author: FLY, C. J.

text:
    CITY OF SAN ANTONIO et al. v. PAUL ANDERSON CO. et al.
    No. 8735.
    Court of Civil Appeals of Texas. San Antonio.
    July 18, 1931.
    Rehearing Denied July 23, 1931.

      T. D. Cobbs, Jr., C. K. .Quin, and W. C. Davis, all of San Antonio, for appellants.
    Win. A.'Wade, of Dallas, and Marshall O. Bell and Hicks, Dickson, Bobbitt & Lange, all of San Antonio, for appellees.
   FLY, C. J.

This is an appeal from an interlocutory order renderéd by a district judge restraining ,the appellants, consisting of the city of San Antonio and certain of its officers, from the collection of five cents on the $100 ad valorem, or from borrowing the sum that might arise from such collection.

In 1929 an ordinance was passed by the city government authorizing the levy and collection of a tax which is commonly known as the advertising tax, and the ordinance was again passed on the 29th day of June, 1931, authorizing the levy and collection of the five-cent tax, which was enjoined. The decree declared all ordinances bearing on advertising taxes null and void, and restrained appellants from collecting any taxes thereunder and from borrowing any sum to be used for advertising purposes.

The bill is quite voluminous, the gist of it being that the advertising ordinances are void and illegal, contravening provisions óf the Constitution of the United States, especially the Fourteenth Amendment, the Constitution of Texas, the laws thereunder, and the charter of the city.

Wide powers are granted to cities by the constitutional amendment known as the “Home Rule Amendment” (Const, art. 11, § 5), and by the statutes enacted thereunder. It authorizes cities to assess, levy, and collect such taxes as may be authorized by law or by their charters. It is- the contention that neither the Constitution, laws, or charter empower cities to levy taxes to be used for advertising purposes. It is provided in Article 1176, that the enumeration of powers made therein “shall never be construed to preclude, by implication or otherwise, any such city from exercising the powers incident. to the enjoyment of local self-government, provided that such powers shall not be inhibited by the State Constitution.” There,is no positive inhibition against the ordinances of which complaint is made. It is reiterated in article 1175, subdivision 7, Revised Statutes, that cities may “provide for the levying of any general or special ad valorem tax for any purpose not inconsistent with the Constitution of this State.”

Under the Constitution and laws, art ordinance was passed providing that “for the welfare and for the good of the trade and commerce of the City of San Antonio, to advertise the advantages, and to finance such advertisement, there is hereby created an advertising fund.” The Constitution provides that “such cities may levy, assess and collect such taxes” as may be authorized by law or by their charter. Section 100 of the charter authorizes the passage of ordinances necessary “for the order and good government of the City or for the trade, commerce and health thereof, etc.” Section 108 of the charter provides that the commission shall have power to provide special funds for special purposes. We think the Constitution and laws of Texas do not inhibit the taxation assailed, and under the provisions of the charter, we think that sufficient authority is given for a levy and collection of the advertising tax.

It is clear that the taxation is for a public and not a private purpose. If trade and commerce are increased by advertising every oiie would, to some extent, receive benefits from it.

If the tax is levied and collected for a public purpose, the question of its benefits to the public is a political rather than a legal one, and to be determined by the electorate of the city and not by a court. It was argued that appellants alleged that the, purpose of the advertising was to induce immigration to San Antonio, which is violative of the provision ofl the Constitution which prohibits appropriation of money by the state, to promote immigration to the state, but if we apply that provision to the city, still other > purposes which are not prohibited are set out in the charter and ordinances, which, would be sufficient to render the tax valid and binding.

The authorities from .other .states ,are; governed by their peculiar laws and need not be considered in construing our Constitution and laws.

The near approach of .the time of recess for the summer will prevent a long opinion in this case.

The judgment is reversed, the injunction set aside and the cause dismissed.

COBBS and SMITH, JJ., concur in the foregoing conclusions and decision.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    ELLET et al. v. McCORD et al.
    No. 7550.
    Court of Civil Appeals of Texas. Austin.
    June 10, 1931.
    Motion for Rehearing Overruled July 1, 1931.
    Dibrell & Starnes, of Coleman, for appellant.
    Chas. J. Schuck, of Wheeling, W. Va., and Critz & Woodward, of Coleman, for appel-lees Mary Medley MeCully, Agillia M. Fran-zell, Charles P. Yan.Cleve, and Mary Van Cleve.
    W. Marcus Weatherred, of .Coleman, for appellee J. P. McCord.
   BLAIR, J.

Appellee J. P. McCord, executor of the will and estate of Mrs. Martha Tyler Overall, deceased, ffled this suit against all persons interested in the will or estate of said decedent to construe her holographic will and her holographic codicil thereto, which read, omitting unnecessary portions, as follows:

