author: BARCUS, J.

text:
    MISSOURI, K. & T. R. CO. OF TEXAS v. O’HARE.
    No. 1019.
    Court of Civil Appeals of Texas. Waco.
    April 2, 1931.
    Rehearing Denied June 25, 1931.
    Spell, Ñaman & Howell, of Waco, for appellant.
    Jos. W. Hale and Pat M. Neff, Jr., both of Waco, for appellee.
   BARCUS, J.

Appellee filed this suit against appellant to recover damages which he alleged he had suffered by reason of an injury received by him while working as an assistant foreman with an extra gang in construction of a track being laid in the yards of appellant at Eureka, a suburb of Houston. Appellee alleged that while attempting to remove a spike from the end of one of the ties, he used a claw bar which had been furnished him by appellant that was worn and had one claw broken, and that by reason thereof, and by reason of the cross-ties being wet and slippery by having been recently dipped in creosote, the claw bar would not hold and it slipped from under the spike, and that he (appellee) fell and struck his right elbow on the rail or some hard substance which caused the injury. Appellant denied the allegations of appellee and affirmatively pleaded that the cross-ties were new and had been, as was the universal custom, dipped in creosote before being used, and that appellee assisted in placing same on the tracks and was familiar with the condition thereof, and had all the information relative thereto that appellant or any of its other servants, agents, or employees had. It further alleged that the claw bar was a simple tool, and that appellee had the opportunity to and it was his duty to inspect same before he used it, and that by reason of same being such a simple tool, appellee was not entitled to recover. Appellant further alleged that the tracks were being built so as to enable it to handle interstate commerce and that at the time of the alleged injury, a part or all of said tracks were being used for the purpose of handling interstate business.

The cause was tried to a jury, submitted on special issues, and resulted in judgment being entered for appellee. The jury found that appellant furnished appellee the claw bar in question and that at the time same was furnished, it was so worn as to be defective and that the worn condition caused same to slip and was a proximate cause of the injury. The jury further found,that the claw bar was broken at the time it was furnished and that same caused it to’ slip, and that the broken condition of the claw bar was a proxi. mate cause of the injury. The jury further found that the claw bar was such a tool that it was necessary to make an inspection thereof to determine its defective condition and that a reasonable inspection thereof by appellant would have revealed its defective condition, and that appellant failed to make said reasonable inspection, and that same was negligence which was a proximate cause of the injury. The jury further found that appellant required appellee to work on wet and slippery cross-ties and that same was negligence which was a proximate cause of the injury. The jury found that appellee could not have, by the exercise of ordinary care, discovered the defective condition of the claw bar in question.

The record shows that at the time of the alleged injury appellee, as an assistant foreman, was in charge of a large extra gang constructing a number of additional tracks in the yards of appellant at Eureka, a suburb of Houston. Said extra gang was divided into two or more subdivisions and the work was being rushed as fast as possible so that said construction might be completed. While going from one section of the men to another, appellee discovered a railroad spike driven in the end of one of the cross-ties, and without calling for any assistance, he took a claw bar which was lying between the tracks and attempted to pull or remove said) spike. One end of the claw bar" was used as a pinch bar and the other end as a claw bar, same being about five feet long and weighing about twenty-five to thirty pounds. Appellee testified that he "picked up a claw bar which "was lying near by and, without making any inspection of the claw bar, he attempted to remove or pull the spike with same, and that the claw bar slipped loose and he fell and struck his right elbow on the rail or some hard substance and thereby injured his arm. Appellee then examined the claw bar and saw that one prong was broken. He then took the other end known as the pinch bar and straightened the spike and then used the same claw bar by shoving it further under and removed or pulled the spike. The injury occurred about 4:30 in the afternoon. Appellee continued to work until the closing hour, about 5:30 or 6, at which time he reported that he had hurt his arm- by falling, but did not report that he had fallen while trying to pull a spike or while attempting to use a claw bar. He was sent to appellant’s hospital for treatment.

The record shows that appellant had a tool man employed whose duty it was to get the tools in shape and deliver them in the yard for the use of the workmen each morning and gather same up in the afternoon after the close of the day’s work. It was the duty of the foreman in charge of any gang of workmen, before delivering any tool to a workman, to inspect-the tool to see if it was in proper condition for use, and if a tool broke during the day the foreman would have same placed in the tool car with the broken tools. There is nothing in the record to show whether the claw bar in question had or had not been used during the day, or whether same had or had not been broken by being used by some of the workmen during said day. Neither is there any direct testimony that the claw bar had or had not been delivered to and placed’ ⅛ the yard on the day of the alleged injury.

Appellee is a "World War veteran and served; overseas, and while in the army in 1918 he was taken ill. The record shows that since 1922 he has been treated two or three times each year in a government hospital of the United States, his disease having been pronounced by the doctors as a tubercular infection of the bone, or some other bone disease. He has drawn compensation from the government part of the time at $100 per month, and then drew compensation at $50 per month.

Appellant complains of the' misconduct of counsel for appellee in arguing the case to the jury, and of the misconduct of the jury in arriving at its verdict. The record shows that the trial court instructed the jury that in addition to other named matters, they could take into consideration, in arriving at the amount of damages appellee had suffered, his diminished capacity to earn money in the future. There was no evidence offered as to how long appellee would live. It was shown that he was at the time of the injury forty years old. While appellee’s counsel was arguing the case to the jury, he stated: “I say you should look out into the future to see what his (appellee’s) diminished earning capacity from here on out will be. How long is from here on out, gentlemen? I don’t know and you don’t know. The best guide I know is to go to the Good Book and what does it say? God Almighty has awarded it and accorded man a life of three score and ten years. If you take forty years as the age this man was at the time of the accident, subtract that from the life God has given him to live and you will find thirty years for his future.” On motion for rehearing in the trial court it developed without controversy that the jury in their deliberations, after answering all questions favorably to appellee’s recovery, found that appellee’s earning capacity had been diminished $50 per month, or $600 a year for the remainder of his life, and that the question then arose in the jury room as to how long appellee would live, and it was argued in the jury room that since the Bible stated that a man’s life was three score years and ten, they could have no better evidence and they accepted said statement of the Bible, and based thereon they awarded appellee $600 a year for thirty years, a total of $18,000. Appellant’s contention is that the verdict of the jury was based on testimony not properly before it and that the verdict is excessive, and that the above-quoted argument of counsel was highly prejudicial. We sustain these contentions. The $18,000 allowed ap-pellee by the jury was the full amount they found his earning capacity had been diminished for the entire thirty years and appellant by the judgment was required to pay said amount in cash. While attorneys in their argument to the jury have a right to draw on their imagination and engage in oratorical flights, it is not proper for them to give testimony. Neither is it proper for the jury to consider the argument of counsel as testimony and base their verdict upon the-testimony given by an attorney in his oratorical flights.

Appellant contends tliat the trial court erred in refusing to give its peremptory instruction and that this court should reverse the judgment of the trial court and render judgment in its favor. Its theory is that the work appellee was doing for appellant at the time of the alleged injury was in connection with its interstate business and that the claw bar was a simple tool and that ap-pellee could have by a mere casual inspection seen that same was worn and broken, and that under the undisputed facts appellant would not be liable to appellee by reason of his being injured while using such simple tool to pull a spike; and it contends that the slippery creosoted cross-ties were open and obvious to appellee, and that he had assisted in putting same on said track and had all the information and knowledge relative thereto that appellant or any of its agents, servants, or other employees had. Appellant further contends that since the jury found that it could have by a reasonable inspection discovered the defects in the claw bar and that appellee by a reasonable inspection could not have discovered same, said findings are in conflict and irreconcilable and show that the jury’s answers were the result of prejudice or some other undue influence. There was no direct testimony offered as to how or when the claw bar in question was placed in the yards by appellant for use by its workmen, nor as to its condition at the time same was so placed, nor as to whether same had or had not been inspected by appellant before it had been placed in the yards for use, or as to whether' it had been used at any time since being placed in the yard. Since the cause must be reversed for other reasons, and since the testimony may be more fully developed on another trial, we do not deem it necessary to and we do not pass upon these questions.

Appellant complains at the action of. the trial court in permitting appellee, while his witness Dr. Kee was testifying, to exhibit his arm to the jury and in permitting Dr. Kee to examine same in the presence of the jury and testify relative thereto; appellant’s contention being that since appellee had previously exhibited his arm to the jury, the further exhibition thereof was a repetition of the same testimony and was calculated to and did highly prejudice the jury against appellant. Since this cause is to be reversed on other grounds, it is not necessary for us to determine whether the action of the trial court in overruling said objection constitutes reversible error. In view of another trial, we think appellee had the right, if he desired, to exhibit his- injured arm to the jury, and after he had once so exhibited same, the trial court should not again permit him to exhibit his injured arm unless it was necessary in order for the doctor to testify intelligently relative thereto. This is a matter primarily lodged in the sound discretion of the trial court, subject to a review by the appellate court.

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


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    RAYMER v. HOUGHTON.
    No. 8617.
    Court of Civil Appeals of Texas. San Antonio.
    May 15, 1931.
    Rehearing Denied June 24, 1931.

      I. M. Singer and Felix A. Raymer, both of Corpus Christi, for appellant.
    Sidney P. Chandler, of Corpus Christi, for appellee.
   SMITH, J.

