case was tried with a jury, who found, (1) that Saffel did not authorize his attorney to settle the matter in controversy for $350 upon the consideration in part that said Saffel would transfer and assign to said Mesa Production Company the Said judgment in question; (2) that Saffel did not expressly authorize said attorney to settle the suit for $350 upon the consideration in part that plaintiff would cancel said judgment; (3) that, at the time of the service of the writ of garnishment, the shares of stock standing in the name of Mrs. M. K. Lyman were not her separate property; and (4) that said Mrs. M. K. Lyman knew of the pend-ency of said garnishment proceeding. Based upon these findings of the jury, the court below gave plaintiff judgment against garnishee, foreclosing the garnishment lien upon the 4 shares which the answer admitted stood on the books of the company in the name of Chas. Y. Lyman, and as to the 2,495, shares standing in the name of Mrs. M. K. Lyman at the time of the service of the writ, but which had, pending the suit, been transferred to other parties, the court found the value thereof to be $2,495, and gave plaintiff judgment against the garnishee for $2,250 as the amount of Saffel’s judgment, with interest and costs. Erom this judgment the garnishee has appealed.

Appellant contends in the first place that the undisputed evidence showed that the plaintiff, through his attorney, duly authorized, had accepted a proposition to settle the matter in controversy upon the payment by garnishee of $350, and the fee of its attorney, and plaintiff agreeing to pay the other costs of the suit and to cancel the judgment upon which the garnishment proceeding was based; that accordingly a peremptory instruction, as requested, should have been directed for garnishee. In the trial court the controversy seems to have centered about the authority of plaintiff’s attorney to make the compromise agreement. The court may have been in error in basing its judgment upon the question of the authority of the attorney. We conclude, however, that the judgment was correct, because the evidence did not show, at least with that degree of conclusiveness necessary to make it a question of law, that it was a part of the settlement agreement that plaintiff should cancel the said judgment upon which the writ of garnishment issued. The proper interpretation of the evidence, we think, shows that, before the negotiations for a settlement were finally concluded, the plaintiff discovered that such negotiations had proceeded upon a wrong assumption on his part, induced in part by representations of the president of garnishee corporation, and perhaps his own attorney, that he was not to release the judgment as to Pollard, who was at least thought to be bound by the judgment. Plaintiff testified: “Mr. Johnson said that if I would take the'$350.00 that I could come back on Mr. Pollard for the rest of the judgment. ⅜ * * As to whether or mot there was anything said about my settling the judgment against Pollard, that is what they told me that I could come back on Pollard for the rest of the judgment. They let me believe that I had a judgment against Pollard, too. I didn’t find out that I only had a judgment against Lyman until Judge McCullough explained it to me after he fixed up this release.” Under the circumstances, and without reference to the fault of any one, we think this testimony, if true, shows that plaintiff was justified in refusing to execute the release. The minds of the parties never met upon all the material provisions of the settlement. It is therefore immaterial if the judgment of the court in this respect may have been based upon the wrong theory.

The judgment of the trial court should be affirmed in so far as it foreclosed a lien and ordered sale of the 4 shares of stock which garnishee’s answer disclosed belonged to C. V. Lyman.

The judgment awarding plaintiff recovery of the sum of $2,250 must be reversed and rendered in favor of garnishee. That part of the judgment is directly contrary to the garnishee’s answer. The garnishee’s answer was not controverted under oath. In the absence of a controverting affidavit, the allegations of the answer were required to be taken as true. That included the allegation that the 2,495 shares of stock standing in the name of Mrs. M. K. Lyman were her separate property. This question is definitely ruled by the opinion of the Supreme Court in Blum v. Moore, 91 Tex. 273, 42 S. W. 856. In that case Judge Gaines, speaking for the court, said: “The affidavit is essential in order to make an issue; and hence an attempted traverse of-the garnishee’s answer, which is not sworn to, is a proceeding not authorized by the statute, ⅛ necessarily a nullity, and should be so treated by the court. It follows that the trial court should have taken the answer of the garnishee as true, and should merely have charged him with such liability as was disclosed by its admissions.” This decision, so far as we know, has not been modified by any subsequent decision, and in part formed the basis of the conclusion reached by this court and announced in First National Bank v. Wilson, 22 S.W.(2d) 546. These con-elusions effectually dispose of all the questions presented that are material.

The issues submitted to the jury, other than those having reference to the compromise settlement, were immaterial, because they had no basis in the pleadings.

It is therefore our opinion that the judgment of the trial court should be affirmed in part and reyersed and rendered in part, as above noted, and it is accordingly so ordered.

On Rehearing.

Appellant and appellee have filed motions for rehearing. Appellant reasserts the proposition that we should have taken as true the allegations of its answer to the effect that it had agreed upon a settlement of the controversy for the sum of $350, and the other terms, as mentioned in the original opinion. We meant to express the view in the original opinion that we could not give effect to this agreement because, while it was still execu-tory, the appellee repudiated it. We have no jurisdiction to decree a cancellation of the judgment, and, if we should hold appellant to ■a liability for $350, 'our judgment at the same time not being res adjudicata as to the cancellation of the judgment, the appellant would be deprived of its money without any consideration or benefit. Appellant evidently did not construe our opinion as entailing such a consequence, and we have therefore deemed it appropriate to say this much in response to appellant’s motion.

Appellee insists that, in order to serve the ends of justice, the case should be remanded and not rendered. This contention has. made it necessary that we look to the evidence, if any, which was offered to show that the stock in the Mesa Production Company which stood upon the books in the name of Mrs. Lyman, was not her separate property. The appellant presented a proposition contending that the evidence was insufficient to support a finding that the stock was not the separate property of Mrs. Lyman. Since appellant, by its answer as garnishee, alleged that the stock was the separate property ’of Mrs. Lyman, the burden of proof was thereby cast upon appellee to show that it was not. Moffet on Exemptions and Writs, p. 139, and authorities there cited. The only evidence on the question tends to show that the stock was the separate property of Mrs. Lyman. We doubt if appellee was entitled to the benefit of the statutory presumption that property acquired during the marriage relation is community property. Had appellee offered no evidence whatever on the question, we think the rule above stated would have required the court to hold that appellee had not discharged the burden of showing that the garnishee’s answer was untrue. In Hall Music Co. v. Robinson, 7 S.W.(2d) 625, wo held that, where the burden of proof is upon one party to establish a fact and the only evidence on the question are denials of that fact by the adverse party, a jury question is not raised under the general rule that the testimony of interested parties, even when uncontradicted, raise only issues for the jury.

We would appear to have the same situation here. Although the only testimony on the question was that of interested witnesses, yet, since same afforded no support of the fact which appellee had the burden of proving, we would have been compelled, had we reached that question, to sustain the appellant’s assignment as to the insufficiency of the evidence. Being of this view, we do not believe that the ends of justice require a remand of the case. No testimony was excluded on the ground that the controverting answer was unverified, but, on the contrary, it appears that the case was fully developed.

It is therefore our opinion that the motions of appellant and appellee should be overruled, and it is accordingly so ordered.


author: CONNER, C. J.

text:
    THORP SPRINGS CHRISTIAN COLLEGE et al. v. DABNEY et al.
    No. 12433.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 28, 1931.

      See, also, McGinty v. Dabney, 37 S.W.(2d) 199.
    Kenley- & Kenley, of Wichita Falls, for appellants.
    Estes & Estes, of Granbury, and J. M. Carter, of Ft. Worth, for appellees.
   CONNER, C. J.

Appellees concur in the following statement of the nature of this case taken from appellants’ brief, which we therefore adopt, to wit:

