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

text:
    COMEAUX v. STATE.
    No. 14.173.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Rehearing Denied Oct. 7, 1931.
    Application for Leave to Eile Second Motion for Rehearing Denied Oct. 14, 1931.

      Baldwin & MeDougald and Fletcher S. Jones, all of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, possession of intoxicating liquor for the purpose of sale; punishment, confinement in the penitentiary for two years.

Operating under a search warrant, the officers first searched a house located at 1700 Brooklyn street in the city of Beaumont, where the appellant, Walter Comeaux, lived, but did not find anything in the house. The evidence shows that they next searched the garage or outhouse right back of said house; that the said garage or outhouse was between forty and fifty feet back of the house on the same premises, and that a family lived upstairs over it; that in one side of said garage downstairs there was nothing;. that on the other side there was a bunch of hay and empty barrels; that one side was nailed up ; that there was a big coop sitting there right in front of the building; that the place was nailed up and that the officers pulled a plank off that was nailed and found a bunch of half gallon fruit jars of whisky wrapped up in paper sacks; that they found approximately forty gallons; that they examined said liquor to see what it was and that it was red intoxicating whisky; that after they had found the whisky, the appellant came up on the premises driving a Ford coupé; that the officers did not arrest the appellant at that time, which was Saturday' evening; that they did not arrest him until Monday morning. The testimony further shows that when the appellant drove up, one of the officers said to him, “Walter, I thought you had quit bootlegging.” He answered, “I did, but I started up about two or three weeks ago.” He stated in answer to question by the officers that if they had come to said premises that night or the next day that he would not have had that much whisky. He was asked whose whisky it was, and' he stated that it was his whisky.

The appellant did not testify nor offer a'ny affirmative defensive matter.

Bill of exception No. 1 shows that appellant objected to the testimony of the officers touching the result of the search for the reason that said search warrant only directed the said officers to search the private residence of appellant and not the garage or outhouse. We think the objection was properly overruled.

The affidavit for search warrant, which was sworn to by W. W. Richardson and J. F. Edington, was substantially as follows:

“That on the 9 th day of August, A. D., 1930, there was and is now, before the making and filing of this affidavit in writing, a certain place and premises, situated in Jefferson County, Texas, described as follows, to-wit:
“A private residence No. 1700 Brooklyn Street, City of Beaumont, Jefferson County, Texas, the same being occupied and used by Walter C.omeaux and others, as a private dwelling.
“That on the said 9th day of August, A. D., 1930, the said Walter Comeaux was then and there, and is now, before the making and filing of this affidavit in writing, unlawfully manufacturing, keeping and possessing for the purpose of sale, and selling in the said place and premises, intoxicating liquors.
“That the said Walter Comeaux in the said place and premises, was then and there and is now keeping and. using, in the unlawful manufacture, possessing and keeping for the purpose of sale, and sale of the said intoxicating liquors, certain stills, coils, barrels, bottles, jugs, containers, malt, chops, syrup, pipes and capping machines. * * *
“That the facts, circumstances and statements mentioned and set out in this affidavit in writing are, within the knowledge of the affiants true and correct, and that the affiants obtained their evidence and knowledge of the same as follows, to-wit:
“Several reputable citizens have reported to us that they have seen persons going into said house sober and coming out under the influence of intoxicant liquor and intoxicating liquors is being kept and sold there.
“Wherefore, affiants ask that a warrant to search ■ the above described place and premises, and to seize said intoxicating liquors, and the said stills, coils, barrels, bottles, jugs, containers, malt, chops, syrup, pipes and capping machines, * ⅜ * in the said place and premises, be issued forthwith, and that a warrant for the arrest of the said Walter Comeaux, be forthwith issued, in accordance with law in such cases provided.”

The search warrant followed the same description and authorized the search of the residence described, as well as the premises. There seems to be no doubt from the record that the premises in question consisted of a residence and also a garage or outhouse, where the whisky was found, situated on the same lot approximately forty to fifty feet back of said residence, and according to the state’s witnesses, appellant stated that the whisky found in said out building was his. We think that the description in the affidavit included the garage or outhouse searched by the officers.

Bill of exception No. 2 preserves an objection to the testimony of the officers that the appellant stated to said officers that he had been running for about three weeks after the witness I-Iamman had told him that he thought he had quit bootlegging. Appellant’s objection was based on tbe ground that the witness Hamman had testified that he went there with the intention to arrest appellant, and that the peace officers, Hamman and Edington, had a warrant for appellant’s arrest, and that although they did not take physical custody of appellant at that time, Hamman and Edington had testified that it was their intention to arrest him, but that in fact said appellant was then and there under arrest at the time such statement was made, and that such statement was not part of the res gestas.

Sufficient evidence is not incorporated in the bill to verify the truth of appellant’s objections. The statement contained in the bill that the testimony could not be considered as a part of the res gestas because the same was long after the commission of the offense, if any, by the appellant, constitutes a mere statement of a ground of objection. It is not shown by said bill that appellant was actually under arrest, nor that at the time appellant made the statement that he thought or considered that he was under arrest. A mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the'basis of the objection are true. It merely shows that such objection was made. See Branch’s P. O. § 209; Edelen v. State, 103 Tex. Or. R. 562, 281 S. IV. 1078; Buchanan v. State, 107 Tex. Cr. R. 559, 29S S. W. 569. The bill not being sufficient to enable us to determine whether the trial court committed error in admitting the testimony, we must presume that the court’s ruling was correct.

Bill of exception No. 3 complains of the action of the court in refusing to give to the jury appellant’s instruction to find the appellant not guilty for the reason that the undisputed evidence disclosed that no intoxicating liquor was found in the private residence of the appellant on the 9 th day of'August, 1930. It is unnecessary for us to discuss this bill of exception further than to say that our discussion of bill No. 1 is applicable to this bill.

By bill of exception No. 4 appellant complains of the refusal of the court to give a special instruction requested by appellant upon circumstantial evidence. The evidence is direct that appellant admitted to the officers that the forty gallons of whisky found by them was possessed by him and that he had been bootlegging (or had “started up”) about two or three weeks. This was prima facie evidence that appellant possessed the liquor for the purpose of'sale. A charge on circumstantial evidence was therefore not required. See article 671, P. O.; Terry v. State, 101 Tex. Or. R. 267, 275 S. W. 837; Buchanan v. State, 107 Tex. Cr. R. 559, 29S S. W. 569.

Binding no reversible error in the record, the judgment is affirmed.

PER OTJRIAM.

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.

On Motion for Rehearing.

MORROW, P. J.

In a motion for rehearing, accompanied by many citations of precedents and supported by a forceful -argument, counsel for the appellant insists that this court erred in declaring that the trial judge was not in error • in holding, that the search warrant justified the search that' was made in the garage in 'which the contraband liquor was found. In argument, the opinion in McTyre v. State, 113 Tex. Cr. R. 31, 19 S.W.(2d) 49, is especially stressed. In McTyre’s Case, supra, application was made to search, a “private residence.” In executing the warrant issued upon the authority of the application mentioned, other buildings within the inclosure were searched and in one of them intoxicating liquor was found. The conclusion reached and expressed by this court in the McTyre Case was that under the language of article 691, P. O., and title 6, C. C. P., and article 1, § 9, of the Constitution, the search of Mc-Tyre’s outhouses was unauthorized for the reason that the description of the property in the affidavit and warrant was simply the private residence of McTyre. It is the principle there announced that the appellant, in his motion, contends 'should be applied to the facts of the present-appeal. In the present case, in the application, -for the search warrant, the property .to be'searched is thus described: “A certain place and'premises situated in Jefferson County, Texas, described as follows, to-wit: A private residence, #1700 Brooklyn Street, City of Beaumont, Jefferson, Co., Texas, the same being occupied and used by Walter Come & . others as a private dwell-⅛”

It is -further stated in the application that intoxicating liquor was kept for the purpose of sale and sold in said “place and premises.” It was also stated 'that affiants ask for a warrant to search the above “place and premises.”

The warrant followed the terms of the affidavit.

The evidence bearing upon the question, coming from the officers, is quoted as follows: “We searched the house located at 1700 Brooklyn Street in the City of Beaumont in this county, where Walter Comeaux lives. We did not find anything in the house. Next I searched the garage right back of the house. It was between 40 and 50 feet from the house. It was on the same lot. There is a family lives upstairs over it; somebody lives up there. There was nothing on one side. The other side was nailed up. In it we found about 40 gallons of whisky. Walter Comeaux came upon tbe prerQises after we had found the whisky. No arrest was then made but he was arrested a day or two later.”

Note is taken of the fact that in describing the property to be searched, it was called a “place and premises” designated as a private residence at 1700 Brooklyn street, and that in subsequent parts of the affidavit, the locality is described as “said place and premises.” In the particular last mentioned the application differs from that in McTyre’s Case, where the property was designated simply as a “private residence.” That to the extent of the search the affidavit limits the warrant we have no doubt. The question occurs: Does the language of the affidavit referring to the property as a “place and premises” include the other buildings used in connection with the dwelling and situated- upon the same lot as the mansion house?

Seale’s Case (Tex. Cr. App.) 39 S.W.(2d) 58, is somewhat analogous to the present. The term “premises” has, in legal parlance, •a meaning so broad and varied that its interpretation in a given case is to a great extent governed by the context; that is to say, the manner of its use in the connection found tends to portray the intent with which it was embraced in the document. Illustrations are found in 3 Words and Phrases, Second Series, page 1144. The same observation is applicable to the word “place.” See Brawley v. State, 114 Tex. Cr. R. 605, 26 S.W.(2d) 244; Smart v. State, 115 Tex. Cr. R. 147, 27 S.W. (2d) 813; 6 Words and Phrases, First Series, page 5383. In the present instance, under the facts before him, the trial judge construed the affidavit as giving the authority to search, not only the’mansion house, but the garage upon the same lot forming a part of the curtilage. See Wolf v. State, 110 Tex. Cr. R. 124, 9 S.W.(2d) 350.