- Appellant purchased an automobile from the R. A. Houghton Motor Company, a corporation, which took his promissory notes in part payment and his chattel mortgage upon the car as security. R. A. Houghton after-wards took over the assets of the corporation, which he in fact owned, and which was thereupon dissolved. Appellant defaulted in the payment of a balance of approximately $400 due on the notes, whereupon Houghton took possession of the car in accordance with the provisions of the mortgage. Appellant then brought this suit to recover possession or the value of the car, and sequestrated it. Ap-pellee then replevied the car, and within a short time sold it for a sum approximating the balance appellant owed upon it, which appellant concedes was the then market value of the car. Appellant did not tender payment of his obligation; on the other hand, he refused to pay the obligation and prayed for its cancellation. Judgment was rendered that he recover nothing, and he has appealed.

It is contended by appellant that there was no evidence authorizing the trial court’s finding that appellee was the owner of the notes and mortgage at the time he exercised the privilege of the mortgagee, and also erred in permitting appellee to testify that he was such owner. There is no merit in these contentions. Appellant himself, in his pleadings, verified by his affidavit, affirmatively alleged that appellee owned the notes and mortgage at said time, and appellee likewise alleged such facts to be true. These allegations and admissions in the pleadings of both parties had the effect of conclusively establishing the fact, and the admission of ap-pellee’s testimony to the same effect, even if error, was immaterial and harmless. Appellant’s first and second propositions are accordingly overruled.

It was provided in said mortgage that, upon appellant’s default in the payment of said notes, appellee was fully authorized to seize the car and without notice sell it at either public or private sale, apply the proceeds of the sale to the settlement of the balance due on the notes, including, interest and attorney’s fees, and the costs of seizure and sale, and of necessary repairs, and pay over the balance, if any, to appellant upon his demand therefor. The court found that appellee seized and sold the car at its then market value, and applied the proceeds as provided in the mortgage, it having been sold for approximately the amount of the balance appellant then owed on the purchase-money notes. Appellant at no time demanded an' accounting from appellee, nor did he at any time, either before or after suit, tender all or any part of the balance owing by him upon his obligation, but, on the other hand, refused to pay same; he simply, before instituting suit, demanded the return pf the car to him, and then instituted suit for its possession, or, in the alternative, for its market value, and the cancellation of his notes. 1-Ie did not seek to recover damages on account of any alleged wrongful seizure. The trial court held that under these facts appellant was entitled to recover neither the possession nor the value of the property. We conclude that the court did not err in so holding.

The trial judge filed his written findings of fact. Being dissatisfied with those findings, appellant requested the court to find certain other specific facts, but the judge refused the request, giving his reasons therefor in annexed qualifications, in which he stated that, if he' had passed upon appellant’s request upon its merits, he would have found th,e facts so requested. Appellant excepted to the court’s refusal to approve the additional requested findings, and assigned error thereon, but has not followed up his contention by propositions in his brief. The matter is therefore not presented for decision by this court. The findings filed by the court, and not the qualifications appended to. rejected findings, must control the facts upon which the appeal is to be determined.

Appellant contends that appellee obtained and retained possession of the car under the guise of the rightful owner thereof, rather than as mortgagee, and appropriated it to his own uses, and that such possession was therefore unauthorized and wrongful, and amounted to a conversion. The fact remains, however, that, under the terms of the mortgage, appellee was given the power to seize and sell the car in satisfaction of appellant’s debt; that he did take such possession, and did sell the car at a price conceded by appellant to represent the amount of its then market value, and the undisputed evidence shows this amount to be no more, if not less, than the amount of appellant’s obligation. Appellant did not seek an accounting from ap-pellee, but sought only to recover possession of the car, or its full value in lieu of possession, and made no offer to pay all or any part of his obligation thereon; on the other hand, he prayed that one of his notes, on which he had paid nothing, be canceled. Under his pleadings and the court’s findings, he was not entitled to this remedy. He did not allege or seek to recover damages for wrongful seizure and possession, which would have been his remedy for the wrongs complained of in his brief.

Appellant’s recovery was dependent upon his right to possession of the automobile, and, having failed to establish such right, he could not recover either possession of the automobile or its value.

The judgment is affirmed.


author: PELPHREY, C. J.

text:
    JAY v. ROBISON et ux.
    No. 2546.
    Court of Civil Appeals of Texas. El Paso.
    May 28, 1931.
    Rehearing Denied June 25, 1931.
    Templeton & Templeton, of Port Worth, for appellant.
    Hiner & Pannill and E. B. Hendricks, all of Port Worth, for appellees.
   PELPHREY, C. J.

On May 16, 1929, appellees conveyed to appellant a five-acre tract in Tarrant county, Tex., and appellant conveyed to appellees an 80-acre tract in Somervell county, Texas. Appellees’ property was valued at $2,500, while that of appellant was valued at $5,000, and appellees executed nine vendor’s lien notes in favor of appellant on the Somervell county property amounting to $2,500. Appel-lees moved on the Somervell county land and resided there until September 4, 1929, when they'deeded it back to appellant in consideration of $10 and the cancellation of the nine notes.

Contemporaneously the parties executed the following agreement:

“Whereas heretofore on the 14th day of May, 1929, said X. X. Jay and wife conveyed to Joe E. Robison and wife, Edith Robison, Eighty (80) acres of land in Somervell County, Texas, by warranty deed of said date for and in consideration of $5,000.00 of which amount the sum of $2,500.00 was evidenced by nine (9) certain vendor’s lien notes of the said Joe E. Robison and wife, Edith Robison, fully described in said deed, all payable to X. X. Jay, and,
“Whereas the said Joe E. Robison and wife Edith Robison have this day reeonveycd said land to the said X. X. Jay in consideration of the cancellation of said nine (9) notes by said X. X. Jay, the said X. X. Jay has this day purchased from said Joe E. Robison and wife, Edith Robison, all chickens, turkeys and hogs of the said Robisons and now located on said farm:
“It is therefore agreed between the said X. X. Jay and the said Joe E. Robison and wife Edith Robison, that the said X. X. Jay shall at once take charge of said farm and all said property so purchased by him from said Rob-ison and wife, and will at once begin to make diligent efforts to sell said farm or to trade the same for other property, Fort Worth residence property being preferred, and it is further agreed between the parties hereto that ,said X. X. Jay will pay to said Joe B. Robi-son and wife Edith Robison all money or property he shall receive for said SO acres of land above referred to, above the amount of said $2500.00 evidenced by the notes which were by said X. X. Jay cancelled and released; and interest thereon from May 16, 1929, at 8% per annum, and all expenses of making such sale, including advertising, abstracts, etc., that is to say, the said X. X. Jay agrees to.as soon as practical to again sell said farm for as much as possible, not to sacrifice the same unreasonably, and after paying himself the amount of the said $2500.00 plus accrued interest from May 16, 1929, also all necessary and proper expenses of making the sale to remit to said Joe E. Robison and wife Edith Robison the balance, either in money or property as the ease may be. .
“It is further understood and agreed that the said X. X. Jay shall be the sole judge of the value of any property so accepted by him in exchange for said land, and that in conveying and making sale of sa-id property he shall not in any manner be interfered with by either the said Joe E. Robison or wife, Edith Robison. And it is further understood and agreed that this agreement shall not in any manner place or fix a lien on said farm or in any manner encumber the same, but the said X. X. Jay shall be absolutely free to act as he shall think best in making said sale.”

Appellant then took possession of the Soup-ervell county land, and according to his testimony, made some improvements thereon and then traded it for some business property on Hemphill street in Fort Worth.

Some weeks after appellant received the deed to the five-acre tract he borrowed $1,500 and gave a deed of trust on that tract as security.

This suit was instituted by appellees to recover from appellant the five-acre tract and $1,500 to cover the lien which appellant had placed thereon.

They alleged as a basis for recovery that the five-acre tract was the separate property of Edith Robison; that she was coerced by ■her husband to sign the deed; that the notary who took her acknowledgment to the deed, while his certificate was in regular form, examined her in the presence of both her husband and appellant; that she did not sign the deed willingly; that the execution of the deed was induced by certain fraudulent representations made to them by appellant; and that appellant soon after receiving the deed for said property fraudulently negotiated the $1,500 loan on the property.

They prayed for a cancellation of the deed executed by them to appellant, for $1,500, with interest, and $50 per month rental on the property during the time the property had been withheld from them by appellant.

Appellant answered by a general demurrer,’ a general denial, denied specially all tbe charges of fraud and misrepresentation, and further pleaded that appellees had inspected and fully informed themselves as to the Som-ervell county land before the trade was consummated, and that, after living on the property for several months, they entered into the above-quoted agreement, and that by these facts they were estopped to claim a right to cancellation. Appellees by supplemental petition admitted the execution of the subsequent agreement but alleged that they were induced by fraud to execute it.

In response to special issue the jury found that appellant represented to appellees as a matter of fact that the Somervell county property was worth $5,000; that it was worth only $1,600; that appellees relied upon such representation; that they would not have executed the deed b.ut for such representation; that the 5 acres in Tarrant county was the separate property of Mrs. Robison; that appellant was present when Mrs. Robison’s acknowledgment was taken to the deed for such property and knew that she was not examined privily and apart from her husband; that appellant represented to appellees that the Somervell county land had two wells on it producing an abundant supply of water and that they never went dry; that such representation was untrue; that appellees would not have executed the deed to the five acres but for such representation; that the reasonable rental value of the 5 acres was $25 per month; and that appellant did not enter into the subsequent agreement in good faith with the expectation of perf orming it.