“This is an appeal from the judgment of' the District Court of Hood County, Texas, made and entered on the 29th day of April, 1930, overruling the pleas of privilege of A. C. Cox, who resides in Kaufman County, Texas, and Thorp Springs Christian College, which has its residence in Kaufman County, Texas.
“This suit was originally filed by T. A. Davidson, Rob B. Covey, T. H. Dabney and E. M. Dabney, residents of Hood County, Texas, on January 15, 1929, against Thorp, Springs Christian College, an educational institution, incorporated under the laws of- the state of Texas, with its office and place of business at Thorp Springs, in Hood County, Texas, under the terms of its charter, and having as its president U. R. Forrest, who now resides in Kaufman County, Texas, P.’ E. Payne, president of its Board of Trustees, who resides in Erath County, Texas, and A. C. Cox, business manager of said college, who resides in Kaufman County, Texas. Said petition charges:
“1. That the Thorp Springs Christian College is an educational institution and incorporated for such purpose under the laws of the State of Texas.
“2. That under and by the terms of said charter, the Thorp Springs Christian College and its business, shall be located and maintained in the town of Thorp Springs, Hood County, Texas.
“3. That on or about the 16th day of May, 1918, the college was badly in debt and was thinking of moving its place of residence from Thorp Springs, in Hood County, Texas, to some other county, and that the trustees of said college at said time made an agreement with the citizens of Thorp Springs and Hood County, Texas, and if said citizens would pay the indebtedness of said college, said college would permanently remain at Thorp Springs, in Hood County, Texas.
“4. That in pursuance of said agreement, the citizens of Thorp Springs and Hood County, Texas paid $7,300.00 on the indebtedness-of said college.
“5. That on or about the 11th day of January, 192S, the said college was again in debt, and the Board of Trustees was again considering the removal of said college from the said town of Thorp Springs to some other location, and the trustees then made another agreement with the citizens of Thorp Springs and Hood County, Texas, that if they would pay $3,000.00 on the indebtedness of said college, said college would remain permanently at Thorp Springs, Texas; that in pursuance of said agreement, the said citizens of Thorp Springs and Hoo'd County, Texas, paid the said sum of $3,000.00.
“6. That during the year of 1928, one U. R. Forrest, the president of said college at that time, acting by himself, and others acting under his authority, moved from Hood County, Texas to Kaufman County, Texas, portions of the personal property belonging to said college.
“7. That the defendants herein, acting by themselves and in connection with other parties, are now threatening and mating preparations to tear down and remove the buildings belonging to said college and located in the town of Thorp Springs and to sell to private individuals all of the property belonging to said college.
“8. That this suit is instituted and prosecuted for the use and benefit of the plaintiffs herein, as well as for the use and benefit of the other property owners of said town; that many citizens of said town and county subscribed to the funds hereinbefore mentioned, and their names are too numerous to incorporate in this petition.
‘ 9. That the citizens of the town of Thorp Springs, and especially those who made subscription for the payment of said indebtedness, purchased and owned property in said town on account of the location of said college therein, which gave to their property a distinct and certain value that did not exist for any other reason but that said college was located in said town of Thorp Springs.
“10. That the removal of the property belonging to said college impaired and practically destroyed the value of the property belonging to the citizens of said town, and would inflict on them an irreparable injury, and sueh injury to all their property; that the said citizens were property owning taxpayers of said county.
“11. That the acts and conduct of the defendants herein in removing said property are all in violation of the terms of the charter of said college, in violation of the terms of their agreements, as heroin alleged, and in violation of the laws of the State of Texas.
. “12. That unless the said defendants, their agents, servants and employees are restrained from the further removal and destruction of the property belonging to said college, as well as the sale of said property, such acts and conduct will result in the serious loss and injury of property belonging to the said citizens of the town of Thorp Springs and Hood County and in the destruction of the value thereof.
“13. They further show to the court that they have not now any adequate legal remedy to prevent the injury to the value of their said property, and have no other means of preventing such injury except by the equitable remedy of injunction.
“The plaintiffs pray for citation, for writ of injunction, and, in the alternative, for judgment for the various sums of money heretofore paid out, as herein alleged.
“Judge Sam M. Russell, Judge of the 29th Judicial District, in vacation, authorized the issuance of a writ of injunction, as prayed for by the plaintiffs.
“On April 29, 1929, which was the appearance day of the next term of court after said suit was filed, the defendant, Thorp Springs Christian College, acting by and through its then president, J. B. MeGinty, filed in said cause its plea of privilege, asking that said cause be transferred to Kaufman County, Texas, the residence of said defendant.
“On April 29, 1929, which was the appearance day of the next term of court after said suit was filed, the defendant, A. C. Cox, filed in said cause, his plea of privilege, asking that said cause he transferred to Kaufman County, Texas, the place of his residence.
“On May 4, 1929, the plaintiffs filed in said cause their controverting affidavit, in answer to the pleas of privilege of the defendants, A. C. Cox and Thorp Springs Christian College.
“The hearing on said cause was continued by the court from time to time until the 29th day of April, 1930, at which time the court, after hearing the evidence and argument of counsel in said cause, overruled the pleas of privilege of the defendants and refused to transfer said cause from the District Court of Hood County, Texas.
“The. defendants then and there excepted to the action of the court in overruling their respective pleas of privilege and gave notice of appeal to the Court of Civil Appeals for the Second Supreme Judicial District of Texas, sitting at Fort Worth, Texas.
“Thereafter, the defendants perfected their appeal by filing in said court on June 9, 1930, their appeal bond, and which was duly approved by the Clerk of said court.
“This case is now before this court on appeal from, the judgment of the District Court of Hood County, Texas, in overruling the pleas of privilege of the defendants, Thorp Springs Christian College and A. C. Cox.”
Appellants’ first proposition reads as follows: “The plaintiffs’ pleadings on file in this cause fail to show that the plaintiffs therein had any cause of action against defendants named therein.”

Appellants’ propositions 2, 6, 7, 8, and 11 in 'different forms substantially involve the question presented under proposition 1. In support of the propositions, appellants set forth the material allegations of plaintiffs’ petition, which, for reasons assigned, it is insisted “do not show the plaintiffs themselves had any real cause of action against the defendants or any of them.” These propositions evidently are in the nature of general and special exceptions to the sufficiency of the petition upon which plaintiffs based their suit. The record fails to show that the defendants, or any of them, questioned the capacity of plaintiffs to sue by any verified plea as provided by the statutes. The record also fails to show that the court below was called upon to rule on the demurrers or exceptions, nor is there an order or judgment so showing. The issues involved in the merits of the case are entirely distinct from those in a hearing on a plea of privilege. Our jurisdiction is, except where otherwise specially provided, appellate only, and, had the court below heard the exceptions and sustained them, then the plaintiffs had the right to amend and thus have avoided the objections. In event of a failure or refusal to amend, the court would have dismissed the suit, and our jurisdiction could be called upon to review the ruling, and the jurisdiction of the Supreme Court could have been called upon to review the conclusion of this court.

The right to the procedure above indicated ought not and could not, we think, be cut off by rulings of this court on this appeal. It has been distinctly held that the Supreme Court is without jurisdiction to review orders sustaining or overruling pleas of personal privilege to be sued in the county of one’s residence. See Magouirk v. Williams (Tex. Com. App.) 249 S. W. 185; Vaught v. Jones (Tex. Com. App.) 20 S.W.(2d) 758. There is a further ruling of our Supreme • Court that the defendant who seeks action of the trial court on demurrers and exceptions to the plaintiff’s pleadings thereby waives his plea of privilege. Martin v. Kieschnick (Tex. Com. App.) 231 S. W. 330. The effect of urging demurrers for the first time on appeal from an order overruling a plea of privilege has not yet been determined, in so far as we are advised, and we do not find it necessary to now determine it.

In the case of Shear Co. v. Neely, 214 S. W. 573, 574, this court had occasion to consider the character of defendant’s plea of privilege and the answering controverting affidavit of plaintiff as'affected by our statutes. After citing the article of the statute relating to the plea of privilege and other articles which we need not here repeat, we said: “As it seems to us, a consideration of these articles referred to brings the plea of privilege and the plaintiff’s controverting affidavit thereto within the rules that ordinarily apply to pleadings. As noted, the plea of privilege is not only designated as a pleading, but it is particularly provided that the controverting affidavit, before a hearing is authorized, shall be served upon the defendant or his attorney at least ten full days exclusive of the day of service and of hearing, thus evincing the legislative intent that a defendant presenting a plea of privilege should be fully informed by the plaintiff’s controverting affidavit, if any, of what he will be called upon to meet. If so, the hearing of the plea of privilege, as in case of a trial upon other issues, should be confined to the allegations of the plea of privilege and to the averments of the controverting affidavit in accordance with the familar rule that the allegata and the probata must correspond.”

We adhere to the views so expressed, and now apply them to the pleas of privilege and controverting affidavit before us.

The pleas of defendants are substantially the same in form. That of the defendant college, omitting formal parts, alleges that it was duly incorporated on the “13th day of September, 1928,” which said charter provides in paragraph III thereof as follows: “The location of this corporation and its principal office shall be in the County of Kaufman, and in or near the town of Terrell, State of Texas.”

It is further alleged that at all times it was not “a resident of the County of Hood, the county in which this suit was instituted and is now pending, but is now and was at the time of the institution of this suit and at the time of the service of process on it, and of the execution and filing of this plea, a resident of the county of Kaufman, State of Texas, where it has during all of the said times and now, had and has its principal office and place of business, and where it then and now resides, and that no exception to exclusive venue in the county of one’s residence provided by law exists in said cause; that this suit does not come within‘any of the exceptions provided by law in such cases authorizing this suit to be brought or maintained in the county of Hood, State of Texas, or elsewhere outside of the said county of Kaufman.”

The plea of defendant Cox, omitting formal parts, reads: “This court ought not to have or take further action .or cognizance of this suit than to have the same transferred 'to the court having jurisdiction of the person of this defendant, because he says that he is not now and was not at the institution of this suit, nor at the time of the service of such process on him herein, nor at the time of filing this plea, a resident of the county of 1-Iood, the county in which this suit was instituted and is now pending but is now and was at the time of the institution of this suit and at the time of the service of process on him, and of the execution and filing of this plea, a resident of the county of Kaufman, State of Texas, where he then and now resides, and that no exception to exclusive venue in the county of one’s residence provided by law exists in said cause; that this suit does not come within any of the exceptions provided by law in such cases authorizing this suit to be brought or maintained in the county of 1-Iood, state of Texas, or elsewhere outside of the said county of Kaufman.”