■ [6] It was shown on the trial without controversy that the appellant admitted the ownership of the whisky found and the intent ito sell it. The whisky was found in the' garage building. The garage was used as a dwelling place by some person whose identity is not disclosed by the evidence as brought before this court. It being a Welling place situated upon the lot described in the complaint and warrant, which lot was under the control of the appellant, it is not within the province of this court to declare that the garage was not a part of the appellant’s dwelling and therefore within the specific designations contained in the affidavit and warrant. If the garage was not his dwelling but the dwelling of others than the appellant or his family, he is not in an attitude to complain of the evidence obtained in the search. See Craft v. State, 107 Tex. Cr. R. 130, 295 -S. W. 617; Ramsey v. State, 10S Tex. Cr. R. 182, 299 S. W. 411.

Based upon the observations made above and those set forth in the original opinion, we express the opinion that the motion for rehearing should be overruled, which is accordingly ordered.

On Application for Leave to File Second Motion for Rehearing.

HAWKINS, J.

In our original opinion we declined to consider bill of exception No. 2 because it was not thought to be sufficiently comprehensive to authorize it. In his motion for rehearing this matter was adverted to by appellant but not discussed in the opinion on rehearing. For that reason, appellant claims, he is entitled to have a second motion for rehearing considered. After again examining bill of exception No. 2, we are inclined to the view that our treatment of it in our original opinion is correct.

If we go .to the statement of facts, it discloses that one of the witnesses for the state who was present at the time of the search said that appellant came up at about the time the whisky was found, and that one of the officers then said to him, “I thought you had quit bootlegging,” to which appellant replied, “I have been running about three weeks.” The officer then said, “If we had waited until tonight we would not have found this much, would we?” And that appellant laughingly replied, “No, sir.” It must be borne in mind that appellant was on trial for possession of intoxicating liquor for the purpose of sale. If the bill of exception had been sufficiently full to have authorized our consideration, it would have shown that what appellant said was res gestse, and therefore admissible regardless"' of whether he was under arrest.

The request for leave to file second motion for rehearing is denied.


source: Caselaw Access Project

author: CHRISTIAN, J. CHRISTIAN, J. MORROW, P. J.

license: Public Domain

text:
    SPENCER v. STATE.
    No. 13476.
    Court of Criminal Appeals of Texas.
    Oct. 15, 1930.
    Rehearing Granted June 24, 1931. State’s Rehearing Denied Oct. 14, 1931.
    Ross Huffmaster, of Kaufman, and Baskett & DeLee, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is driving an automobile while intoxicated; the punishment, a fine of $300 and confinement in jail for ninety days.

Mrs. Boone came through the town of Terrell on a trip from Tyler to Dallas with her cousin, Bert Hill, his wife and little girl. In the middle of the business district of Terrell, according to her testimony, she attempted to pass a car which was just ahead of her. The driver of the car at first pulled out and prevented her passing him, but she finally succeeded in driving past him. Appellant, who was driving the car she had passed, attempted to run into her. She pulled up to the sidewalk and slowed down, permitting appellant to pass her. After passing her, appellant turned around and came back, and again attempted to run into Mrs. Boone’s car. Becoming frightened, she stopped at a filling station. When she stopped, appellant ran into her car. He cursed Mrs. Boone and her companions. Officers were notified and came to her assistance. Appellant was arrested after offering resistance. It was the opinidn of all the state’s witnesses, including the companion who was in the car with appellant, that appellant was drunk. Appellant admitted running into Mrs. Boone, but declared that he was not drunk, although he had been drinking beer.

Bill of exception No. 1 deals with the statement by a witness for the state that from the manner in which appellant was driving, and the language he used, and the way he was staggering around, he would say that appellant was drunk. Appellant objected to the answer'on the ground that it was a conclusion and the opinion of the witness. The testimony was properly received. It is the rule that “an opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible, whenever the condition of things is such that it cannot be reproduced and made palpable in the concrete.” Branch’s Annotated Penal Code, § 131. A witness may give an opinion as to whether another was “drunk” or “sober.” Branch’s Annotated Penal Code, § 132.

Bill of exception No. 2 brings forward an objection to the testimony of a state’s witness to the effect that it took four or five men to arrest appellant. It was uncontróverted that appellant resisted arrest. He admitted such fact himself. In any event', where a party is arrested, -or sought to be arrested, for an offense, and resists the arrest, it is a legitimate fact to be proved. Silver v. State, 110 Tex. Cr. R. 512, S S.W.(2d) 144, 19 S.W. (2d) 358, 60 A. L. R. 290, and authorities cited.

It appears from bill of exception No. 3 that immediately after running into Mrs. Boone’s car, and after he had .been handcuffed by the officers, appellant shook his handcuffs in Mrs. Boone’s face and cursed her. Appellant objected to the testimony of Mrs. Boone touching the matter on the ground that it was irrelevant and immaterial. The opinion is expressed that appellant’s acts and words 'at the time were res geste and exhibited conduct tending to prove his guilt.

It is recited in bill of exception No. 8 that, before the court read the charge to the jury, appellant excepted to paragraph 2, which paragraph advised the jury to convict appellant if they believed from the evidence beyond a reasonable doubt that he was intoxicated or in any degree under the influence of intoxicating liguor. The ground of objection is not specified. It is not shown that the objection was in writing. Article 658, C. C. P., in part provides as follows: “Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection.”

A careful examination of appellant’s contentions leads us to the conclusion that reversible error is not presented.

The judgment 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.

On Appellant’s Motion for Rehearing.

CHRISTIAN, J.

In the indictment it is alleged that appellant, ‘ while intoxicated, drove an automobile “on a certain public highway, to-wit: the Dixie-Overland Highway.” For the first time appellant calls attention to the fact that the state failed to prove a driving on' the highway as described. We have carefully examined the statement of facts. The highway is referred to therein as the “Dixie Highway,” but no evidence is found to the effect that it was the “Dixie-Overland Highway.” Unless we can assume that the “Dixie Highway” and the “Dixie-Overland Highway” are one and the same road (and we Enow of no authority which authorizes this court to indulge in such presumption against one accused of crime), appellant’s contention must be sustained. It was incumbent upon the state to prove the car was driven upon the Dixie-Overland Highway. Akin v. State, 114 Tex. Cr. R. 343, 23 S.W.(2d) 379; Smith v. State, 107 Tex. Cr. R. 511, 298 S. W. 286; Cantu v. State, 101 Tex. Cr. R. 386, 23 S. W. 432; Chaves v. State, 101 Tex. Cr. R. 367, 275 S. W. 1006; Lloyd v. State, 103 Tex. Cr. R. 31, 279 S. W. 843. The opinion is expressed that proof that the car was driven upon the “Dixie Highway” is not tantamount to proof that it was driven upon the “Dixie-Overland Highway.”

Appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, 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.

On State’s Motion for Rehearing.

MORROW, P. J.

In support of the contention of state’s counsel in his motion for rehearing, namely, that the variance pointed out in the appellant’s motion for rehearing is not available because raised after verdict and was not material, the following precedents are cited: Pool v. State, 102 Tex. Cr. R. 451, 278 S. W. 212; Inness v. State, 106 Tex. Cr. R. 524, 293 S. W. 821; Ward v. State, 102 Tex. Cr. R. 204, 277 S. W. 672; Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 156, Ann. Cas. 1914C, 863; article 763, C. C. P. 1925.

Our examination of the authorities in the light of the record leaves us of the opinion that the motion should be overruled, which is accordingly done.


author: CHRISTIAN, J. MORROW, P. J.

text:
    GRAHAM v. STATE.
    No. 14535.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 21, 1931.
    Wallace Hughston, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for two years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment 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.

On Motion for Rehearing.

MORROW, P. J.

A re-examination of the record in the light of the appellant’s motion for rehearing leaves the court of the opinion that the proper disposition of the case was made upon the original hearing.

The motion is overruled.


text:
    BASHAM v. STATE.
    No. 13691.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Rehearing Denied Oct. 14, 1931.
    Moss & Deaver, of Memphis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for two years.

Buster McCrary was night watchman at a gin. About one block away was a second gin at which appellant’s brother was night watchman. On the night of October 28th, 1929, some one entered the gin where McCrary worked and shot him with a pistol. According to the testimony of the injured party and his physicians, the wound was serious. It was the theory of the state that appellant and his brother had been stealing cotton from the gins, and that they had endeavored, to persuade McCrary to engage with them in their unlawful enterprise. Further it was the state’s theory that the injured party had declined to join appellant and his brother, with the result that an attempt was made to kill him. Touching the assault, McCrary testified that on the night of the shooting he had gone to the neighboring gin, where he found appellant, his brother and others; that, after remaining with the parties for a short time, he and appellant returned to his place of business; that there appellant suggested to him that they enter into an agreement whereby they would steal cotton from the two gins; that he declined to have anything to do with the matter; that appellant stated to him: “You know too damn much and I will just get you”; that his (McCrary’s) gun and flashlight were on a table near appellant; that appellant seized the gun and shot him; that, after shooting him, appellant took all of the cartridges out of the pistol, except the empty shell, and carried them with the flash-light away from the gin. The state’s testimony was further to the effect that the flash-light and cartridges were found in appellant’s possession shortly after the shooting.