Judgment was rendered that appellees recover title and possession of the 5-aere tract; that title thereto be vested in Edith Robison as her separate property; that the deed from appellees to appellant conveying said tract be cancelled; that appellees recover the $1,500, the amount of the note given on said property by appellant and interest, except the six months’ interest paid by appellant; and that appellees recover $248 as damages for the withholding of the property.,

.This appeal was then perfected from such judgment.

Opinion.

Appellant’s brief contains sixteen propositions, in substance, as follows: (1) That the subsequent action and conduct of appellees in handling and disposing of the Somervell county property was such as to estop them from now claiming a rescission of the original trade and that the new agreement constituting a settlement of the differences between the parties, a recovery, if any, must be based on the new agreement; (2) that appellees having been afforded an opportunity to examine and inspect the Somervell county land before the trade was consummated, they were not misled by any representations made by appellant, and that if misled thereby, they, after learning of the misrepresentations, elected to waive such fraud and misrepresentations by voluntarily entering into the subsequent agreement; (3) that the subsequent conduct of appellees in the handling and disposition of ,the Somervell county property, together with their subsequent recognition of the transfer of their homestead, constituted affirmative fraud on their part by which they are estopped; (4) that the judgment is erroneous because it affirmatively appears that the parties cannot be placed in status quo; (5) that the court erred in submitting the issue as to whether the 5-acre tract was the separate property of Mrs. Robison; (6) that by moving away from the 5-acre tract and occupying the Somervell county tract as a homestead, the deed to the five-acre tract became effective regardless of any defect in the acknowledgment of Mrs. Robison; (7) that the evidence was wholly insufficient to warrant the submission of issues 1, 2, 3, and 4; (8) that the rule of caveat emptor applies to the sale of the Somervell county land and the misrepresentations did not amount to actionable fraud; and (9) that the judgment for the item of $1,500 and interest, and the provisions in the judgment for the collection and disbursement of the proceeds thereof, is erroneous, oppressive, and unconscionable.

Appellees, on the other hand, present ten independent propositions besides ten counter propositions. In their independent propositions they assert that the 5-acre tract being the separate property of Mrs. Robison, her deed not acknowledged as required by law was void; that appellant, having procured the deed to himself by false representations, and with knowledge that it was not properly acknowledged, was not an innocent purchaser thereof and therefore was not entitled to claim the property to he community property.

Appellees’ contention being that the verdict of the jury properly interpreted could result in no other judgment than the one rendered, that the testimony shows that appellant had full notice that the property was Mrs. Robi-son’s separate property, that the jury found that her acknowledgment was not properly taken, that appellant was present and knew that fact, and that only innocent purchasers or creditors being allowed to claim that property which is actually separate property belongs to the community because appearing on the record in that name, cannot here be urged by appellant, whether he had notice of her separate interest or not, he having procured the deed by fraud and having been present and knowing that her privy acknowledgment was not taken.

With this contention we are in accord. The jury found, and in fact it is not disputed, that the 5-acre tract was the separate property of Mrs. Robison, and there was no issue requested or submitted as to any notice of that fact to appellant.

Mrs. Robison testified: “I got in touch with Mr. Jay when my husband saw' an ad in the paper and had me call up Mr. Jay. I called him up and talked to him over the phone about it. He told me he would come out and see my place. I told him where the place was located.”

Appellant himself testified: “Mrs. Robison called me up- three or four times — three times anyway, I know she called me that many times — about the property I had advertised in the paper. It isn’t true that she called only one time. * * * I think it was the next day she called me again and at that time she told me she had a nice little place out there and a new house and an orchard and vineyard, and she wanted to trade it for a larger place, * * * she gave me a description of where I could find her place, and I didn’t understand, but next time she told me I could find it from the grocery man. She said: ‘You come out to Fowler’s Grocery and he can tell you where I live.’ It is about a half mile of Dak Dawn. I did try to find her place the third or fourth time.”

This evidence would at least tend to show that appellant had full notice of Mrs. Robi-son’s separate interest, and if that be true, then appellant could not now contend otherwise.

Appellant contends that as between him and appellees the title to the property was vested in the community, and .cites us to a line of authorities holding that where the deed to the property is made to the community, as to innocent purchasers, for value and without notice, the legal presumption obtains that it belonged to the community.

We have no quarrel with the doctrine announced in the cases cited, but we fail to agree that the legal presumption will be indulged in favor of one whom the jury has found procured a deed to the property by means of false representations, for a wholly inadequate consideration, and who was present and knew that the wife’s acknowledgment had been taken in the presence of her husband.

We agree with appellees that under the facts and the verdict as returned, the judgment rendered was the only one which the court could properly have rendered.

Having reached this conclusion, we shall not attempt to discuss the various assignments presented by appellant further than to say that they are overruled.

The judgment of the trial court is accordingly affirmed.


author: CQBBS, J.

text:
    ASHBURN BROS. v. EDWARDS COUNTY.
    No. 8584.
    Court of Civil Appeals of Texas. San Antonio.
    April 22, 1931.
    Rehearing Denied June 24, 1931.

      ,T. R. Creighton, of Mineral Wells, and Mor-riss & Morriss, of San Antonio, for appellants.
    Stevenson, Baker & Knetsch, of Junction, and T. A. Williams, of Rock Springs, for ap-pellee.
   CQBBS, J.

Appellants, G. E. and L. M. Ashburn, sued appellee, Edwards county, for a balance claimed as owing on a road construction contract. The county answered by a plea termed a plea of res adjudicata and to the jurisdiction on the ground that the commissioners’ court had audited and settled the account adversely to appellants under article 2351, subd. 10, Revised Statutes, from which judgment of the court appellants did not appeal.

Appellants by sufficient verified supplemental pleading generally and specially denied that the matters and things in the alleged controversy were litigated or settled by the proceeding of the commissioners’ court. On hearing on the pleadings the trial court sustained the plea to the jurisdiction and dismissed the cause.

As we believe the bill of exceptions substantially contains all the material facts, we copy it here as follows:

“Be it remembered that on the trial of the above cause there having come on to be heard preliminary to the hearing on the merits the plea of the defendant, Edwards County to the jurisdiction of this Court, and the Court having taken up for consideration such Plea to the jurisdiction in advance of the hearing of the cause upon its merits, the plaintiffs thereupon objected to the consideration of said plea, denominated plea to the jurisdiction, in advance of the hearing on the merits, contending that said plea is not in fact a plea in abatement, but a plea in bar; whereas, this cause is on the jury docket and plaintiffs have regularly demanded a trial by a jury and paid the jury fee and the cause has been placed upon the jury.docket, and a jury is present and available and ready to hear said cause, and plaintiffs have heretofore, by a pleading duly filed herein, replied to said plea tq the jurisdiction by a first supplemental petition and a sworn plea; and plaintiffs there-, upon requested of the court that they be permitted to put on oral testimony of the plaintiffs, and tendered one of the plaintiffs, Geo. ' H. Ashburn, as a witness who would have testified in effect that neither of the plaintiffs were in fact before the Commissioners’ Court of Edwards County at the time of the entry of the order of date August 13, A. D. 1925, set out in defendant’s said plea to the jurisdiction, but that they were absent therefrom and were not represented thereat, and had filed no ' account and no claim before said Commissioners’ Court at said time, and did not know of the entry of said order of the Commissioners’ Court, nor that the same was to be entered at such time, and that in truth and in fact the several matters and items sued on herein by plaintiffs, had never been presented to the said Commissioners’ Court at that time, and were not presented to nor considered by the Court, at that time, but that said Order of the Commissioners’ Court was entered merely, on an estimate presented to said Court by W. E. Simpson, the County Engineer of Edwards County, in the employ of and representing Edwards County at said time; and the plaintiffs did not know of and had not seen said alleged estimate prior to, nor at the time of the entry of said order of August 13, 1925 ; but on the contrary were absent during all of said proceedings and not parties thereto, nor in any manner represented thereat, nor cognizant thereof; and that at the time they received and took and cashed and got the proceeds of the voucher of August 14, 1925, mentioned in said order, they received same from the Treasurer of Edwards County as and believing it to be a payment on account of a balance owing them under their contract in question, and without knowing or believing that it was intended to be or was, if it was so, a payment or pretended payment in full of the balance owing the plaintiffs; and after they had advised with and had the advice of counsel, to-wit: Honorable A. E. Aiken, an attorney of Rocksprings, Texas, that they might safely and legally accept such payment and such voucher as a payment on account of their contract, and not in final settlement; and that in truth and in fact such voucher does not state, and it does not appear therefrom that same is or was expected to be or tendered as a payment in full of the balance owing them on their contract, and that they received and cashed said voucher believing it to be only on account and not in final payment, nor or any impairment of their right to final and further payment as claimed by them for the claims herein sued on.
“But the Court being of the opinion that the Order of August 13, A. D. 1925, is conclusive against the plaintiffs, and that the evidence tendered is not admissible, rejected and excluded all such evidence and tender of evidence and tender of issue by the plaintiffs, and rendered judgment for the defendant on the said pleading of defendant as a matter of law, to which ruling the plaintiffs, Ashburn Brothers, then and there in open court excepted and now here tender this their Bill of Exceptions thereto, and ask that same be allowed and ordered filed as a part of the record herein, which is accordingly done.
“C. R. Sutton, Judge Presiding.”

The commissioners’ court, under said article, and none other, had the sole and only jurisdiction to pass upon a claim made by appellants growing out of the public road which was constructed.