The controverting affidavit of plaintiffs alleges, in substance, that the Thorp Springs College was an educational institution, duly incorporated; that by the terms of its charter it was to be maintained and operated in the town of Thorp Springs, Hood county, Tex.; that about the 16th day of May, 1918, it became heavily in debt; that the college was unable to pay such indebtedness, which was thereupon subscribed and paid by the citizens of Thorp Springs and Hood county “on condition that said college should forever remain at Thorp Springs” ; that an agreement was entered into to this effect; that a similar condition of indebtedness on the part of the college existed on or about January 11, 1928, and there was talk of its removal, whereupon said citizens again subscribed and paid the indebtedness, and the college again, agreed to maintain the college at Thorp Springs “permanently.”

The controverting affidavit further alleged that about the month of August, 1928, the defendants entered on the property and removed all of the personal property of the college consisting of the library, laboratory, furniture, pianos, student desks, typewriter, household and kitchen furniture, etc., of the approximate value of $10,000. The controverting affidavit further charged that the defendants Payne and Cox had effected a transfer to several parcels of land, and that the conversions and transfers had been made without authority, and all done and performed in Hood county, and that the court had jurisdiction over the defendants by virtue of subdivision 9 of article 1995, Rev. Civ. Statutes of 1925, which will hereinafter be quoted. To this we add that in the petition of the plaintiffs it was also alleged that the defendants were threatening to tear down the college building, to prevent which the court had issued a temporary writ of injunction, from which, however, no appeal has been taken so far as appears in the record.

The defendants made no reply by demurrer or otherwise to the controverting affidavit, and the court proceeded to try the issues presented by the pleas and affidavit of plaintiffs. After hearing the evidence, the court overruled the pleas of privilege and defendants have appealed, as stated in the beginning of this opinion.

As shown in the evidence before us, the college had been chartered, operated, and maintained for many years in Thorp Springs,. Hood county, as alleged in plaintiffs’ controverting affidavit, and that the charter under which the defendants claim purports to be an “original” one, fixing Kaufman county as the place of the college’s residence and operation. It purports to have been filed by J. B. Mc-Ginty, U. R. Eorrest, and M. H. Moore; the reasons or authority for the change from the old to the new location not appearing. It does, however, appear in the evidence that the old college indebtedness existed and was paid and the agreements based thereon made and entered into substantially as the plaintiffs allege in their controverting affidavit.. It further appears that the defendants, as alleged, caused the seizure of some thirteen truck loads of the old college furniture and removed the same from Thorp Springs to Kaufman county, near the town of Terrell.

In this connection the writer ventures 'to add that he was a patron of the college at Thorp Springs during the administration of those eminent Christian gentlemen and educators, Addison and Randolph Clark. They conducted a high-class educational institution, where many youths of the time and section received higher education, and from which they went forth well equipped, morally, mentally, and physically, to enter into life’s activities. Of the many Who thus went forth the writer recalls the name of the Honorable Nathan K. Tracy, the present Eminent Grand Commander of the Knight Templars of Texas. However, we do not want to be understood as questioning the legal status of the defendant corporation, but, if its charter is an “original” one, as it purports to be, it is not quite clear to us, in the absence of explanation, how the new corporation can legally adopt the name of the old and appropriate its property without assuming its obligations.

Aside from the foregoing interpolation, however, and from defendants’ exceptions and demurrers mentioned in the earlier part of our discussion, we note that appellants’ remaining propositions, in substance, only present the following contentions: (1) That, by virtue of an amendment to the charter of the old college, its location was changed from Thorp Springs, Hood county, to Cleburne, Johnson county. But we attach no importance to this fact, for it does not appear that the amendment was ever acted upon by any actual removal or discontinuance of college operations from Thorp Springs. We infer from the evidence before us that it was to defeat the removal indicated by the amendment that the plaintiff citizens subscribed and paid the indebtedness existing against the college in January, 1928. (2) It is further contended, in effect, that the acts complained of do not amount to such intentional and willful wrongs as to bring the case within the operation of subdivision 9 of article 1995, giving a defendant the right to be sued in the County of one’s residence, especially since, as alleged, such acts were done by named officers of the defendant corporation without allegation or proof that such officers were authorized to so act by the trustees of the corporation citing Hudman v. Huelster (Tex. Civ. App.) 29 S.W.(2d) 454; Cook v. Guzman (Tex. Civ. App.) 19 S.W.(2d) 855; Lawless v. Tidwell (Tex. Civ. App.) 24 S.W.(2d) 515.

•Article 1995, Rev. Civ. Statutes of 1925, reads:

“No person, who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: * ⅜ *
“9. A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was commit' ■ted, or in the county where the defendant has his domicile.”

We are of the opinion that there is no merit in the contention last above stated. The cases cited in support thereof are apparently distinguishable from the one before us. The case first cited (Hudman v. Huelster) was one where the defendant had unintentionally taken one of plaintiff’s animals, together with some of his own, out of a pasture where the animals were inclosed. Cook v. Guzman was a case of an automobile collision resulting from an act óf mere negligence; so, too, the case of Lawless v. Tidwell was one in which the defendant driving an automobile negligently collided with another. In these cases it was merely held that the wrongful act or acts relied upon as bringing the ease within subdivision 9, some wrongful act must have been committed and not merely a tort resulting from a negligent omission to perform a duty; that is, a wrongful act must be active as distinguished from passive.

In the case of Vaught v. Jones, 8 S.W.(2d) 800, this court had occasion to determine the character of the wrong bringing the case within subdivision 9, and held that the automobile collision involved fell within the operation of subdivision 9. The decision was reviewed by section B of the Commission of Appeals as reported in 17 S.W.(2d) 779, 780, where it was said: “We think the opinion of the Court of Civil Appeals has reached the right conclusion; it properly appraises the decisions reviewed. The final test appears to be that, in order to constitute a ‘trespass’ through negligence, the act must be an affirmative one rather than a mere omission to perform a duty. The plaintiff’s petition meets this test. Nothing needs to be added to what Justice Buck has so well written.”

While that opinion was later withdrawn, as will be seen by reference to the case of Vaught v. Jones (Tex. Com. App.) 20 S.W.(2d) 75S, on the ground that the Supreme Court was without jurisdiction of appeals from orders overruling or sustaining pleas of privilege, yet the expression of the Commission of Appeals is not only persuasive, but in accord with the authorities. The evidence in this case, however, shows that the acts of defendants as performed were consciously and intentionally done, and in the case of Hall v. Saunders (Tex. Civ. App.) 15 S.W.(2d) 717, it was said: “It is now generally held that the unlawful conversion of personal property is a trespass within the meaning of subdivision 9 of article 1995 of the present Revised Civil Statutes,” citing cases.

To the same effect is the holding in the case of Bowers v. Bryant-Link Co., 15 S.W.(2d) 598, 599. The opinion is by Section A of the Commission of Appeals, and involved the conversion of some rent property by a tenant. Judge Harvey, for the court, said: “The trespass, as regards a portion of the converted cotton, is shown to have been committed in Dickens county. Hence suit against both trespassers, in respect of such trespass, was properly brought there. K. S. art. 1993, subd. 9. * * * And, too, venue in the suit against the trespassers, Bowers and Collins, for the conversion of all the cotton converted by them, lies in Dickens county, where some of the cotton was converted. All the acts of conversion were committed in pursuance of a general plan concerted by them; which plan comprehended the conversion of all the rent cotton raised by Collins. Eor this reason, if for no other, suit against them for the conversion of all may be brought in any county where any of the particular trespasses committed in pursuance of the general plan occurred.”

There is a further contention that the plea should have been sustained on the ground that the plaintiffs failed to allege that they had first applied to the defendant corporation itself for relief. Not only does the contention fall within the purview of a demurrer, and therefore not available here for reasons already stated, but it is also well established that, where corporate action cannot be expected, and the corporation is controlled by the very persons whose conduct is complained of, application to it need not be made for relief. See Texas Jurisprudence, vol. 1, p. 786, and cases cited in note 8 to the text. See, also Becker v. Ry. & Real Estate Co., 80 Tex. 478, 15 S. W. 1094.

We finally conclude that all assignments and propositions of error should be overruled, and the judgment below affirmed.


author: BUCK, J.

text:
    McGINTY et al. v. DABNEY et al.
    No. 12434.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 28, 1931.
    See, also, Thorp Springs Christian College v. Dabney, 37 S.W.(2d) 193.
    Kenley & Kenley, of Wichita Falls, for appellants.
    Estes & Estes, of Granbury, and J. M. Carter, of Ft. Worth, for appellees.
   BUCK, J.