Appellant denied that he had anything to do with shooting McCrary, and declared that he had at no time stolen cotton or attempted to persuade the injured party to enter into an agreement with him to steal cotton. ' He admitted that he went to the gin office with Mc-Crary on the night in question, but testified that McCrary lay down on the bed and was preparing to go to sleep when he left the office. Appellant’s brother, as well as appellant, testified that McCrary had come to their gin on the night in question in a drunken condition, and that, believing he might shoot some one, they had unloaded his pistol.

Bills of exception 1 to S, 'inclusive, ■deal with the same question, and will be discussed together. In one of these bills it appears that the district attorney asked appellant’s brother on cross-examination if he did not have a conversation with the injured party about two weeks before the shooting in which he stated to hipi that he and appellant were stealing cotton from the gin, and would ■ like to have him engage in the enterprise with them. In another of said bills it is shown that appellant was asked on cross-examination by f.he district attorney if he did not know that his brother had, about two weeks before the shooting, discussed the proposition of stealing cotton with the injured party. The last bill relates that McCrary, the injured party, testified in rebuttal for the state that about two weeks prior to the shooting appellant’s brother told him that he and appellant were stealing cotton and wanted him (McCrary) to “go in with them.” In each of said bills it is shown that appellant objected on the ground that the proposed testimony related to details of an extraneous offense and involved a conversation had out of the presence and hearing of appellant. The court qualified the bills with the statement that the injured party had testified that he had been invited by appellant to engage with him in stealing cotton; that the witnesses were asked the question for the purpose of laying a predicate of impeaching appellant and his brother. It was the state’s theory that the refusal of the injured party to enter into the enterprise of theft with appellant and his brother impelled appellant to shoot him. Hence, in support of such theory, it was proper to prove that appellant and,his brother had been stealing cotton and that they had acted together in an endeavor .to persuade McCrary to join them. It would follow that it was proper to introduce originally the statement in question if appellant was present at the time the parties were discussing the matter. As hereinbefore stated, the state relied upon the injured party’s knowledge that appellant and his brother had been stealing cotton as a motive for the assault. It is the rule that “the mere fact that in proving motive for a homicide or an assault that a separate crime may b.e proven does not render said proof inadmissible.” Branch’s Annotated Penal Code, § 1882; Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Morris v. State, 80 Tex. App. 95, 16 S. W. 757; Morrison v. State, 40 Tex. Cr. R. 473, 51 S. W. 358; Renfro v. State, 42 Tex. Cr. R. 393, 56 S. W. 1013.

It is merely stated, as a ground of objection, that appellant was not present. There is nothing in the bills of exception to support the objection. It is the rule that a mere ground of objection is not a certificate of the trial judge that the facts which form the basis of the objection are true; it only shows that such an objection was made. Branch’s Annotated Penal Code, § 209; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. Again, it is the rule that it is the legal presumption that the ruling of the trial court was correct, unless the bill of exception shows otherwise. Branch’s Annotated Penal Code, § 207; Buchanan v. State, supra. Giving effect to the rules controlling, we are constrained to hold that the bills of exception fail to manifest error.

It appears from bill of exception No. 4 that appellant offered to testify that a negro by the name of Marshall, who had gone for some liquor at about 11:30 p. m. on the night of the shooting, returned to the gin office occupied by appellant some time in the early morning, and made the statement that the “law” was after him. Upon objection by the district attorney, the testimony was rejected. It is stated in the bill of exception that the testimony was offered for the purpose of showing that another party committed the assault on McCrary. The bill is too meager in its recitals to enable us to appraise the question sought to be presented. It is not shown that the negro in question had been to the place where the shooting occurred, or that he had been anywhere in its vicinity. It is observed that part of the proffered testimony involved declarations on the part of the negro that the “law” was after him. This statement is not shown by the bill to have been res gestte. It is tbe rule that the declarations of a third party admitting his guilt of the crime for which the accused is upon trial are admissible, where the state is relying solely upon circumstantial evidence and the guilt of such third party is inconsistent with the guilt of the accused, and the facts show that such third party was so situated that he might have committed the crime. Proctor v. State, 114 Tex. Cr. R. 383, 25 S.W.(2d) 350; Wise v. State, 101 Tex. Cr. R. 58, 273 5. W. 850; Stone v. State, 98 Tex. Cr. R. 364, 265 S. W. 900. The state did not r.ely upon circumstantial evidence. If the declaration in question was susceptible of the construction that it was an admission on the part of the negro that he had committed a crime, such declaration could not properly have been received in evidence under the decisions.

Appellant timely and properly objected to the charge of the court for its failure to embody an instruction covering the law of alibi. The injured party testified that the shooting occurred not later than 10:45 p. m. He fixed the time by a clock in his office. Appellant testified that he was with the injured party at his brother’s place of business at 10:45 p. m.; that he went with McCrary to the place where the shooting occurred some time after 11 o’clock; that he returned to his brother’s place ' of business shortly after 11:15 p. m.; that thereafter he remained at the gin for several minutes, and later went to a restaurant in town; that he did not return to the place where the shooting occurred. It appears that appellant was dressed in a cream-colored sweater or coat. A witness for the state testified that he saw some one with a cream-colored sweater or coat on at the place where the shooting occurred about midnight. It is apparent that it was the state’s contention that the assault occurred when appellant was with McCrary, the injured party, in the office of the gin. There is nothing in the record to show that the parties relied upon the same clock in testifying as to the time of the various occurrences. We do not understand that appellant’s testimony as to his whereabouts is inconsistent with the state’s theory that he was present at the commission of the offense. Parker v. State, 40 Tex. Cr. R. 119, 49 S. W. 80; Underwood v. State, 55 Tex. Cr. R. 601, 117 S. W. 809; Hernandez v. State, 64 Tex. Cr. R. 73, 141 S. W. 268. Hence we ar.e constrained to hold that the learned trial judge properly declined to respond to the exception.

The judgment 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.

On Motion for Rehearing.

MORROW, P. J.

In appraising bill of exception No. 14, this court was governed by the evidence adduced upon the trial, as reflected by the statement of facts, and was not controlled by the language of the trial judge in qualifying the bill to the effect that the evidence did not raise the issue of alibi. The record upon the original hearing was given the most careful examination and consideration of which the members of the court were capable. The testimony is complicated and difficult pf analysis, but, as understood by the members of the court (by all of which the record has been examined), the evidence adduced was not such as to require an instruction to the jury upon the issue of alibi. Counsel for the appellant, in their motion for rehearing, earnestly insist and forcefully argue that in the conclusion stated this court was in error. With the motion, as well as the record, before us, we have again reviewed the subject, and are unable to reach a conclusion other than that announced in the original opinion. ,

The motion is overruled.


author: JONES, C. J.

text:
    LLOYD et al. v. THORP et al.
    No. 10883.
    Court of Civil Appeals of Texas. Dallas.
    July 11, 1931.
    Rehearing Denied Sept. 26, 1931.

      J. H.. Synnott, of Dallas, for plaintiffs in error.
    Thompson & Taylor, of Dallas, for defendants in error.
   JONES, C. J.

In a suit on an indemnity bond, E. Y. Thorp, state manager of Great American Casualty Company, and the Great American Casualty Company, a foreign corporation, as coplain-tiffs, recovered judgment against George D. Lloyd, as principal, and J. H. Synnott and P. G. Cameron, as sureties on the bond, in the sum of $231.10 with interest at the rate of 6 per cent, per annum; the sureties, Synnott and Cameron, were given judgment over against Lloyd for such part of the judgment as is paid by them. Plaintiffs in error have duly perfected an appeal by writ of error. The necessary facts are as follows:

On November 27, 1928, Lloyd entered into an agency contract with defendants in error through .state manager, Thorp. That portion of the .contract, material to the issues here involved, reads: “The party of the first part (Great American Casualty Company) hereby appoints the party of the second part (George D. Lloyd) as its agent at Dallas, Texas, to secure applications for the various forms, hereinafter stipulated, of policies issued by the company. The amount due the company must be sent in in cash, with the application. All accident and health business cash with application.” There are other provisions of the contract, but they are not material to the questions under review.

The undisputed evidence is that Lloyd delivered to Thorp 301 applications for insurance, on what is termed “limited policies,” the advance premium to be paid on such policies was $2, and under the agency contract Lloyd was entitled to retain 90 cents of this sum, and was required to accompany each of such applications with $1.10, the amount to be paid Thorp as state manager of the Great American Casualty Company. Such evidence further shows that these applications were submitted to Thorp without being accompanied by the premiums due to such company. These applications were sent by Thorp to -the home office at Chicago, and policies of insurance issued to the various applicants. It further appears from the evidence that the amount of premiums due the insurance company was paid by' Thorp to the company at its home office in Chicago, Ill., out of his own fund, and that Lloyd subsequently paid to Thorp $100 of this amount, leaving a balance of $231.50 due Thorp. The insurance company had no. ela'im for these uncollected premiums on Th'orp or Lloyd at the time this suit was instituted. The petition does not allege that any part of this $331.50 was collected by Lloyd from the various applicants, and the evidence does not show that he collected from the policyholders any of such premiums, but the inference from the evidence is that the amount in controversy is still owing by the recipients of the policies.

Defendants in error alleged in their petition that Lloyd executed a fidelity bond with Synnott and Cameron as sureties, and set out in haec verba the conditions of the bond, which are as follows: “The condition of this obligation is that if the said George D. Lloyd shall faithfully account for and pay to E. V. Thorp at Dallas, Texas, manager of said company in the State of Texas all amounts due the company on account of insurance premiums collected by him on behalf of the company according to the terms and provisions of' his agency contract, and within ten days after being notified by said E. Y. Thorp at Dallas, Texas, Manager of the company, that any application for insurance taken by him has been declined by the company, refund to such applicant the premium collected, or if settlement is taken in note, deliver said note to said rejected applicant, and shall honestly and in good faith carry out the terms of his agency contract and protect and indemnify the said E. V. Thorp of Dallas, Texas, manager, and the company against any pecuniary loss whatsoever on account of his business transactions as agent, then this obligation shall become void, otherwise to remain in full force and effect.”

