author: CHRISTIAN, J.

text:
    PHILLIPS v. STATE.
    (No. 11565.)
    Court of Criminal Appeals of Texas.
    May 2, 1928.
    Criminal law <⅝=200(4) — Acquittal in prosecu-, tion for possessing liquor for sale held to bar subsequent prosecution in adjoining county for transporting liquor, involving same transaction.
    Previous indictment and acquittal of defendant for offense of possessing intoxicating liquor for the purpose of sale held to bar subsequent prosecution in adjoining county for transporting intoxicating liquor, if the same transaction, which occurred near the boundary line of the two counties, was involved in both prosecutions and the whisky alleged to have been transported was that previously claimed to have been in defendant’s possession for sale.
    Commissioners’ Decision.
    Appeal from District Court, Yan Zandt County; Joel R. Bond, Judge.
    Will Phillips was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Justice & Sigler and H. A. Justice, all of Athens, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for one year.

The transaction out of which the prosecution grew occurred near the line between Henderson and Yan Zandt counties. Appellant was tried in Henderson county on the 13th of September, 1927, for the offense of possessing intoxicating liquor for the purpose of sale. The present trial was had in Van Zandt county on the 5th day of October, 1927. Appellant filed what he denominated a “plea in bar” wherein it was averred, in substance, that he had theretofore been indicted and acquitted .in Henderson county of the offense of possessing intoxicating liquor for the purpose of sale; that the transaction upon which such acquittal was had was the same transaction for which the state was then seeking to place him on trial; that the state would rely upon the same evidence, use the same witnesses, and develop the same transaction, and no other. The proof heard during the trial of the instant case raised the issue that the whisky for which appellant was under indictment for transporting was the same whisky involved in the prosecution in Henderson county; that the same witnesses who testified on the instant trial testified in Henderson county to the purchase of said whisky; and that the transaction was the same. It was not shown in the trial of the instant ease that appellant was in the possession of any liquor in Henderson county other than that claimed in the present' case to have been transported. The court refused to permit the jury to consider the plea. The court’s action in the premises is assigned as error and properly presented by bill of exception. We must sustain appellant’s contention. If the state relied upon the same criminal act in both cases, jeopardy had attached. Coon v. State, 97 Tex. Cr. R. 645, 263 S. W. 914. The issue should have been submitted to the jury under appropriate instructions.

The judgment is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


source: Caselaw Access Project

author: BARCUS, J.

license: Public Domain

text:
    PURITY CREAMERY CO. v. HAYS et al.
    (No. 612.)
    Court of Civil Appeals of Texas. Waco.
    March 29, 1928.
    1. Sales <@=3234(3) — Bona fide purchaser of personal property from one having no title acquires no greater rights than seller had.
    Bona fide purchaser of personal property for value from one who has no actual title can acquire no greater rights than, seller had.
    2. Sales <§=3456 — Contract not filed as chattel mortgage and giving option to purchase at end of rental year held not to pass title.
    Contract which was not filed as chattel mortgage and which on its face did not purport to be bill of sale or transfer of title of mechanical refrigerating cabinet, and was rental contract with option given lessee to purchase at end of first year, if he so desired, and which did not obligate lessee to pay for cabinet nor to take same, held not to pass title to lessee as matter of law.
    3. Sales <@=3480(4)— Judgment held not supported by evidence, where court construed contract to pass title and only evidence of parties’ intention was that it was rental contract.
    In action to recover possession of mechanical refrigerating cabinet, where court construed contract as passing title, and only evidence was to effect that contract was not intended to be sale, but rental contract, held, that judgment was not supported by evidence.
    Appeal from District Court, Robertson County; W. C. Davis, Judge.
    Suit by the Purity Creamery Company against J. R. Hays and others, with cross-action by one Hensarling. Prom the judgment for Hensarling, plaintiff appeals.
    Reversed and remanded.

      Weatherby & Rogers, of Waco, for appellant.
    Cane & Reid, of.Hearne, for appellees.
   BARCUS, J.

Appellants instituted this suit against appellees to recover the possession of a mechanical refrigerating cabinet. They took possession thereof by writ of sequestration. Appellee Hensarling alleged he was the owner of said cabinet, and by cross-action asked for damages against appellants for the value thereof. The cause was tried to the court and resulted in a judgment being rendered for appellee Hensarling for the value of the property.

The proper determination of this appeal depends upon the construction to be placed on a contract made between appellants and J. R. Hays. It appears that in August, 1925, appellants entered into a contract with J. R. Hays, under the terms of which they rented to him the mechanical refrigerating cabinet in controversy for a period of one year, for which Hays agreed to pay the sum of $208 per annum as rent, payable in weekly installments of $4 per week. The contract provided that, if Hays failed to pay the rental for any one week, appellants could mature the remaining unpaid installments and terminate the contract without prejudice to their rights for rents that had already accrued. . Hays was to keep the cabinet in good condition and install same at his own expense. The contract provides:

“It is further agreed that at the expiration of the rental period, first party (appellants) will sell to second party (Hays) the above-described cabinet for the sum of $648.00, and will allow said second party a credit on the purchase price thereof equal to the amount of the rentals paid under this contract; and it is agreed that unless a renewal rental contract is made, second party will deliver immediate quiet and peaceable possession of said cabinet to said first party at the termination hereof.”

It appears that Hays kept the cabinet until May 3d, 1926, at which time he made a general assignment under the statutes to B. 3?. Atkinson of all his property for the benefit of his creditors, and Atkinson duly qualified as assignee and took possession thereof. At said time Hays was operating an establishment known as the Palace of Sweets in Hearne and was using the cabinet in connection therewith. Atkinson, the assignee, did not testify, and the only testimony of Hays was the answer which he filed, which consisted of an ex parte affidavit to the effect that he did not own the cabinet in question, but had only rented it from appellants, and that same belonged to them. Mr. Wortman, one of appellants, testified that the Purity dreamery Company was a partnership, composed of himself and T. D. Sheldon, and that they never sold the cabinet to Hays, but only rented same to him, and that the $4 per week rental was a reasonable rental therefor. Ap-pellee Hensarling received a written bill of sale from Atkinson, the assignee, under the terms of which he purchased all the property of every kind and character that was owned by Plays and used in connection with the Palace of Sweets. If as a matter of fact the cabinet belonged to Hays, under the bill of sale which he obtained from Atkinson "appel-lee Hensarling became the purchaser and owner théreof. The primary question therefore for determination is, Did the cabinet either belong to Plays or was it in his possession by virtue of a contract of purchase and sale which under the registration statutes was required to be recorded? It is a well-settled principle of law that a bona fide purchaser of personal property for value from one who has no actual title can acquire no greater rights than his vendor held. Gose v. Brooks (Tex. Civ. App.) 229 S. W. 979 (writ refused), and authorities there cited.

Appellee’s contention in this case is that, under the wording of the contract and agreement by .which the cabinet in question was delivered to Hays, same constituted a sale of said property, and that the title thereto passed to Hays subject to the payment of the unpaid purchase price, and that appellants only had a lien thereon to secure the unpaid portion thereof, and that in order to preserve said lien as against purchasers in good faith it was necessary that appellants file same for record as a chattel mortgage.. It is undisputed that the contract had not been filed as a chattel mortgage. We cannot agree with appellee’s contention. The contract on its face does not purport to be a bill of sale or a transfer of the title to the property, but is a rental contract, with an option given Hays to purchase at the end of the first year if he so desires. Hays does not 'in the contract obligate himself to pay for the cabinet. Neitliér does he obligate himself to take same. The trial court was not authorized to hold as a matter of law that the contract passed the title to Hays. The only evidence on the question with reference to the intention of the parties was to the effect that it was not intended to be a sale, but only a rental contract, and the court’s judgment is therefore not supported by the evidence.