The facts show that the commissioners’ court adjusted the claim and allowed appellants tlie sum of $15,047.74, and delivered its voucher to appellants therefor, in settlement of their claim growing out of the road contract, and charged appellants with $200, which was a counterclaim for the rental and use of certain machinery belonging to appel-lee. Appellants cashed the warrant for $15,-047.74. Neither of the appellants nor any agent for them was' before the court at the time and place when the judgment was entered. Of course, under the authorities relevant to the issues made and presented this is a collateral attack on the judgment. Subdivision 10 of article 2351 gives the commissioners’ court the sole and exclusive power to “audit and settle all accounts against the county and direct their payment.” That is to “audit and settle” such accounts without exception. As the exclusive power is given to .the commissioners’ court to “settle all accounts against the County,” the claimant must first seek that court.- \f the party is not satisfied with the judgment he has his remedy by appeal. This was not done here, and appellants have for the present, so far as this proceeding is affected or concerned, lost their remedy. This question is fully settled and disposed of in August A. Busch & Co. v. Caufield (Tex. Civ. App.) 135 S. W. 244; Edmonson v. Cumings (Tex. Civ. App.) 203 S. W. 428.

While the statute provides no method or practice concerning appeals, there is nothing difficult about it. Where a judgment is rendered against a party, whether he is present at the time or not, his remedy is by appeal to the district court for a trial de novo.

It is well settled that the judgment of the commissioners’ court upon any claim presented against the county, and acted upon by that court and disposed of by it, becomes the judgment of the court and must remain so until disposed of by the true court. That being so, the judgment is final and must stand, and is not subject to collateral attack.

The judgment of the trial court is affirmed.


author: HIGGINS, J.

text:
    LEE et al. v. JOHN E. QUARLES CO.
    No. 2543.
    Court of Civil Appeals of Texas. El Paso.
    May 21, 1931.
    Rehearing Denied June 11, 1931.
    W. J. Rutledge, of Dallas, for plaintiffs in error.
    Melvin E. Adler and Chas. Kassel, both of Port Worth, for defendant in error.
   HIGGINS, J.

On May 16, 1922, defendant in error filed this suit in the district court of Tarrant county against Bob Lee and Hub Lee, alleged to be residents of Dallas county, to recover the sum of $920.85, alleged to be due for certain building material furnished to Bob Lee and claimed to have been used in the repair and improvement of a tract of 123 acres of land in Dallas county owned by Hub Lee. It was alleged there was an agreement between the defendants under which Bob Lee should have an interest in the land, although the title to same remained in 1-Iub Lee, and that by reason of the matters set forth it had a ma-terialman’s lien under the Constitution and statutes of this state. Prayer was for judgment for the amount stated and establishment and foreclosure of lien.

The defendants in due form and at proper time filed pleas of privilege claiming the right to be sued in Dallas county. To these pleas of privilege no controverting affidavit was ever filed-.

On July 13, 1925, the cause wsjs dismissed for want of prosecution, the order reciting that the same had theretofore been set for trial and having been regularly reached and called and neither the plaintiffs nor defendants appeared. On March 1, 1926, the plaintiff filed a motion stating that the order of dismissal had been made by the court through clerical error and ashed that the same be reinstated. On March 15, 1926, the same being the third term of the court, after the order of dismissal had been entered, an order was entered reciting that the order of disrhissal had been entered through inadvertence and the cause reinstated. On June 12, 1929, an order was entered by the court as follows: “Now comes plaintiff, John E. Quarles Co., by its attorney, and the said Bob Lee and Hub Lee come not; and hereupon the said John E. Quarles Co. in open court suggests to the court and gives the court to understand and be informed that during pendency of this suit the said Bob Lee and Hub Lee have both died. It is therefore Ordered that writs of scire facias do issue to Louisa Lee, widow of Bob Lee; Bettie Lee, widow of Hub Lee; Emanual Blue, Yiola Blue; Luella Henderson and her husband, Walter Henderson, who is herein' joined pro forma — the said parties being the heirs of the said Bob Lee and Hub Lee, requiring them to appear and defend the said suit.”

In response to this order writs were issued against and served upon the parties mentioned in said order commanding them to appear and answer the original petition of the plaintiff filed against Bob Lee and Hub Lee. On January 4, 1930, a judgment by default was rendered against the said Louisa Lee, Bettie Lee, Emanuel Blue, Yiola Blue, and Luella Henderson, wife of Walter Henderson, heirs of Bob Lee and Hub Lee, establishing a lien against the land described in the plaintiff’s petition for the sum of $920.S5, with interest from August 13, 1920, at the rate of 6 per cent, per- annum, foreclosing said lien and ordering the land sold in satisfaction of said judgment.

Erom this judgment this writ of error is prosecuted by the heirs named.

The judgment of dismissal entered in the present case was a judgment which finally disposed of the litigation then pending so far as this suit was concerned, and after the adjournment of the.term at which the dismissal was rendered, the court was without jurisdiction to reinstate the cause upon a mere motion, but could only do so by direct action to set the same aside. Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100.

The defendants in the present case had the right to rely upon the finality of the judgment entered by the court on July 13, 1925, a.nd the mere motion to reinstate cannot be treated as a direct action to set said judgment of dismissal aside. This view calls for reversal and rendition of this case, and it will be so ordered.

If for any reason we err in this conclusion there are other errors which call for reversal. No controverting affidavit to the pleas of privilege having been filed by the plaintiff, the court was without jurisdiction to make any order except an order changing the venue to the district court of Dallas county, or of dismissal. The proper order was to change the venue, though it was not beyond the power of the court to order a dismissal for want of prosecution. Upon this view the judgment should be reversed and judgment here rendered transferring the venue to Dallas county.

Erom the statement made it will be noted the judgment in this casé has been rendered against the' plaintiffs in error without any pleading whatever to support it. The petition in the ease is against Bob Lee and Hub Lee. The court’s order of June 12, 1929, shows that the defendant in error appeared in open court and suggested the deaths of the original defendants, whereupon the court ordered writs of scire Lacias to issue against the plaintiffs in error, they being the heirs of the original defendants. We think this wholly insufficient to authorize the court to render judgment, against the plaintiffs in error.

Reversed, and judgment of dismissal here rendered.


author: PELPHREY, O. J.

text:
    LEIJA et al. v. CONCHA.
    No. 2547.
    Court of Civil Appeals of Texas. El Paso.
    May 28, 1931.

      Harrison, Scott & Rasberry, of El Paso, for appellants.
    Roy D. Jackson, of El Paso, for appellee.
   PELPHREY, O. J.

Tbe statement of tbe nature and result of tbe suit appearing in tbe brief of appellants being agreed to by appellee will be adopted by us:

■ “Appellee, Ramon Concba, a nepbew of tbe deceased, filed in regular form an application to probate tbe Last Will 'and Testament of Jesus E. Concba. Appellants, Raul Leija, Luis Leija, Moise Leija and Eva Leija, grandchildren of tbe deceased, tbe two last named being minors, who acted by and through their next friend, filed a contest of tbe application. On bearing in tbe County Court tbe will was admitted to probate. Contestants duly perfected an appeal to the District Court of El Paso County, Sixty-fifth Judicial District, filed amended pleadings, and demanded a jury.
“The grounds of tbe contest were that tbe will was a forgery and by alternative pleas that tbe deceased lacked testamentary capacity at tbe time of tbe execution of tbe will; that tbe execution was procured by undue influence and further that fraud, by making various untrue representations, was practiced upon tbe testatrix. Upon the verdict of the-jury to special issues, tbe court rendered a judgment admitting tbe will to probate. Contestants’ Motion for a new trial was overruled and they have perfected tbe appeal by filing tbe proper cost bond.”

Opinion.

Tbe points upon which tbe appeal is predicated are: (1) That tbe trial court abused bis discretion in overruling appellants’ motion for a continuance; (2) that tbe requested instruction ón tbe issue of undue influence should have been given; (3) that tbe instruction in connection with issue No. 1 was upon tbe weight of tbe evidence and improper; (4) that certain remarks made by counsel for appellee were improper and prejudicial; (5) that certain remarks made by tbe court to one of tbe appellants were prejudicial; (6) that tbe court erred in excluding certain letters and declarations; (7) that evidence that appellee bad received certain letters from testatrix should have been excluded; and (8) that a document in which tbe husband of testatrix had named appellee as alternate beneficiary was improperly admitted.

Article 2167, Revised Statutes, provides:

“No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.”

Rule 49 for the government of trials in the district court provides: “Absence of counsel will be of no good cause for continuance or postponement of the cause when called for trial, except to be allowed in tbe discretion of the court, upon cause shown or upon matters within the knowledge or information of the judge, to be stated on the record.”