The bond was attached as an exhibit to the petition and made a part thereof. While it was shown by evidence that this bond was executed, it was not introduced in evidence. This of course was an oversight and the trial court appears to have believed that the bond was in evidence, for judgment in favor of defendants in error was rendered by the court on the bond. This omission will require a reversal of this case, because a recovery cannot be had on a wrjtten contract without evidence of the terms of such contract.

We are of the opinion that the trial court erroneously applied the l¿w of this case to the undisputed facts in evidence, if we assume, as the trial court did, the bond was in evidence, especially as to the liability of Syn-nott and Cameron, unremunerated sureties, and for the court’s guidance in another trial of this cause, we shall discuss the liabilities of the sureties on the bond under the facts developed at the trial.

That portion of the condition of the bond, on which defendants in error claim a right of recovery, is that Lloyd “shall honestly and in good faith carry out the terms of his agency contract, and protect and indemnify the said E. V. Thorp at Dallas, Texas, Manager, and the company against any pecuniary loss on account of his business transactions as agent.” It is contended that, when Lloyd failed to collect the premiums, a pecuniary loss was suffered by the company because of such business transactions, and a condition of the bond thereby breached. It will be noted that the bond measures the fidelity of Lloyd by his performance of the terms of the agency contract, and his honesty and good faith in the premises depend upon whether or not he has carried out its terms as they are set out in the contracti It will also be noted that the excerpt from the agency contract, above quoted, required Lloyd to accompany each application for insurance with cash, and this excerpt clearly carries the inference that, unless such application is accompanied by cash, it will not be sent by Thorp for consideration by the company. The undisputed evidence shows that in each of these 301 applications presented to Thorp as state manager, no cash accompanied the application, and in violation of the terms of the agency contract, the application was transmitted by Thorp to the home office and a policy of insurance issued thereon. It therefore appears from the undisputed evidence that both Thorp, as state manager, and the company at its home office, waived this provision of the contract by accepting applications not accompanied by the necessary cash for the first annual premium, and thereby materially changed the terms of the-agency contract, the faithful and honest performance of which the sureties guaranteed. Under such condition, the sureties were released from the bond. Ryan v. Morton, 65 Tex. 258; G. H. & S. A. Ry. Co. v. Walker, 110 Tex. 286, 219 S. W. 815; Wilson v. Crowdus Drug Co. (Tex. Com. App.) 222 S. W. 223; Wright et al. v. McAdams Lumber Co. (Tex. Com. App.) 234 S. W. 878; Cudahy Pkg. Co. v. Shepard, 37 Tex. Civ. App. 1, 82 S. W. 786; Southland Life Ins. Co. v. Stewart (Tex. Civ. App.) 211 S. W. 460; 50 C. J. p. 112; Elliott on Contracts, § 3964; Page on the Law of Contracts, § 3121; Williston on Contracts, § 1243.

In another trial, unless it should be shown that the sureties on this fidelity bond were notified of the waiver of the provision of the agency contract above discussed, and assented thereto, judgment should be rendered in favor of such sureties.- No recovery was sought against Lloyd on the agency contract, but he is sued only as principal on the bond. If in the next trial of the case the undisputed evidence should show, as in this case, that Lloyd presented the applications for insurance without accompanying same with cash, and that such applications were accepted, both by Thorp and the company, and there should be no evidence that Lloyd had collected .and failed to deliver to Thorp any of the premiums on the policies in question, then there could be no recovery against Lloyd on the bond, for defendants in error, as a matter of law, waived the provision of the contract requiring advance payment of premiums, and no breach of honesty or good faith on the part of Lloyd for failure to collect the overdue premiums could exist.

We do not hold that Lloyd might not be responsible under his agency contract, or under an implied contract with Thorp, who paid to the company these premiums, to reimburse him therefor, but such is not the present suit.

It was neither alleged nor proven that the Great American Casualty Company, a foreign corporation, was doing business in this state under a legál permit. Such company had no claim against Lloyd or Thorp, for it had been remunerated for its share of the premiums on all of the policies issued. It was not a necessary or even a proper party to the suit. It did not voluntarily become a party to this suit, but was brought in by the trial court’s ruling on plaintiffs in error’s plea that it was a necessary party. So far as this case is concerned, the company’s status in this respect is not a subject of inquiry.

The disposition we have made of this case renders it unnecessary to discuss other assignments of error, and the judgment will be reversed and remanded with instructions.

Reversed and remanded.


author: PEBPHREY, C. J.

text:
    HOEHN v. TEXAS EMPLOYERS’ INS. ASS’N.
    No. 2563.
    Oourt of Civil Appeals of Texas. El Paso.
    Sept. 17, 1931.
    Rehearing Denied Oct. 8, 1931.
    Kmollenberg & Cameron, of El Paso, for plaintiff in error.
    Dea, McGrady & Edwards, of El Paso, for defendant in error.
   PEBPHREY, C. J.

This is the second appeal of this case, and reference is here made to our decision on the former appeal reported in 20 'S.W.(2d) 203, for a statement of the agreed facts.

In that case we held that the judgment in favor of plaintiff in error snould be reversed and her suit dismissed because her claim had not been filed with the Industrial Accident Board within the six-month period fixed by statute and no good cause shown why same had not been filed.

The judgment was not appealed from.

Thereafter, on May 20, 1930, plaintiff in error filed a claim with the board against defendant in error. A hearing was had, and an award of full compensation to plaintiff in error was made. Defendant in error appealed to the Forty-First district court, and in a trial before the court judgment was rendered setting aside said award.

This appeal is from said judgment.

Opinion.

On November 27, 1926, Mrs. John J. Cahill, of Phoenix, Arfe., "wrote the following letter to the Industrial Accident Board: “I am writing you at the request of Mrs. Philip Hoehn of Phoenix, Arizona, Mrs. Hoehn’s son Edward was killed on Nov. 8, while working for Joe Gerrick & Co., San Francisco contractors. At the time of his death he was working on the re-building of the Old South Western Railroad trestle at El Paso, Texas. Mrs. Hoehn has been told that she is entitled to compensation, and would like to know if anything has been done in this matter. I would like to add that Edward was his mother’s sole support, and she is sadly in need of all compensation, allowed her, as she is a widow with four young children.”

Plaintiff in error now contends that the above letter was sufficient notice, at least to amend, and that, when the board passes on a claim presented more than six months after the death of the. employee, and makes an award thereon, it thereby decides that sufficient reason for not filing within the period has been shown, which decision is binding, in the absence of a showing that the board has abused its discretion.

Defendant in error, on the other hand, contends that the form'er judgment of this court is res judicata on such issues.

It is a general rule that a judgment is conclusive of whatever might have been litigated in the action in .which it was rendered, and that a party must bring forward in one suit all the claims or defenses which he has which are included in or applicable to the cause of action in suit. 34 C. J. 811, and authorities cited.

On the former appeal, there was no mention made of the aforesaid letter and no contention that any claim was filed with the board prior to March, 1928. Neither was there pleading or proof as to any excuse for her failure to file within six months.

It was necessary for plaintiff in error to recover to show that she had filed a claim within six months or good cause for such failure. The judgment of this court was to the effect that she had not discharged that burden, permitted that judgment to become final, it was her duty to bring forward in the former suit all the facts upon which a recovery by her depended. After failing t-o do that, she cannot now be heard to say that there were other facts which entitled the board to pass upon her claim. She

We feel it unnecessary to discuss the other question presented. The judgment is affirmed.


author: JACKSON, J.

text:
    FT. WORTH & D. C. RY. CO. v. JENKINS.
    No. 3651.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 23, 1931.
    Tatum & Strong and Wilson Cowen, all of Dalhart, for appellant.
    J. S. Bailey, of Dalhart, for appellee.
   JACKSON, J.

J. G. Jenkins, the plaintiff, instituted this suit in justice court, precinct No. 2, Daliam county, T.ex., against the defendant the Fort Worth & Denver City Railway Company, to recover the sum of $100, the asserted market value of his horse alleged to have been killed by the negligence of the defendant, and for the sum of $15 as attorney’s fees.

Plaintiff obtained a judgment for $115 in justice court, the defendant appealed the case to the county court, and upon a trial de novo in said court, plaintiff recovered judgment for the value of his horse, determined to be $75, from which judgment .the defendant prosecutes this appeal to this court.

In county court the plaintiff filed a written, petition, in which he sufficiently pleads ai cause of action and alleges that the defendant was guilty of negligence in that its servants-in charge of-its passenger train at the time- and place where the horse was killed, although the view of the track was open and! clear, failed to exercise ordinary care to avoid! the collision. That the defendant’s train was late and to make up time was negligently running at an unusual and terrific rate of speed. That it failed to give any warning of its approach, failed to ring the bell or sound the whistle, all of which was negligence, and by the exercise of reasonable care it could have discovered the horse in time to have avoided the collision by the use of the means at its command, which it negligently failed to do, and that the negligence of the defendant was the proximate cause of the death of the horse and of plaintiff’s damages.

The defendant, in county court, filed a writ, ten answer, consisting of general demurrer, general denial, and specially pleaded that the horse was killed within the switch limits of its station at the town of Ware and that it was not required or permitted to fence its right of way at such place.

In response to special issues submitted by the court, the jury found, in effect, that the defendant was guilty of negligence in the manner of operating its passenger train ;• that the market value of the horse was $75; and that a reasonable attorney’s fee was $20.

' On these. findings the court entered judgment for the plaintiff for the sum of $75, with interest at the rate of 6 per cent, per annum from date of the judgment, and denied, any recovery for attorney’s fees.