Appellees contend that the -case of Willys-Overland Co. v. Chapman (Tex. Civ. App.) 206 S. W. 978, sustains the judgment of the trial court. In that case the parties conceded, as appears from the opinion, that the contract was a conditional sale, and it is a well-established principle of law, as laid down in that case, and also in Knittel v. Cushing, 57 Tex. 354, 44 Am. Rep. 598, and 94 Am. St. Rep. 248, notes, that a lease or conditional sale which in effect amounts to a real sale of the preperty passes title, subject to the payment of the unpaid purchase price, and under our registration statutes same must be recorded in order to preserve the lien. The contract in this case, by its own terms unexplained, does not come within the rule laid down in said opinions. Here the primary question to be determined is, What was the contract of the parties at the time the agreement in controversy was made? If their contract amounted in fact to a sale, then it would be necessary for the contract to be filed as a chattel mortgage, in order for appellants to have protected themselves against an innocent purchaser thereof (Revised Statutes, art. 5489); if not, then it -was not necessary to record the same, since it is not necessary under the statutes for a rental contract to be recorded.

The judgment of the trial court is reversed and the cause remanded.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: COBBS, J.

text:
    TEXAS VEGETABLE UNION v. OBETS.
    (No. 7955.)
    Court of Civil Appeals of Texas. San Antonio.
    March 14, 1928.
    Rehearing Denied April 18, 1928.
    1. Master and servant —In action for damages growing out of alleged breach of contract of employment, plaintiff held to have burden of showing he was employed.
    In action growing out of alleged breach of contract to operate farm and manage same and for rental on machinery, plaintiff had burden of showing he was employed by defendant.
    2. Master and servant ⅞=>6 — In action for alleged breach of contract of employment, fact that issue of employment was raised by pleading and so found by jury held not controlling, in absence of sufficient supporting evidence.
    In action for damages growing out of alleged breach of contract of employment, fact that issue of employment was raised by pleading and so found by jury had no controlling effect, in absence of sufficient material evidence to support it.
    3. Master and servant <3=6 — Evidence held to preponderate against verdict for plaintiff in bis action for alleged breach of contract of employment.
    In action growing out of alleged breach of contract of employment to operate farm, where verdict was for plaintiff, evidence .held to preponderate against verdict.
    4. Appeal and error 003 — Appellate court cannot permit verdict to stand which is against overwhelming preponderance of testimony.
    Where testimony overwhelmingly preponderates against finding of jury and there is little, if any material testimony to contrary, appellate court cannot permit verdict to stand.
    On Motion for Rehearing.
    5. Appeal and error <§n=rt00l (I) — Verdict should stand if there is material testimony to support jury’s finding, but if not it must be set aside.
    Verdict based on special findings should stand if there is any matérial testimony to support finding, but if not it must be set aside.
    6. Trial <⅜=»142 — - Inference does not justify verdict where there is not enough testimony upon which to predicate inference.
    Law does not justify verdict on mere inference where there is not enough testimony upon which to predicate such inference.
    7. Corporations <3=w432(l2)— Jury’s finding that member of partnership, in employing plaintiff to operate farm, acted as agent of defendant corporation held not supported by evidence.
    In action on alleged contract of employment to operate farm, finding that member of partnership, in employing plaintiff, acted for defendant corporation as its agent held not supported by evidence.
    Appeal from District Court, Zavala County; L. J. Bruchs, Judge.
    Action by Chas: A. Obets against the Texas Vegetable Union. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    G. B. Fenley, of Uvalde, and Geo. O. Herman, of Batesville, for appellant.
    David E. Hume, of Eagle Pass, and Jackson & Crawford, of Crystal City, for appellee.
   COBBS, J.

Appellee sued appellant for damages growing out of an' alleged breach of contract of employment.

It is alleged that appellant was operating a farm in Zavala county and employed appel-lee, on August 4, 1924, to manage the same for 1 year, for the sum of $1,800 per year, payable monthly, and hired from him machinery, agricultural implements, and teams, and agreed to pay for their use $600 per annum, payable $50 per month. Appellee was paid for the first year and was again emplpyed for another year upon the same terms. It is alleged he was discharged from the service's on February 4, 1926, without cause or fault on his part, 6 months before the employment would have ended.

On the trial of the case appellee relied upon the last items set forth in his petition, as follows: “For hire of teams, machinery, and appliances August 15, 1925, to August 15, 1926, $600; for services of plaintiff under contract of August 15, 1925, from February 15, 1926, to August 15, 1926, at $150 per month, $900”- — claiming that the appellant •had paid him for the first 6 months’ service of the second year, but had paid him nothing for the use of his teams, implements, etc.

The appellee answered by general denial and special answer, which, as far as is pertinent to this statement, is as follows: ■

“And for special answer herein, if required, the defendant says that it never employed the plaintiff or -his teams or machinery and agricultural implements as alleged by him * * * and that it is not indebted to him in any amount whatever.”

The case was submitted to a jury' on special issues, and, those issues being determined favorably to appellee, tbe court rendered judgment in favor of the appellee against appellant, for hire of teams, machinery, and appliances from August 15, 1925, to February 4, 1926, $2S1.74, and for services from February 4, 1926, to August 14, 1926, $900.

The question of hire for the teams and machinery was not submitted to the jury, although it was a sharply contested point and there was evidence on both sides clearly raising the issue as to whether or not the appellant was liable for their hire, the appellant contending that the court erred in rendering judgment for the said hire, on an issue of fact, not submitted to the jury.

The issue presents the contention that the Texas Vegetable Union was operating the farm through J. J. Albers, its agent. The contention of appellant was that it was not operating the farm at all and that J. J. Albers was not acting for it at all, but the farm was at all times operated by Flory & Albers, a co-partnership firm composed of Joe Flory and J. J. Albers, acting through its general manager, J. J. Albers, which firm had no connection with the Texas Vegetable Union, except that the members were holders of stock therein and officers.

Passing out of sight a discussion of all the propositions of law and assignments urged, we reach the real issue in this case. The verdict of the jury is against the great preponderance of the evidence. The potent facts show that the firm of Flory & Albers was farming the land for their joint use, hiring the labor and paying for it.

There is no material and satisfactory evidence that appellant was operating the farm at all and employing and paying for labor. The burden of proof was upon appellee to show that he was employed by appellant, and he has not discharged that burden, and the fact that the issue was raised by the pleading and so found by the jury has no controlling effect in the absence of sufficient material evidence to support it. We find nothing in the statement of Albers, who happened also to be the manager of the firm of Flory & Albers, that he was acting for and employing appellee for appellant. While the two positions were coincident, his alleged statements were directly against appellee’s conten-, tion., Both Flory and Albers stated positively, and it was supported by other testimony, that they were operating the farm for their own benefit, employing labor and paying for it in their own interest, and not for appellant.

When the testimony so overwhelmingly preponderates against the finding of the jury and there is so little, if any, material testimony to the contrary, we cannot permit the verdict to stand.

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

On Motion for Rehearing.

Appellee is very insistent that this court is not accepting the jury’s finding on the special issue submitted, that “J. J. Albers in making the contract of employment of August 15, 1925, that is to say for the second year, with the plaintiff, O. A. Obets, acted for the defendant, the Texas Vegetable Union, or for the partnership of Flory & Albers.” The jury answered the question for “Texas Vegetable Union.” If there is any material testimony to support their finding the verdict should stand, but, if not, it must be set aside. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

The first question to determine was the authority of J. J. Albers to act as the agent of appellant to employ appellee. There is no testimony pointed out to us to prove the agency and authority claimed by appellee that Albers had or really assumed the authority to employ him, and such fact cannot be reasonably inferred from the circumstances proved in this case. The law does not justify a verdict on a mere inference where there is not enough testimony upon which to predicate such inference of agency. An agency must be shown first by testimony based upon the fact proved.