“I, Martha Tyler Overall, of said Coleman County, State of Texas, mindful of the certainty of death, and desirous of settling my worldly affairs, and making proper disposition of my property and realizing my stewardship to God, hare disposed of my property the best of my ability, in the fear of God. to
“If any one whose name appears in this will, is disposed to find fault, with what 1 have done with my own, they shall be cut off, from having any part in this will. I do, here now, and by these presents make and declare this my last will and testament, revoking all. others made by me.
“First: I desire and direct that all my just debts be first paid, out of my personal property and estate;
“Second: I will and direct that the sum of Two Thousand Dollars ($2,000.00) shall be set apart and turned over to the ‘Woman’s Missionary Society of the M. E. Church, South, Coleman, Texas/ * * *
“Third: I bequeath, will and direct that the sum of Fifteen Thousand Dollars ($15,-000.00) of lawful money be set apart and turned over to my niece, Mary Medley MeCully, of Britton, Oklahoma, and in ease she dies before I do, then it shall go to her chil-. dren. I also bequeath to her all m-y household goods, furniture, clothing, silver ware and pictures of every character then on hand.. And if she so desires, she may have use of my dwelling house, free of rent, for one year or whatever time required for her to dispose of same, above furniture, etc.
“Fourth: I bequeath, will and direct that the sum of Five Thousand Dollars ($5,000.00) of lawful money to be set apart and turned over to Ezra Overall, a nephew of my deceased husband B. H. Overall, and in case he should die before I do, then that amount shall go to his children. I will state that for twenty-five years I have given him six hundred dollars, each year, beside other amounts, making in all about fifteen thousand dollars to the present date. .
“Fifth: I bequeath, will and direct that the sum of Five Thousand Dollars be paid to my sister, Mrs. Mary A. Overall of Kansas City, Missouri. If she should die before I do, I desire that amount to remain a part of the estate.
“Sixth: I bequeath, will and direct that the following sums of money, attached to the different names of parties, who are nephews, .nieces and relatives of my deceased husband R. H. Overall, to be turned over to them; namely: * * * (Here follow fifteen specific money bequests, aggregating $170,000.00, the fourth of which, for $1,500.00, is to Frank E. Williams, Denver, Colorado.)
“Seventh: I bequeath, will and direct, that the following sums of money attached to the different names of parties, who are my own nephews and nieces, be paid them, namely: * ⅜ ⅜ (Here follow twenty-two specific money bequests, aggregating $123,500.00).
“Eighth: I further bequeath, will and direct that the sum of Twenty-five Thousand ($25,000.00) Dollars be paid to Mr. J. T. Blair, in appreciation of his faithful service, and respectful friendship these many years.
“Ninth; I further bequeath, will and direct that Twelve Thousand ($12,000.00) Dollars shall be turned over to the Trustees and stewards of the M. E. Church South, of Coleman, Texas, to be held in trust for the Church, the interest of same, to be used, for the benefit of the Church, in helping to pay the minister and in other collections, and in keeping up the church property.
“Tenth: I further bequeath, will and direct that Fifteen Thousand ($15,000.00) Dollars, shall be turned over to the ‘Woman’s Missionary Council’ of the M. E. Church, South, and the interest of same be used annually to continue a Missionary in the foreign field, which I have supported since 1911, which place is now being filled by Miss Lydia Ferguson, of Texas, in Rio de Janero, Brazil.
“Eleventh: I further bequeath, will and direct that the following sums of money attached to the names of Miss Sue Robbins, San Angelo, Texas, '$1,000.00 Miss Nannie L. Jenkins, Coleman, Texas, $1,000.00 be paid to them in recognition of their loving friendship and kind attention.
“Twelfth: I also bequeath, will and direct that the sum of money attached to his name be paid to Mr. J. P. McCord, $5,000.00 in re-memberance of his past services and his friendly accommodations.
“Thirteenth: I further bequeath, will and direct that the following sums of money attached to the following institutions of the M. E. Church, South, be paid to them: namely
Southern Methodist University, Dallas. Texas,. $10,000.00
Southern University, Georgetown, Tex. 10,000.
Central College, Fayette, Missouri, . 10,000.
Texas Woman’s College, Ft. Worth, Tex. 5,000.
Methodist Orphans Home, Waco, Texas. 5,000.
Virginia K. Johnson, Rescue Home. Dallas, Texas. 5,000.
“Fourteenth: I further bequeath, will and direct that the sum of One Hundred Thousand Dollars be turned over to a ‘Board of Trastees,’ elected or appointed by the ‘Quarterly Conference’ of the M. E. Church, South, of Coleman, Texas. This Board shall consist of one man and one woman from the M. E. Church South, one man and one woman from the Presbyterian Church, one man or woman from the Baptist Church, one man or woman from the First Christian Church, and one man or woman from the Episcopal Church, making in all seven members. To this board shall be added the Mayor of Coleman and the Judge of Coleman County. This Board of Trustees shall hold in trust the above sums of money, (less whatever may have been paid on lot and building) for the purpose of building and maintaining and equipping a Hospital in Coleman, Texas. Not over half of -the above sum shall be expended in grounds and building, and the balance to be reserved as an endowment fund to assist in the expenses of tunning the Hospital. I desire there to be two watds for charity patients. This gift is intended for the town and county of Coleman, Texas, from ‘R. H. Overall and wife’ where we have made our home, since 187(1, and where our bodies will lie, until the resurrection day. I will add to the above, that should any of these five church organizations •cease, to exist the other churches remaining, shall have charge of the' bequest. That no delay may occur in- carrying out this bequest, I desire that my Government and Federal Land Bank bonds shall be used as far as they will go.
“Fifteenth: If any money shall remain after the foregoing bequests have been filled, I desire that two thousand dollars shall go to the town. of Coleman, to be placed in the hands of a ‘Board of Trustees’ to start an endowment fund, for the Cemetery at Coleman, Texas. If still any money remains, it shall bo equally divided between Mrs. Lucy R. Van .Cleve, Mrs. Agilla M. Franzell, and Mrs. Mary M. McCully, children of my sister, Mrs. Maria L. Miller, who cared for me when four years old, at my mother’s death.
’■ “Sixteenth: I name, nominate and appoint ,T. P. McCord of Coleman County, Texas, my executor.
“Martha Tyler Overall.
“Codicil.
.. “Referring to clause ‘Fourteen’ in this will bequeathing one hundred thousand dollars for the building, furniture, equipping and endowing a hospital in Coleman, Coleman County, Texas, will state that this bequest has already been carried out, the hospital completed and turned over to the ‘Board of Trustees’
“In the 4th division under Clause 6th of this will a bequest of fifteen hundred dollars C$1,000.00) is. left to Frank E. Williams, Denver, Colorado, son of Hattie O. AViliiams (deceased). Since writing of this will, Frank E. Williams ,o£ Denver, Colorado, has died leaving no children and I desire that, the amount of $1,500.00 devised to him shall remain- a part of the estate.
“Mrs. Martha Tyler Overall.
“April 11th, 1924.”

The will and codicil were duly admitted to probate. J. P. McCord was appointed and qualified as executor. The money bequests aggregated $436,000, of which $100,000, the bequest to the Coleman Hospital, and the $1,-500 'bequest to Frank E. Williams were eliminated by the codicil. All other money bequests were paid except the $2,000 provided in clause 15 as a cemetery endowment fund. The trial - court ordered the executor to pay this amount as directed. At the time testatrix executed the will, she had $4,083.97 in cash, bonds and securities valued at $70,000⅜ and cattle valued at $35,000, and her real estate was of a value more than sufficient to pay all pecuniary bequests. At the time she executed the codicil, she had disposed of her bonds and securities to build and equip the Coleman Hospital, and she had on hand $3,-734.61 in cash and cattle valued at $25,000 and the same real estate which she owned on the date she executed the will. At the time of her death, testatrix had $2,500 in cash, cattle valued at $40,000, and the same real estate which she owned at the time she executed both the will and the codicil, and which exceeded in value all pecuniary bequests. The executor sold under order of the probate court sufficient real estate to pay the money bequests directed in the will, except the $2,000 cemetery endowment.

We sustain the trial court’s construction of the will as showing that testatrix intended to dispose of her entire estate and to blend both her personal and real property in what she termed her “estate” or “money” and to charge such estate with the payment of all pecuniary bequests. In the preamble clauses of the will,.she used the term “property,” expressing the desire to dispose of “my property,” in the effort to settle her “worldly affairs.” “Property” ordinarily includes all that one owns of exchangeable value. 6 Words and Phrases, First Series, page 5346; In re Tiburcio Parrott (C. C.) 1 F. 481, 506; Butchers’ Benev. Ass’n v. Crescent City Live Stock Landing, etc., Co., 83 U. S. (16 Wall.) 36, 21 L. Ed. 394; 3 Words and Phrases, First Series, page 2484.

In the second clause of the will testatrix directed that her debts “be first paid out of , my personal property and estate.” The word “estate” means property, and “property” means estate, and, unless otherwise limited, the use of these words in a will ordinarily embraces and comprehends property of every description. 3 Words and Phrases, First Series, page 2479; Deering v. Tucker, 55 Me. 284, 287; Laing v. Barbour, 119 Mass. 523; 3 Words and Phrases, First Series, page 2484; Johnson v. Johnson, 32 Minn. 513, 515, 21 N. W. 725; Fosdick v. Town of Hempstead, 55 Hun, 611, 8 N. Y. S. 772; Price v. Price, 52 N. J. Eq. (7 Dick) 326, 329, 29 A. 679; Rue v. Connell et al., 148 N. C. 30-2, 62 S. E. 306, 308.

Manifestly testatrix intended to use the word “estate” in its broadest sense throughout her will. In the first clause she directed that both personal property and estate be used to pay her debts, thus showing that she had knowledge of the distinction between personal property and real property, and that she intended to dispose of the entire estate, both real and personal, if necessary to pay her debts. In both the fifth clause of the will and the last paragraph of the codicil testatrix directed tliat, if tlie specific legacies mentioned should lapse because legatees predeceased her, then such legacies should “remain a part of the estate.” This clearly showed that testatrix used the word “estate” so as to comprehend and embrace her entire property.