The court, before submitting any issues to the jury, found that the horse was killed within the switch limits of the town of Ware at a place where the defendant was not required to fence its right of way, and no complaint is made of this action of the court.

The appellant challenges as error the action of the court in refusing to direct a verdict in its behalf, as requested, and for entering judgment against it for any amount, because the testimony was wholly insufficient to warrant the submission of any issue to the jury or to support the findings of the jury on the issues submitted.

Under the law, in deference to the jury’s findings, we are required to discard the testimony in behalf of the defendant and consider only such testimony as would support the jury’s verdict, and we therefore do not feel warranted in sustaining these assignments.

The appellant assails as erroneous special issue No. 1 submitted by the court because it submits negligence generally and does not confine the jury to the particular acts of negligence alleged and presented by the testimony, but authorized the jury to find the appellant guilty of negligence on any theory that might occur to them, though such negligence was neither alleged nor provén.

Issue No. 1, to which sufficient objection was made by appellant, reads: “Was the defendant Railway .Company negligent in the manner of operating its passenger train at the time and place when and where said horse was killed? You will answer this question ‘It was’ or ‘It was'not’.”

The written petition filed by the appellee in the county court charges the defendant and its employees with several separate and distinct acts of negligence as a basis for his recovery.

“It is well settled by the authorities in this state that a plaintiff in a case of this character can only recover damages upon some one or more of the acts of negligence alleged in his petition, and, when the case is submitted upon special issues, only the specific acts of negligence alleged in the plaintiff's petition- and supported by evidence should be submitted for the jury’s consideration.” Tyrrell Hardware Co. v. Orgeron (Tex. -Civ. App.) 289 S. W. 1040,1041, and authorities cited.

■ In Butler v. Herring, 34 S.W.(2d) 307, 308, in an opinion of this court written by Chief Justice Hall, it is said: “The grounds of negligence upon which recovery is sought are: (1) Driving at an excessive rate of speed, alleged to be fifty or fifty-five miles per hour; (2) driving 'on the left-hand side of Main street; (3) failure to slow down or stop when he,approached the intersection.”

The court submitted the issue of negligence as follows: “Was the defendant J. Butler guilty of negligence in the operation of his automobile at the time of the collision with the plaintiff’s automobile?”

This action of the court was held to be erroneous, because, the plaintiff having alleged several grounds of negligence on the part of defendant as a basis for recovery, it was error to submit the issue of negligence generally instead of submitting the alleged acts of negligence separately.

See, also, Northern Texas Traction Co. v. Singer (Tex. Civ. App.) 34 S.W.(2d) 920; and Kansas City, M. & O. Ry. Co. v. Perry (Tex. Com. App.) 6 S.W.(2d) 111.

This assignment is sustained.

The appellant presents some additional assignments, but as the matters therein presented will probably not arise on another trial, we deem it unnecessary to consider them.

For the error discussed, the judgment is reversed, and the cause remanded.


author: LOONEY, J.

text:
    GUGENHEIM v. DALLAS PLUMBING CO. et al.
    No. 10845.
    Court of Civil Appeals of Texas. Dallas.
    June 13, 1931.
    Rehearing Denied Sept. 26, 1931.

      Geo. T. Burgess, of Dallas, for appellant.
    J. L. Zumwalt, of Dallas, for appellees.
   LOONEY, J.

In the spring of 1927, C. R. Gugenheim conveyed to Carl Wolff two lots in the city of Dallas, one on Prospect street, in consideration, among others, of a note for $3,200, due ninety days after date (March 16, 1927), and one on Washington street, in consideration, among others, of a note for $3,000, due ninety days after date (April 29, 1927), both notes were secured by trust deeds with power of sale in the usual form on the respective lots. lAs part consideration for these conveyances, Carl Wolff agreed to improve the houses located upon lots according to plans furnished by Gugenheim, and, in the performance of these obligations, made repairs on the Prospect street property that cost in excess of $6,-000, and made repairs on the Washington avenue property that cost about $1,250. The Dallas Plumbing Company, Reliance Brick Company, Blue Diamond Company, Booth Lumber Company, G. D. Young, and R. O. Walton, referred to herein as materialmen, sold and furnished Wolff labor and material to improve the Prospect street property, and the Liberty State Bank of Dallas, acting through its president, Joe E. Lawther, loaned Wolff $3,-*000 to pay for labor and material used in improving the Prospect street property, and $400, similarly used on the Washington street property, each loan was secured by a trust deed in the usual form on the respective lots.

Wolff failed to pay Gugenheim the purchase-money notes, also failed to pay debts due the materialmen for labor and material, as well as the amount due the bank, and thereafter was adjudged a bankrupt, and was duly discharged. Those lots were sold under the Gugenheim trust deeds, and purchased 'by him, and at the institution of this suit he still owned the Prospect street property, but prior thereto had sold the Washington street property.

This suit was brought by the Dallas Plumbing Company for the establishment of its debt and the foreclosure of its constitutional lien against Gugenheim and Wolff; the other ma-terialmen and Joe E. Dawther (transferee and. owner of the bank’s claim) were brought in as claimants of liens against the property.

The other materialmen answered, showing liens upon the property, superior to the'rights of Gugenheim, and prayed for foreclosure. Dawther answered, claiming ownership, as transferee of the notes and trust deeds given by Wolff to the bank, and also asserted superiority over the lien and rights claimed by Gugenheim. The contention of the material-men1 is predicated on the idea that Gugen-heim, in obligating Wolff to improve the property, as part consideration for the conveyance, made him an agent for such purpose, and that Gugenheim’s lien for purchase money was thereby subordinated to their constitutional liens for labor and material furnished Wolff.

Dawther’s contention is that the liens held by the bank and transferred to him, for money loaned Wolff to pay for labor and material used in improving these properties, are superi- or to the rights of Gugenheim, on the idea that he estopped himself to deny such fact.

The jury answered all issues of fact in favor of the materialmen and Dawther; thereupon the court rendered judgment foreclosing their liens on the Prospect street property for the amount of their respective claims as against Gugenheim, and rendered personal judgment against Gugenheim in favor of Daw-ther for the amount of his debt and lien on the Washington street property, from which Gugenheim appealed.

We do not deem it necessary to separately discuss the numerous propositions urged by appellant under his 151 assignments, but have considered all questions raised, and will, in the order appearing below, discuss the questions we deem material, and state reasons for our holdings.

The cumulative effect of the contentions of appellant is that his liens for purchase money on these lots were prior and are superior to the liens claimed by the materialmen and Dawther; that the sale of the properties under the trust deeds held by him extinguished the liens and claims held by the materialmen and Dawther, and passed title free from the liens and claims of other parties; that the findings of the jury and judgment of the court to the contrary are supported by neither the facts nor the law governing the case. The findings of the jury, which, in our opinion, are sustained by evidence, are to the effect that the materialmen furnished Carl Wolff material and labor to improve the Prospect street property in the amounts, for which, plus interest, their respective claims were established and foreclosed. Aside from other evidence, Mr. Wolff, after mentioning the unpaid claims of these parties, said: “All of these parties to this suit asserting claims of liens furnished labor and material for that work on Prospect Street.”

These claims are, in our opinion, protected under the provision of section 37, art. 16, of the Constitution. The property not being homstead, it was not essential to the validity of liens that contracts for material and labor should have been in writing, or that Gugenheim should have been served with notice, or that the claims should have been recorded. The constitutional provision in question reads as follows: “Mechanics, artisans, and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor ; and the legislature shall provide by law for the speedy and efficient enforcement of said liens.” See Warner, etc., Co. v. Maverick, 88 Tex. 489, 30 S. W. 437, 438, 31 S. W. 353, 499; Breneman v. Beaumont, etc., Co., 12 Tex. Civ. App. 517, 34 S. W. 198, 203; Strang v. Pray (Tex. Civ. App.) 34 S. W. 666, 667; Lyon-Gray Lumber Co. v. Nocona Cotton Oil Co. (Tex. Civ. App.) 194 S. W. 633, 634; De Bruin v. Santo Domingo, etc., Co. (Tex. Civ. App.) 194 S. W. 654, 656, 657; McBride v. Beakley (Tex. Civ. App.) 203 S. W. 1137.

But the question remains, Were these liens superior to Gugenheim’s lien for unpaid purchase money? Appellant contends that they were not. The. statute (article 5459, R. S. 1925) provides that liens, such as those asserted by the materialmen, shall attach to the houses, buildings, and improvements for which materials were furnished or labor done, in preference to any prior incumbrance or mortgage upon the land upon which the house, building, or improvements were made or performed. The improvements in the instant case were made to houses already upon the land, therefore merged with and became a part of the houses, were incapable of being severed and sold separately; hence, under these facts, Gugenheim’s lien for purchase money should not be subordinated to the claims of the materialmen (Citizens’ National Bank v. Strauss, 29 Tex. Civ. App. 407, 69 S. W. 86, 89) unless other reasons exist requiring that this should be done, a question which we will now discuss. Article 5459, after the provisions above stated, contains this further language: “Provided, any lien, encumbrance or mortgage on the land or improvement at the time of the inception of the lien herein provided for shall not be affected thereby, and holders of such liens need not he made parties in suits to foreclose liens herein provided for.” In answer to special issues, the jury-found “that it was a part of the consideration for the deed from Gugenheim to Wolff conveying the Prospect Street property that Wolff was to make repairs and improvements thereon.” The evidence showed further that Gugenheim furnished plans for the work, and that the improvements were made according to these plans, modified to some extent hy agreement between Gugenheim and Wolff. It must he held, we think, that the contract was made with knowledge of and with reference to existing laws giving mechanics, artisans, and materialmen lifens upon property improved, for the value of labor and material furnished therefor. As Gugenheim’s lien for purchase money and the parol agreement requiring the property to be improved, arose from and constituted parts of one and the same transaction, it cannot be correctly said that the nóte was a “prior 'lien” upon the land at the inception of the liens for labor and material. We are of opinion, therefore, that the liens'1 claimed by the material-men attached to the property, under the terms of the statute, in preference to the lien held by Gugenheim. We are not unmindful of the holding by the Supreme Court in Sullivan v. Texas Briquette, etc., Co., 94 Tex. 541, 63 S. W. 307, 308, but believe the facts of the case at bar differentiates it from that case. The basis for the liens asserted by these material-men was laid by Gugenheim himself in the contract of sale, and the liens had their inception contemporaneously with that of the vendor’s lien. The word “inception,” as used in the statute, was defined in Oriental Hotel Co. v. Griffiths, 88 Tex. 583, 33 S. W. 652, 662, 30 L. R. A. 765, 53 Am. St. Rep. 790, as follows: “The word ‘inception’ means ‘initial stage.’ Cent. Diet. It does not refer to a state of actual existence, but to a condition of things or circumstances from which the thing may develop.” Under this definition of the word “inception,” we think it follows that the liens for labor and material created for the purpose of consummating improvements Gugen-heim obligated Wolff to make existed potentially from the day the contract of sale was made.