Omitting tbe formal parts, the application filed by appellants, as shown by their bill of exceptions, reads:

“Raul Leija, Luis Leija, Moise Leija and Eva Leija, contestors in tbe above entitled cause made this their First Application for a continuance and say that they cannot safely go to trial because on October 22, 1930, W. W. Bridgers, who was tbe attorney employed by them and who represented them in tbe contest and Probate of the Will in tbe County Court of El Paso County, Texas, notified them that be bad withdrawn from the case and on tbe morning of October 23, 1930, tbe date this cause bad been regularly set for trial, they employed the firm of Harrison, Scott.& Rasberry, who represent them, and within thirty minutes after said attorneys agreed to accept employment it was necessary for them to be in court and select tbe jury, and as tbe court knows the contest and Probate of tbe Will is based, among other things, on tbe allegation that tbe testatrix was not of sound and disposing mind and memory and tbe execution of said will was procured by undue influence and at tbe time of employment said attorneys knew nothing of said case and have not had an opportunity to examine tbe numerous witnesses that would be called to testify on tbe trial thereof, and have not bad an opportunity to investigate and brief the questions of law involved, and that in a suit of this nature there will necessarily toe a number of witnesses who said attorneys should interview before tbe trial thereof, and that contestors have not bad a full opportunity to apprise said attorneys of tbe ground of their contest and comply with instructions issued by said attorneys in regard to procuring the names and addresses of all tbe witnesses; that attorneys for con-testors have been unable to see Vicente Alvarado and Aurelia Concba, witnesses in this case whom contestors state on information’ and' beliéf are familiar, with tbe facts and saw deceased just prior to her death and know her condition, and that although diligent efforts were' made contestors were unable to get in touch with them.
“Contestors further state that W. W. Brid-gers withdrew from this case because he recommended and urged contestors to accept one thousand dollars ($1,000.00) in- full settlement of their claim, and that contestors feel that such settlement was not a fair, equitable and just one and declined to follow the advice of their attorney, whereupon he announced that he would not represent them in the trial of the case in this court.
“The contestors further state that their attorneys will be in a position to try said cause at the next term of court, and that this continuance is not sought for delay only, but that justice may be done.”

None of the facts set forth were disputed; the trial court, however, filed the following qualification to the bill of exceptions: “This cause was regularly set for trial on the morning of October 23, 1980, which was Thursday. After the Motion for Continuance had been overruled, attorneys for contestants proceeded to select the jury, completing that duty about 10:30 A. M. on the* morning of October 23,1930. As soon as the jury had been selected, impaneled and sworn and the pleadings read to them, they were excused until nine o’clock on the morning of October 24th, 1930, and the attorneys for contestants were instructed that they might have the balance of that day in which to prepare thdir case for trial. Testimony was introduced throughout the day of October 24, 1930, and until' noon Saturday, October 25, at which time the jury was excused until nine o’clock Monday morning, on which date the case was completed.”

Most of thp reported cases dealing with the right of parties to a continuance are those where defendants had made the applications.

In most cases the granting or refusing of a motion for a continuance is a matter within the wide discretion of the trial court. The exercise of that discretion is, however, subject to review, 9 Tex. Jur. p. 757; Fidelity Oil Co. v. Swinney (Tex. Civ. App.) 254 S. W. 137; Lee v. Zundelowitz (Tex. Civ. App.) 242 S. W. 279; Gulf, C. & S. F. Railway Co. v. Rowland (Tex. Civ. App.) 35 S. W. 31.

In the case at bar it appears that the witnesses named in the application appeared and testified; therefore no harm could have resulted from the court’s action in so far as they were concerned.

It appears, however, that the- day before the case was set for trial the attorney who had represented the appellants in the • county court withdrew from the case; that the firm now representing them was employed only thirty minutes before the time for trial; that they, in ignorance of the issues and what evidence might be available, were forced to select a jury without any opportunity to prepare for trial.

The right to be represented by counsel is a valuable right, and, in order for counsel to properly represent a client, he must have an opportunity to familiarize himself with the facts and the law of the case.

It is also a matter of common knowledge, among the legal profession at least, that an attorney who is not acquainted with the identity of his witnesses and not aware of the facts to which they will testify cannot effectively represent his client in the selection of a jury. These facts being true, then appellants did not have that kind of representation in the trial of this case that the law contemplates all parties should have.

From the record it appears that the case was ably handled by the counsel, but there might have been an entirely different jury selected if counsel had been familiar with all of the facts of the ease.

We are convinced that the trial court was actuated by the highest motives in the action that he took, yet we feel that, under the peculiar circumstances, he abused his discretion in the matter, and that the judgment must be reversed and the cause remanded.

The other matters complained of will probably not arise on another trial, and therefore it will be .unnecessary to discuss them here.

Reversed and remanded.


text:
    ROBERT NICHOLSON SEED CO. et al. v. REESE.
    No. 1064.
    Court of Civil Appeals of Texas. Waco.
    June 4, 1931.

      Realce, Henry, Wozencraft & Frank, of Dallas, and Wear & Wear, of Hillsboro, for appellants.
    Frazier & Averitte, of Hillsboro, and Bryan & Maxwell, of Waco, for appellee.
   BARCUS, J.

This is an appeal from the action of the trial court in sustaining a general demurrer to appellants’ pleas of privilege and in dismissing same. Appellee filed the suit against Robert Nicholson Seed Company, a corporation, and Robert Nicholson, individually, and alleged that the principal office of the corporation was in Dallas county, and that - Nicholson lived in Dallas county." For cause of action he alleged in substance that he lived in Hill county and had established a business of improving and preparing and selling to the general public in Texas, Oklahoma, Arkansas, Louisiana, New Mexico, and practically all of the Southern States, a special seed corn known as “Reese Drouth Resister.” Ap-pellee alleged that appellants, for the purpose of destroying his business and the market for his corn and his good reputation, had willfully, maliciously, and fraudulently advertised in its catalogue a seed corn under the name of “Reece Drought Resistant,” and in said catalogue had stated in effect that said corn was the corn sold by appellee, and had disseminated said catalogue in Hill county as well as elsewhere, and had sold large quantities of said corn to parties who thought they were purchasing, and who intended to purchase, the corn of appellee. Appellee gave the names in his petition of several parties who had purchased corn from appellants in Hill county who, he alleged, thought they were and who intended to purchase appel-lee’s corn. Appellee alleged that, by reason of the acts of appellants, he had been damaged in the sum of .$20,000.

Each of the appellants filed a statutory plea of privilege. Appellee filed a general demurrer to the pleas of privilege, and also filed controverting affidavits. The trial court sustained the general demurrer of appellee to appellants’ pleas of privilege, and dismissed same without hearing any evidence in support thereof.

Appellee in his brief states that his position is that, “inasmuch as his petition alleges facts which, if true, would lay venue in Hill County, Texas, and further that appellants, (defendants below) in their pleas of privilege did not deny that such facts were true, that same were subject to a general demurrer seasonably presented.” We do not agree with appellee’s position.

Article 2007 of the Revised Statutes provides specifically for the essential allegations necessary to be embraced in a plea of privilege, and states emphatically that, when a statutory plea of privilege is filed, it shall be prima facie proof of the defendant’s right to a change" of venue, and further provides that, if the plaintiff desires to controvert the plea of privilege, he shall file a controverting affidavit under oath. It is unquestionably true that appellants’ pleas of privilege are in statutory form and contain all of the statutory requirements.

In Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896, 898, on certified questions, the Supreme Court stated: “To deprive a defendant of the right of trial in the county of his domicile, the case against him must be within an exception to article 1830 of the Revised Statutes. With the venue challenged, under proper plea, by one sued without his county, as shown by the plaintiff’s pleading, or by proof, the burden not only to allege, but to prove that the case is within one of the exceptions to the statute rests on the plaintiff.” This enunciation of the law has been followed many times since.

In World Co. v. Dow, 116 Tex. 146, 287 S. W. 241, 242, in answer to certified questions, many authorities were collated and discussed, and the court said: “The plaintiff in the trial court was seeking to deprive the defendant of the privilege of trial in the county of its domicile, by reason of an exception to article 1830 of the Revised Civil Statutes of 1911 (article 1995, R. C. S. 1925), and he had the burden o'f showing, by both allegation and proof, that his ease came within such exception. ⅜ * ⅜ The burden rested upon him to offer evidence to show the existence of such exception. In the absence of any such showing, the trial court was not justified in overruling the plea of privilege by virtue of the fact that the plaintiff’s ‘petition, on its face, showed that venue of suit was properly laid in Archer county,’ the allegations contained in his petition not being proof of the facts alleged. * ⅜ * ”

In Johnson v. Dallas Cooperage & Woodenware Co. (Tex. Com. App.) 34 S.W.(2d) 845, 847, in answering certified questions, the court stated: “The sworn plea of privilege in this case, according to the certificate, establishes prima facie that the original defendant * * * waá entitled to be sued by the plaintiff * * * in Webb county. * * » "When the provisions of article 200T have been complied with by a defendant, in the absence of a controverting affidavit, for which the article also provides, being filed by a plaintiff, it is the duty of the court to make the order transferring the suit to a court having jurisdiction of the subject-matter in the county where the defendant resides.”

Appellee cites some authorities which seem to hold that, where plaintiff’s petition shows that his 'cause of action is for the recovery of land situated within the county where the suit is filed, the petition shows, as a matter of law, the court in said county has jurisdiction, and that under such circumstances it is not necessary for the plaintiff to file a controverting affidavit to defendant’s statutory plea of privilege. Since the case at bar is not of that kind or character, it does not become necessary for us to, and we do not, determine the correctness’ of said holdings.

Under the facts as stated in appellee’s petition, his cause of action is for a tort or a trespass against appellants, who he alleged were residents of Dallas county. Appellants having filed a statutory plea of privilege as required by article 2007 of the Revised Statutes, it was incumbent upon appellee, in order to maintain the suit in Hill county, to file a controverting affidavit showing one or more exceptions to the general venue statute and offer sufficient proof thereon to establish a prima facie case. The trial court was in error in sustaining appellee’s general demurrer to appellants’ pleas of privilege and in dismissing said pleas of privilege.