It is true that testatrix did not describe her property in the will, nor did she make any bequests of specific property, except her household goods and clothing. But the fact that she did not describe her property in the will is no evidence that she did not intend to dispose of it all by the will, and the natural and logical inference to be drawn from the fact that testatrix directed the payment of her debts out of her “personal property and estate,” that she directed that lapsed legacies should remain a part of her “estate” to be distributed under the residuary clause, that she made large bequests to friends, relatives, and institutions, coupled with the preamble clauses of the will to the effect that, in view of the certainty of death she was desirous of settling her worldly affairs by making proper disposition of her property, is that she meant to dispose of her entire estate, both real and personal, blending the estate in “money” for the purpose of carrying out the provisions of the will. Tiiis construction of the will is aided by the legal presumption that testatrix did not intend to die intestate as to, any of her property, and that, where residue is given by a will, every presumption is against an intended intestacy. Grant v. Stephens (Tex. Civ. App.) 200 S. W. 893; Verhalen v. Klein (Tex. Civ. App.) 268 S. W. 975; Vol. 28, Third Decennial Digest (Wills) pages 393, 440, Heller v. Heller, 114 Tex. 401, 269 S. W. 771; Bruce v. Bruce, 90 N. J. Eq. 753, 107 A. 434.

But appellants contend that, since testatrix did not describe her property, and since in making the pecuniary bequests she used the words “lawful money,” “sums of money,” and “dollars,” she intended to charge only her personal estate or money with the bequests, and to leave her real estate undisposed of by the will. Manifestly this construction would violate the rule of presumption against intestacy, and a more reasonable construction of the whole will is that testatrix intended to dispose of her “property” and to blend her personal and real property in what she termed her “estate” or “money.” It was not necessary for testatrix to describe her property in the will, since she made no bequests of specific property. Nor was it necessary for her to authorize the executor to. sell the real estate, because she contemplated that he would do so in order to pay the pecuniary or “money” bequests, and in order that the residuary estate might be paid in “money” in keeping with testatrix’ express intention to dispose of her “property” and to settle her “worldly affairs.” This construction of the will comports with the manifest object and intention of testatrix as determined from consideration of the subject-matter and the circumstances attending its execution, which is a cardinal rule in the construction of a will. Or, as said by this court in the case of Briant v. McGown, 15 S.W.(2d) 1110, 1112 (writ refused): “In the construction of such instruments, the courts are permitted to place themselves as nearly as possible in the position of the testator, and view the subject-matter and surrounding circumstances in the same light as he viewed them, and from such viewpoint to give to the language employed that construction which most nearly comports with the manifest object or intention of the testator.” In view of this rule and the language used in testatrix’ will and the large “money” bequests, amounting in the aggregate to $436,000, when she had but a comparatively small sum of money or cash at the time she executed both the will and codicil, it is manifest that she intended to charge her whole estate with the payment of her pecuniary bequests. To sustain appellants’ contention would be to have testatrix die intestate as to the greater portion of her estate, and to give the words “lawful money,” “sums of money,” and “dollars” their technical or literal meaning of money or cash, would result in testatrix doing a useless thing in making the bequests, knowing she did not have the actual “money” or cash with which to pay them, or would at least result in testatrix giving very small inconsequential benefits and value under the guise of making large and substantial bequests to her relatives, friends, and institutions. It will not be presumed that testatrix in making specific money bequests intended to do a useless thing, or that the objects of her bounty should receive only a small portion of their bequests, when in fact testatrix had- property more than sufficient to pay all her bequests both at the time she executed the will and the codicil.

It is a settled rule of construction that extrinsic facts as to the subject-matter and circumstances attending the execution of a will may be shown in aid of its interpretation, especially where its language is reasonably susceptible of two constructions. Briant v. McGown, supra; In re Herborn, 189 App. Div. 319, 178 N. Y. S. 582; Vol. 28, Third Decennial Digest (Wills) page 758, Ely v. Megie, 219 N. Y. 112, 113 N. E. 800; In re Lummis, 101 Misc. Rep. 258, 116 N. Y. S. 936. Appellants contend for a construction of testatrix’ will different from that given it by the court and appellees in the particular above discussed; and the court did not err In admitting extrinsic evidence as to the kind and character of property testatrix owned when she made her will and the codicil thereto. It has been held in other jurisdictions that, where legacies exceed the value of personal property, they are chargeable against testator’s real property not specifically devised, under the rule that he intended to dispose of his entire estate. Ely v. Megie, 219 N. Y. 112, 113 N. E. 800. It has also been held that the amount of personal property on hand at the time of the execution of a will is a dominating factor as to whether legacies are chargeable on realty. In re Lummis, 101 Misc. Rep. 258, 166 N. Y. S. 936; In re Rhodes’ Estate, 109 Misc. Rep. 406, 178 N. Y. S. 782; Vol. 28, Third Decennial Digest (Wills) page 759, In re Strolberg’s Estate, 106 Neb. 173, 183 N. W. 97, 26 A. L. R. 643, where it is held as follows: “Evidence of the testator’s financial condition and habits of investment is admissible to show that he did not at the time he made the will have, or contemplate having when the will should become operative, sufficient personal property to discharge the legacies, and that, therefore, it was not his intention that his personal estate alone should be responsible for their payment.”

Prom the evidence that testatrix never kept any considerable money on hand, but kept her principal estate invested in realty, and at no time had sufficient personal estate to discharge the legacies provided in her will, and since she did not specifically devise her realty, we think she intended that her pecuniary legacies should be chargeable on her realty. In the case of McGoldrick v. Bodkin, 140 App. Div. 196, 125 N. Y. S. 101, 102, the rule applicable here is stated, as follows: “It is to be presumed that a will was drawn honestly and in good faith, and that when testator provided a legacy he intended that it should be paid; such presumption not being absolute, but coming into play only when the circumstances surrounding the making of the will give fair cause for its rise. * * * Hence the courts have always considered as of almost controlling importance on the question of the testator’s intent the fact whether or not when he made his will his personal estate was sufficient to pay in full or in part the legacies therein expressed; for, as was frequently argued, if, when he made the will and specified the legacies, he knew that he had not sufficient personal property to pay them, he should be deemed to have intendedrto subject his residuary real estate to the burden of, payment, or otherwise he must be deemed to have made his will a mere trick upon the legatees.” Verhalen v. Klein (Tex. Civ. App.) 268 S. W. 975; Philleo v. Holliday, 24 Tex. 38; Hunt v. White, 24 Tex. 643; Darragh v. Barmore (Tex. Com. App.) 242 S. W. 714; White v. White (Tex. Civ. App.) 257 S. W. 939.

In the fifth clause of her will testatrix bequeathed $5,000 to her sister, Mrs. Mary A. Overall, but provided that, “if she should die before I do, I desire that amount to remain a part of the estate.” Mrs. Overall predeceased testatrix, and this lapsed legacy fell into the residue of the estate under the specific direction of testatrix. Also in clause sixth testatrix bequeathed $4,000 to Daniel G. Overall and $1,500 to Edwin O. Carter; and in clause seventh she bequeathed $1,000 to Mrs. Mary Robinson and her two daughters. Daniel G. Overall, Edwin O. Carter, and Mrs. Mary Robinson predeceased testatrix, and, although testatrix did not specifically direct that .these lapsed legacies should fall into the residue of her estate, they did so under the settled tale that lapsed legacies fall into the residue of the estate where testatrix intended to dispose of her entire estate. Bittner v. Bittner (Tex. Civ. App.) 27 S.W.(2d) 852, and cases there cited. We have held above that testatrix intended to dispose of her entire estate and to blend both personal and real property in what she termed “money” to be disposed of by paying all specific legacies and by paying out the residue in “money” to the residuary legatees entitled thereto. And this brings us to the question. as to who is entitled to the residuary estate of testatrix.