This suit involves the question as to whether the court below correctly overruled the pleas of privilege of the several defendants. T. A. Davidson, B. B. Covey, C. A. Covey, T. H. Dabney, and E. M. Dabney, in plaintiffs’ original petition, sought an injunction, in part mandatory in its character, against the State National Bank of Terrell, Kaufman county, J. B. McGinty, of Kaufman county, A. C. Cox, of Kaufman county, P. E. Payne, of Erath county, U. R. Forrest, of Kaufman county, and the Thorp Springs Christian College, an educational institution, as to whose domicile “by the terms of its charter, it should be located, with all of its property at Thorp Springs in Hood County, Texas, and would be located with all of its property, real and personal except, for the destruction, usurpation and removal thereof by the said defendants as hereinafter shown.”

The original petition was filed on April 17, 1929. There seems to be no ruling on the pleas of privilege filed before the amended petition was filed.

On April 24, 1929, the State National Bank of Terrell filed its plea of privilege; on the same day J. B. McGinty filed his plea of privilege to be sued in Kaufman county; on the same day A. C. Cox filed his plea of privilege to be sued in Kaufman county; on April 30, 1929, the Thorp Springs Christian College, the State National Bank of Terrell, J. B. McGinty, A. C. Cox, U. R. Forrest, and P. E. Payne, filed their answers subject to the pleas of privilege filed and subject to the plea in abatement filed by J. B. McGinty, A. C. Cox, U R. Forrest, and P. E. Payne. In this answer there was a general demurrer, and certain special exceptions, believed not necessary here to mention. On May 4, 1929, plaintiffs filed their controverting affidavit to defendants’ pleas of privilege, which alleged, in substance: That on May 16, 1918, the college became heavily involved in debt, and the trustees and management of said college had under advisement the desirability of removing said college to some other location, and that the patriotic citizens of Thorp Springs, and of Hood county, in order to keep said college at said last-named place, made an agreement with the authorities of said college that, if said citizens would subscribe and pay off the then existing debts and obligations incurred by it, the college should remain at Thorp Springs in said county, and that the citizens did subscribe and pay off the then existing indebtedness of said college, amounting in the aggregate to about the sum of $12,-000. That on or about November 30,1910, the Thorp Springs College, as it then existed, secured an amendment to its original charter, the same being of record in Book 44, page 21, of the Deed Records of Hood County, and that the eleventh subdivision of said amendment contained the followifig: “This corporation shall never mortgage nor place a deed of trust or other lien upon any of its properties for any purpose, nor shall it, save for current expenses, incur indebtedness at any time during the term of its existence.” That on or about August, 1928, said defendants A. C. Cox, P. E. Payne, and U. R. Forrest, in violation of each and all the agreements heretofore shown, as well as in violation of the original and the amended charters, illegally, willfully, and maliciously took possession of and converted to their own use and benefit all of the property mentioned and described in the exhibit attached. The exhibit consisted of a list of the personal property alleged to have been taken from the college, and consisting of books and other printed matter, bookcases, one Baldwin grand piano, etc., of the estimated value of $14,700.

In the controverting affidavit, reliance is had upon article 1995, subdivision 9, Rev. Civ. Statutes of 1925, which reads: “A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.”

It was alleged tliat the unlawful, illegal, and willful conversion of the personal property by the said defendants amounts in law to a trespass, and that, the same having occurred in Hood county, plaintiffs aver that the venue is properly laid in said county.

On October 7, 1928, the plaintiffs filed their first amended original petition. In this amended petition W. A. Wakefield, J. H. Allen, A. B. Garter, Will Vick, J. W. Hale, Hite Rippetoe, J. A. Tedlie, J. O. Shipman, W. A. Burkett, J. A. Henry, Fred Warren, J.' E. Maroney, M. H. Moore, J. C. Rigney, Lawerence Moore, E. E. Yarborough, and J. H. Neville were made defendants. It was alleged in the amended petition that, by reason of the agreement between the college' and its faculty and certain citizens of Thorp Springs, on May 16, 1918, it was agreed and understood that the college should remain for all times at Thorp Springs, Hood county; that the citizens of Thorp Springs and Hood county paid off the debt then accrued, about $8,-000; that on January 11, 1928, the said college was again largely in debt and in dire need of funds and money with which to discharge its obligations, and the trustees were again considering the advisability of removing said college from Thorp Springs, and the citizens of Thorp Springs and Hood county agreed to raise and did raise the sum of $3,-000 then owing by the college, and that the agent of said citizens, T. A. Davidson, paid to H. H. Lewis, treasurer of said college, the sum of $2,000. It was alleged that said sum of money was paid with the understanding and agreement that said college and all of its properties and assets should forever remain at Thorp Springs, Hood county, and should continue at said place as an educational institution, and that said sum of money was the consideration of said agreement; that on or about the month of September, 1918, and subsequent to the time the citizens of Thorp Springs and Hood county paid the indebtedness of about $8,000 then against said college, and freed said property from any and all indebtedness and incumbrances, said college owned and held the title to a large amount of land, buildings, and improvements, all of which was located at or in the town of Thorp Springs, and for some reason the record title to said property was in one W. R. Woodhousé for the alleged purpose of securing certain indebtedness alleged to be due the said Wood-house by said college; that said Woodhouse by deed in writing reconveyed all of the land, buildings, and other property then belonging to said college to T. H. Dabney, who was then the president of the board of trustees of said college, and to his successors in office for the use and benefit of said college, and said re-conveyance was executed for the purpose of carrying out and performing the agreement made, as heretofore mentioned on May 16, 1918, by the citizens of Thorp Springs and Hood county and the trustees and management of the college.

On October 21, 1928, W. A. Wakefield filed his answer, consisting of a general demurrer and-a general denial, and acknowledged that he at one time was a member of the board of trustees of the college, but alleged further that he had no personal knowledge of any of the transactions with reference to the financial affairs of said college and did not participate in any of the transactions and that none of these matters were acted upon in any of the meetings of the board of trustees while he was present; that, if it be true that any of the defendants committed any of the acts complained of by plaintiffs, defendant Wakefield was not guilty of any of such acts; wherefore he prayed that the plaintiffs take nothing as against him and that he be dismissed with his costs.

On October 19, 1928, defendant Fred Warren filed his plea of privilege, alleging that he lived in Knox county, and prayed that the suit as to him should be transferred to the district court of Knox county.

On November 23, 1929, M. H. Moore filed his plea of privilege, alleging that he resided in Tarrant county, and prayed that the suit as to him be transferred to the district court of the county having jurisdiction over his person.

On November 23, 1929, J. H. Allen filed his plea of privilege, alleging that he resided in Denton eoitnty, and prayed that the suit ás to him be transferred to the district court of Denton county.

On April 25, 1930, J. O. Rigney filed his plea of privilege, alleging that he was a resident of Lubbock county, and prayed that the above suit be transferred to the Seventy-Second or Ninety-Seventh district court of Lubbock county.

On April 28, 1930, Lawerence Moore filed his plea of privilege, alleging that he was a resident of Brown county, and prayed that the suit in so far as it related to him be transferred to the district court of Brown county.

It will be remembered that the ground for a mandatory injunction as to the State National Bank of Terrell was that J. B. Mc-Ginty, purporting to act for and in the interest of Thorp Springs Christian College, attempted to create a lien on all the personal property mentioned in Exhibit A, and had executed a mortgage to the said State Bank of Terrell for the alleged purpose of attempting to secure an alleged indebtedness of $4,200, which mortgage and lien is held by said bank and is of record in the mortgage records.of Kaufman county, and said bank is attempting to hold said lien against said property. The plaintiffs alleged that said lien was in violation of tlie terms and conditions of the charter of said college, and was in violation of the law and in violation of the rights of plaintiffs and their associates, and in fraud of their rights. Wherefore, they prayed that said lien be declared void.

On April 29, 1930, the court heard the argument of counsel as to the pleas of privilege of A. 0. Cox, of Kaufman county, J. O. Bigney, of Lubbock county, Fred Warren, of Knox county, of the State National Bank of Terrell. Kaufman county, Lawerence Moore, of Brown county, M. H. Moore, of Tarrant county, J. H. Allen, Denton county, J. B. McGinty and the Thorp Springs Christian College, of Kaufman county, and it was recited in the judgment that “the court having considered such pleas, and the controverting affidavits of the plaintiffs thereto, together with the evidence offered in support of them, respectively, and the argument of counsel, is of the opinion that said respective pleas should not be granted; and said pleas of the respective defendants are hereby denied and overruled.” The defendants gave notice of appeal to this court.

The Twenty-Ninth judicial district court holds its session in Hood county “on the first Monday of March and September and may continue five weeks.” The caption of the transcript shows that court convened on April 28, 1930, and adjourned on May 31, 1930, with Judge Sam M. Bussell presiding.

Opinion.

It will be remembered that the suit was filed April 17, 1929. On November 25, 1929, the suit was “continued without prejudice to pleas of all kind and set Tuesday the 29th of April, 1930.” This was before the pleas of privilege of Lawerence Moore, J. G. Bigney, J. H. Allen, and M. H. Moore had been filed. A plea of privilege filed by the State National Bank of Terrell was filed April 24, 1929, The plea of privilege of Thorp Springs Christian College was filed April 29, 1929, and also the pleas of privilege of J. B. McGinty and A. C. Cox were filed the same day. Therefore, on the first Monday in September, 1929, the time for the meeting of the next district court in Hood county, the pleas of privilege were on the second day thereof appearance cases.