On a question similar to this our Supreme Court in Joske v. Irvine, supra, took some pains to clarify the question of scintilla of proof. The opinion was written by that able and painstaking justice, the late Leroy Denman, in which among other things he said:

' “ ‘Since the scintilla doctrine has been exploded, both in England and in this country, the preliminary question of law for the court is, not whether there is literally no evidence, or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is evidence from which the jury can properly find the question for the party on whom the burden of proof rests, it should be submitted; if not, it should be withdrawn from the jury.’
“In Baulec v. Railroad Co., 59 N. Y. 356 [17 Am. Rep. 325] the court said, quoting from Toomey v. Railway Co. 3 C. B. (N. S.) 149, that ‘it is not enough to authorize the submission of a question, as one of fact, to a jury, that there is “some evidence.” ’ * *
“This court in Lee v. Railway Co., 89 Tex. 588, 36 S. W. 65, said: ‘To authorize the court to take the question from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.’ In Mynning v. Railroad Co., 64 Mich. 93, 31 N. W. 147 [8 Am. St. Rep. 804], the rule is stated thus: ‘If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff’s fault, he is entitled to go to the jury upon the facts. The judge takes the case from the jury only when it is susceptible of but one just opinion.’ The Supreme Court of the United States have approved the rule announced in Ryder v. Wombwell [L. R. 4 Exch. 32], supra. [Schuylkill & D. Improv. &] Railway Co. v. Munson, 14 Wall. 442 [20 L. Ed. 867]; Commissioners [Marion County] v. Clark, 94 U. S. 278 [24 L. Ed. 59]; Griggs v. Houston, 104 U. S. 553 [26 E. Ed. 840].
“From a careful examination of the cases, it appears (1) that it is the duty of the' court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony,' in legal contemplation, falling short of being ‘any evidence’; and (2) that it is the duty of the court to determine whether the testimony has more than that degree of probative force. If it so determines, the law presumes that the jury could not ‘reasonably infer the existence of the alleged fact,’ and ‘that there is no room for ordinary minds to differ as to the conclusion to be drawn from it,’ The broad and wise policy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining as a question) of law whether the testimony establishes more. * * * •
“ ‘An inference is a deduction which the reason of the jury makes from the facts proved.’ 1 Rice, Ev. § 36. If the jury cannot reasonably make the deduction, the law does not authorize it. Upon the whole case, we are of opinion that the probative force of the testimony does not go beyond the point of creating a mere surmise.”

Taking this case for authority on the point, we have looked in vain here for any probative testimony to support the agency and authority of Albers to make the employment, or whether it in fact was done. Appellee has not pointed it out in his motion or elsewhere. Appellee does not page his brief, hut makes the contention-that:

“Floi-y, Byrd, Albers, and Anderson, all either members of the partnership, directors in the corporation, or employees thereof, stated that J. J. Albers was president and general manager of the Texas Yeg-etable Union. He gave requisitions under its name for supplies. He contracted and paid bills for it. In the pleading introduced in evidence it was stated that defendant [Texas Vegetable Union] had employed Obets by the month, and not by the year. Obets testified that the contract sued upon was made between Kim and Albers, representing the Texas Vegetable Union, in a field in Zavala county. Who is better able to state the terms and conditions of said contract than the parties who made it — Obets and Albers, the latter either acting for Flory & Albers or for the Texas Vegetable Union? Which of them told the truth? The law has prescribed the test. It is the finding of the jury. The jury found that Albers was acting for the Texas Vegetable Union when the contract of August 15, 1925, was made. We must either accept their conclusion upon that issue or set aside their finding upon conflicting testimony which was before them.”

Appellee contends it was the duty of the court to show in what particular the proof has failed, and that;

“If the court would indicate in what particular the proof has failed, then appellee could upon another trial adduce the proof.”

That may be true, and in remanding this case we are giving appellee that chance, which he would not have were we to render the judgment.

Now, we do not like to discuss or comment on evidence when a case is largely reversed on the want of evidence. But here almost the entire testimony tends strongly to show that appellee was employed for Flory & Albers, and not for appellant at all, and was paid for his services by Flory & Albers. Mr. Al-bers', who, it is claimed, was the agent of ap-pellee and employed him for appellant, testified :

“My name is J. J. Albers, I live in San Antonio. I am a member of the firm of Flory & Albers, I have been in business with Mr. Flory about 18 years.
“We have had business in Zavala county. We have about 1,940 acres of land in Zavala county, located on the Byrd ranch, about 4 miles from Crystal City. Flory & Albers operated the farm, furnished all of the money.
“I have heard the testimony here about the employment of Mr. Obets on the farm in August, 1924. In August, 1924, Flory & Albers were handling and operating that farm. There were about 200 acres in cultivation on the farm at that time. Mr. Byrd handled it up to that time. We were just getting ready to install machinery, I think, at that time.
“Flory & Albers were furnishing all the money for the operation of this farm at that time, in August, 1924. Flory & Albers afterwards had more land put in cultivation on this farm. Flory & Albers paid for the grubbing of the land. Flory & Albers had machinery installed on that farm, there was a 25 horse power Fairbanks engine put in and a lot of pipe and tanks. Flory & Albers paid for that. Flory & Albers continued to operate that farm until we sold out about the last; of July, a year ago, 1926.
“I believe it was around July or August, 1924, when Mr. Obets first began to work on the farm. Mr. Obets came to see Mr. Flory and myself with reference to working on that farm. He came to my office in San Antonio. He was employed. Flory & Albers employed him. Flory & Albers paid him.
“When Mr. Obets came to see us in San Antonio in the summer of 1924, he said that Mr. Byrd wanted him to see us about working bn our place; he couldn’t make any agreement with Mr. Byrd so he sent him up to see us. After lots of preliminary talk, we finally came to an agreement to pay him $150 a month. So far a3 tools, there was nothing said about tools, no agreement reached about tools, but it was left entirely to us as to what they would be worth to us in the making of the crop. We hadn’t seen the team at that time anjl didn’t know anything about the condition of the tools, otherwise we would not have considered that at all. We bought ten mules and a lot of farm machinery to operate the place. Mr. Obets was up there, and he helped us pick out the mules, and we sent them to Crystal City on this farm. Flory & Albers paid for the mules, and they belonged to Flory & Albers. Flory & Albers also bought farm implements, and it belonged to Flory & Albers.
“We told Mr. Obets we would pay bim $150 a month, but we didn’t know about the tools and teams, and we couldn’t reach any agreement on them; we left that open, and he agreed to leave it to us as to how much they would be worth after making the crop.
“Mr. Obets was employed until February, 1926. There was no contract. He was employed by the month. There was nothing said about the Texas Vegetable Union; that was not known to but very few people.
“As to the allegation of plaintiff that on or about August 15, 1925, the Texas Vegetable Union offered to re-engage him to perform the same duties that he had been performing, I reengaged him by the month, I did so for Flory & Albers. I was not acting for the Texas Vegetable Union. I knew when I employed him that Flory & Albers would have to pay him. He worked for Flory & Albers up to the time that he was discharged, February 4, 1926. I discharged him. I was acting for Flory & A1-. bers when I discharged him.
“Flory & Albers employed Mr. Obets and paid him. He received his instructions from Flory & Albers. In my relations with Obets, I was not acting as an officer nor agent of the Texas Vegetable Union. The Texas Vegetable Union had nothing. Mr. Obets knew that Flory & Al-bers were running that farm because he addressed us several letters to Flory & Albers, before the filing of this suit.
“I testified to that effect here 6 months ago in the trial of another case. I claimed then in open court that Flory & Albers employed Obets. Since that time he filed this suit against the Texas Vegetable Union.”

This testimony is supported by the testimony of E. R. Byrd,.Joe Flory, and P. J. Anderson, all of whom were so situated as to know the facts. This evidence is uncon-tradicted except by appellee, who testified:

“When I went to San Antonio, I was asked what kind of a contract I had made, and I told him that I had been employed by Mr. Byrd to go to work at $1,800 a year, to be paid to me monthly at the rate of $150 per month. * * * I had an outfit that was involved in our transaction, and I was asked to enumerate what that consisted of. The outfit was valued at $1,200, and they had an option to buy at $1,200. They accepted the proposition on the basis of $50 for the use of the outfit and $150 per month that I drew monthly, and the price paid for the outfit I was to collect at the end of 12 months.
“As to whether that contract was renewed or extended, it was about the 15th day of August, 1925, that was made with J. J. Albers. I was to go back in their employment at the rate of ' $1,800 per year, in the employment of J. J. Albers, the Texas Vegetable Union. The new contract was made the 15th day of August, 1925; that was to last 12 months. Under the terms of that, I was to draw $1,800 per year, and the same rate for machinery and teams and an additional per cent, of all crops sold.”

We reiterate that this is not sufficient material evidence to support the claim of agency and authority that appellee was being employed by an agent of appellant to perform services for it. All the evidence tends to show that his employment was for and in behalf of Flory & Albers, who were operating the farm for and in their own behalf and paying all the expenses and salary of appel-lee.

