text:
    LADONIO-DENNIS-JONES et al. v. HOPE FERTILIZER CO.
    No. 4040.
    Court of Civil Appeals of Texas. Texarkana.
    May 28, 1931.

      Bartlett & Harvey, of Linden, for plaintiffs in error.
    O’Neal & Harper, of Linden, for defendant in error.
   LEVY, J.

(after stating the case as above).

The poifit presented for decision is that of the liability of a married woman for indebtedness incurred by her for the commercial fertilizer used in the cultivation of her farm, the separate property of the wife, to make the land fruitful and more abundant in production. She planted and raised a crop on the land. The appellant contends that she, being a married woman, was without legal authority to incur the indebtedness for the fertilizer because such indebtedness was not for the benefit of her separate property, but rather for the benefit of the community estate, since the crop for the production of which the fertilizer was used was community property. Under the statute as existing prior to 1913 the right of the wife to contract debts, other than necessaries for herself and children, was limited to expenses “for the benefit of her separate property.” Article 4624, Rev. St. 1911. She was not given the exclusive management and control of her separate property. Numerous decisions have been rendered by the courts of the state determining under the former statute what expenses can be and what expenses cannot be regarded as expenses “for the benefit of her separate estate.” For instance, Teel v. Blair, 60 Tex. Civ. App. 254, 128 S. W. 478, 479; Stroter v. Brackenridge, 102 Tex. 386, 118 S. W. 634; Taylor v. Thomas (Tex. Civ. App.) 145 S. W. 1061; and many other cases. But since 1913, under article 4614, as amended by Acts of 1929, c. 32 (Vernon’s Ann. Civ. St. art. 4614), of the present statute, considerable enlargement has been made of the power of a married woman over her separate property and to incur expenses in relation to the use and control of her separate property. She is not now, as before, limited to expenses “for the benefit of her separate property.” As expressly provided in article 4614: “The wife shall have the sole management, control and disposition of her separate property, both real and personal.” There is thus plainly shown the legislative intention to remove any restriction, as before existing, upon the incidental rights of ownership, and to allow the entirety of the powers of use and management without restriction to the wife in virtue of her absolute ownership of the property. The very essence of ownership is the incidental rights of use and management. So that a married woman may now generally contract as may be necessary for or about the “management and control” of her separate estate whether entirely “for the benefit” of the same or not. The simple test is: Was the contract necessary for her about the management and control of “her separate property”? The right to control and manage a farm and to cultivate the same would become valueless if the owner were denied the power to make binding contract for fertilizers to bo used to make the land more abundant in production that income and profit should be derived from it. It is not controlling of the exercise of such authority that the income or profit should be classed legally as community property. It is believed that the decisions below interpret the article as conferring the general power upon the wife to contract as may be necessary about or for the control and management of her separate property whether entirely for the benefit of the same or not. Whitney Hardware Co. v. McMahan, 111 Tex. 242, 231 S. W. 694; Gohlman, Lester & Co. v. Whittle, 114 Tex. 548, 273 S. W. 808; Cauble v. Beaver-Electra Ref. Co., 115 Tex. 1, 274 S. W. 120; Teague v. Burk (Tex. Civ. App.) 3 S.W.(2d) 461. In the above cases it is evident that the contracts were for the benefit of the community estate and not of the wife’s separate property. The crops grown upon the wife’s land and the product of oil wells are concededly cofnmunity property. The appellant’s attorneys conceded, as should be stated, the proposition that if the power of contract should be held by the court as allowable generally as incidental to management of separate property and not limited to expenses entirely “for the benefit of her separate estate,” then legal liability in the case for the debt has been established.

It is believed that the trial court has correctly applied the law in holding appellant liable for the debt sued for.

The appellee by proper cross-assignment seeks to have the foreclosure of the chattel mortgage given to secure payment of the note. The judgment should allow the foreclosure. Fort Worth State Bank v. Irving (Tex. Civ. App.) 241 S. W. 277; Collins v. Austin (Tex. Civ. App.) 32 S.W.(2d) 912.

The complaint of appellant as to attorney’s fees should be, as conceded, granted, as it seems the attorney’s fees were inadvertently placed in the decree spread upon the minutes; the trial court expressly finding there was no proof authorizing a recovery.

The judgment is reformed so as to deny recovery of attorney’s fees and to allow foreclosure of the chattel mortgáge, and as reformed will be in all things affirmed.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    JACKSON et al. v. TEMPLIN.
    No. 4035.
    Court of Civil Appeals of Texas. Texarkana.
    June 18, 1931.
    Rehearing Denied July 2, 1931.