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


author: GRAVES, J.

text:
    AMERICAN EMPLOYERS’ INS. CO. V. HUDDLESTON et ux.

    No. 9518.
    Court of Civil Appeals of Texas. Galveston.
    April 30, 1931.
    Rehearing Denied May 21, 1931.
    W. B. Handley and D. H. Hardy, both of Dallas, for appellant.
    Brantly Harris and John David Watkins, both of Galveston, for appellees.

      Writ of error granted. '

   GRAVES, J.

Appellees, the owners of the property, upon a jury’s verdict on special issues and the court’s additional authority, recovered a $10,-185 judgment against appellant as his bond-giving surety and J. W. Woodruff, the contractor, as for the breach of a builder’s contract by the latter for the erection of a residence for them on their land in the city of Galveston, $9,000 of the > award being for what the jury found was the difference in value of the work as done and what it would have been had it been constructed in full compliance with the contract, the remaining $1,185 for interest added by the eourt thereon at 6 per cent, per annum from the date of the architect’s final certificate to the date of the judgment.

The contractor did not appeal from this adverse determination, but the insurance company complains against it here through 310 assignments, 93 propositions, and 305 pages of briefs and arguments, all flanked by 909 legal-sized typewritten pages of record, inclusive of the statement of facts. In view of the emergency-act of the now-functioning Legislature proscribing such imposition on appellate tribunals by cutting the briefs, if written, to 15 pages, it is hoped this may prove to be a swan song of protest against it.

None of these contentions, we conclude, should be sustained; the two substantive ones of them, “(1) that the surety was released from all obligations under the surety-bond because the owners violated the terms of the building contract in the payment both of the full amount of the contract-price before full compliance, and of the semi-monthly or installment estimates during the progress of construction, (2)- that the defendant contractor, in law, under all the facts, completed the job as well as the contract in full, hence was discharged from all further liability,” rest in final analysis upon a misconstruction of the contract declared upon, as applied to the facts found on sufficient evidence to have attended it.

Indeed, neither of these elaborately and ably urged positions presented any defense, as we see it, to the cause of action that was in fact alleged and supported with sufficient proof by the appellees; what they sued and recovered for was damages — measured by the difference between the value of the work as actually done and what would have been its value if it had been done right — resulting to them from the use of such faulty workmanship and materials as necessitated the reconstruction of the building rather than its repair, none of which either appeared, or were or could have been discovered by the .exercise of reasonable diligence on the architect’s part, until after final payment of the contract price, under a building contract specifically making the contractor liable in such circumstances in these express provisions :

“Neither the final certificate nor payment nor any provision in the Contract Documents shall relieve the contractor of responsibility for faulty materials or workmanship, and, unless otherwise specified, he shall remedy any defects due thereto and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from the date of substantial completion; * ⅜ * no certificate issued, nor payment made to the contractor, nor partial or entire use or occupancy of the work by the owner, shall be an acceptance of any work or materials not in accordance with this contract. The making and acceptance of the final payment shall constitute a waiver of all claims by the owner, other than those arising from unsettled liens, from faulty work appearing after final payment, or from requirements of the specifications.”

So that, such being the reaches and result of the suit, and the contract itself thus expressly excepting faulty work or material out of the effect thereof, it seems idle for appellant to yet insist — there being no pretense of any fraud, misconduct, or bad faith on any one’s part concerning them — that the admittedly made ad interim payments by the owners of also provided-for semi-monthly “estimates by the architect” of 85 per cent, of the labor and material supposed by him to have then gone into the work, increased ultimately to 90 per cent, on his like estimate of a substantial completion of the entire job, should be given the legal effect, not only of nullify-ipg this explicitly stated and persisting responsibility notwithstanding of the contrae-, tor himself for such defects as were alleged neither to have appeared nor to have been known either by the architect or the owners until after final payment, but also of completely releasing it as his surety from seeing to it that he faithfully performed his undertaking in that respect. To merely state the position is to disclose that “it is not so nominated in the bond,” under such authorities as Brin v. McGregor (Tex. Civ. App.) 45 S. W. 923; Da Moth & Rose v. Hillsboro Ind. School Dist. (Tex. Civ. App.) 186 S. W. 437; Essex v. Murray, 29 Tex. Civ, App. 368, 68 S. W. 736; Kilgore v. North West Texas Baptist Society, 89 Tex. 465, 35 S. W. 145; McKenzie v. Barrett, 43 Tex. Civ. App. 451, 98 S. W. 229; Rotsky v. Kelsay Lbr. Co. (Tex. Com. App.) 228 S. W. 558; Texas Fidelity & Bonding Co. v. Rosenberg Ind. School Dist. (Tex. Civ. App.) 195 S. W. 298; Texas Fidelity & Bonding Co. v. Elliott (Tex. Civ. App.) 195 S. W. 301; Welsh v. Warren (Tex. Civ. App.) 159 S. W. 106; Williams v. Baldwin (Tex. Com. App.) 228 S. W. 554; Wright v. Maddox (Tex. Civ. App.) 286 S. W. 607.

The eases cited by appellant as involving such overpayments in violation of the contract as released' the surety plainly do not, we think, hold .differently upon the legal equivalent of the same situation as here appears ; in this instance, the contract, by necessary inference at least, makes the architect’s certificates during the progress of the work conclusive as to everything except faulty workmanship and materials appearing within one year from the date of substantial completion, and neither the cause of action as averred nor the recovery allowed thereon had to do with anything else, wherefore, if the necessary findings of fact had sufficient support, the controversy as affects substantive issues was ended.

When the evidence is looked to, there can be no deficiency on that feature either; while immaterial matters are included therein which we do not think affected the result one way or the other, the jury among other details found that there was neither full nor substantial compliance with the contract; that the defects could not have been remedied without impairing the structure as a whole, and without doing material damage to other parts of the building in tearing down and reconstructing; that the building was worth $11,000 as constructed, and would have been worth $20,000 on October 27, 1929, the date it was completed and final payment made, if it had been constructed according to the contract; that the architect did not verbally authorize any of the defective work to be done as it was, and that he could not have discovered the defects during the progress of the work by the exercise of ordinary care and reasonable diligence. t

Of these, the last stated is the only one attacked as being without sufficient support in the testimony, but, when the statement of facts is examined, we find it fully substantiated ; the main defects occurred in connection with the foundation footings, the stucco walls, the flashing, papering, and painting, which, being rapidly covered over at the time, were not apparent until cracks and leaks subsequently showed up, and the testimony further disclosed that not even the contractor himself, nor his subsidiaries under whom the work was carried out, knew of some of them for months afterwards.

Since, under the terms of the contract, the architect was in effect only made a supervising one rather than a building superintendent —for which latter the contractor himself was expressly required to provide and keep constantly on the job—the former was neither required to, nor did he, do more thán exercise a general supervision over the work by periodical visits; in this state of the proof, it was a legitimate inference that the architect could not have so discovered the defects while being put in.

The court did not exceed its authority in adding 6 per cent, per annum interest subsequent to that date on the $9,000 difference in value as of October.27, -1927, which the jury found was the appellees’ actual damage, exclusive of any interest, for the failure to construct the building according to contract, they having separately prayed for such damage and interest thereon; in the circumstances, the interest was properly allowed as a matter of law. Ewing v. Foley, Inc., 115 Tex. 222, 280 S. W. 499, 44 A. L. R. 627; Settegast v. Timmins (Tex. Civ. App.) 6 S.W. (2d) 425; Silberberg v. Pearson, 75 Tex. 287, 12 S. W. 850; Watkins v. Junker, 90 Tex. 584, 40 S. W. 11; Texarkana & F. S. Railway Co. v. Brinkman (Tex. Com. App.) 292 S. W. 860; Texas Mexican Railway Co. v. Canales (Tex. Civ. App.) 299 S. W. 668.

Neither has prejudicial error been made to appear as to any of the rulings complained of on procedural matters ; obviously, under the conclusions already stated, the general and special exceptions to the appellees’ trial pleadings, the motions for peremptory • instructions, and the several requests for the submission of special issues, were properly overruled, and the same thing may be said concerning t>he refusal of appellant’s application for a continuance; if for no other reason, that action was not an abuse of discretion, in view of the unexcepted to recitation of the bill of exceptions that appellant’s counsel in advance agreed in open court to try the case on November 12, 1929, over a month before it was in fact reached, and that the witness whose absence was complained of appeared at the trial and testified for appellant.

Further discussion as to details is deemed unnecessary, since these conclusions comprehend what are deemed to be all the material questions involved. Believing that, under the pleadings and evidence, the justice of the cause was reached below, the judgment will be affirmed.

Affirmed.


author: FLY, C. J.

text:
    ETTER et al. v. NATIONAL FRUIT FLAVOR CO. et al.
    No. 8599.
    Court of Civil Appeals of Texas. San Antonio.
    May 27, 1931.
    Rehearing Denied June 24, 1931.

      Thomson, Dilworth & Marshall, of San Antonio, for plaintiffs in error.
    Templeton, Brooks, Napier & Brown, Hertz-berg & Kercheville, and Marion R. McClana-han, all of San Antonio, for defendants in error.
   FLY, C. J.