We hesitate very much to comment on the facts, since it is our duty to reverse and remand the judgment for another trial, but in view of the fact that the court submitted the issue of agency to the jury and it found against appellant, we think the ends of justice will be met by remanding the case for another trial. Therefore the motion for rehearing is overruled.
      <§=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, P. J.

text:
    J. G. BISHOP v. STATE.
    (No. 11513.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Appeal from Eastland ■ County Court at Law; Tom J. Cunningham, Judge.
    J. G. Bishop, of Gorman, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is being drunk in,a public place; punishment fixed at a fine of $25. The complaint and information both ap- . pear, in regular form. The record is before us without statement of facts and bills of exceptions. No fundamental error has been perceived or pointed but. The judgment is affirmed. ■


author: LATTIMORE, J.

text:
    McKinley BRAMBLE v. STATE.
    (No. 11477.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.
    L. H. Elewellen, of Ranger, and T. J. Cunningham, of Eastland, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, two years in the penitentiary. The motion for new trial in this case was overruled on July 29, 1927. Ninety days was given in which to file bills of exception and statement of facts. - Same were filed on October 28, 1927. This was after the expiration of the 90 days allowed by statute and by order of the court. The case thus comes before us without any bills of exception or statement of facts. The indictment correctly sets out the offense, and is followed by the charge of the court, and by the judgment and sentence. No error appearing, the judgment will be affirmed.


text:
    Jesse BYRD and Douglass Harwell v. STATE.
    (No. 11441.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    Appeal from District Court, Wichita County; E. G. Thornton, Judge.
    Davenport & Crain, of Wichita Falls, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The unlawful transportation of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year. The record is before us without statement of facts or bills of exceptions. The indictment appears regular. No fundamental error has been perceived or pointed out. The judgment is affirmed.


text:
    Fad DANIELS v. STATE.
    (No. 11502.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    Appeal from Shelby County Court; F. C. Powell, Judge.
    Sanders & Sanders, of Center, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is unlawfully carrying a pistol; punishment fixed at a fine of $100. The record is without statement of facts. There is but one bill of exceptions, and that consists of written objections to the court’s charge. In the absence of knowledge of the evidence that was before the court, we aye in no position to estimate the merits of the complaint of the charge. The judgment is affirmed.


author: HAWKINS, J.

text:
    T. L. GRANT v. STATE.
    (No. 11518.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Appeal from District Court, Freestone County; W. T. Jackson, Judge.
    Williford & Geppert, of Fairfield, for appellant.
    A. A. Dawson; State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor; punishment being one year in the penitentiary. The record contains neither statement of facts nor bills of exception, in which condition nothing is presented for review. The judgment is affirmed.


text:
    Red HENDERSON v. STATE.
    (No. 11797.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    L. C. Boswell, of Texarkana, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of an automobile over the value of $50; punishment being two years in the. penitentiary. Appellant has filed his affidavit in this court, requesting that his-appeal be dismissed, and in compliance with such request it is so ordered.


text:
    E. V. KENNEDY v. STATE.
    (No. 11454.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Appeal from Harris County Court at Law; Ben E. Wilson, Judge.
    Adams &
    Perkins and C. A. Teagle, all of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for violating loan brokers’ statute; punishment, a fine of $250. The record is before us with neither statement of facts nor bills of exception. There is no brief on file for appellant. The constitutionality of the law under which this prosecution was had has recently been upheld by this court. The complaint and information sufficiently charge the offense, and are followed by the verdict and judgment of the court. No error appearing, the judgment will be affirmed.


text:
    Joe LOUT v. STATE.
    (No. 11501.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    Appeal from Shelby County Court; E. C. Powell, Judge.
    Sanders & Sanders, of Center, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for unlawfully carrying a pistol; punishment, a fine of $100. The record is before us without any bills of exception or statement of facts. The complaint sufficiently charges the offense, and is followed by the charge of the court and the judgment. No error appearing, the judgment will be affirmed.


author: LATTIMORE, J;

text:
    Maurice McFERRIN v. STATE.
    (No. 11752.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Appeal from District Court, Eisher County; W. R. Chapman, Judge.
    J. B. Dykes, of Odessa, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J;

• Conviction for transporting intoxicating liquor; punishment, 1½ years in the penitentiary. The record is before us without statement of facts or bills of exception. The indictment correctly charges the offense, and is followed by the charge of the court, the judgment and sentence. No error appearing, the judgment will be affirmed.


author: HAWKINS, J. MORROW, P. J.

text:
    M. L. MOORE v. STATE.
    (No. 11753.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Rehearing Denied April 25, 1928.
    Appeal from District Court, Eisher County; W. R. Chapman, Judge.

    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary, There being in the record neither statement of facts nor bills of exception, nothing is presented for review. The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The fact that the record may have been filed in this court more than 90 days after adjournment is not available as a matter of which the appellant can complain. The statement in the motion for rehearing that in the verdict questions Nos. 1 and 2 were not answered “No” is not intelligible, in the absence of some explanatory matter by way of a bill of exceptions. The verdict as found in the record seems perfectly formal. It found the appellant guilty, and assessed against him a punishment of confinement in the penitentiary for one year. The case was tried upon a plea of guilty. The motion for rehearing is overruled.


text:
    George MORRIS v. STATE.
    (No. 11586.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Appeal from District Court, Haskell County; Bruce W. Bryant, Judge.
    Murchison & Davis, of Haskell, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing for the purpose of sale intoxicating liquor; punishment being one year in the penitentiary. There being neither statement of facts nor bills of exception in the record, nothing is presented for review. The judgment is affirmed.


author: MARTIN, J.

text:
    Lloyd RAYBURN v. STATE.
    (No. 11462.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    G. E. Sears, of Dallas, for appellant.
    A. A. D,awson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, burglary; penalty, five years in the penitentiary. No bills of exception appear in the record. We have carefully read the statement of facts and find the evidence sufficient to support the verdict. The judgment of the trial court is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    R. M. REEVES et al. v. STATE.
    (No. 11437.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    J. D. Kugle, W. B. Harrell, and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The legal question in this case is identical with that of R. M. Reeves et al. v. State of Texas (No. 11436) 4 S.W.(2d) 49, decided March 21, 1928. Eor the reasons pointed out in the opinion in said cause No. 11436, this court is without jurisdiction, and the appeal is dismissed.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    R. M. REEVES et al. v. STATE.
    (No. 11438.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    J. D. Kugle, W. B. Harrell, and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The legal question in this case is identical with that of R. M. Reeves et al. v. State of Texas (No. 11436) 4 S.W.(2d) 49, decided March 21, 1928. For the reasons pointed out in the opinion in said cause No. 11436, this court is without jurisdiction, and the appeal is dismissed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the Court.


text:
    W. P. REEVES et al. v. STATE.
    (No. 11439.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    J. D. Kugle, W.
    B. Harrell, and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The legal question in this case is identical with that of R. M. Reeves et al. v. State of Texas (No. 11436) 4 S.W.(2d) 49, decided March 21, 1928. For the reasons pointed out in the opinion in said cause No. 11436, this court is without jurisdiction, and the appeal is dismissed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    W. P. REEVES et al. v. STATE.
    (No. 11440.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2 Dallas County; C. A. Pippen, Judge.
    J. D. Kugle, W. B. Harrell, and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The legal question in this- ease is identical with that of R. M. Reeves et al. v. State of Texas (No. 11436) 4 S.W.(2d) 49, decided March 21, 1928. For the reasons pointed out in the opinion in said cause No. 11436, this court is without jurisdiction, and the appeal is dismissed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    R. M. REEVES et al. v. STATE.
    (No. 11680.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    J. D. Kugle, W. B. Harrell, and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The legal question in this case is identical with that of R. M. Reeves et al. v. State of Texas (No. 11679) 4 S.W.(2d) 50, decided March 21, 1928. For the reasons pointed out in the opinion in said cause No. 11679, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM.. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    R. M. REEVES et al. v. STATE.
    (No. 11681.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    J. D. Kugle, W. B. Harrell, and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The legal question in this case is identical with that of R. M. Reeves et al. v. State of Texas (No. 11679) 4 S.W.(2d) 50, de-, cided March 21, 1928. For the reasons pointed out in the opinion in said cause No.- 11679, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    W. P. REEVES et al. v. STATE.
    (No. 11682.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    J. D. Kugle, W. B. Harrell, and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The legal question in this case is identical with that of R. M. Reeves et al. v. State of Texas (No. 11679) 4 S.W.(2d) 50, decided March 21, 1928. For the reasons pointed out in the opinion in said cause No. 11679, the judgment of the trial court is reversed, and the cause remanded.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    W. P. REEVES et al. v. STATE.
    (No. 11683.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    J. D. Kugle, W. B. Harrell, and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The legal question in this case is identical with that of R. M. Reeves et al. v. State of Texas (No. 11679) 4 S. W. (2d) 50, decided March 21, 1928. For the reasons pointed out in the opinion in said eau'se No, 11679, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: MORROW, P. J. LATTIMORE, J.