In Sullivan v. Texas Briquette, etc., Co., supra, the court, under the facts of that ease, gave preference to the prior lien of a mortgage, holding that the inception of the lien (for material and labor) relates to the date when the contract is made under which work was done or. material furnished, but in the discussion the court used the following significant language: “There is no evidence that we have been able to discover in this record —and none has been pointed out by the able attorney for the defendants in error — which shows that at the time the mortgage was executed any contract for this improvement had been let, or that the particular improvements were intended to be provided for by the making of that mortgage. The inception of the liens which are claimed in this case by the defendants in error was subsequent to the date of the lien of the mdrtgage to secure the bonds asserted by the plaintiffs in error, and was, therefore, subordinate to the lien of that mortgage.” The implication is clear that if, at the time the mortgage was executed, provision had been made for improvements, as in the case at bar, the court would doubtless have held differently.

But there is still another reason why, in our opinion, the trial court did not err in preferring the claims of the materialmen to the claim asserted by Gugenheim. In expressly obligating Wolff to make improvements, Gugenheim, in a certain sense, made Wolff his agent to that end, and, under such circumstances, the generally accepted doctrine is that the interest of the vendor becomes subject to liens for labor and material used in consummating the improvements. This doctrine is stated in 40 C. J. 113, 114, § 113, as follows: “While there is some authority to the contrary, as a general rule, where the contract of purchase expressly requires or obligates the purchaser to erect certain buildings, or make certain improvements, the interest of the vendor becomes subject to the liens of persons furnishing labor and materials for the buildings or improvements, even though the vendee forfeits his contract, it being considered that the vendor consents to the improvements or makes the vendee his agent. In such case, a further stipulation in the contract of sale that any mechanic’s lien shall be subject to the vendor’s interest in the property does not destroy the vendor’s consent, nor is it sufficient to subordinate to the vendor’s rights the lien of a person furnishing material and work who is not in privity with either of the parties .to the contract and who has no notice of the stipulation.” Also see Henderson v. Connelly, 123 Ill. 98, 14 N. E. 1, 5 Am. St. Rep. 490; Paulsen v. Manske, 126 Ill. 72, 18 N. E. 275, 9 Am. St. Rep. 532; Hill v. Gill, 40 Minn. 441, 42 N. W. 294, 296; Note 10 to Belnap v. Condon, 23 L. R. A. (N. S.) 604, 605, 615, 617; Note to Clark v. North, 11 Ann. Cas. 1085, 1088; Note to Stewart v. Talbott, Ann. Cas. 1916C, page 1135. In the ease of Hill v. Gill, supra, the vendor was seeking, under similar circumstances, to maintain priority over materialmen, as Gugenheim is attempting here. Denying the vendor’s preference over materialmen, the Supreme Court of Minnesota said: “She [vendor] attempts to retain the property, much enhanced in value, through plaintiffs’ materials, without paying for the improvements. To permit her to do so would be an imposition. She directed and demanded the erection of the dwelling-house upon her lot, as is obvious from her contract, and Barker, in pursuance of the right he acquired by the same instrument, and in performance of the conditions imposed by it, purchased building materials, now a part of the estate. The proper and just construction to be placed upon the contract is that the purchase was authorized by Mrs. Gill, and, if this be so, the plaintiffs must be permitted to look to her title for the satisfaction of their demand” — citing Henderson y. Connelly, supra. We are of opinion, therefore, that the court did not err in preferring the liens of the materialmen over the lien and rights claimed by Gugenheim.

Appellant insists, however, that the materialmen are limited by the terms of his deed conveying the land to Wolff, and, as this instrument' is silent, as to the contractual feature of the consideration- — that is, the obligation of Wolff to make improvements on the properties — that parol evidence was not admissible to establish the contemporaneous agreement for improvements, therefore the court erred in admitting proof of this nature.

We understand the general rule to bé as stated by appellant, but also understand that the rule is limited in its application to parties to the written contract and their privies, and cannot be invoked against those who do not claim under or attempt to enforce the contract. The parol agreement for improvements was brought into the case incidentally, as an evidentiary fact, showing the inception of the liens asserted by the parties, and further that, in conveying the property, Gugenheim obligated Wolff to improve the same according to certain plans, to illustrate Wolff’s agency in the premises. See Hughes v. Sandal, 25 Tex. 162, 165; Johnson v. Portwood, 89 Tex. 249, 34 S. W. 596, 787; Kahle v. Stone, 95 Tex. 106, 111, 65 S. W. 623; 22 0. J. 1292, § 1725. We therefore overrule this contention of appellant.

The judgment preferring the claims of Joe E. Lawther over the claim of appellant must rest, if sustained, on the doctrine of estoppel, as the evidence furnishes no other basis for the preference. He sued as transferee of the notes and deeds of trust given by Wolff to the Liberty State Bank, of which he was president, for money to be expended for labor and material in making improvements, both upon the Prospect street and the Washington avenue properties.

Appellant insists that Lawther showed no right to recover on the notes, because there was no evidence that the bank had transferred same to him. This contention is overruled ; the ’ testimony of Lawther clearly shows that the notes welre transferred to him by the bank.

The findings of the jury with ■ reference to both loans — the $3,000 loan on the Prospect street property and the $400 loan on the Washington avenue property — are that Gug-enheim represented (to Lawther, president of the bank) that he would make Wolff a loan when the improvements were completed, sufficient to cover the cost of improvements on the Washington avenue lot, and $2,000 on the Prospect street lot; that the bank made the loans to Wolff on the faith of Gugenheim’s representations, and that, although Wolff completed the improvements according to contract, Gugenheim failed and refused to make these loans. The evidence on this phase of the case is not as definite and satisfactory as, in our opinion, it could have been developed, yet we do not feel justified in disturbing the findings of the jury. In further support of the judgment, we think the court was warranted in concluding that, if Gugen-heim had made the promised loans to Wolff, the bank’s notes would have been paid.

The net result of Gugenheim’s' representations was to induce the bank to loan money to Wolff to be used, in fact was used, by him to improve these properties, and Gugenheim’s failure to furnish Wolff money as he said to Lawther he would do, resulted in the bank being prejudiced and Gugenheim being correspondingly benefited. These facts, in our opinion, are sufficient to estop Gugenheim to claim now that the rights obtained by him under foreclosure of his prior deed of trust are superior to the lien held by Lawther; therefore the court did not err in giving Law-ther’s claims preference.

We approve the finding of the jury, to the effect that Gugenheim agreed to advance Wolff $2,009 as a loan when the improvements to be made on the Prospect street property were completed, but we are also of opinion, and so hold, that the Liberty State Bank was not justified, by any statement or representation made by Gugenheim to Lawther, in lending Wolff on this property any amount in excess of $2,000.

If we are correct in holding that Gugen-heim estopped himself to assert priority of his claim over the liens held by Lawther, it follows necessarily that the purchase by Gu-genheim of the Washington avenue lot under foreclosure and its subsequent sale to a stranger, having cut off Lawther’s superior equitable rights, inflicted upon him a wrong, and damaged him in dollars and cents the amount of his note, principal and interest, held against this property by reason of which Gugenheim incurred personal liability; therefore the court did not err in rendering personal judgment against Gugenheim for that amount, in favor of Lawther.

Appellant insists further that the court erred in not instructing a verdict in his favor, on the idea that the judgment in cause No. 70906, styled Carl Wolff v. C. R. Gugen-heim, rendered in the district court of Dallas county, was res judicata as to all matters involved herein as between the parties to this suit. This contention is based on the idea that, when Gugenheim conveyed these lots to Carl Wolff, it was agreed, as part consideration for the conveyances, thpt Wolff would complete certain improvements thereon, and that Gugenheim would loan Wolff certain sums of money to pay for the improvements when completed; that the existence whether or not of such agreement between Gugenheim and Wolff was the sole issue of fact tried and decided in cause No. 70906, wherein Wolff sought to enjoin Gugenheim and the trustee in the trust deeds from enforcing payment of the purchase-money notes given by Wolff for these lots, on the ground that Gugenheim breached his agreement to mate said loans, and that the issue as to whether or not such an agreement in fact existed was decided adversely to Wolff.