On May 4,1929, plaintiffs filed a controverting affidavit, in which they alleged the trespass to have been committed in Hood county. The evidence is sufficient to sustain that allegation. Therefore we conclude that the judgment of the trial court, overruling the pleas of privilege of the first-named defendants, was a proper exercise of his jurisdiction, and, in view of the subsequent order entered on November 25, 1929, that the cause was continued without prejudice to pleas of all kinds, the action of the trial court. in overruling all pleas of privilege was correct.

Article 2008, Rev. Civ. Statutes of 1925, provides that on “the filing of such controverting plea, the judge or justice of the peace shall note on same a time for a hearing on the plea of privilege.”

In City Nat. Bank of Spur v. Rhome-Farmer Livestock Commission, 259 S. W. 184, this court held that the trial court was permitted to defer decision upon a plea of privilege until after the evidence on the merits of the case was before the court.

None of the other pleas of privilege were filed in time to require action thereon until the March term, 1930. Therefore we conclude that the trial court did not err in overruling all the pleas of privilege.

Judgment affirmed.


author: LOONEY, J.

text:
    CLEM v. FULGHUM.
    No. 10737.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 11, 1931.
    Rehearing Denied March 14, 1931.

      Geo. T. Burgess, of Dallas, for appellant.
    Crate Dalton, of Dallas, for appellee.
   LOONEY, J.

W. W. Fulghum sued O. E. Clem to rescind the sale of a parcel of land in the city of Dallas, to cancel a note for §2,300, given as part of the consideration, to recover §200 paid on the trade, and to recover certain damages alleged to have arisen from special circumstances surrounding the contract.

The case has been twice tried and twice appealed; on the first trial judgment was rendered for plaintiff on an instructed verdict and was affirmed by the Amarillo Court of Civil Appeals [see Clem v. Fulgham, 4 S. W.(2d) 2S0], but was reversed and remanded by the Supreme Court on writ of error, as recommended by the Commission of Appeals [see Clem v. Fulgham, 14 S.W.(2d) 8121. The judgment appealed from was based on jury findings, is in favor of plaintiff for §990 damages, including the §200 cash paid, and §790' special damages; also cancels the deed from Clem to plaintiff, conveying the land, and the purchase-money note given by plaintiff for the deferred payment.

Plaintiff insists that the appeal was taken for delay without sufficient cause; hence claims 10 per cent, damages on the amount in dispute, as authorized by article 1S60, R. S. 1925. The suggestion of delay opened the entire record, and requires reversal for any material error disclosed, whether assigned or not. See Guffey v. Farmers’, etc., Bank (Tex. Civ. App.) 250 S. W. 301; Levine v. Cullum Boren Co. (Tex. Civ. App.) 253 S. W. S94; Rose v. Brantley (Tex. Civ. App.) 2S2 S. W. 193.

Plaintiff's cause of action, as alleged, is substantially that Clem, acting through his agent, C. L. Snow, claimed to own a lot fronting 50 feet on Montreal street, having a depth of 200 feet, which he offered to sell for $2,500; that, within a day or two after plaintiff accepted this offer, he was informed by Snow, defendant’s agent, that there was a mistake as to the size of the lot, that, instead of the lot having a frontage of only 50 feet on Montreal, it had 70.4 feet, and instead of having a depth of 200 feet, it had 179 feet, but notwithstanding defendant was willing to sell at the originally named price; relying upon the representations as to the size and dimensions of the lot, plaintiff agreed to purchase at the same price and terms as originally made and accordingly defendant executed and delivered his certain warranty deed, describing the lot as being 70.4 by 179 feet; whereupon defendant accepted same, paid $200 cash, and executed a vendor’s lien note for $2,300, payable to defendant, evidencing the deferred payment; that, before consummating the trade, Snow was informed by plaintiff that the lot was being purchased for the purpose of erecting thereon an apartment house, and, with this end in view, immediately after receiving the deed plaintiff had the lot surveyed and its corners staked, had plans and specifications for the building drawn, assembled certain building materials upon the lot, had excavations made for the foundation, and forms made for concrete work, took out insurance on the building, employed necessary labor, and gave his own time, personally supervising the work, etc. While in the midst of these preparations, plaintiff learned, for the first time, that defendant did not own a lot of the size conveyed, but in fact owned a lot only 49.4 feet wide by 168 feet in depth. Thereupon he immediately ceased work upon the building, asserted the right to rescind the contract, tendered back the deed, demanded the return of the amount of cash paid, and the note for $2,300. Plaintiff also alleged certain expenses incurred for returning material that had been assembled, for filling excavations and clearing off the lot, and that he suffered loss on account of depreciation in the'price of said materials; altogether special damages, for which he sought judgment, amounted to $1,265.

It is obvious that plaintiff proceeded on the idea that Clem owned the land; that he listed the same with Snow for sale; that in all transactions in regard to the matter plaintiff dealt with Olem through Snow, as agent; therefore, upon the substantial truth of these allegations, plaintiff sought rescission and recovery of damages.

The facts, in our opinion, fall far short of sustaining the case made on paper. The proof developed that the lot belonged to S. 7j. Park; that he acquired same from W. K. Goad, and, being indebted to the Clem Lumber Company, caused Goad to convey the same to defendant, Clem, in form a deed absolute, but intended as security for said indebtedness due the lumber company; Park, and not Clem, listed the land with Snow for sale; Park, and not Clem, entered into the contract of sale with plaintiff, which was in writing, and described the lot to be conveyed as “being 50x209 feet- on Montreal Street, being the first vacant 50 feet facing East on Montreal Street South of Tenth Street.” The evidence fails to disclose that this contract was changed, as alleged by plaintiff. Plaintiff knew Park owned the lot; neither plaintiff nor Snow had any communication with Clem in regard to the trade, or in regard to the special circumstances surrounding same; during the entire time of the negotiations Clem was absent from the state and executed the deed while in the state of Colorado, on its being sent to him there.

A discussion of the situation presented is, in our opinion, unnecessary, as it is obvious the case proven is so materially variant from the case pleaded, it cannot be reasonably contended that an issue was raised as to Clem’s liability f-or special damages.

The rule applicable to such a case was stated by the Supreme Court in Western Union v. Smith, 88 Tex. 13, 28 S. W. 931, 30 S. W. 549, 550, as follows: “The plaintiff who sues upon a contract must recover upon the contract alleged in his petition, and, if his proof shows a contract essentially different from that alleged, he must fail in the action”— citing Morris v. Kasling, 79 Tex. 145, 15 S. W. 226, 11 L. R. A. 398; Gammage v. Alexander, 14 Tex. 418; Brown v. Martin, 19 Tex. 344; Brinkley v. Harkins, 48 Tex. 225; Krohn v. Heyn, 77 Tex. 319, 14 S. W. 130. Also see Western Union v. Byrd, 34 Tex. Civ. App. 594, 79 S. W. 40-42; Weld-Neville, etc., v. Lewis (Tex. Civ. App.) 163 S. W. 667.

But plaintiff invokes the doctrine of “the law of the ease,” and insists that all material questions were settled in his favor on the former appeal. We recognize the general rule that a question of law decided on appeal will govern throughout subsequent stages of the ease, including decisions that determine the sufficiency of evidence to raise or establish an issue of fact. In support of this doctrine, see County of Galveston v. Galveston Gas Co., 72 Tex. 509, 516, 10 S. W. 583; Wolf v. Sahm (Tex. Civ. App.) 135 S. W. 733; Kelley v. Fain (Tex. Civ. App.) 168 S. W. 869; Galveston, H. & S. A. Ry. Co. v. Faber, 77 Tex. 153, 154, 8 S. W. 64; Western Union v. Erwin (Tex. Civ. App.) 164 S. W. 908; Sheffield v. Meyer (Tex. Civ. App.) 229 S. W. 614; Campbell v. Turley (Tex. Civ. App.) 229 S. W. 595; Ewing v. Bain (Tex. Civ. App.) 257 S. W. 688; Texas Juris, val. 3, §§ 939, 946.

But this general rule is not unyielding ; there are well-recognize.d exceptions, as stated toy the Commission of Appeals, in answer to certified questions, in Green v. Priddy, 112 Tex. 567, 250 S. W. 656, 660, as follows: “Upon subsequent appeals the court will adhere to its former rulings unless clearly erroneous, but such former rulings constitute no bar to a further consideration of the same question upon a subsequent appeal, nor to a revision of such holding, if, in fact, erroneous”- — citing Kempner v. Huddleston, 90 Tex. 182, 185, 37 S. W. 1066; Roberts v. Armstrong (Tex. Com. App.) 231 S. W. 371, 373. This doctrine is applicable only where on a second, or subsequent appeal the facts are substantially the same as on the first, and this must be made to appear, for the court' will indulge no such presumption. 3 Texas Juris. 1342, 3, §§ 942, 943.