text:
    Tom ROBERSON v. STATE.
    (No. 11742.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Rehearing Denied April 18, 1928.
    Appeal from District Court, Rains County; Grover Sellers, Judge.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one^year. The indictment is regular, to which the appellant entered his plea of guilty. The record is before us without statement of facts or bills of exceptions. No fundamental error having been perceived or pointed out, the judgment is affirmed. .

On Motion for Rehearing.

LATTIMORE, J.

The motion for rehearing fails to call our attention to any particular matter, either of fact or law, in the original opinion, upon which could be based a claim that we incorrectly decided the case. No authorities are cited. The motion will be overruled.


author: BATTIMORE, J.

text:
    Tom ROBERSON v. STATE.
    (No. 11741.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Rehearing Denied April 18, 1928.
    Appeal from District Court, Rains County; Grover Sellers, Judge.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   BATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary. The record is before us without statement of facts or bills of exception. The indictment correctly charges the offense, and is followed by the charge of the court, judgment, and sentence. No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

Appellant sets out no fact in his motion upon which he seeks to predicate a belief that this court did not correctly decide the issues in its original opinion, nor does he cite any authority holding views contrary to th.ose entertained by this court. The motion will be overruled.


text:
    Jesus RODRIGUEZ v. STATE.
    (No. 11764.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Appeal from District Court, Guadalupe County; Lester Holt, Judge.
    F. E. Knetsch, of Seguin, and E. B. Simmons, of San Antonio, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for murder; punishment fixed at confinement in the penitentiary for a period of 20 years. Upon the written request of the appellant, duly verified by his affidavit, the appeal is ordered dismissed.


text:
    Sandy SHEFFIELD v. STATE.
    (No. 11762.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Appeal from District Court, Guadalupe County; Lester Holt, Judge.
    F. E. Knetsch, of Seguin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is burglary; punishment fixed at confinement in the penitentiary for a*period of three years. Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Elijah THOMAS v. STATE.
    (No. 11769.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    Appeal from District Court, Walker County; Carl T. Harper, Judge.
    M. E. Gates, of Huntsville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, one year in the penitentiary. The record is here without any bills of exception or statement of facts. The indictment correctly charges the offense, and is followed by the charge of the court and judjrment and sentence. No error appearing, the judgment will be affirmed.


text:
    W. A. WILKERSON v. STATE.
    (No. 11654.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Appeal from Criminal Dis- . trict Court No. 2, Dallas County; C. A. Pippen, Judge.
    R. L. Sullivan, of Dallas, for appellant.
    A. A.- Dawson, State’s Atty., of, Austin, for the State.
   MORROW, P. J.

The offense is robbery with firearms; punishment fixed at confinement in the penitentiary for, a period of 50 years. Upon the written request of the appellant, duly verified by his affidavit, the appeal is ordered dismissed.


text:
    Lonnie WILLIS v. STATE.
    (No. 11585.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Appeal from District Court, Rock-wall County; Joel R. Bond, Judge.
    H. M. Wade, of Rockwall, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for selling intoxicating liquor; punishment being one year in the penitentiary. No statement of facts accompanies the record. - The only bill of exception found complains at the refusal of special requested charges. None of the special charges can be appraised, in the absence of the evidence before the court. The judgment is affirmed. '


text:
    George WILSON v. STATE.
    (No. 11798.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    B. W. Ash-worth and C. A. Mitchner, both of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of an automobile over the value of $50; punishment being two years in the penitentiary. Appellant has filed in this court his affidavit requesting that his appeal be dismissed, and in compliance with such request it is so ordered..


text:
    Harry ZICKERFOOSE v. STATE.
    (No. 11647.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Appeal from District Court, Liberty County; Thos. B. Coe, Judge.
    M. E. Cain, of Liberty, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary. There being in the record neither statement of facts nor bills of exception, nothing is presented for review. The judgment is affirmed!


author: PELPHREY, J.

text:
    Mary DYER v. J. J. HELMER.
    (No. 2132.)
    Court of Civil Appeals of Texas. El Paso.
    March 29, 1928.
    Appeal from Bexar County Court at Law; McCollum Burnett, Judge.
    Melvion R. Luter, of San Antonio, for appellant.
    S. G. Newton, Jr., and Walter Tynan, both of San Antonio, for appellee.
   PELPHREY, J.

This suit was brought by appellee against appellant to recover damages alleged' to have been caused by a collision between the automobiles of the parties at the intersection of Broadway and Grayson streets, in the city of San Antonio, Tex., on or about the 3d day of May, 1926. Appellee alleged negligence on the part of appellant’s agent, and a resulting damage to his automobile of $566.85, and $387.50 damage to a Gurley transit and level, which was in the automobile. Appellant answered by general demurrer, special exceptions, a general denial, pleaded contributory negligence, and by way of cross-action prayed for damages in the sum of $685. The case was submitted to a jury on special issues, all of which were found in favor of appellee. Judgment was rendered on the jury’s findings on the special issues in favor of appellee for $787.50. Prom that judgment the cause is brought to this court on appeal. No briefs have been filed in this court by appellant. We have examined the record for fundamental error, and, finding none, the judgment of the trial court is affirmed. Affirmed.


author: PER CURIAM.

text:
    FIDELITY LLOYDS OF AMERICA, Appellant, v. ROSE MOTOR COMPANY, Appellee.
    (No. 3525.)
    Court of Civil Appeals of Texas. Texarkana.
    March 8, 1928.
    Appeal from Dallas County Court at Law, No. 2; Wm. M. Cramer, Judge.
    ■' Davis, Synnott & Hatchell, of Dallas, for appellant.
    Thompson, Knight, Baker & Harris, of Dallas, for appellee.
   PER CURIAM.

This suit was filed in the county court by the appellee against the appellant, to recover upon an insurance policy indemnifying him as a mortgagee against the conversion or theft of an automobile sold to a third party. The case was tried before the court without a jury. We think the evidence justified the judgment rendered, and it is accordingly affirmed.


author: BAUGH, J.

text:
    GULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellant, v. Mrs. Olena MOSER et al., Appellees.
    (No. 6845.)
    Court of Civil Appeals of Texas. Austin.
    Feb. 23, 1928.
    Appeal from District Court, Bell County; Lewis H. Jones, Judge.
    W. W. Hair, of Abilene, and Lee, Lomax & Wren, of Port Worth, for appellant.
    A. L. Curtis, of Belton, for appellees.
   BAUGH, J.

At a former term of this court, in an opinion reported in 277 S. W. 722, the judgment of the trial court in this cause was in all things affirmed. On writ of certiorari the Supreme Court of the United States reversed the judgment of this court, and held that the trial court erred in refusing to give the special instruction on the measure of damages requested by the Railway Company, which special instruction was as follows: “In considering of your verdict on the question of damages, and under the special issues submitted to you in that connection, and thereunder in determining ‘such sum of money as, if paid in cash at this time, would be sufficient to fairly compensate the surviving wife and child’, for their pecuniary loss, you are instructed that in determining the present value of such contributions as plaintiff would probably have received from the continued life of the deceased, you will make your calculations on the basis of the amount of your award, bearing interest at the highest net rate of interest that the testimony shows can be-had on money safely invested, and secured as shown by the testimony in this case.” The mandate from the Supreme Court of the United States has been received by this court, and accordingly the judgment heretofore rendered by this court, affirming the judgment of the trial court, is set aside, and this cause is reversed and remanded to the trial court for another trial in accordance with the opinion of the Supreme Court of the United States, rendered November 21, 1927 (48 S. Ct. 49, 72 L. Ed. —), and in accordance with our former opinion on all questions, therein discussed, wherein our said .opinion was not reversed by the opinion of the Supreme Court of the United States. Reversed and remanded. „


author: CURETON, C. J.

text:
    WAGGONER v. HERRING-SHOWERS LUMBER CO. et al.
    No. 4747.
    Supreme Court of Texas.
    June 10, 1931.

      Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for plaintiff in error.
    Fischer & Fischer, of Wichita Falls, for defendants in error.
   CURETON, C. J.

We. refer to the opinion of the Court of Civil Appeals for a complete statement of this case. 288 S. W. 260.

Suit was brought by the Herring-Showers Lumber Company against the Burk-Waggoner Oil Company, a corporation, and R. M. Wag-goner and Clois L. Greene, on a debt of the corporation. It was instituted against the two individual defendants by reason of transactions hereinafter described. R. M. Wag-goner was the president of the corporation, and Clois L. Greene its general manager. Both were members of the board of directors, and with S. A. L. Morgan, vice president, V. D. Tennyson, secretary-treasurer, and W. R. Ferguson constituted the board. On September 27, 1920, the corporation was hopelessly insolvent, and had quit, or was about to quit, its corporate business. On that date it owed approximately $300,000, and had about $100,-000 in assets, consisting of personal and real property. On the date named there was a regularly called meeting of the board of directors of the company, held at its office in Wichita Falls, at which were pr'esent all the directors above named. At this meeting certain transactions took place, a memorandum of which was incorporated in the minutes. Recitations from the minutes are as follows:

“The meeting was called to order by the President, R. M. Waggoner, who then proceeded bo make a statement to the board of directors of the condition of the company’s affairs, showing that the indebtedness of the company was approximately $300,000.00 and that the assets of the company amounted to less than $100,000.00, and that the company was without funds to proceed any further. He also stated that practically tw-o-thirds of this indebtedness due by the company was due to R. M. Waggoner and Clois L. Greene, who had advanced various sums of money from time to time to the company.

“Clois L. Greene thereupon stated to the board of directors that it was his wish to keep the company from going into the hands of a receiver and that if it met with the approval of Mr. Waggoner he and R. M. Waggoner would take over the assets of the company, including all of its machinery, wildcat leases, and other property, and work out of these assets as much as they could and that they would assume the indebtedness to the end that the creditors of the company be paid in full, and the said R. M. Waggoner thereupon stated that the suggestion met with his approval.

“Thereupon director S. A. L. Morgan made a motion that the Board of' Directors accept the proposition of Messrs. Greene and Wag-goner to take over the property and assets of the company and assume all obligations of the company for the outstanding indebtedness, which motion was seconded by director W. R. Ferguson, and the motion was then put to the board of directors by S. A. L. Morgan, vice president, and all the directors voted in the affirmative.

“Director W. R. Ferguson thereupon'made a motion, which was seconded by director Clois L. Greene, that S. A. L. Morgan, as vice president, and V. D. Tennyson, as secretary, prepare and execute all papers on behalf of the company necessary and proper to carry out the agreement between the company and the said R. M. Waggoner, and Clois L. Greene, which motion was carried by the unanimous vote of the board of directors.
“Director S. A. L. Morgan made a motion, which was seconded by director W. R. Ferguson, that the secretary be instructed to prepare a financial statement setting forth the company’s financial condition and the disposition of its assets and indebtedness, and that a copy of the same be sent to all stockholders, which motion was carried by unanimous vote.
“No other business coming before the Board, the meeting was declared adjourned.”

After this meeting of the board of directors the Burk-Waggoner Oil Company ceased to be a going concern, and transacted no further business.

In accordance with the minutes, Mr. Morgan, as vice president of the company, and Mr. Tennyson, as secretary, prepared and executed a conveyance of all the property, personal and real, of the corporation; but, instead of conveying if' to Waggoner and Greene, conveyed it to Greene alone. This instrument reads as follows:

“The State of Texas County of Wichita.
“Know all men by these presents: That Burk-Waggoner Oil Company, a corporation, for and in consideration of the sum of ten dollars and other valuable considerations paid by Clois L. Greene, and the further consideration that the said Clois L. Greene has assumed and by these presents does assume all the outstanding debts, liabilities, and obligations, of said corporation wherever located and whatever hind and character, has granted, bargained, sold, conveyed, assigned, and delivered and by these presents does grant, bargain, sell, convey, assign, and deliver unto the said Clois L. Greene all of the property and assets of Burk-Waggoner Oil Company of whatever kind and character and wherever located, including all oil and gas leases and leasehold estates in Wichita, Wil-barger, and Wise Counties, Texas, together with all/machinery, lease houses, and other equipment of whatever kind and character located thereon, including the following, to-wit:
1 Packard truck, complete with trailer;
1 Rotary rig, complete with drill pipe and boiler;
1 Rotary rig, dismantled;
3 Standard rigs, complete, with all extra and fishing tools, boilers, and other equipment ;
3 Strings big hole pipe, each string approximately 3000 feet in length;
1 Jones roadster automobile;
1 Buick 5 passenger automobile;
“Together with any debts and obligations that may be due the company from other parties, it being the intention by this instrument to transfer and assign to the said Clois L. Greene all the assets of said Burk-Waggoner Oil Company of every kind and character whether real or personal or mixed in consideration of his paying off and discharging the debts and obligations of the company.
“To have and to hold unto the said Clois L. Greene, his heirs and assigns, forever.
“Witness Burk-Waggoner Oil Company, this 6 day of October, A. D. 1920.
“[Signed] Burk-Waggoner Oil Company,
By S. A. L. Morgan, Vice President.
“Attest: V. D. Tennyson, Secretary.”

Waggoner denied making the oral agreement, in so far as he was concerned, evidenced by the minutes. Morgan and Ferguson testified positively to the agreement shown in the minutes.

The case was submitted to a jury, and the jury found, in response to special issues, that Waggoner did agree at the directors’ meeting that he would take over the corporation assets along with Greene and pay the corporation’s debts; but that, before the execution of the instrument conveying the property of the corporation to Greene, Waggoner told the latter, and also Morgan and Tennyson, the vice president and secretary respectively of the corporation, that he would not take over the corporation assets and agree to pay its debts. In other words, the jury found that Waggoner informed the officers and directors named, after the adjournment of the directors’ meeting, but prior to the date of the transfer of the property to Greene, that he (Wag-goner) would not go into the deal with Greene, and would not take over the assets and agree to pay the debts of the Burk-Wag-goner Oil Company. Morgan denied that .sWaggoner made any such statement to him, but did say that the latter requested him to have the conveyance made to Clois L. Greene, .instead of to both Greene and Waggoner, and that for this reason alone the conveyance was made to Greene instead of to Greene and Waggoner.

Upon the verdict of the jury, the trial court entered a judgment in favor of the Herring-Showers Lumber Company and against the Oil Company and Waggoner. The suit was dismissed as to Greene, who had previously been adjudged a bankrupt. The Court of Civil Appeals affirmed the judgment of the trial court.

Against the oral contract of assumption evidenced by tfie record, Waggoner urged the statute of frauds. The Court of Civil Appeals overruled the contention, saying: “The contract of Waggoner and Greene with the board of directors that they would pay the debts of the oil company in consideration of the transfer to them of all the company’s property, real and personal, was not within the terms of the statute of frauds, and is therefore not governed by the provisions of that act requiring such contract to be in writing. By - their assumption it made the debt their own, and they became the principal obligors to the creditors of the company.”

Bust for the fact that the contract of assumption on the part of Waggoner and Greene embraced real estate, we would be in accord with this holding.