Neither of the parties adverse to Gugen-heim in this suit was a party to cause No. 70906, in which the judgment, pleaded in bar, was rendered. The general rule that a stranger to a judgment is not bound thereby is stated in 15 R. C. L. 1005, 1006, § 481, as follows: “In regard to the persons in whose favor or against whom the doctrine of res judicata is applicable it is well settled that a judgment or decree is binding upon all parties to the proceeding in which it was rendered and their privies, and on the other hand it is equally well settled that with certain exceptions hereinafter noted, strangers to a judgment or decree are not bound thereby, and that it will not affect the rights of those who are neither parties nor privies in the suit and who have never had an opportunity to be heard. The reason for the rule lies in the fact that a stranger to an action does not have the opportunity vouchsafed to parties to prove or ascertain the truth of questions in issue. * * * ”

Appellant contends, however, that the facts of the case bring it within a well-recognized exception to the general rule, and that the case is controlled by the doctrine announced in Sonnentheil v. Moody (Tex. Civ. App.) 56 S. W. 1001; McFaddin, etc., Co. v. Texas, etc., Co. (Tex. Civ. App.) 253 S. W. 916, and Eastland County v. Davisson (Tex. Com. App.) 13 S.W.(2d) 673. Each of these eases was controlled by one of the exceptions to the general rule, to the effect that, where the relations between two parties are analogous to that of principal and agent, principal and surety, master and servant, or partners, the rule is that a judgment in favor of either in an action brought by a third party rendered upon a ground equally applicable to both should be accepted as conclusive against the plaintiff’s right of action against the other. The reason for the exception may be gleaned from the following excerpt from 15 R. C. L. 1027, §.501: “⅜ * * Where the relations between two parties are analogous to that of principal and agent, or master and servant, the rule is that a judgment in favor of either, in an action brought by a third party, rendered upon a ground equally applicable to. both, should be accepted as conclusive against the plaintiff’s right of action against the other. It is essential, however, that the ground of liability of the principal should be the same as that of the agent, and the party against whom the judgment is sought to be used as a determination of the question of liability must have had his day in court.

We do not think the facts of this case bring it within any exception to the general rule. The right of the materialmen to a lien upon the property was fixed by the Constitution, and their right to priority over the claim asserted by Gugenheim is based upon the fact that he obligated Wolff to improve the property, and in a sense made him agent for such purpose, and the right of Lawther to preference is based on the doctrine of estop-pel ; hence it is apparent that there is neither identity of parties, nor of issues, in the two controversies. We therefore overrule this contention of appellant.

After due consideration, we overrule all assignments, except we hold that the debt of Lawther, as established and foreclosed on the Prospect street property, is excessive, that same should be reduced to the sum of $2,000, the amount the jury found Gugenheim agreed to loan Wolff on this property, and, as thus reformed, the judgment below is in all respects affirmed.

The excessive feature of the judgment was complained of and called to the attention of the court below by appellant in his motion for a new trial, and assigned error thereon; therefore three-fourths of the costs of this appeal will be taxed against appellant, and one-fourth against appellee Lawther.

Reformed and affirmed.


author: HICKMAN, C. J.

text:
    MAGNOLIA PETROLEUM CO. v. REED.
    No. 849.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 18, 1931.
    Rehearing Denied Oct. 18, 1931.
    Conner & McRae, of Eastland, for appellant.
    W. S. Adamson, of Ranger, for appellee.
   HICKMAN, C. J.

The appeal is from a judgment in favor of appellee against appellant for the value of a Jersey calf drowned in a pit located on the Nash lease near Ranger. The case was tried in the county court on appeal from the justice "court. Appellee’s cause of action was based upon the alleged negligence of appellant in failing to fence the pit or use such means as reasonably necessary to prevent the calf from falling into it. The leased premises were not fenced and there is no showing of the existence of any stock law.

Appellant’s bill of exceptions No. 3 presents reversible error. Omitting formal parts, the bill reads as follows: , “The witness Joe A. Lawrence was being cross-examined by counsel for plaintiff, and over the timely objection of counsel for defendant, said witness was permitted to testify in the presence and hearing of the jury as follows: ‘Sometime after Mr. Reed’s calf is claimed to have been injured he was over at Olden, and in a conversation there with Mr. Clifton, when I was present, Mr. Reed stated that several months, prior to the time his calf is said to have fallen in the pit on the Nash farm a cow had fallen in the same pit and that the defendant had paid for the loss of that cow. This was the first time that either Mr. Clifton or myself knew that the pit was open, but on this occasion I was told by Mr. Reed that two or three months prior to April 7, 1927, a cow which fell in the same pit was drowned and the defendant paid for the loss. After this conversation under the instruction of Mr. Clifton Ijfilled up the pit in question. I had previously had no information as to the then condition of said pit.’ To which testimony the defendant then and there timely objected for the reason that the same was hearsay, prejudicial, irrelevant, immaterial, and was not the proper basis for any recovery in this case, and tended to the prejudice of defendant to establish negligence on the part of defendant in this case on account of the defendant having recognized probably by way of compromise liability on account of the then condition of said pit: But the court overruled said objections and permitted said testimony to be introduced before and in the presence and hearing of the jury, and to which action of the court in permitting said testimony to be given in the presence and hearing of said jury over said objections, counsel for defendant duly excepted. * * *”

We have concluded that this was not the proper way to present to the jury that appellant had paid for the loss of the cow which drowned in this same pit. It seems to be the well-established rule in this state that, on the issue of negligence, it was proper for the appellee to offer proof that appellant had paid others for damages which resulted just as appellee’s did. This evidence seems to be admissible on the ground that it involves an admission by appellant that the cause of the damages was its own negligence. Galveston, etc. Ry. Co. v. Hertzig, 3 Tex. Civ. App. 296, 22 8. W. 1013; St. Louis S. F. & T. Ry. Co. v. Thomas (Tex. Civ. App.) 167 S. W. 784; Texas & N. O. Ry. Co. v. Commercial Union Assur. Co. (Tex. Civ. App.) 137 S. W. 401; San Angelo Water, Light & Power Co. v. Baugh (Tex. Civ. App.) 270 S.W. 1101; Marsh v. Tiller et al. (Tex. Civ. App.) 293 S. W. 223; Harris v. Allison (Tex. Civ. App.) 11 S.W.(2d) 821; Hussmann v. Leavell & Sherman (Tex. Civ. App.) 20 S. W.(2d) 829.

From the case first above-cited we quote as follows: “Such being the case, the point for our decision is, was the fact that defendant paid others for damages which resulted just as plaintiff’s did, and from the same cause, admissible, as involving the admission that the cause of the fire was its own negligence? We think that it was. The payment of the claims of the others did not necessarily admit a liability either to them or to the plaintiff; but, unexplained, it tends in that direction. , It was susceptible of explanation, and its weight depended upon such facts as might be adduced to qualify it, and was therefore proper to go before the jury for their consideration.” In that case, as in the instant one, the contention was made that the evidence was objectionable as involving the statement of a compromise. But it was there held that proof of payment is no proof of compromise. The record before us presents no question of the appel-lee’s proving a compromise, but merely proving that appellant paid off another claim based upon the samé facts as those existing in.this ease. We therefore overrule the objection which presents the question that it was incompetent for appellee to prove that appellant had paid a claim for a cow drowned in this same pit. a short time prior to the drowning of appellee’s calf therein.

But this holding does not make the evidence offered by appellee competent and admissible. Appellee did not prove that appellant had paid off the claim for the cow, but, over the objection of appellant that the evidence was', hearsay, prejudicial, and. irrelevant, and not the proper basis for any recovery, appellee was permitted to prove by appellant’s witness, not that appellant had paid a claim for damages for the loss of a cow, but that, after the loss of appellee’s calf he (the appellee) had informed this witness that appellant had paid such claim. There is no evidence in the record that such claim was ever presented or paid, but only evidence that appellee himself had stated to the witness that such claim had been paid. This was clearly hearsay. The record does not show that this error was harmless, but, contrarily, that it was damaging.

We have not overlooked the fact that there is some variance between the bill of exceptions preserving this question and the statement of facts. Ordinarily the rule is that, where there is a direct conflict between the bill of exceptions and the statement of facts, the latter w.ill control; but this rule obtains only where the statement of facts has been agreed to by the parties and approved by the presiding judge. In this case the attorneys failed to- agree on the statement of facts and the trial judge prepared and filed one. In this condition of the record the bill of exceptions must control, even if we should be of opinion that there was direct conflict between it and the statement of facts. This exception to the rule is stated in 3 Tex. Jur. § 564, p. 79-7, in this language: “The rule does not apply where the statement of facts is made up by the court on failure of the parties to agree. Under such circumstances the bill of exceptions will control.” Cases are cited which support this statement of the rule, among them being Mc-Clelland v. Fallon & Lehr, 74 Tex. 236, 12 S. W. 60.

The other errors‘assigned are either without merit or will not probably arise upon another trial. They will not therefore be discussed.

Reversed and remanded.


author: WALKER, J.

text:
    PORT CITY CO. v. PECK et ux.
    No. 2104.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 24, 1931.
    Lewis Wood, Kenneth Krahl, and Hill & Harvey, all of Houston, for appellant.
    Ward & Ward, of Houston, for appellees.
   WALKER, J.

This was an action in trespass to try title by appellant against appellees. Among other defenses, appellees pleaded ten-year- limitation. This issue was found in their favor by the verdict of the jury, and judgment accordingly entered for the land. The tract of land in issue was within appellees’ inclosure of 125 acres. On this 125 acres was located the home of appellees; that is, the improvements constituting the home. A fence was built around the house in which they lived, but outside of the fence was their well, outhouses, and . barns. The fence around the dwelling house can be properly described as an interi- or fence. All of the 125 acres outside of the interior fence was used by appellees as a pasture, and it was their contention upon the trial of the case that it was continuously so used- from 1917 until the filing of this suit in 1928, and that during all of that time appel-lees asserted openly and notoriously a hostile claim of title and ownership of the land in controversy.