Testatrix provided in the residuary clause of her will that, “if any money still remains, it shall be equally divided between Mrs. Lucy R. Van Cleve, Mrs. Agillia M. Eranzell and Mrs. Mary M. MeCully, children of my sister, Mrs. Maria L. Miller, who pared for me when four years old, at my mother’s death.” Mrs. Van Cleve predeceased testatrix, leaving surviving her two children, appellees Charles P. Van Cleve and Mary Van Cleve. The trial court construed the residuary clause as showing that testatrix intended that the remaining money, if any, should go to the class composed of the children of her deceased sister as a class-bequest, and from this conclusion deduced that the two living residuary legatees were each entitled to one-third of the residue,'and that appellees Charles P. Van Cleve and Mary Van Cleve were jointly entitled to one-third of the residue as the children of the third residuary legatee, Mrs. Lucy R. Van Cleve, deceased. This construction of the residuary clause is clearly wrong in both particulars. The testatrix expressly provided that the residue of her estate, which she termed “money” in its most comprehensive sense, should be equally divided between her three nieces named. The number of residuary legatees was therefore definite and certain. The interest in the residuary estate bequeathed to each-of the three legatees was also definite and certain, and there were no words of sur-vivorship in the will in the event either named legatee should predecease testatrix. The case of Hagood v. Hagood (Tex. Civ. App.) 186 S. W. 220, 225 (writ of error refused), is directly in point on the issue here presented, and from which we quote as follows: “The contention is that we should construe the bequest of R. L. Hagood to his brothers J. O. Hagood and R. B. Hagood as a devise to a ‘class.’ The authorities are uniform to the effect that where a devise is made to two or more named persons, and one or more of such persons die before the testator, and there are no words of survivorship in the will, the property, which by the terms of the will goes to such deceased person or persons, lapses and becomes a part of the testator’s undevised estate and descends to his or her heirs, regardless of the terms of the will.”

We therefore reform the judgment of the trial court as regards the residuary estate so as to decree that to each Mrs. Franzell and Mrs. McCully shall go one-third of the residuary estate; the remaining one-third bequeathed 'to Mrs. Lucy R. Van Cleve lapsed because she predeceased testatrix, and that such one-third shall lapse and pass to the heirs at law of testatrix in the manner and in the proportions as follows, to wit: Mrs. Mary McCully, 120/2160; Mrs. Agilla Fran-zell, 120/2160; Charles P. Yan Cleve, 60/2160; Mary Van Cleve, 60/2160; Mrs. Mary Kemper, 180/2160; Victor B. Buck, 90/2160; Edward H. Buck, 90/2160; Mrs. Lucille Paulk, 180/2160; Charles Roberts Stewart, Mrs. Ruby Roberts Stewart, Guardian, 90/2160; John Roberts Stewart, Mrs. Ruby Roberts Stewart, Guardian,' 90/2160; Mrs. Mary Rockwell, 72/2160; James E. Robinson, 72/2160; Clarence McD. Robinson, 72/2160; Mrs. Hattie Leggett, 36/2160; Mrs. Ella Scaritt, 36/2160; William S. Gamble, 9/2160; Mrs. Cordelia Burton, 9/2160; J. Carr Gamble, 9/2160; E. Ross Gamble, 9/2160; Clark H. Gamble, 9/2160; Leonelle Gambell, 9/2160; Mrs. Dorcas Perry, 9/2160; Lynn H. Gamble, 9/2160; Samuel O. Barton, 24/2160; Kimber L. Barton, 24/2160; Hughes R. Barton, 24/2160; Mrs. Margaret R. Griffiths, 24/2160; Mrs. Hattie Lee Heddins, 24/2160; Mrs. Florence O. Ellet, 120/2160; Mrs. Fannie M. Overall, 120/2160; Mrs. Nora Lilly, 120/2160; Mrs. Lucy Treadway, 120/2160; Francis Virginia Robinson (Lucia C. Robinson, Guardian) 120/2160.

The above disposes of all questions presented, and the judgment of the trial court will be reformed and affirmed in accordance with this opinion.

Reformed and affirmed.


author: BUCK, J.

text:
    COWSAR v. RHODES.
    No. 12469.
    Court of Civil Appeals of Texas. Fort Worth.
    May 23, 1931.

      L. C. Counts, of Olney, for appellant.
    Nolan Queen, of Weatherford, for appel-lee.
   BUCK, J.

J. E. Rhodes, of Weatherford, Parker county, sued A. H. Cowsar, of Olney, Young county, and for cause of action plaintiff represented that he and defendant had entered into an agreement in writing by them subscribed; such an agreement being as follows:

“State of Texas, County of Parker.
“Know all men by these presents:
“Whereas, A. H. Cowsar, is the owner of certain property in Olney, Texas,' consisting of a lot and two (2) houses more fully described hereinafter; and
“Whereas, J. E. Rhodes, is the owner of forty (40) acres of land out of the J. S. Fox survey, of Parker County, Texas; and
“Whereas, it is the desire of both parties to make an exchange of said property on certain terms, covenants and conditions as more fully set out hereafter; and
“Now therefore know all men by these presents that we hereby agree and do hereby bind ourselves, executors and administrators as follows, to-wit:
“First.
“It is agreed by and between the parties hereto that the forty (40) acres of land owned by the said J. E. Rhodes is worth four thousand ($4,000) Dollars, against which there is a first vendor’s lien note in the principal sum of nine hundred ($900) dollars, which indebtedness the said A. H. Cowsar assumes; and
“Two.
“It is further agreed that value of lot No. 12 block No. 11, Olney Improvement Addition at Olney, Texas, is three thousand ($3,000) dollars, and is clear of encumbrance.
“Three.
“It is further agreed that the said J. E.' Rhodes is to pay the 1930 taxes on the Olney property and the said A. H. Cowsar is to pay the 1929 and 1930 taxes on the forty-(40) acres now o'wned by J. E. Rhodes.
“Four.
“The said J. E. Rhodes hereby binds himself to deliver a good and -merchantable abstract of title to the forty (40) acres of land herein conveyed out of the J. S. Fox survey, and being the same land more fully described in the deed from Y. W. Rowland and wife to J. E. Rhodes dated April 12, 1929, of record in Deed Records of Parker County, Texas, subject only to 1929 and 1930 taxes and subject to four (4) two hundred ($200.00) dollars notes, described in said deed and a balance of one hundred ($100.00) dollars still remaining on the 1929 two hundred ($200.00) dollar note.
“Five.
“The said A. H. Cowsar hereby agrees and binds himself to execute a good and sufficient warranty deed to lot No. 12, block No. 11, Olney Improvement Addition, showing a good and merchantable title in him, same being free of all liens and encumbrances, subject however to the purchaser assuming the 1930 taxes accruing on said property.
“Six.
“Each party hereto shall bring his abstract down to date immediately and shall deliver same to the other party who shall be allowed five (5) days from the receipt thereof for the examination and approval of said abstract. If there are any objections to said title by the attorney of said parties selection, the other party shall be allowed a reasonable time to perfect said objections, which shall be done at the expense of the party whose land is affected. Notices of any objections of said title shall be given immediately upon complete examination of said title.
“Seven.
“Each party hereto especially agrees and binds himself to take every step to expedite the conclusion of this deal each party agrees to execute a proper warranty deed to the property he conveys and on completion of the deal each party hereto shall be given immediate possession of the property conveyed to him.
“Eight.
“It is especially agreed and understood by both parties hereto that each party shall pay to O. A. Wood two and one-half (2½) per cent, commission on a valuation of four thousand ($4,000.00) dollars, and A. H. Cowsar on a valuation of. three thousand ($3,000.00) dollars.
“Nine.
“This contract shall be enforcible in Parker County, Texas, and any suit to enforce the same shall be brought in Parker County, Texas.
“Ten.
“Each party hereto unconditionally agrees ■and binds himself to convey the property which he now owns to the other party immediately on the approval of the title and if any objections are raised to his title he binds himself to correct his title at his own expense. If neither party is notified to any objections of the property he has conveyed after five days after examination of title, then said objections are waived.
“Eleven.
“It is especially agreed that if either party hereto fails or refuses in any way or 'manner to carry out or completely fulfill this contract he hereby agrees and binds himself to pay to the other party the, sum of seven hundred fifty dollars ($750.00) as 1¼-uidated damages for his failure or refusal to strictly comply with this contract.
“Twelve.
. “This contract is executed in duplicate, each is declared to be an original for all legal purposes the same as if original. A third copy is being kept by the party drawing up said contract.
“Thirteen.
“It is agreed and understood that the said J. E. Rhodes is trading for the Olney property sight unseen, but he understands that there are two houses on said lot, one being a five room new house and the other a three room house.
“Witness our hands at Weatherford, Texas, this the 14th day of February, A. D. 1930.
“A. H. Cowsar
“J. E. Rhodes.”