On the former appeal, the Court of ,Civil Appeals affirmed the case on the idea that Clem was guilty of constructive fraud, in that the deed executed by him described a larger parcel of land by 20 feet in width than he could legally convey. This is apparent from the following excerpts, the court said: “There is and can be no controversy over the fact that Clem executed and delivered’ to the plaintiff his warranty deed, in which the size of the lot was given as 70.4 feet wide ,by 179 feet in depth. Was this an actionable representation upon proof of its falsity?- It will be remembered that the plaintiff’s petition is an -action for rescission and cancellation, and for such damages as were caused to him in his attempt to make use of the lot, and was not an affirmance of the contract.” The court concludes-the opinion as follows, viz.: “It appealing that this express warranty was made and that the lot was short’ 20 feet in width and 11 feet in depth' from that deeded to the plaintiff, we affirm the judgment of the trial court.”

To entitled plaintiff to recover on this theory, it must appear from the facts and circumstances that the inclusion in the deed executed by Clem of more land than he had the legal right to convey was, in effect, a representation that he owned the land, that it was false, and in ignorance of its falsity plaintiff relied and acted upon same, to his damage. Elements of Actionable Fraud, 26 C. J. 1062, §6.

The undisputed facts bearing upon this phase of the case are these: Goad owned the lot described as 70.4 by 179 feet, and con-yeyed to a Mr. Clark, a part, a strip 21 by 179 feet. This conveyance was of record, h.ence constructive notice when Goad sold to Park the remainder of the lot, and at his direction conveyed the same to Clem as security f-or an indebtedness due the lumber company. However, the conveyance erroneously described the entire tract — that is, 70.4 by 179 feet — and the deed from Clem to plaintiff contained the same erroneous description, but, after receiving the deed and realizing that a larger and materially more valuable lot had been conveyed to him than he had contracted for, plaintiff asked no one for an explanation, but in pursuit of his own designs and purposes had a surveyor stake the larger lot and was in the midst of preparations for the erection of an apartment house thereon when interrupted by Mr. Clark, who owned the 21-foot strip being, used in part for the building. After discovering that he could not hold all the land described in the deed, but would be confined to a lot 50 by 179 feet, plaintiff ceased work on the building and demanded rescission of the trade.

No contention is made that any one represented to plaintiff that the lot he contracted to purchase was 70:4 by 179 feet in size, but, as the deed described such a lot, he seems to have assumed that he acquired title to the entire lot and acted accordingly, knowing, however, that the lot contracted for was only 50 feet in width, and, in our opinion, was charged with knowledge, as a- matter of law, that a mistake had been made in the description, knew, or ought to have known that he was not entitled to claim or build upon the 21-foot strip, could not have been deceived •by the erroneous description, and any loss he may have sustained, as the result of preparations to build upon the lot, under the facts and circumstances, was self-inflicted.

The law as to actionable fraud is stated in 26 O. J. 1134, § 55, as follows: “Since it is essential that the party to whom a misrepresentation is made should be deceived thereby and believe it to be true, one can secure no redress for a representation which he knew to be false, nor for failure to disclose facts which he knew to exist. If the representee knew the truth, it is obvious that he was neither deceived nor defrauded and that the loss he may sustain is not traceable to the representation, but is in effect • self-inflicted.” To the same effect see American Cotton Co. v. Heierman, 37 Tex. Civ. App. 312, 83 S. W. 845, 848; Radford v. Halper (Tex. Civ. App.) 274 S. W. 1023; Thames v. Smith (Tex. Civ. App.) 280 S. W. 859; Donoho v. Hunter (Tex. Com. App.) 287 S. W. 47, 48; Bartlett v. Terrell (Tex. Civ. App.) 292 S. W. 273; Thrower v. Brownlee (Tex. Com. App.) 12 S.W.(2d) 184, 185; Jones v. Herring (Tex. Civ. App.) 16 S.W.(2d) 325.

However, it may be assumed, for the sake of the discussion, that the inclusion in the deed, of more land than Clem had the legal right to convey was constructive fraud that deceived plaintiff and justified rescission ; yet the facts, are undisputed that Clem knew nothing of the purpose for which plaintiff purchased the lot, nor was he advised of any of the special circumstances surrounding the contract; hence in no event could he he held for more than damages of a general nature, such as the law will imply as the natural and necessary results of the alleged wrong.

Judge Denman, in Missouri, K. & T. Ry. Co. v. Belcher, 89 Tex. 428, 35 S. W. 6, 7, announced the doctrine applicable to the situation with which we are confronted as follows: “The rule seems to he settled that plaintiff, in order to recover special damages for breach of a contract, must show that at the date of the contract defendant had no-lice of the special conditions rendering such damages the natural and probable result of such breach, under circumstances showing that the contract was to some extent based upon or made with reference to such conditions.” To the same effect see Hamilton v. Schumacher (Tex. App.) 15 S. W. 715, 716; Harris v. First Nat. Bank (Tex. Civ. App.) 45 S. W. 311, 313; Kirby v. Cummings (Tex. Civ. App.) 122 S. W. 273; Terrell v. Proctor (Tex. Civ. App.) 172 S. W. 996, 1001; City of Brownsville v. Tumlinson (Tex. Civ. App.) 179 S. W. 1107, 1110; 17 C. J. 712, § 19, 746, § 77.

We have been unable to discover in the facts and circumstances of the case a theory that would justify judgment against Olem for special damages, but, as the, evidence is conflicting on the issue as to the right of plaintiff to rescind, the ease will be reversed and remanded for further proceedings. If on retrial facts are found that justify rescission, plaintiff will be entitled to have the purchase-money note for $2,300 canceled, and to recover the $200 paid upon the trade, with legal interest from the date of payment.

Reversed and remanded.


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    BOGGS v. FARMERS’ FUND OF TEXAS.
    No. 10745.
    Court of Civil Appeals of Texas. Dallas.
    March 21, 1931.
    J. Lee Zumwalt, of Dallas, for appellant.
    Fred J. Dudley and Wm. Madden Hill, both of Dallas, for appellee.
   LOONEY, J.

On November 3,1926, J. W. Boggs and wife conveyed to Mrs. Donnie E. Merrill, wife of E. F. Merrill, several tracts of land situated in Hunt county, Tex., aggregating approximately 194 acres, in consideration of $2,000, evidenced by five negotiable promissory notes executed by E. P. Merrill and Donnie E. Merrill, payable to J. W. Boggs or order, and subject to an existing lien in favor of the Joint Stock Land Bank of Dallas, securing an indebtedness of $14,500. The notes retained an express lien on the lands, contained the usual provision for attorney fee and for accelerating maturities, and were additionally secured by a trust deed on the lands.'

On November 22,1026, J. W. Boggs sold and by writing, as well as by indorsements, transferred the notes before maturity to appellee, Farmers’ Fund of Texas. The record discloses tbat, prior to December 24, 1927, E. F. Merrill was adjudged a bankrupt by the United States District Court for the Northern District of Texas at Dallas, and J. J. Holliday was appointed trustee of said estate; that, after the adjudication, E. F. Merrill and wife conveyed the lands to H. W. Fergus on, Object to the lien and indebtedness in favor of the Joint Stock Land Bank, of $14,500, as well as the five notes involved in this suit. H. W. Ferguson was at the time president of both corporations, and, while his trust relationship was not disclosed by the conveyances, the record discloses that he holds title to the lands for the general benefit 'of the two corporations, in so far as their respective interests are involved. ‘The record further discloses that, on February 3, 1928, J. J. Holliday, trustee in bankruptcy, disclaimed any and all rights as trustee to said lands, and relinquished all claims of the bankrupt estate thereto.

This suit was filed on September 1, 1928, by the Farmers’ Fund of Texas against J. W. Boggs as indorser, to recover on the notes, and H. W. Ferguson, holder of the legal title, was made a party for the purpose of foreclosure. The case was tried to a jury, and, at the conclusion of the evidence, the court directed a Verdict for plaintiff and rendered judgment for debt and foreclosure accordingly, from which Boggs appealed.

The issues made by pleadings and raised by evidence will be indicated by the discussion that follows.

Appellant contends that the court erred in directing the verdict and in rendering-judgment for plaintiff, because E. F. Merrill and wife, makers of the notes, were not sued, and that no reason (see articles 1986 and 1987, R. S. 1925) was given why they were not made parties. We do not think the court committed error in this respect. Mrs. Merrill, not being personally liable, was not a maker of the notes in a real sense; therefore 'it would have been folly to sue her. See Red River Nat’l Bank v. Ferguson, 109 Tex. 287, 206 S. W. 923; Benjamin v. Youngblood (Tex. Civ. App.) 207 S. W. 687; Givens v. Davis (Tex. Civ. App.) 227 S. W. 367; Poe V. Hall (Tex. Civ. App.) 241 S. W. 708; Ha daft v. Ellison (Tex. Civ App.) 283 S. W. 193. E. F. Merrill, the real maker, having been adjudged a bankrupt, the presumption will be indulged that he was in a state of actual insolvency ; hence plaintiff was not required, under the statute, to make him a party.