The National Fruit Flavor Company instituted suit against plaintiffs in error to recover the sum of $1,929.25, evidenced by a judgment in favor of the National Fruit Flavor Company against Carbonated Beverage Company of San Antonio, which it was alleged was entirely owned by J. W. Etter, J. C. Capt, and Theo Wolf, the only incorporators. Chattanooga Bottle & Glass Manufacturing Company, Crown Cork & Seal Company, and Liquid Carbonic Corporation intervened in this suit and each recovered judgment against the plaintiffs in error.

The facts as found by the trial judge show that J. W. Etter and J. C. Capt bought the Nu Grape Bottling Company, a private corporation, and afterwards changed the name to Carbonated Beverage Company of San Antonio. At the time of said purchase the said purchasers assumed the rights and liabilities of the Nu Grape Bottling Company. There were three hundred shares in the original corporation paid up. The corporation has been insolvent since 1925. Etter and Capt never at any time loaned any money to the original corporation, or the successor to it, incorporated by them, although certain other corporations in which they owned stock did lend money to the said corporations. We copy and adopt the following findings of facts:

“Plaintiff and interveners recovered judgments against Carbonated Beverage Company of San Antonio, Inc., on the dates and in the amounts and in all things as alleged in their respective pleadings, and executions were issued thereon and returned by the sheriff ‘nulla bona.’
“Carbonated Beverage Company of San Antonio, Inc., at the date of filing plaintiff’s original petition herein and at all times thereafter to the present time has had no assets of any kind or character whatever, save and except the claim against defendants Etter and Capt for the unpaid stock held by them as under subscription.
“At the time defendants Etter and Capt transferred 100 shares of the capital stock of said corporation to said corporation in cancellation of indebtedness in the amount of Six Thousand ($6,000.00) Dollars due by them to said corporation, that said 100 shares of stock were totally unpaid, and that said corporation did not acquire said stock for the purpose of re-issue for cash or for a valuable consideration, and that at the time of said attempted transfer' of said 100 shares of stock to said corporation that it had no surplus funds and no undivided profits, and that at said time it was in an insolvent condition.
“Theo Wolf gave a note to said corporation in the amount of $10,000.00, payable only out of dividends on stock for which said note was given and he never made or obligated himself personally to make any payment thereon.
• “In July, 1927, the plaintiff and interveners discovered, in the exercise of reasonable diligence and for the first time, that the capital stock of said corporation was not fully paid, and plaintiff and interveners acted with due diligence in asserting their rights against the defendants herein.”

The first and third propositions assail the finding of the trial court that Etter and Capt assumed the rights and liabilities of the corporation. Etter swore that they bought all the rights and assumed the liabilities. The propositions are overruled. Etter said: “We bought the capital stock. * * * \ye took the whole thing, assets and liabilities.”

The fourth and fifth propositions are overruled. There is no value shown of the franchises of the two bottling corporations traded in for the shares of the corporation purchased by Etter and Capt. The value placed upon such franchises is chimerical and speculative, having no basis in real facts. The price of $100 fixed on the franchises by the trial judge is more, probably, than the evidence justified.

The theory advanced by plaintiffs in error as to loans made by them to their corporation are imaginative and unreal, and of too filmy and insubstantial character to meet with consideration and approbation. The sixth proposition is overruled.

There is no merit in the seventh and eighth propositions. They are not sustained by the evidence.

The ninth, tenth, eleventh, and twelfth propositions assail conclusions of law of the trial court which are of no great importance in the consideration of this appeal. If the facts sustain the judgment in this case, it would not matter how much the trial court may have erred in the reasons given by the trial judge for the judgment rendered by him. The propositions are overruled.

The thirteenth proposition is very long and involved and seeks to cover every matter connected with the case. It is too voluminous, intricate, and argumentative for consideration. The whole case is summed up, argued, and sought to be presented. It is too multifarious to be considered as a proposition of law.

The fourteenth and fifteenth propositions are not sustained by the facts and are overruled.

The sixteenth proposition does not merit serious consideration and is overruled. It cannot be seriously contended that plaintiffs in error, who owned the entire corporation, should be considered as creditors.

The judgment is affirmed.


text:
    AMERICAN INDEMNITY CO. v. G. A. STOWERS FURNITURE CO.
    No. 9529.
    Court of Civil Appeals of Texas. Galveston.
    April 16, 1931.
    Rehearing Denied May 21, 1931.
    King, Wood & Morrow, Pouts, Amerman, Patterson & Moore, and Joe Moore, all of Houston, for appellant.
    Fulbright, Orooker & Freeman, and Atkinson & Gaugler, all of Houston, for appellee.
   GRAVES, J.

This is the second appeal of this cause; the result in both appellate courts of the first one, in which the position of the parties as litigants was the reverse of that now appearing, being reported through this court’s opinion in 295 S. W. 257, and the Supreme Court’s in 15 S.W.(2d) 544, respectively.’ Thv. suit is between the same two private corporations on the same $5,000 policy of- automobile indemnity insurance as applied to the same transaction; that is, to the prior payment by the Stowers Company, the insured, of a judgment in excess of $14,000 Miss Mamie Bichon had obtained against it as the result of a collision with one of its autotrucks that the policy covered. The sole issue involved is whether or not the appellant indemnity company is liable to the appellee insured company for the claimed consequence of the former’s-alleged negligence in failing to make a $4,000 settlement of hpr cause of action Miss Bichon offered during the pendency of but before judgment in the suit thereon that so terminated.

This court on the former appeal construed the policy as importing no such legal liability, and limited the indemnity company’s obligation thereunder to a faithful defense of the Bichon suit. G. A. Stowers Furniture Co. v. American Indemnity Co., 295 S. W. 257, at page 261 (2). The Supreme Court, however, disapproved that, and remanded the cause, holding that, as a matter of law under the terms of the policy, the insurer should 'respond in such damages as proximately resulted, “if an ordinarily prudent person, in the exercise of ordinary care, as viewed from the standpoint of the assured, would have settled the case, and failed or refused to do so.” G. A. Stowers Furniture Co. v. American Indemnity Co. (Tex. Com. App.) 15 S.W.(2d) 544, 547.

On the trial from which the present appeal proceeds, the learned and experienced trial judge tracked that decision by submitting the fact inquiry therein pointed out to a jury, under the likewise presented definition of ordinary care, and, on the return of a finding upon sufficient evidence that such a person would have made the $4,000 settlement, en- ■ tered judgment against appellant in appellee’s favor for the full amount it had so finally paid Miss. Bichon.

We think that verdict finally settled this controversy, and that appellant’s present contentions (1) that appellee waived the right to recover for its negligent failure to make the settlement by thereafter accepting the benefits of its defense of the suit, (2) that the court should have defined ordinary care to mean in this instance “such care as a reasonable, prudent, and cautious attorney in this locality would have exercised in the circumstances,” cannot be sustained. Aside from the fact that the claim of waiver appears to have been adversely adjudicated in the former cause, the evidence this time wholly fails to support it, in that it conclusively appears, on the one hand, that, when appellant was negotiating concerning the settlement, it did not think appellee had any such right under the contract to waive, rather was then insisting otherwise, and, on the other, that appellee’s manager at that time told appellant’s attorney they were going to hold it responsible in event of more than a $5,000 verdict, and “ridiculed him for not' making a settlement.” Such a situation did not raise an issue of “an intentional relinquishment of a known right.” Missouri, K. & T. Ry. Co. v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745, 749, writ of error refused ; 40 Cyc. pages 261 and 269.

Obviously, too, the suggested definition of ordinary care would have been directly contrary to the quoted holding of ,the Supreme Court on the subject.

So that, the law of this case having been so clearly declared upon the former appeal and so conformably administered below in the present trial, an affirmance should follow. It will be so ordered.

Affirmed.


author: GALLAGHER, J.

text:
    McDANIEL v. McDANIEL.
    No. 934.
    Court of Civil Appeals of Texas. Waco.
    June 11, 1931.
    Rogers & Rogers, of Marlin, for appellant.
    L. W. Shepperd, of Groesbeek, for appellee.
   GALLAGHER, J.

This appeal is prosecuted by B. H. McDaniel from a judgment of the district court awarding his wife, Ada McDaniel, a divorce and the custody of certain minor children of the marriage, and directing him to pay her the sum of $50 per month for the support of said children pending further order of the court.

The parties hereto have filed in this court a joint motion asking the court to reverse the judgment appealed from and to dismiss the cause. They state in said motion that all the matters in controversy between them have been settled by mutual agreement, and that dissolution of the bonds of matrimony is not now desired.

An appellate court has authority, in order to facilitate a settlement reached by the parties in a cause pending on its docket, to enter an agreed judgment therein. Bering Mfg. Co. v. W. T. Carter & Bro. (Tex. Com. App.) 278 S. W. 182, 183; Southwestern Settlement & Development Co. v. Village Mills Co. (Tex. Com. App.) 265 S. W. 124, 125.

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


text:
    FIRST TEXAS PRUDENTIAL INS. CO. v. BALDIVIA et al.
    No. 8608.
    Court of Civil Appeals of Texas. San Antonio.
    April 29, 1931.
    Rehearing Granted and Judgment Reversed and Rendered May 27, 1931.

      Templeton, Brooks, Napier & Brown, of San Antonio, for appellant.
    E. B, Chambers and Bat Corrigan, both of San Antonio, for appellees.
   SMITH, J.

This suit was brought by Edwardo Baldi-via, the beneficiary, to recover the amount of an insurance policy issued by the First Texas Prudential Insurance Company upon the life of Rita S. Baldivia, now deceased.