Plaintiff alleged that by the terms of said contract the defendant agreed to execute a good and sufficient warranty deed to the property in Olney owned by him, immediately upon examination of the abstract of title owned and furnished by plaintiff, and agreed to convey said property to plaintiff free of any liens and incumbrances; and plaintiff on his part agreed that he would at the time and place mentioned in said contract, on the execution and delivery of said conveyance to liim by defendant, deliver to defendant the warranty deed to the 40 acres of land described in said contract, subject to an indebtedness of approximately $1,000; that, by the terms of said contract, if either party thereto failed or refused in any manner to carry out and completely fulfill said contract, he agreed to pay to the other party $750 as liquidated damages for his failure or refusal to strictly comply with said contract.

Defendant filed a motion to quash the citation, first, because the said citation does not-state the nature of plaintiff’s demand; and, second, because- the purported original petition attached to said' citation lacks verity, in that it was not signed by any one. This motion was overruled by the trial court.

Defendant filed his original answer, consisting of a general demurrer, a plea to the jurisdiction of the court, a plea that the -property agreed to be conveyed by the defendant was the homestead of himself and his wife, and a general denial. The general demurrer and special exceptions were overruled by the court.

On the 21st day of May, 1930, the court entered judgment for plaintiff in the sum of $750, with interest at the rate of 8 per cent, per annum from February 17, 1930.

Defendant has appealed.

Opinion.

Under the first proposition, error is assigned to the action of the trial court in overruling defendant’s motion to quash the citation. The ground alleged for quashal is that the citation does not state the nature of plaintiff’s demand, and because the purported original petition attached to such citation lacks verity, in that it is not signed by any one.

In the first place, the motion to quash on the ground stated would only involve the question of cost up to that time, and defendant would be in court at the next term. In the second place, the statute, article 2022, Rev. Oiv. Statutes, as amended by the acts of the Legislature 1919, reads as follows: “Citations shall be directed to the sheriff or any constable of the county where the defendant is alleged to reside or be, and command him to summon the defendant to appear and answer the plaintiff’s petition at the next regular term of the court, stating the time and place of holding the same. It shall state the date of the filing of the petition, its file number and the names of all the parties and the nature of the plaintiff’s demand; but the nature óf plaintiff’s demand need not be stated in eases where by' law it is required to accompany a citation with a certified copy of plaintiff’s petition.”

While plaintiff’s petition accompanying the citation apparently is not signed by plaintiff’s attorney, the district clerk of Parker county certified that it is a true and correct copy of plaintiff’s original petition in cause No. 7621, styled J. E. Rhodes- v. A. H. Cowsar, as the same appears on file in the clerk’s office. We think this is sufficient verity to satisfy the requirements of the law.

The second proposition is that the trial court erred in failing to sustain defendant’s general demurrer to plaintiff’s original petition, because plaintiff, having pleaded the contract in hsec verba, is bound by the terms thereof, and such petition fails to affirmatively allege the performance of the terms and conditions of such contract to be performed by plaintiff, and plaintiff does not by said petition tender performance thereof and offer to do equity in the premises.

Plaintiff pleaded that he immediately prepared the abstract of his land showing good and merchantable title down to date in the plaintiff, and within two days from the execution of the contract tendered said abstract to the defendant for his examination and approval. We think this allegation is sufficient tender.

The third proposition is that the trial court should have sustained defendant’s special exceptions to plaintiff’s original petition, on the ground that the petition seeks equitable relief, and is insufficient in that it wholly fails to allege and show that plaintiff performed or tendered the performance of his said contract set forth in said petition, particularly in that the plaintiff failed to allege that he ever duly executed and tendered to the defendant any conveyance of the property he was to convey, and failed to allege that he made and delivered to the defendant any abstract of title, as he bound and obligated himself to do in his contract, and wholly failed to do or to offer to do equity.

In the first place, this was not a suit in equity, but a suit upon contract. As before stated, plaintiff alleged that he tendered the abstract of title to defendant, said abstract showing good and merchantable title to date in plaintiff, but that defendant has failed to deliver to plaintiff, or to plaintiff’s attorney, an abstract of title. We overrule this proposition.

The fourth proposition is directed to the admission in evidence of a copy of a telegram, dated February 7, 1930, addressed to O. A. Wood, and reading as follows:

“Trade off, wife will not sign deed to homestead.
“O. (A?) H. Cowsar.”

Defendant objected to said telegram in evidence, because inadmissible and incompetent as evidence against the defendant, because it was not addressed to the plaintiff, and “nothing shows that it was intended for the plaintiff, and the said O. A. Wood was not authorized by such telegram to show or deliver the same to plaintiff and said Wood not being a party to said suit but only an agent of defendant, and such telegram is too indefinite and uncertain in its terms to be of any probative value against defendant, and the same should have been excluded by the court.”

We do not think this telegram was inadmissible, inasmuch as it was sent to the agent of plaintiff below, and evidently was intended to be delivered by him to plaintiff to acquaint the plaintiff with the fact that defendant had failed or refused to carry out the contract. We overrule this proposition.

The fifth proposition alleges error of the trial court in rendering judgment for the plaintiff because such judgment is' not supported by the evidence and is contrary thereto. It is urged that plaintiff below admitted in his testimony that the day after the execution of the contract in question he verbally agreed with defendant that on the following Wednesday he would go to OIney, where the defendant lived, and deliver to defendant his abstracts of title, and in turn get the defendant’s abstracts of title, and defendant testified that he was ready, able, and willing at all times to accept the plaintiff’s title to the property in question if the plaintiff had delivered to him the abstracts of title and conveyance of the property described in the contract.

We have read the statement of facts and believe the testimony amply supports the judgment rendered.' In the face of the telegram sent by defendant to Woods, evidently for the purpose of having it delivered to plaintiff, we think the trial court was justified in not believing the statement of defendant that he was willing and ready to carry out the contract, and that his wife always signed deeds to their property, especially in view of the testimony of Silas Kemp, which plaintiff introduced with the agreed statement that it was true that he had had a conversation with the defendant following the trade in question, and that defendant had told him that he had made a bad deal and did not know “what to do about getting home.”

All assignments of error are overruled, and the judgment is affirmed.


author: LANE, J. GRAVES, X

text:
    UNITED STATES FIRE INS. CO. OF NEW YORK v. ST. LOUIS, B. & M. RY. CO.