The agreement of one-party with another to pay the debts of the latter to a third party, upon a valuable consideration, is not within, and therefore not'prohibited by, the statute of frauds (Rev. St. 1925, art. 3995). Bank of Garvin v. Freeman, 107 Tex. 523, 181 S. W. 187; Spann v. Cochran, 63 Tex. 243; Turnbow Lumber Co. v. Eastham (Tex. Civ. App.) 221 S. W. 667; Mullin v. Nash-El Paso Motor Co. (Tex. Civ. App.) 250 S. W. 472; Atkinson v. Jackson Bros. (Tex. Civ. App.) 259 S. W. 280.

However, the contract involved in the instant case is not a simple contract of assumption upon a valuable'consideration. The consideration moving from the corporation to Waggoner and Greene was -not only the transfer of the personal property of the corporation, but the conveyance of its real property as well. The contract, therefore, as a whole, was one necessarily within the statute of frauds, not binding on Waggoner and Greene until the execution of some instrument by them evidencing the agreement, or the execution of a transfer or some other instrument showing the sale of the real property by the corporation, duly accepted by them. R. S. art. 3995; Sprague v. - Haines, 68 Tex. 215, 4 S. W. 371; Gatewood v. Graves (Tex. Civ. App.) 241 S. W. 264; Priddy v. Greene (Tex. Civ. App.) 220 S. W. 243; Pantaze v. McDill (Tex. Civ. App.) 228 S. W. 962; Allen v. Allen, 101 Tex. 362, 107 S. W. 528; Anderson v. Tinsley (Tex. Civ. App.) 28 S. W. 121; Haskell v. Merrill (Tex. Civ. App.) 242 S. W. 331; Hooks v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 15 A. L. R. 216. There was a transfer executed of course, but this "instrument, as we have seen, conveyed the property to Greene only, and on its face evidenced an assumption by Greene alone of the debts of the corporation in consideration therefor. The jury found that, before the execution of this instrument, three of the officers and directors of the corporation were notified by Waggoner that he would not go forward with the oral contract to accept a transfer of the properties of the corporation and pay its. debts. This notice by Waggoner we think in law sufficient notice to the corporation of Waggoner’s repudiation of the oral contract which the jury found he had made. 10 Texas Jurisprudence, p. 1015, §§ 346, 350; Fletcher’s Cyclopedia of Corporations, vol. 4, §§ 2216, 2231, 2232. At any rate, when the designated officers of the corporation did finally execute the transfer of the property, they executed it to Greene only in accordance with Waggoner’s request. It is true that the defendant in error contends that the property in effect passed to Greene in trust for both Waggoner and Greene, and that therefore Waggoner was bound. The finding of the jury, however, is inconsistent with this contention, and we are not able to sustain it in view of the verdict.

The Court of Civil Appeals concluded that the notice by Waggoner to the corporation’s officers that he would not be bound by the oral agreement was insufficient to prevent the rights of the defendant in error, as a creditor, from accruing, and therefore, regardless of the status of the contract as between the corporation and Waggoner and Greene, it was binding on Waggoner as to the creditors of the company. In this we think the Court of Civil Appeals erred. ⅛ is quite true that the formal acceptance of a creditor may not be necessary to bind a subsequent purchaser of the property where he has by an enforceable contract assumed the debt, and that the institution of' a suit might be a sufficient acceptance. This, however, is not the case before us. Here there was never an enforceable contract between Waggoner and the corporation. On the contrary, the agreement was one for the conveyance of real estate in violation of the statute of frauds^ Since at the time Waggoner notified the officers of the company that he would not execute the contract, there had been no acceptance by the creditors, then, regardless of the validity or binding effect of the contract, Waggoner was free to do what the jury found he did do — that is, decline to go forward with the trade. We think the rule is established in this state that, even as between a vendor and a vendee, a contract of purchase and sale of real estate, although executed as required by law, involving an assumption of liability, may be rescinded without any continuing liability in favor, of the creditor, so long as the creditor has not accepted. Edwards v. Beals (Tex. Com. App.) 271 S. W. 887; Caraway v. Fowler (Tex. Com. App.) 267 S. W. 672; Morrison v. Barry, 10 Tex. Civ. App. 22, 30 S. W. 376 (writ ref.); Huffman v. Western Mortgage & Inv. Co., 13 Tex. Civ. App. 169, 36 S. W. 306.

The parol agreement to convey the real property here involved to Waggoner and Greene wias, as we have said, plainly in violation of the statute of frauds. When Waggoner notified the officers of the corporation, as found by the jury, that he would not consummate the trade, the parol contract was rescinded and at an end, as between the corporation and Waggoner. Simpson v. Green (Tex. Civ. App.) 212 S. W. 263, 266. Obviously the corporation could not have been compelled to execute the conveyance, because the oral contract was for the sale of real estate; and any defense, we think, which the corporation could have urged, could likewise be asserted by Waggoner against it and its creditors.

The beneficiaries for whose advantage the contract was made could not acquire a better standing to enforce such contract than that occupied by the contracting parties themselves. Dunning v. Leavitt, 85 N. Y. 30, 39 Am. Rep. 617; Crowe v. Lewin, 95 N. Y. 423; Malanaphy v. Mfg. Co., 125 Iowa,. 719, 101 N. W. 640, 106 Am. St. Rep. 332; Ellis v. Harrison, 104 Mo. 278, 16 S. W. 198; Wheat v. Rice, 97 N. Y. 296; Amonett v. Montague, 75 Mo. 43; Davis v. Calloway, 30 Ind. 112, 95 Am. Dec. 671; Mitchell v. Cooley, 5 Rob. (La.) 243; Stines v. Dorman, 25 Ohio St. 580.

What we have said requires a reversal of the judgments below, but we are of the opinion that we ought not to render the case. The statute provides that the Supreme Court shall reverse and remand, rather than reverse and render, a cause, when the justice of the case demands another trial. R. S. art. 1771. Under this we have held that vre will remand rather than render final judgment, where justice will probably be better sub-served. Faulkner v. Reed (Tex. Com. App.) 241 S. W. 1002. This rule is followed even in cases where the Supreme Court has power under the facts to reverse and dismiss the ease. Faulkner v. Reed, supra; Green v. Rugely, 23 Tex. 539; Zwernerman v. Rosenberg (Tex. Sup.) 11 S. W. 150.

The pleadings of the defendant in error, while predicated upon an assumption of debt by Waggoner, state the facts, and, in addition to the prayer for specific relief, ask t'oi other relief “either at law or in equity, special and general.” We will not undertake to fully state tlie pleadings. We believe tbe petition sufficient as against a general demurrer to have authorized a recovery in this case against Waggoner in some sum of money, notwithstanding the jury findings, as to rescission in Waggoner’s favor, and we ought to reverse and remand rather than reverse and render the case, under the statute and authorities cited above.

It will be recalled that, at the time of the meeting of the board of directors on September 27,1920, the corporation was hopelessly insolvent; that it then ceased to transact business, and was for all practical purposes dissolved, although the certificate of dissolution was not filed until long after that meeting. Such being the status of the corporation’s affairs, it is obvious that all of i'ts assets, personal and real, became a/tfust fund for the payment of the debts of the corporation, upon which the defendant in error, as well as other creditors, had an equitable lien. 11 Texas Jurisprudence, p. 84, § 421 and cases in notes; 10 Texas Jurisprudence, p. 680, § 70, and cases cited in notes; Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co., 86 Tex. 143, 24 S. W. 16, 22 L. R. A. 802; Id., 88 Tex. 468, 27 S. W. 100; Lang v. Dougherty, 74 Tex. 226, 12 S. W. 29; Orr & Hindsley Shoe Co. v. Thompson, 89 Tex. 501, 35 S. W. 473; Wright v. Euless, 12 Tex. Civ. App. 136, 34 S. W. 302; Rogers v. East Line Lumber Co., 11 Tex. Civ. App. 108, 33 S. W. 312; Lakeside Irr. Co. v. Buffington (Tex. Civ. App.) 168 S. W. 21; Advance-Rumely Thresher Co. v. Moss (Tex. Civ. App.) 213 S. W. 690. All of the directors, including Waggoner and Greene, became trustees in possession of this property, whose duty it was to see that the assets of the corporation were devoted to the payment of the debts of the concern. Tobin Canning Co. v. Fraser, 81 Tex. 407, 413, 17 S. W. 25; 11 Texas. Jurisprudence, p. 23, § 372; Leyhe v. Leyhe (Tex. Civ. App.) 220 S. W. 377; Thompson on Corporations (3d Ed.) vol. 8, § 6560; authorities supra. In the payment of these debts, they could not prefer one creditor over another, in the absence of a previously executed contract. 11 Texas Jurisprudence, p. 84, § 421, and cases in the notes; authorities supra; Fowler v. Bell, 90 Tex. 150, 37 S. W. 1058, 39 L. R. A. 254, 59 Am. St. Rep. 788; Lang v. Dougherty, 74 Tex. 226, 12 S. W. 29; Lyons-Thomas Hdwe. Co. v. Perry Stove Mfg. Co., 86 Tex. 143, 24 S. W. 16, 22 L. R. A. 802; Id., 88 Tex. 468, 27 S. W. 100; Thompson on Corporations (3d Ed.) yol. 8, §§ 6131-6133.