In her application for insurance the assured represented that she was not pregnant. The trial court found that this representation was falsely made; that at the time she made it she was pregnant and had been so for at least one month; and that seven months later she gave birth to twins and died at the time of and because of this event. The court further found, in effect, that this representation made by the assured was material to the risk assumed by the assurer in issuing the policy. The court nevertheless rendered judgment in favor of the beneficiary for the amount of the policy upon the theory that the company had notice of the false representation but failed to cancel the policy within a reasonable time after acquiring such notice, as provided in article 50-14, R. S. 1925. This conclusion was based upon the finding of fact: “That the agent of the defendant company, who solicited the application for the policy and actually accepted such application of insurance from the assured, now deceased, also collected premiums on that policy from the 'assumed several times during each of the months of April, May, June and once in July (2nd day of July) of the year 1928. That during the term of pregnancy, the deceased, assured, Rita S. Baldivia, became big with child, and was big during the latter months of her life.”

Upon this finding the court concluded as a matter of law: “That the agent of the defendant company, in collecting premiums due under the policy of insurance sued upon, from the assured, Rita) S. Baldivia, should have observed the condition of pregnancy, and as such, is charged with notice of that condition existing at the time of the application for the issuance of the policy of insurance sued upon, which notice to the agent collecting the premiums is notice to the defendant company, prior to the death of the assured, and the company failing to give notice required by article 5014 of the Revised Statutes of 1925- of the cancellation of the policy and of its refusal to be bound thereby,, until August 20, 1928, had failed to give the notice required by that article of the statute of the State of Texas within a reasonable time after it was charged with notice of the falsity of the representations made by the assured in the application for the policy of insurance, failing to do which the defendant company cannot urge the defense of misrepresentation made in the application against the plaintiff’s claim under the policy.”

We are unable to approve this conclusion, or affirm the judgment based thereon. It is conceded that the representation that the assured was not pregnant at the time she made the application upon which the policy was issued to her, was false. Not only did the court find as a matter of fact that the representation was material to the risk assumed, but it was so as a matter of law. Supreme Lodge v. Payne, 101 Tex. 449, 108 S. W. 1160, 15 L. R. A. (N. S.) 1277.

This defense could be avoided by ap-pellee only by showing that appellant waived its right to assert it, and this appellee has not done. In the first place, she did not allege a waiver, which in itself would preclude recovery based thereon. In the second place, the facts found by the court as constituting waiver do not in our opinion support that conclusion. The bare fact that an insurance solicitor and collector had opportunities to observe the assured at intervals during the period of pregnancy, when he called upon her in the months of April, May, June, and July, 1928, to collect his premiums from her, was-not sufficient to put his principal upon notice that the assured was pregnant with child on December 12, 1927, the date of her application for insurance. This is so for reasons deemed too obvious to warrant their recital in this opinion.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Upon further consideration, on motion for rehearing, we conclude that the findings of the trial court, and of this court in the original opinion, require that the judgment be not only reversed, but that it be rendered in favor of appellant. The facts are undisputed, appear to have been fully developed, leaving no further fact to be ascertained in the case. In such case it becomes our duty under the statutes to here render the judgment which should have been rendered below. Article 1S56, R. S. 1925.

Appellant’s motion'for rehearing is granted. and it is ordered that the judgment of the trial court be reversed, and that judgment be here rendered that appellees take nothing by reason of their suit against appellant.


text:
    LONGHART SUPPLY CO. v. ZWEIFEL.
    No. 2542.
    Court of Civil Appeals of Texas. El Paso.
    May 14, 1931.
    Rehearing Denied June 11, 1931.
    P. W. Seward and Smith & Smith, all of Fort Worth, for appellant.
    Zweifel & Tuohy and Joe Ingraham, all of Fort Worth, for appellee.
   HIGGINS, J.

Appellant brought this suit against the ap-pellee to recover a balance of $1,126.46, due upon verified open-account for goods, wares, and merchandise sold and delivered to the defendant.

■ Appellee answered by general demurrer, general denial and special plea, setting up that on April 18, 1927, the estate of Hofmeier Healy Drilling Company, a partnership, was assigned to defendant in trust for the benefit of the creditors of said company, which assignment was made at the request and behest of said creditors; that the debt sued for was contracted by the trustee in his capacity as such, and the materials furnished by plaintiff were used by the trustees for the benefit of th.e trust estate, which was well known to plaintiff, its agents and representatives, and that the debt sued for is not the individual debt of the defendant, but the debt of Hof-meier Healy Drilling Company, a trust estate.

Upon trial without a jury, judgment was l’endered that the plaintiff take nothing.

Defendant in his testimony admitted there was no question as to the correctness of the item of $1,126.46, and same had not been paid. The only question at issue is whether or not the defendant is personally liable therefor.

The uncontroverted evidence shows the drilling company was hopelessly insolvent at the time the assignment was made. The creditors of the company, of which the plaintiff w.as one, requested defendant to accept the assignment of all of the assets of the company for the benefit of its creditors and complete the drilling of six wells for oil and gas which were then being drilled by the company in the hope that oil or gas in paying quantities would be found and the creditors thus be paid. Defendant accepted the assignment, completed the drilling of the wells, in connection with which it was necessary for him to purchase certain casing and materials, amounting to $8,288.60, which were purchased from the plaintiff and all of which were paid for with the exception of the item sued for.

A trustee in making contracts may expressly stipulate that the trust estate and not. he shall be liable thereon. In the absence of such an agreement he is personally liable upon the contract. 39 Cyc. 333; 25 R. O. L. p. 1316, § 175; 9 Fletcher, Cyc. “Corporations,” p. 10499, § 6095; Connally v. Lyons, 82 Tex. 664, 18 S. W. 799, 27 Am. St. Rep. 935; Webster & Sons v. Utopia Confectionery (Tex. Civ. App.) 254 S. W. 123; Bank of Washington v. Ry. Co. (Tex. Civ. App.) 293 S. W. 599; Taylor v. Davis, 110 U. S. 330, 4 S. Ct. 147, 28 L. Ed. 163. This principle is also applied against executors and administrators. 11 R. C. L. p. 167, § 177; .24 C. J. p. 739; McGloin’s Executors v. Vanderlip, 27 .Tex. 366; Andrus v. Pettus, 36 Tex. 108.

Tested by the rule stated, we doubt if the special answer states any defense. In any event, the evidence shows none. It is true the evidence shows the plaintiff was one of the creditors of Hofmeier Healy Drilling Company and one of the beneficiaries of the trust; that it was one of the creditors which requested defendant to carry on the drilling operations. The defendant testified it was not his understanding that plaintiff was to collect the item of $1,126.46 from him, but at the same time he admitted “there was no word mentioned of it.” Nowhere in his testimony does he undertake to say there was any agreement, express or implied, between himself and the plaintiff, relieving him of personal liability for the item in controversy, nor is any such inference deducible from the testimony.

We therefore sustain the appellant’s contention that in the state of the evidence the judgment in defendant’s favor is erroneous. Upon this conclusion it becomes unnecessary to consider those assignments complaining of the admission of certain testimony of the defendant which was objected to upon the ground that there was no pleading to authorize its admission. The question should not arise upon retrial.

We will not reverse and here render judgment in favor of the plaintiff, for the record discloses that, when the case was called for .trial, the court refused the defendant leave to file an amended answer and struck from the record such amended answer which the defendant had actually filed, while the court had under advisement the matter of permitting such filing. Under such circumstances it is within our discretion to reverse and remand the cause for retrial and full development of the facts rather than to here render.

Reversed and remanded.


text:
    UNIVERSAL LIFE & ACCIDENT INS. CO. v. WHITE et al.
    No. 8621.
    Court of Civil Appeals of Texas. San Antonio.
    May 20, 1931.
    Cause Dismissed by Agreed Motion June 24, 1931.
    L. M. Patterson, of San Antonio, for appellant.
    Oliver W. Johnson, of San Antonio, for ap-pellees.
   SMITH, J.

This action was brought against appellant by appellee to recover the amount of an insurance policy issued upon the life of Jonnie D. Brooks in favor of appellee as beneficiary. The suit was contested by appellant upon the ground that insured was not in “sound health” at the time the policy was delivered to him, and that it was expressly provided in the policy that it should not take effect in such contingency.

The jury found in response to the sole issue submitted to it that the insured was in fact in sound health at the date of the delivery of the policy, and .from an appropriate judgment rendered thereon the insurance company has appealed.

There is no statement of facts in the case or findings of fact by the trial judge. So far as the record shows to the contrary, neither the insurance policy sued on nor the provision thereof relied upon by appellant as a defense was put in evidence.

The trial court submitted only the one issue, as to the sound health of the insured, to the jury, together with a definition of the term “sound health” as used in the special issue. Appellant objects to the sufficiency of said charge, as being not sufficiently full, and as omitting certain elements, as well as to the definition of certain other phrases used in the definition given. Appellant requested no special charges so amplifying the court’s definition or presenting the additional definitions desired by appellant.

In the absence of a statement of facts and of any evidence that the policy contained the defensive provision set up by appellant, this court is unable to determine the merits of appellant’s contentions. The charges given by the court may have been sufficient under the state of the evidence, which, so far as the record shows to the contrary, may have been such as require the rendition of judgment in favor of appellee, without regard to the charges given or withheld, and without regard to whether appellant or appellee opened and closed the argument to the jury.

The state of the record is such that this court cannot say that appellant was prejudiced by the manner of submitting the case to the jury, or that the court erred in any particular.

The judgment is affirmed.