    No. 9557.
    Court of Civil Appeals of Texas. Galveston.
    June 2, 1931.
    Rehearing Denied June 25, 1931.

      V. A. Collins, of Dallas, and S. H. German, and Baker, Botts, Andrews & Wharton, all of Houston, for appellant.
    Andrews, Streetman, Logue & Mobley and Robert H. Keiley, all of Houston, for appellee.

       Writ of error granted.

   LANE, J.

This suit was brought by the St. Louis, Brownsville & Mexico Railway Company, hereinafter called the railway company, against the United States Fire Insurance Company of New York, hereinafter called the insurance company, to recover the value of two certain lots of cotton, one of which is described as transit cotton, which was of the value of $29,996.84, and the other described as city cotton, which was of the value of $52,-779.21, both of which were destroyed by fire.

The suit was brought upon a fire insurance policy issued by the insurance company to the railway company, the parts of which pertinent to the issues in controversy are: That it is for the sum of $500,000, and is known as a blanket policy covering cotton which might be destroyed by fire for the loss of which the railway company would be legally liable.

By Section 1 it is provided that:

“1. This company agrees to indemnify the assured for payments on account of their legal liability as common carriers, warehousemen, bailees or forwarders, except as hereinafter provided, for loss or damage by fire to cotton in bales, linters, grabbots and/or loose cotton in sacks.”

The policy provides that it extends to and attaches to and covers the legal liability of the railway company at the Aransas Compress & Warehouse Company at Harlingen, Tex.; that the insurance company agrees to indemnify the railway company for payment on account of its legal liability for loss or damage by fire to cotton in bales, not in its possession as common carrier \ or warehouseman, while on the premises of Aransas Compress Company at Harlingen, Tex., and in or on streets, side tracks, sidewalks, cars, or platforms adjacent thereto. It further provides as follows:

“This Company agrees to indemnify the assured for payments on account of their legal liability as common carriers, warehousemen, bailees or forwarders, except as hereinafter provided, for loss or damage by fire to cotton in bales, linters, grabbots, and/or loose cotton in sacks.
“This insurance does not indemnify the assured on account of any loss or damage as follows:
“Cotton while in open or stock cars, at rest or in motion.”

That the insurance covers cotton and cotton linters while on tracks, and other facilities leased, used, or operated by the railway company.

It further provides:

“It is understood and agreed that in respect to cotton under bills of lading at compresses, this policy does not cover the assured’s liability for any cotton which is under the protection of any other policy of insurance, marine or fire (issued for the benefit of the assured), which would have applied if this policy had not been issued, and in the event of there being other insurance in force, it is understood that this policy shall not contribute therewith in the payment of any loss.” ,

Again: “Other insurance permitted without notice'until required.”.

Again: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.”

It is alleged and shown by the evidence that 241 bales of the burned cotton, known as “transit cotton,” were covered by through bills of lading, which had been shipped from points other than Harlingen, but which had been stopped at the compress platform in Har-lingen for unloading and compression. It is shown that 430 bales of the cotton, known as “city cotton,” burned while on the compress platform at Harlingen, for which the railway company had issued its bill of lading, but, while each bale thereof was tagged and individually and distinctly marked as it came into the compress, and a record of each was kept so that when a shipment was ordered by the owner the compress could assemble the cotton by the use of such record, such bales of cotton were intermingled with other bales of cotton on the compress platform. When it was shown to the railway company, by a receipt of the compress company, that the compress company held for an owner a certain described lot of cotton, and such receipt was delivered to the railway company, it would, upon request of the owner, issue its bill of lading for such cotton, though it had not been' assembled and formally marked for immediate shipment. It was alleged and shown that the “transit cotton” was in seven closed cars. Unloading slips were made out by the railway employees for sis of said cars, which described the cars, showed the number of the bills of lading, date, point of origin, destination, number of bales, etc.; that these unloading slips were delivered to the compress company so that the cotton might be unloaded and compressed while in transit; that said six ears were by the railway company set on the unloading track of the compress company, and at the usual place for unloading such cotton ; the railway company kept a man on the yards whose duty it was to break the seals on the cars at the time the compress company began to unload same, and who assisted in checking the cotton out of the cars. As to these six cars, the railway company had done everything it could do or was required to do in order to deliver the cars into the custody and possession of the compress company, and the employee whose duty it was to break the seals was on the yards ready to break the seals on these ears when requested by the compress company to do so. The seventh car was placed on the track, as were the other six, and for the same purpose, about one hour before the fire occurred, but no unloading slip had been made out for it.

The insurance company answered by general demurrer, special exceptions, general denial, and specially alleged that there was no legal liability upon the railway company to make payment for loss of the cotton, in that the policy sued on contains a provision to the effect that the policy did not cover the assured’s liability for any cotton under protection of any other policy of insurance issued for its benefit, and that as to the “transit cotton,” it was covered by a policy issued by.the Camden Company to the Aransas Compress Company for the benefit of the assured, and therefore such “transit cotton” was not under the protection of the policy sued on at the time it was burned, and that as to the “city cotton” Burned’ on the compress platform, it had not been delivered to and accepted by the assured for immediate shipment as a common carrier, notwithstanding a bill of lading had been issued therefor by the assured; that the bills of lading issued for the “city cotton” were issued in accordance with- rules and regulations of the Railroad Commission of Texas,' which provided that in such cases the shipper or compress company should assume the additional risk of insurance involved by such act; therefore, tiñere was no legal liability on the part of the assured, the railway company, to pay for “city cotton” burned on the compress platform.

The general demurrer and special exceptions of the insurance company were overruled by the court.

The case was tried by the court without a jury, and judgment was rendered for the railway company for $52,779.21 as the value of the “city cotton,” and for $29,996.84 as the value of the “transit cotton.” From such judgment, the insurance company has appealed.

Appellant’s first proposition relates to the “transit cotton” only. It is insisted thereby that the court erred, in rendering judgment for appellee for the value of such cotton, because the undisputed evidence shows that at the time it was burned it was under the protection of another policy of insurance issued to Aransas Compress Company, for the benefit and account of appellee, by the Camden Fire Insurance Company of New Jersey, it being expressly stipulated and agreed by the terms of the policy sued on that it did not cover ap-pellee’s liability for any cotton under the protection of any other policy of insurance issued for the benefit of appellee.

The majority of this court sustains the above contention of appellant. We have already stated the facts shown by the undisputed evidence, which we hold clearly show that at the time the “transit cotton” was burned appellee was in such .possession thereof as a common carrier as rendered it legally liable therefor.

The policy sued on by its provisions declares clearly and unambiguously that:

“It is understood and agreed that in respect to cotton under bills of lading at compresses, this policy does not cover the assured’s liability for any cotton which is under the protection of any other policy of insurance, marine or fire, (issued for the benefit of the assured), which would have applied if this policy had not been issued, and in the event of there being other insurance in force, it is understood that this policy shall not contribute therewith in the payment of any loss.!’

At the time this cotton was burned, there was in force and effect an insurance policy of the Camden Fire Insurance Company of Camden, N. J., issued to the Aransas Compress Company of Harlingen (by which was meant the Aransas Compress & Warehouse Company), for the benefit of appellee, which policy contained, among other things, the following provision:

“For account of the Assured Aransas Compress Company this company agrees to indemnify the hereinafter named Transportation Line or Lines for payments on account of legal liability as common carriers or ware-housemen for loss or damage by fire to cotton and/or cotton linters in bales under through hills of lading, originating at a place other than the compress of this assured and consigned to a destination beyond the compress of this Assured and stopped en route for the purpose of compression and re-shipment, only while in the custody of the assured and while contained in any of the buildings, sheds, platforms and/or yards on the hereinafter described premises of the assured, and in closed cars on side-tracks customarily used and available for loading and unloading at said compress.”