It is the contention of’ appellant that the verdict of the jury is wholly without support in the evidence. The following excerpts from the testimony fully support the verdict:

Appellee G. R. Peck testified:
“That particular tract of land to which Mr. Ward directed my attention is enclosed and has been enclosed since March 10th, 1910. The fence has been constantly there since March 10th, 1910. This land is enclosed by a wire fence. ¡There is about one hundred twenty-five acres within the tract of land that is enclosed.
“No one but me uses that one hundred twenty-five acres for any purpose. I cut hay on it, run cattle on it, and i>asture on it, cattle pasture and hay pasture. I began about the fall of 1910 to use it for the purpose of cutting hay, running cattle and pasturing on it.
“I remember tlie date of the judgment in 1917, it being somewhere along about the 6th of July, I believe; 1917, something like that. Since the date of that judgment I have lived on that land and pastured it continuously. Nobody has taken the place away or anything. I always considered it my own piece of land. I cut hay on it, ran dairy cattle on it; it is part of my front yard. I can turn a cow out at my house and she can go right back on this piece of land. That condition has been continuous from the date of the judgment in 1917, and before, on up to the date this suit was filed. I-have been using this land, constantly, every day, all the time from the date of the judgment up until the time this suit was filed.
“It is enclosed with a wire fence around it. I turn my dairy cows out; milk them in the morning and in the evening. I go out on this piece of land and drive them up to the barn and milk them. I have been cutting hay there. I will tell you what I have got on the one hundred twenty-five acres. In 1910 I fenced, it; I didn’t have anything but a fence. I pastured it and cut hay on it, but I didn’t live there, but in the fall of 1913 I went up there and built a house and lived there. I have lived there continuously since 1913, used it every day since 1910.
“The improvements on the one hundred twenty acres is a seven-room house, two barns, artesian well, chicken house, delco light, house, and garage.
“I just have a little fence around my yard, you see, to keep stock away from the house, and then I have got á big fence that goes around the one hundred twenty-five acres. There is no fence around my barn segregating it from the one hundred twenty-five acres. You can turn a cow out and she can go right on over this piece of land. It is my pasture. This one hundred twenty-five acres is enclosed with a fence around the whole' thing. Turn a cow out and she can go right on this piece of land.
“My one hundred twenty-five acres are right here (indicating on map). It lies in this shape. Here is the land they are suing for right over here, begins at that land. Here is my house. When you turn cattle out they go right back on this piece of land.”
“ * * * There is nothing intervening between my barns here and the twenty-four acres up here that is in controversy.
“My fence lines run around and outside the exteriors that I have marked A, B, O, D, and E.
“Since the date of that judgment in 1917 there has not been any time that my fences were not up around this tract of land; they have been there constantly.
“We will say this about the fence;, the fence will get in bad condition; maybe I will let it run a couple of years and fix it up. I won’t fix it up every year. I will go out and repair it every couple of years. I will let it alone as long as it will stand and then I will rebuild it. That fence has been used continuously during that period of time for keeping my cattle in and keeping other people’s cattle out.
“Erom the time of the judgment up until the time this suit was filed I 'always claimed that land. I never recognized it any other way than as my piece of land. Nobody said anything to me about it, or came around or anything. I kept the fence up on it, I always claimed it as my piece of land. During that time I have not recognized anybody else’s adverse claim to that piece of land. I haven’t paid them any mind. During that time nobody has disputed my claim to the land.
“ * * * I knew that that judgment rendered in 1917 destroyed or took away from me every right and title to that land. I never conceived the idea of claiming that land by limitation after that date. I knew they never took it away from me, in my mind. I always claimed it; they hadn’t moved me off of the land. I was going to wait until they did it. I have always conceived it was mine. They haven’t taken it away from me yet. I always claimed the land. I had it in my possession. I never gave it up. My fence was still there.
“ * * * There was not any time from the date of the judgment in 1917 up until the time this suit was filed that I did not have horses on the land, inside of my enclosure. I always had them there, four or five, and a pair of mules in there continually. I had to have my saddle horse and mules anyway around there. I got as many as I could in there, because they were trying to starve them to death for water, because if X could get them on my place for water they were all right. I got as many as I could in there. They headed me off on some of them and I couldn’t get them in there. I continuously grazed the land in that enclosure, the one hundred twenty-five acres, during that time with my horses and mules. I have always made claim to it from the date of the judgment in 1917 up until the time this suit was filed. I lived on it; it is my home. I got a well on it, my home where I stayed. I had my milk cows running in there.
“From the time of the judgment in 1917 up until the time the suit was filed there never was a time during that time when my wife or I was not on the one hundred twenty-five acre tract of land. We have continually lived there. That is my home. We continuously lived there.”
The witness J. E. Smith testified:
“I knew about Mr. Peck having saddle horses. He had saddle horses at all times. He always had milk cows, one or two I know except when they were killed out.
“There has been no change in Mr. Peek’s fence line on the east and north from December 17, 1917 up until August 10, 1928 — not on his outside line. A fence has been maintained there during that time. It is there now and was on the 10th of August, 1928. Those fences between him and the interurban, that open country, has been there since 1910. There was a new fence put on the west, we call it the Scott line.
“There is nothing intervening between Mr. Peek’s barns and garage and his north and north-east line, — no fences in there. His buildings are all in one outside inclosure. His cattle and horses could go all over his enclosure from the barns without crossing any fence.”
W. P. Reuge testified:
“No one other than Mr. Peck has been using the land that he now has in his enclosure or had under his enclosure August, 1928. Mr. Peck was using it. He cut hay off of it, used it for a pasture, kept his saddle horses in there, and kept his cows in there all the time. There was not a time from the time I first became acquainted with it, or from December 17, 1917, until August 10, 1928, when Mr, Peck did not have some horses or cows within that enclosure.
“I know where Mr. Peck’s house is. And I know where his barns and garages are, that are on the land that he had enclosed on August 10, 1928. There is no fence between the north and east line and the barns and the garage. His cattle and horses that he had in his barn or barns would have ranged all over the acres that he has enclosed, except the fenced part around his house where he lived- and slept. They ranged all over it. I know where his fence lines were in August, 1928. .They were the same on the north and east during the period back to December 17, 1917. I know where his other fence lines were during that time, on the other sides of his property that he had enclosed. During that period of time his fences were kept. They were always kept up, I am sure.
* * My testimony is that from 1917 up until August, 1928, Mr. Peck continuously had horses and cows in this enclosure. ⅜ * *. jje iiept as many as thirty or forty head of cattle in there the entire year around. He generally had three or four saddle horses in there and his work horses and mules. He generally had six or eight head of horses and mules in there. Part of the time after he bought his range horses he turned some of them in there.”
The. witness Early Plumley testified, describing appellees’ occupancy of the land in controversy:
“He has always had cattle in there — cattle and horses. I don’t know about the foot and mouth disease. X don’t know whether he had them in there then or not. X think they took them 'away from him, but he has always had horses in there. I don’t know whether he had cattle in there during the foot and mouth disease or not.
“ * * * He must have had twenty-five . or thirty head of horses in this enclosure in the year 1924. They were all around his house, I couldn’t help but see them. They were in there always. I saw them in the Spring. ‘ I saw them in the Summer. I saw them in the Fall.
“I don’t know how many head of horses I saw in there in 1926. I knew he has always had horses in there. I don’t remember just how many head he had in there.”
Mrs. Alice Peck testified: “I know where the fence lines of the enclosure constituting the home place have been during the time we have been there. * ⅜ * The north and east fences have remained the same during that period of time. The tract of land enclosed on the north and. east has been the same during that entire time. During the time I have been there up until August 10, 1928, the date of the filing of this suit, we have used the land that is within that enclosure all the time. We made hay on it, we had cattle in there and horses in there all the time. That was.continuous from the time I went there up until August 10, 1928. There was not a time during that period of time that we did not have horses pastured in that enclosure. There was no time during that period of time that we did not have cattle pastured in there except during the time when we had the foot and mouth disease. We had cattle in there all the time except when we couldn’t have them during the foot and mouth disease.”

The quoted testimony fully sustains the verdict of the jury.

In Johnson v. Sullivan (Tex. Civ. App.) 163, S. W. 1015, 1016, it was said: “It was immaterial that the lot was not separately inclosed, since there was a general inclosure, even though other lots were embraced therein.Smith v. Kenney [Tex. Civ. App.] 54 S. W. SOI; Cunningham v. Mathews [Tex. Civ. App.] 57 S. W. 1115.” _ •

In Moran v. Moseley (Tex. Civ. App.) 164 S. W. 1093, 1094, the court said: “It is not necessary, as contended by appellant, that the land be separately inclosed, but it is sufficient if it is with a general inclosure, even though other ' tracts are included therein. See Smith v. Kenney [Tex. Civ. App.] 54 S. W. 801; Cunningham v. Mathews [Tex. Civ. App.] 57 S. W. 1115.”

As to the sufficiency of the occupancy to sustain the verdict, the court, in Randolph v. Lewis (Tex. Civ. App.) 163 S. W. 647, 649. said: “The evidence showed that the appel-lee, immediately after purchasing the land, placed his deed upon record, inclosed the land, and had continuously used it for a period of more than five years as a pasture for cattle, hogs, and goats, paying taxes thereon. Such user is sufficient to show adverse possession. See Hooper v. Acuff [Tex. Civ. App.] 159 S. W. 934. Pasturing cattle on land inclosed for that purpose, and which is under the exclusive control of the party claiming under the statute, is such use and enjoyment as is sufficient. Hardy Oil Co. v. Burnham [58 Tex. Civ. App. 285] 124 S. W. 221.”

The judgment of the lower court is in ¿11 things affirmed.

Affirmed.