Another contention of appellant is that ap-pellee, the holder and owner of the notes, having become the beneficial owner of the lands, through the deed from Meri’ill ahd wife to Ferguson, a merger of estates resulted, and that the lien of the notes was extinguished, and the liability of appellee as indorser discharged.

As tó whether a lien is extinguished by a merger of estates, or is kept alive, will generally depend upon the intention of the owner, as he has the election to keep the lien alive whenever it is to his interest to do so. That it was the intention of appellee to keep the lien and the lien indebtedness alive is clearly shown by the fact that the conveyance procured from Merrill and wife to Ferguson was made subject to the lien of the five notes sued upon. Appellant cannot complain so long as he is protected in the right to have the lands subjected to the payment of the notes. This would have been his right if the lands had been conveyed by the Mer-rills to any third person, or appellant, by paying the notes, could .have been reimbursed from the lands in the hands of any owner. Ferguson, as holder of the legal title, and other parties at interest, were before the court, and its decree was so framed as to require the primary fund — that is, the lands —to be first exhausted before suing out execution against appellant; this was all he could ask. Silliman v. Gammage, 55 Tex. 370; Fidelity, etc., v. Albrecht (Tex. Civ. App.) 171 S. W. 819; Harris v. Masterson, 91 Tex. 171, 41 S. W. 482; 41 C. J. 688, § 709.

Appellant makes the further contention that he was discharged as indorser because not given notice of the dishonor of the instruments, as required by article 5938, R. S. 1925. His evidence clearly raised this issue, and it should have been submitted, but the matter does not rest alone on that issue, as the pleadings and evidence also raised the issue of waiver by appellant of the notice of dishonor. On the latter issue', the contention of appellee was that, after Merrill’s bankruptcy and after the notes were dishonored and their maturities accelerated, the parties entered into an agreement, to the effect that appellee would procure a conveyance of the lands from Merrill to H. W. Ferguson, to be held in his name and afterwards conveyed to appellant on payment by him of the notes, which he agreed to pay; whilst the contention of appellant was that he stood discharged as indorser because not given notice of the dishonor of the instruments, and in this situation agreed to pay the notes, if given reasonable time so to do, on condition that the lands would be conveyed to him, but that ap-pellee failed and refused to comply with its obligation to have the lands conveyed to him.

As the evidence was conflicting on the issue of waiver, the respective contentions of the parties should have been submitted to the jury — for, if the facts are found as contended by appellee, waiver of notice resulted as a matter of law [see Farmers etc. v. Head (Tex. Com. App.) 7 S.W.(2d) 61]; but, if found as contended by appellant, waiver would not have resulted. We are of opinion, therefore, that the case should have been submitted on these issues, (1) whether appellee gave appellant notice of the dishonor of the instrument, as required by statute, and (2) the respective theories of the parties on the issue of waiver by appellant of the notice of dishonor. The case will therefore be reversed and remanded for further proceedings.

Reversed and remanded.


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    CHICAGO, R. I. & G. RY. CO. v. MARTIN.
    No. 12422.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 31, 1931.
    Lassiter, Harrison & Pearson, of Fort Worth, and C. T. Gettys, of Decatur, for appellant.
    H. F. Weldon, of Henderson, and H. E. Lob-dell, of Decatur, for appellee.
   CONNER, C. J.

This appeal is from a judgment in appellee’s favor for $1,125, as damages, alleged to have; been caused by the failure of the appellant' railway to properly construct and maintaiij sufficient culverts, bridges, and outlets to carry away flood waters, as a result of which bach-waters were caused to overflow appellee’s land, depositing silt and sand thereon, to its greai damage.

The defendant denied the material allegations of the plaintiff’s petition. The record discloses that the plaintiff owns some 500 acres of land of an irregular contour located in Wise county, and that the appellant railway company’s roadway is constructed along its north boundary line; that it has a bridge near the northwest corner of the tract, another bridge near the center of the north boundary line, and near the northeast corner of the tract appears to be some trestling, and yet farther east along the line bordering an adjacent tract of land is another bridge. A stream designated as Salt creek, originating at a distance not shown south of plaintiff’s land, discharges its waters in the general course of north along the west line of plaintiff’s tract. Another small stream called “Garrett creek,” originating at a distance not shown east of plaintiff’s tract, flows in the general direction of west, crossing part of plaintiff’s land, and along the southern edge of the block of land claimed by plaintiff to have been damaged and passing out of- the block near its southwest’ corner and thence wést to an intersection with Salt creek; Salt creek thus being the conduit for the waters of both streams. Along the south -boundary line of the block alleged to have been damaged is a lake designated as Salt Lake. It appears that the waters of Garrett creek enter the east end of Salt Lake and leave the lake in its onward course about the southwest corner of the block alleged to have been injured. There is evidence tending to show that the section of country drained by these small streams is sandy. As early as the year 1917 Salt creek began to fill with silt, sand, etc. It -further appears that at a short distance south of plaintiff’s -land, and about where Garrett creek enters Salt creek, the course o-f the waters in Salt creek was diverted in an easterly direction into Garrett creek and thence on into Salt Lake which gradually as the years passed filled up with sand and silt, after which time the silt and sand overflowed on the southern part of plaintiff’s tract and filled it up to a depth of several feet.-

The section of country described in which plaintiff’s land is located is known as the Salt Greek Yalley.

Near the north boundary line of -plaintiff’s land and of the appellant railway company’s line flows the Trinity river, and one of the contentions of the appellant was to the effect that during -high waters the Trinity river over- ' flowed the section and backed its waters up .against its line of road, pressing part of its waters -back through its bridges to- the south, thus causing the -backwaters from which the sand was deposited.

-■ The case was submitted to a jury upon special issues, which, together with the answers of the jury thereto, are as follows, to wit: .

•' “By the term ‘proximate cause,’ as used in this charge, you axe instructed is meant such a cause as in a natural and continuous sequence, unbroken by any new and independent cause, produces an event witho-ut which the event would not have occurred, and which event could have -been foreseen under all of the attending circumstances. It need not be the sole cause, but it must be a concurring cause which contributed to the production of the result -in question, and but for which the said result wo-uld not have occurred.
“Special Issue No. 1: “Did the defendant, The Chicago, Rock Island & Gulf Railway Company, maintain necessary culverts, or sluiceways under its roadbed along the North line of the plaintiff’s lands, as described in the petition filed herein, as the natural lay of the land required for the necessary draining thereof from November 15th, 1925, up to November 15t.h, 1927? Answer Yes or No. An- . swer. No.
“If you have answered Special Issue No. 1, ‘yes,’ then you need not answer the issues hereinafter submitted to you; but if you have answered it ‘No,’ then answer the following:
“Special Issue No. 2: Did the plaintiff suffer any damages to his lands, described in plaintiff’s -petition, between November 15th, 1925, and November 15th, 1927, by reason o-f the waters of Salt Creek overflowing said lands and depositing thereon sand, silt, or other matter? Answer yes or no. Answer. Yes.
“Special Issue No. 3: If you have answered Special Issue No. 2 ‘No,’ you need not answer this issue; but if you have answered said issue ‘Yes,’ then find and state: Was the defendant’s failure, if it did fail, to maintain necessary -culverts and sluiceways under its roadbed at o.r near the plaintiff’s land as the natural lay of the lands required for the draining thereof, the proximate cause of damage, if any, to plaintiff’s land -by said, waters during the time -from November 15th, 1925, till November 15th, 1927? Answer Yes or No. Answer. Yes.
“Special Issue No. 4: If you have answered either of Special Issues Nos. 2 or 3 ‘No,’ you need not answer this issue; but if you have answered both issues Nos. 2 and 3 ‘Yes,’ then find and state what amount of damages, if any, did plaintiff suffer to the land in question from November 15th, 1925, till November 15, 1927, by reason of the waters from Salt Creek overflowing the same and depositing thereon sand, silt, or other matter? Answer in dollars or in dollars and cents. Answer. $1,125.”

A number of exceptions were taken by tlio defendant to the court’s charge. Among others, the fourth issue was excepted to on the ground that “such issue is too broad in directing or permitting and suggesting that the jury assess and include all damages done to lands in question resulting from such overflowing waters when the evidence shows that defendant was not the cause of all such overflows or the full extent of such overflows as said lands received; because said issue does not submit any proper measure of damage, but permits and directs the jury to measure the damage by any standard and by any measure that they may see fit, including any and all items that may appear to their fancy, and without being limited to any portion that may have resulted from any failure to provide or maintain sluiceways.”

The evidence does not advise us of the date of the construction of appellant’s railway line or of the condition of the surface traversed in the immediate locality, and, while the plaintiff alleged destruction of crops, there is no evidence sufficient to support this allegation. The plaintiff testified that, in the spring of 1926, 25 acres of this land had been cultivated, from which he secured one bale of cotton, but no corn. His testimony does not show that any of the crop had been destroyed by overflow water or by the deposit of sand.