That the policy just referred to was intended to cover “transit cotton” is apparent} and that the cotton in question was transit cotton is admitted.

We think it was clearly intended by all parties to each of the policies of insurance that such policies should protect the railway company for all cotton covered by its through bills of lading while the cars into which it was loaded were stopped en route for compression, that is, taken from its trains and placed at the compress that they might be unloaded and the cotton compressed.

It is contended by appellee that the section of the policy sued on, which we have quoted, cannot be called to the aid of appellant, for the reason that the taking of other insurance on “transit cotton” covered by the policy sued on is in one of its provisions allowed in the following words: “Other insurance permitted without notice until required.”

We cannot agree to such contention, even if the section quoted by us stood alone. Such, however, is not a fact, as there is to be found in the policy the following provisions:

“This policy is made and accepted subject to the foregoing stipulations and conditions and to the following provisions and conditions printed on the back hereof.”

On the back of the policy is this provision:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.”

It is apparent that the section of the policy sued on, relied upon by appellee as allowing other insurance, is so vague and uncertain as to render its meaning difficult, if not entirely incomprehensible. Therefore, those sections of the policy quoted by us providing for a release of liability if other insurance covered the cotton insured should prevail.

Where, as in this case, there- are provisions in an instrument of writing which are in clear and decisive terms, they cannot be ignored or modified by another provision in the same instrument which is vague and uncertain in its terms. Such clearly expressed intention and terms will not yield to doubttul constructions in other parts of the instrument.

It is obvious from the policy as a whole that it was intended to prevent what is known as double insurance. The real purpose was not to permit but to prevent the coverage of the cotton by other or additional insurance.

For the reasons above expressed, so much of the judgment as awards to appellee $29,-996.84 for the loss of the “transit cotton” is reversed, and judgment as to that item is here rendered- for appellant.

We now return to a consideration of the issues relative to the “city cotton;”

By its second and third propositions, appellant insists that the court erred in overruling its demurrer and its special exception No. 1, addressed to so much of the plaintiff’s petition as relates to the “city cotton.”

We have carefully read and considered the plaintiff’s petition and also its trial amendment and, after having done so, we conclude that when the two are read together they are sufficient to present a cause of action and to fully advise the defendant of the nature of the same. We therefore overrule appellant’s complaint of the action of the court in overruling its demurrer and special exception.

By its fourth proposition, appellant insists that the court erred in admitting certain evidence.

There is nothing in the record before us to show that any exception was taken to the admission of the evidence, the admission of which is complained of in the proposition; therefore, the proposition cannot be considered.

By its fifth proposition, appellant contends that the court erred in rendering judgment for appellee, the railway company, for the value of the “city cotton,” as appellee, the plaintiff below, alleged that it was liable to the owner thereof for its loss on the ground that it had issued its bills of lading therefor at the time the cotton was burned and was therefore liable as a common carrier; that as a fact the cotton had not, at the time it was burned, been delivered to or received by ap-pellee as a common carrier for immediate shipment; that, though such bills of lading had been issued at the time the cotton was burned, there were still certain acts necessary to be done by the shipper or the compress company, as the owners’ agent, before complete control over the cotton could have passed to appellee railway company; that, such being the case, no legal liability rested upon appellee as a common carrier to pay for such cotton, and therefore the policy sued on did not cover such cotton.

We overrule appellant’s contention. The “city cotton” was cotton placed upon the compress platform by numerous owners. When this cotton was so placed upon the platform, it was weighed by the compress, and an individual ticket was issued to the owner by the compress for each bale, showing a number corresponding to the number of a tag placed on the bale, the name of the owner, the name of the ginner who ginned it, and the gin number. The compress made and kept a record of the tickets it issued, so that each bale could be identified; the tickets mentioned were receipts of the compress company and given to the individual owner, showing the receipt of his cotton by the compress company. If any owner of cotton holding such receipt desired to ship his cotton over the railway of appel-lee, he would return to the compress company the receipt or receipts issued by it for the cotton which he desired to ship and furnish the compress company with a list of the bales of such cotton; upon the return of such receipts, the compress company would issue to the owner, the proposed shipper, a clearance receipt; upon delivery of such clearance receipt, which showed that the compress company held for the shipper certain described bales of cotton, by the shipper to the railway company, such company would, as it did in this case, issue to the shipper its bills of lading covering such bales; the “city cotton” involved in the present suit was at the time it was burned owned by one Sam Botts, who had purchased the same from various owners holding receipts of the compress company, which receipts were delivered to Botts, and which were by him delivered to the compress company in exchange for the clearance receipt above mentioned; after Botts got such clearance receipt, he delivered it to the ap-pellee railway company. He then made out the bills of lading, which were issued to him by the railway company.

W. M. Hundley, local freight agent for the railway company at Harlingen, testified that the railway company takes these compress clearance receipts with the understanding that the compress is to compress and deliver the cotton to the railway company. The effect of his testimony, as we understand it, is that after the clearance receipts are delivered to the railway company and the bills of lading are issued to the owner, the railway company no longer depends upon the shipper to do anything further before the cotton is shipped, and that it accepts the compress company as its agent to see that the cotton is properly prepared for shipment. He testified as follows:

“After the shipper gets the MU of lading he does not have anything more to do with the cotton." (Italics ours.)

Testifying further, he said:

“By the term ‘city cotton’ is meant cotton that is trucked into the compress from various gins in Harlingen and near-by points. In regard to the customary steps taken by our office, leading to the issuance of a bill of lading on city cotton which is going to be shipped out — we do not issue a bill of lading until we receive what we call a clearance from the compress company, which shows the name of the shipper, destination, the number of bales, marks and something like that. We will not issue a bill of lading until we had been furnished with a cotton clearance signed by the compress company. This group of papers which have just been exhibited to me are compress clearances, the kind we accept as authority for signing bills of lading.”

It is shown that the railway company did not maintain a platform at Harlingen for handling cotton offered it for shipment; that it had for a long time used the compress platform for such purpose, and would issue bills of lading for cotton on such platform.

We think the evidence shows a state of facts which made the railway company legally liable for the “city cotton” after it issued its bills of lading therefor, and that the policy sued upon covered the same. There is no contention that such cotton was covered by any policy other than the one sued on. Upon the question of delivery, see Adoue v. Seeligson, 54 Tex. 593.

In Missouri, K. & T. R. Co. v. Union Insurance Co. (Tex. Civ. App.) 39 S. W. 975, 976, the question involved an insurance policy, one of its provisions being as follows:

“That the insurance company shall he liable on cotton in bales consigned to the compress company by the Missouri, Kansas & Texas Railway Company, a common carrier, for compressing or awaiting shipment.”

In passing on the questions at issue in that case, the court said:

“The cotton in question, it is -true, was not delivered, to the compress compaivy by the carrier, but was delivered to the compress company by a shipper who desired to ship over the appellant’s road. After the delwei-y to the compress company of the cotton in question, bills of lading were issued by the appellant, covering the cotton, and it was class-marked as the cotton described in the bills of lading.
“We think the possession of the cotton by the compress company, holding it for the carrier, for the purpose' of shipment, falls within that class of cotton covered by the contract of insurance; that after bills of lading were issued for the cotton, and it was designated as the cotton covered by the bills of lading, it was in the possession of the compress company as 'agent for the caA'rier. And we think the spirit and reason of the contract of insurance covers cotton of this class, — as much so as if it had been directly consigned and delivered to the compress .company by the carrier.” (Italics ours.)