We think the board of directors, as directors and trustees, .had the right to sell the property to Greene or Greene and Wag-goner, in order to have the debts of the corporation paid; but the property passed, under the facts of this case, charged with an equitable lien in favor of the creditors of the corporation. dischargeable only upon the payment of the creditors in full or pro rata from the funds received from the corporate property, in the absence, of course, of some element of estoppel on the part of the creditors. Clevenger v. Galloway & Garrison (Tex. Civ. App.) 104 S. W. 914 (writ refused); National Bank of Jefferson v. Texas Investment Co., 74 Tex. 421, 12 S. W. 101; Panhandle National Bank v. Emery, 78 Tex. 498, 15 S. W. 23; 10 Texas Jurisprudence, p. 683, § 71; 11 Texas Jurisprudence, p. 87, § 422; Thompson on Corporations (3d Ed.) vol. 8, §§.6239, 6247, 6248. Moreover, the directors were charged with the duty of seeing that the creditors of the corporation were either paid in full or that they were paid pro rata out of the funds received from the assets of the corporation. This was a duty laid upon Waggoner as well as the other directors by the law. The mere fact that Greene, or Greene and Wag-goner, may have assumed the payment of the debts of the corporation, would not relieve the directors of this duty, in the absence of an estoppel on the part of the creditors. Authorities supra; Darcy v. Brooklyn & New York Ferry Co., 196 N. Y. 99, 89 N. E. 461, 26 L. R. A. (N. S.) 267, 134 Am. St. Rep. 827, and cases cited in the notes.

In the last cited case the New York Court of Appeals held that the directors of a corporation, who without notice to creditors had sold the entire corporate property to a purchaser who assumed the payment of the creditors, were liable to the creditors. In discussing the question, that court in part said:

“No notice of the transfer was given to creditors nor was any property retained by the directors with which to meet the plaintiff’s claim or any other indebtedness which might legally be established against the corporation. At the time of the transfer, however, the purchasing corporation did agree to assume all the then existing debts and liabilities of the selling corporation. This agreement was the sole provision made by the directors for the payment of the creditors of the corporation which they represented.
“The narrative of the transaction leaves no doubt that what the directors of the Brooklyn & New York Ferry Company sought to bring about was a voluntary dissolution of the corporation, and the distribution of its assets without taking the steps to that end which are prescribed by law. Notwithstanding their failure to proceed under the statute, they contend that a creditor of a corporation has no standing to compel them to pay a claim of which they were ignorant at the time of the transfer of the corporate property, ⅛ the absence of proof of actual fraud on their part. It is true that there is no allegation or finding. of fraud; but there is evidence that the officers of the company had knowledge of the injury to the plaintiff which was the basis of his claim. The liability of the directors is predicated, not on the ground that their ac-lion in making the transfer was fraudulent, but upon the proposition that it is a violation of duty on the part of the directors of a corporation to devest it of all its property without affording a reasonable opportunity to its preditors to present and enforce their claims before the transfer shall become effective. This is the proposition involved in the judgment in this case which we are asked to reverse. We think it is sound in law, and should be upheld. * * ⅜
“A creditor cannot be deprived of his equitable lien thereon by an agreement between the corporation and a transferee of the property that the latter shall assume and pay all the corporate debts. The consent of the creditor to accept the substituted debtor is essential to make such an agreement valid as against him. I-Ience the fact that the Brooklyn Perry Company of New York agreed with the Brooklyn & New York Perry Company to assume all the debts of the latter did not justify the directors of the selling corporation in disposing of its assets without making some other provision for the payment of its creditors. The plaintiff was left in the position of the creditor so aptly described by Werner, .T., in Hurd v. New York & Commercial Steam Laundry Co., 167 N. Y: 89, 95, 60 N. E. 327, 328: When he demands payment of his claim, he is 'referred to the empty shell which is all that is left of the live corporation whose tangible assets constituted a trust fund for the payment of his debt, at the time of its creation.’ It is not necessary to determine precisely what the directors of a corporation must do in order to protect themselves against liability when they undertake to divest it of all its property and practically dissolve it without taking the proceedings for a voluntary dissolution which are prescribed by law. Por the purposes of the present case, it is enough to say that they were bound to give some notice to creditors of the proposed transfer, and they gave none whatever. We think that their failure to do so was ‘a violation of their duties,’ under subdivision 2 of section 1781 of the Code of Civil Procedure, and rendered them liable ⅛ the plaintiff for the amount of the claim which he established against the corporation as having accrued before the transfer. The motives which induced the omission are iriimaterial. The entire assets could not lawfully be set over by the selling corporation to the purchasing corporation until some sort of opportunity had been given to the creditors of the latter to present and enforce their claims. The neglect to afford this opportunity is what constituted a violation of the directors’ duties, and it matters- not that they may have supposed they were not required to do any more than they did for the protection of creditors.”

In so far as the case before us is concerned, the record fails to disclose any notice to creditors of the transfer of the corporate assets to Greene; or to Greene-and Waggoner. The minutes of the directors’ meeting of September 27, 1920, show that notice was to be sent to the stockholders, but they are silent as to any such action with reference to creditors. Apparently the directors took no steps to see that the vendee of the corporate assets paid the creditors either in full or to the extent of the value of the assets of the company.

Glois L. Greene did not pay the creditors, of the corporation, or at least did not pay all of them. In fact, he became a bankrupt,, and therefore unable to pay. Neither Wag-goner nor other directors, in so far as this record shows, took any steps to see that the assets of the corporation transferred to Greene were devoted to the payment of the debts of the corporation. In fact, the record fails to show what became of the real properties of the concern. Some months after the transfer to Glois L. Greene, it appears that Greene gave a bill of sale to a large part of the personal property to Waggoner, and the latter, in consideration therefor,- paid a debt, or furnished the money with which to pay a debt of the corporation, to the Wichita State Bank, of which Eerguson was president, in the sum of $60,000. Under the facts of this case, it is a justiciable issue as to whether or not it was the duty and obligation of Wag-goner, as a director, and therefore as a trustee--for the creditors of this failed corporation, to see that the amount thus realized from the sale of the property transferred to him by Greene was paid pro rata to the creditors of the corporation; and, if his failure to do so damaged its creditors, whether or not he is responsible to them to the extent of the amount realized for these assets. Moreover, whether or not Waggoner took the property received from Greene charged with an equitable, lien in favor of the creditors, dis-chargeable only by a proper distribution by him and the other directors of the funds thus realized from the corporate assets, whether or not he converted that property, so that it could not be or cannot be reached by creditors, and, if so, whether or not he should be responsible for its conversion to the defendant in error, are all justiciable questions under the record now before us.

What we have said as to the possible .liability of Mr. Waggoner as a director of the corporation and trustee for the creditors for failure to see that the assets delivered to Glois L. Greene were devoted to the payment of the debts of the corporation on .a pro rata basis applies, in so far as the record before us shows the facts, to all the directors. The liability of Waggoner, by reason of the purchase of the assets and their conversion, if he did convert them, is another and different issue, which might not involve all the directors.

On the whole, it may be said that the record before us presents a justiciable issue as to the liability of Waggoner apart from his liability on a contractual assumption of debt, wliicli lias not been fully developed. We are clear, therefore, we ought not to render the case.

The judgments of the Court of Civil Appeals and district court, as to all parties, are accordingly reversed, and the cause remanded to the district court.