The measure of damage alleged by plaintiff, and the damage, if any, shown in the evidence, is the difference in the value of the land before and after. In Ry. Co. v. Anderson, 79 Tex. 427, 15 S. W. 484, 23 Am. St. Rep. 350, is stated that, where a nuisance is permanent and continuing, the damage, resulting from it should be all litigated in one suit and in such cases the measure of damages to land caused by overflow is the difference in the value of the land immediately before and immediately after such overflow, citing Owens v. Ry. Co., 67 Tex. 679, 4 S. W. 593; Ry. Co. v. Green, 44 Tex. Civ. App. 247, 99 S. W. 573. Writ denied.

Among other things, O. W. I-Iunn, one of the plaintiff’s witnesses testified that he was the county engineer and had been a civil engineer about 15 years; that he had had occasion to investigate and observe the drainage of the plaintiff’s land; that they were now constructing a road in that vicinity. He further said:

“That land up there in that valley indicates it has been settling and depositing in there for many years. That is a sandy country back south of there, sand and clay, and sand washes down those hills into the valley and spreads out over that. * * * That country down there really needs a channel cut down over the land and north of the railroad clear to the Trinity Eiver, clear to the old channel of the river. Until something like that is done that country down there will be overflowed. The. water runs in there at the railroad and runs back there through those bridges and necessarily creates a flooded condition in there and will exist until a channel is cut clear to Trinity Eiver through the bottoms north of the railroad, as well as through the bottoms south of the railroad; both of them will have to be cut before you can let the water out, or give’ it speed to get out, or it won’t get out regardless of the bridges on the railroad track. If the railroad was moved out of there that would be the condition; until you cut some channels you will have deposits there; and it would be an overflow section all back up that creek, yes, undoubtedly would. That condition has existed there for a number of years as far as I can tell. I don’t think it can possibly be cured until there is a channel into the river. That would be some distance north of the railroad clear across that valley north of the railroad. Until that is done it would do no good for the railroad to move or make any changes in its bridges or anything else. It is checked down there and has become a flood basin, that whole area, both north and south of the track at this time, and necessarily was already away back up the creek, up past our road. * * * The railroad bridges or the conditions there would not have caused trouble over there in the Trinity Eiver, its getting out of its banks and coming over towards that creek; it couldn’t be responsible for that. That has happened from some other cause. When that happened that necessarily threw a fill next -to the railroad north of Hr. Martin’s land, yes.

“Q. It naturally filled up and caused that land in that valley, that part of the basin, to fill .up to whatever extent it has filled in there? A. That would be one reason for it, yes. That is proof of it, when that river got over there and spread out and threw its waters against this railroad it necessarily carried silt, and debris and caused those deposits to be made around there, yes, that is what caused it. And it formed the waters of the creek. The action of it was necessarily to throw the waters back up in that creek; that is the tendency. It overflowing there necessarily carried silt and sand and deposits into the channel -of Salt Creek; it was carried in there and helped fill it uij ; and the fill was due to some trouble over there in Trinity Eiver; I don’t know what the trouble was. It was some trouble besides the bridges over there. The bridges didn’t cause the river to get up. * * * When the water comes in from Trinity Eiver and over to the railroad and into the mouth of this Salt Creek and pushes river waters back there through that bridge on Salt Creek, certainly that has a tendency to hold the waters back in Salt Creek. That would be one cause causing the silt and sands to settle up there. That would have that effect regardless of the presence of the railroad- there; it would necessarily have the effect.”

We think there can be no question but that the indicated objections to special issue No. 4 were well taken. In addition to the testimony above quoted, there was other testimony tending to show that the damage claimed, if any, was not caused wholly by insufficient causeways in the embankment of the railway, but in part at least by reason of the gradual and long-continued erosion of the watershed and the filling and leveling of the natural drainage channels by flood waters. The plaintiff’s action was predicated upon allegations to the effect that the damage was the proximate result of insufficient openings, but, if the injury complained of was caused in part by other things, the railway company can only be held liable for the portion of the injury proximately caused by waters impeded by it. See Ry. v. Vogt (Tex. Civ. App.) 181 S. W. 841; Ry. v. Wright (Tex. Civ. App.) 195 S. W. 605; Ry. v. Gurley, 37 Tex. Civ. App. 283, 83 S. W. 842; Taylor v. Ry., 36 Tex. Civ. App. 658, 83 S. W. 746.

The defendant sought to correct the objections to the issues mentioned by his special charge No. 3, which the court refused, and to the refusal of which exception was taken and error here assigned. That charge was as follows: “Gentlemen of the jury: If you believe from the evidence that plaintiff’s said lands, or any of same, were damaged by rains that fell after December 15th, 1925, and before the filing of this suit, and that such lands would have been inundated and damaged to some extent by such rains irrespective of the presence or condition of defendant’s railroad embankment or openings through same, then you are instructed that even if you should believe further from the evidence that the presence or condition of the embankment or opening therein held back or caused to be held back and diverted over plaintiff’s said land additional waters in sufficient amount to cause additional damage to such •lands in excess of the damage that would have resulted irrespective of the presence of ■said railroad, and if you find the evidence before you does not show or enable you to determine therefrom what portion of the damage was proximately caused by the,presence or condition of said railroad embankment in question, you will not undertake to assess any •damage based upon mere surmise and speculation in response to special issue No. 4 in the ■Court’s Charge.”

The authorities already cited indicate, we think,, that this charge should have been given, and, because of the errors indicated, we think that the judgment must be reversed. In view of another trial, however, we will also notice that objection was taken to the court’s definition of “proximate cause.”

It will be noticed by its reading the definition imposes liability for events which “could have been foreseen under all of the attending circumstances.” As hereinbefore stated, the condition of the Salt Creek Valley and its watershed and streams at the time of the construction of appellant railway company is not shown, and it was only required to use due care to provide such embankments and causeways for the escape of flood waters as from the history of the country or other circumstances could reasonably be then seen. The evidence in this ease shows but two occasions when the waters from Salt and Garrett creeks accumulated at great depths on the south side of the railway embankment, and we cannot say from the evidence before us whether there were at any previous time floods sweeping over Salt Lake Valley of the same character.

In view of another trial, we also call attention to appellant’s objection to the testimony of the plaintiff, Martin. He was asked the following questions and gave the following án-swers: “Q. Are you acquainted with what the reasonable market value of your land was per acre during the period from November 1925 up to the Spring rains in 1926; are you acquainted with the reasonable market value of your land what it was at the time and in its then condition? A. I don’t think I could say. I think I am acquainted with its present market value. I know of the sale of lands down there in the last year or two. I know of three tracts. As to whether I know of that mysell or whether it is just hearsay, I know of the parties interested; some of them told me about it, the man that sold the land told me about it. Certainly, all I know is what they told me; I didn’t see the closing of the deal. I had no connection with the deal and was not present when made. It was not land in that Salt Creek Valley. It was what you would call the Paradise trade territory. Part of it was up-land, and some of it valley land, the part sold. It was a different character of land from my land. What I have heard relative to those sales I have mentioned, is all I know about the lands there; that is all I know is what I have heard.”

He was then permitted to testify that “I would say the reasonable market value of my land per acre in 1925 and 1926 was $20.00 per acre. The reasonable market value of my land per acre at the time of the filing of this suit was about $12.50 per acre.”

We think the witness was not qualified to testify as to the values, and that the court should have sustained the objeetiqns to the testimony. See Humble Oil & Refining Co. v. McLean (Tex. Com. App.) 280 S. W. 557, and J. B. Watkins Land Mortgage Co. v. Campbell et al., 98 Tex. 372, 84 S. W. 424, therein cited.

Objection was also made to testimony of other witnesses who testified as to values, but we think the authorities cited will be sufficient guide for the action of the court upon another trial.

We also suggest that defendant was entitled to have its special issue No. 1 submitted. In this issue the jury wab requested to determine from the evidence whether “the waters of Trinity River, since November 15, 1925, during the two years just after said date flowed from the north through the openings under the bridges of defendant’s railroad ⅜ * * and caused plaintiff’s said lands in the bottoms of Salt Creek to be overflowed.” That was one of the defenses urged in behalf of the defendant, and defendant was entitled to the instruction under the decision of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, and Gammage v. Gamer (Tex. Com. App.) 213 S. W. 930. We also think that under the authorities just cited the defendant was entitled to have submitted his special issue No. 7, presenting the inquiry as to whether “those parts of plaintiff’s lands that are now subject to overflows become so far subject to overflows and set with grasses, prior to November 15, 1925, as to render the same more valuable for pasture purposés than for tillable purposes?”

The evidence tends to show that no more than 25 acres of the land in controversy was ever cultivated, and that the last attempt to cultivate this 25 acres was in 1926, from which the plaintiff got $25 worth of cotton, since which time it has not been rented for farming purposes. There was further testimony tending to show that since 1925 and since the land has been covered by silt and sand a good coat of Bermuda grass has grown thereon, and in the opinion of one or more of the witnesses the land is more valuable for grazing purposes than it would be for general farming use. There were some other special issues and special charges requested, but one or more of them perhaps are sufficiently covered by the special issues above noted.

We conclude without further discussion that the judgment should be reversed, and the cause remanded for another trial not inconsistent with this opinion.

BUCK, J., not sitting.