There was no evidence tending to show that this “city cotton” was left with the compress company for storage after the bills of lading were issued, or that it was subject to further shipping orders, but the only reasonable inference to be drawn from the evidence is that the bills of lading were obtained by the shipper with the intent that his cotton should go forward to the consignee. The issuance of the bills of lading was, we think, prima facie proof that the cotton was delivered for immediate shipment, and there is not a scintilla of evidence to the contrary.

For the reasons expressed, so much of the ■judgment as is in favor of appellee for the sum of $29,996.84, the value of the “transit' cotton,” is reversed, and judgment as to that' item is here rendered for appellant. The remainder of the judgment, except as to costs, however, remains undisturbed, and the same is affirmed.

Reversed, and rendered in part; affirmed in part.

PLEASANTS, C. X, concurs.

GRAVES, X

(dissenting).

The judgment of the trial court should have been affirmed in toto, it seems to me, for these two reasons: (1) Ooncededly, the policy sued on covered the 241 bales of “transit cotton” burned in cars on the premises of the compress company at Harlingen, unless at the time of the fire it was “under the protection of any other policy of insurance,” and the Camden policy — solely depended upon as constituting that protection — did not do so, because, by its express terms as written, it applied to such transit cotton “only while in the custody of the assured,” whereas this cotton, by what appears to have been the undisputed proof — at any rate from evidence of such force as requires the presumption of a finding to that effect below — had not been delivered by the railway company to the compress company (the assured), hence, never came into the custody of the latter at all; (2) the section of this policy providing: “Other insurance permitted without notice until required,” expressly pleaded by the appellee as negativing the other recitation declared upon by appellant that it did “not cover the assured’s liability for any cotton which is under the protection of any other policy of insurance,” constituted such a direct contradiction in its terms as to nullify this last-quoted declaration, the evidence wholly failing to show that appellant ever during the life of the contract either required any notice affecting or interdicted the existence of other insurance.

The compress company at Harlingen — not the appellee railway company — was the assured named in the Camden policy, and that it was meant to cover such cotton as these 241 bales, which were still unloaded in closed cars at the former’s customarily used platform for loading and unloading purposes, “only while in the custody of the assured” seems to me obvious from the text from it to that effect that is fully quoted in the majority opinion; so the inquiry is reduced to one of whether or not the custody of this cotton had in fact passed to the compress company at the time the fire occurred; on this feature, appellant’s able counsel say, “so far as the matter of passing custody and control of the cars from the railway company to the compress company was concerned, everything necessary and requisite to be done had been done, and this court held:

“We think it was clearly intended by all parties to each of the policies of insurance that such policies should protect the Railway Company for all cotton covered by its through, bills of lading while the cars into which it was loaded were stopped en route for compression — that is, taken from its trains and placed at the compress .that they might be unloaded and the cotton compressed.”

The undisputed evidence appears to induce a conclusion directly to the contrary, that is, that the mere placing of the cars at the unloading platform to be unloaded did not of itself effect a change, in the custody of the cotton therein contained from the carrier to the compress company; the invariable course of dealing between the two companies with respect to the delivery of “transit cotton” by the railroad to the compress, which was pursued in this instance, was fully and uncontro-vertedly stated by the local agents of both concerns in charge of that business for them to be, in material substance: When such cotton was received in the switchyards at Har-lingen, the first thing done was for the railway company to make up from the waybills that had come in with the train “compress unloading-slips in-duplicate, giving full reference on that slip, in order that the compress may know it is not for concentration, and it is checked out the same as any other cotton”'; those slips would be taken and delivered to the compress company, the cars would be placed at its platform for that purpose, and then unloaded under a joint checking of the cotton as it came out by representatives of both companies, after which the compress superintendent would retain one of these slips, delivering the other one to the railroad agent, in that way only effecting a delivery of the cotton to and placing the custody of it in the compress company.

That indispensable process was not followed with reference to these seven cars of cotton, no such joint check had been made, the undisputed testimony being that, “none of the seals were broken on July 30 or 31, 1926, on any of these cars; those cars had not been unloaded and had not been checked, and the delivery receipt had not been executed by the Compress Company.”

This state of facts differentiates the case thus made from Texas Midland R. R. v. H. D. Edwards & Co., 56 Tex. Civ. App. 643, 121 S. W. 570, 574, where the individual bales of cotton had been physically delivered upon the platform of the compress, that not only being the customary place for the receipt of-all cotton intended for shipment over the railroad connecting with it, but the duty of receiving and cheeking it for the purpose also being — likewise in conformity to uniform custom — performed by the superintendent of the compress; wherefore, nothing remaining for the shipper tó do in furtherance of the shipment, the court held: “The facts show a delivery of the cotton' to the railroad for transportation prior to the fire” ; here, on the other hand, there had by the uncontroverted testimony been no delivery to the compress before the fire, because it yet remained for both it and the carrier to conduct the joint check that was necessary under their mutual and invariable method of handling the business to transfer the custody of the cotton from the railroad company to it.

. The custom and habitual practice thus shown, in contemplation of which, it seems to me, the insurance company in this instance must be held to have contracted, make this case more nearly analogous to Morgan v. Dibble, 29 Tex. 107, 119, 94 Am. Dec. 264 in which the court said:

“The testimony in the record is to the effect, that by the usage of the trade goods were not regarded by the carrier or consignees as delivered until they were cheeked off by the agent of the former to the draymen. * * s
“The goods must also be tendered in a proper time and manner, as well as place, to relieve the carrier from responsibility. Hence it must be within business hours, and under such circums’tances that the consignee may receive and put his goods away consistently with their safety. And it is the duty of the carrier to hold the goods in his custody until this may be done, and while he does so he continues to hold them under his responsibility as carrier.”

See, also, Michigan Central R. Co. v. Mark Owen & Co., 256 U. S. 427, 41 S. Ct. 554, 65 L. Ed. 1032.

So, conformably with £he quoted principle, I think this cotton, in the absence of its having been jointly “checked out the same as any other cotton,” was at the time of this fire still held in the custody and under the responsibility as a carrier of the appellee.

That,, indeed, is the majority view also, as this statement in the opinion discloses:

“We have already stated the facts shown by the undisputed evidence, which we hold clearly show that at the time the ‘transit cotton’ was burned appellee was in such possession thereof as a'common carrier as rendered it legally liable therefor.”

The appended judgment holding the Camden policy a bar notwithstanding, however, is clearly a non sequitur, when you construe it as covering this cotton “only while in the custody of the assured,” as I think must be done.

As concerns the conflicting provision, “Other insurance permitted without notice until required,” referred to as section 23 of appellant’s policy, this comment in appellee’s brief seems to me to be apropos:

“To say in one breath that other insurance is permitted without notice, and in the next that if other insurance is taken, the present insurance will be ipso facto annulled, seems to us so clear a contradiction as to require no argument or exposition.”

If, standing alone, it needs any clarification at all, that is plainly supplied by other portions of the policy’s contest as a whole, where the possible coexistence of other insurance in indicated contingencies is not only recognized, but this requirement of notice from the insured to the insurer about it is amplified by specifying that an inventory of it be furnished.,

It may be conceded that the objective of the conflicting provision, if standing alone, would be to prevent double insurance, but when, as here, it is left standing side by side with another of equal dignity, explicity permitting such a duplication so long as the insurer did not require the information about it exacted in other instances, r cannot see that it must be given that effect vel non.

This dissent from only so much of this court’s judgment as reversed any part of that rendered below is respectfully entered.