      Cunningham & Lipscomb, of Bonham, for appellants. ■' ■

    J. Cleo Thompson, of Dallas, and Clark, Harrell & Clark, of Greenville, for appellee.
   LEVY, J.

(after stating the case as above).

The question presented for consideration is the purely legal one of whether the trustee had the power to borrow the money by mortgage to pay the taxes and improve the property. The will placed the legal title of the estate in trust in the trustee for the purpose in view of providing for the maintenance and support of the testator’s daughter, Kate.' For the accomplishment of which purpose the trustee was expressly given “the full power to rent or sell any of said trust estate as may seem best, save the home place, which I desire to pass as provided (herein), that is, one half to Kate for her life and then to go to my children then living or their heirs.” No portion of the will indicates an intention to restrict or qualify this general authority by limiting the sale to any specific method of transfer. It thus plainly appears from the will that the trustee was affirmatively denied any power to pass the legal title, by sale or in any other way of transfer, to “the home place.” The “home place” was to remain absolutely intact and was not in any event to be sold by the trustee. But as to the remaining portion of the trust estate, as plainly appears from the will, the trustee was to have the absolute management and' control with the unrestricted and unlimited power of sale thereof. The general authority as is thus conferred upon the trustee necessarily confides to his judgment the mode by which he shall give effect to the purposes of the trust. In conferring the simple power of sale the authority was conferred thereby to mortgage the property in suit according to the rule applied in Faulk v. Dashiell, 62 Tex. 642, 50 Am. Rep. 542. Such rule was followed in McCreary v. Bomberger, 151 Pa. 323, 24 A. 1066, 31 Am. St. Rep. 760; Waterman v. Baldwin, 68 Iowa, 255, 26 N. W. 435; Kent v. Morrison, 153 Mass. 137, 26 N. E. 427, 10 L. R. A. 756, 25 Am. St. Rep. 616; Fergusson v. Fergusson, 148 Ark. 290, 229 S. W. 738; and other similar cases. In the Faulk Case, supra, the will conferred the authority to “sell, exchange, and dispose of” the estate as the executor may deem best for the interest of the children. Quoting from the opinion: “It is laid down in many cases that a power of sale implies a power to mortgage. [Citing eases.] In some other cases this doctrine .has been denied, and in its application subjected to considerable modification. [Citing cases.] Without attempting to indicate which of these lines of decision should be accepted as furnishing the proper rule to follow, it is sufficient to say that, under this state of the law upon the point, the testatrix might well have supposed that in conferring the power ‘to sell’ the authority was conferred thereby to mortgage the property.” The court then proceeded to .explain that the superadded words “dispose of” did not import a lesser power, but were words of the same and not lesser meaning than the words “to sell.” The decision in that case was rested entirely upon thefintention of the testator to arm the executor with the plenary power “to sell” the trust estate, and the power to sell the land included the power to mortgage the property. The Faulk Case was cited to and approved in Quisenberry v. Land-Mortgage Co., 92 Tex. 247, 47 S. W. 708, 709. The Quisenberry Case was differentiated by the words of the will which restricted the right of “sale” by Beatty to a ’“sale” which shall have “dispossessed himsélf of the title” at the time of conveyance. As stated by the court, “the mortgage did not dispossess him of nor alienate the title, and was therefore unauthorized and void.* And, too, the cases cited of Willis v. Smith, 66 Tex. 31, 17 S. W. 247 and Mansfield v. Wardlow (Tex. Civ. App.) 91 S. W. 859, are not Similar cases. It is believed that the Faulk Case, supra, is analogous to the instant case on the point under consideration, and controls the ruling.

The judgment is accordingly affirmed.


author: HIGGINS, J.

text:
    WOMAN’S CLUB OF YSLETA v. HUTCHINS.
    No. 2554.
    Court of Civil Appeals of Texas. El Paso.
    June 25, 1931.
    Vowell & Vowell, óf El Paso, for appellant.
    Isaaeks & Lattner, of El Paso, for appel-lee.
   HIGGINS, J.

Appellant, a corporation, brought this suit against the appellee, the petition setting up the following: Plaintiff has been in peaceful possession for a period of five years, under deeds from- W. Cooley and others, of lots 20, 21, 22, and 23, in block 22, of West Ysleta, fronting, 128.34 feet on the Ysleta-El Paso county road, and has erected permanent and valuable improvements thereon, consisting of a clubhouse building. About four years before, it erected a fence on the dividing line upon the plaintiff’s property and land claimed by defendant. Between the club building and the fence, plaintiff planted trees, flowers, and shrubs near the fence; it also constructed an irrigation ditch near the fence, and at great expense had installed a cesspool and sewerage system. About July 15, 1930, defendant unlawfully, willfully, and with intent to gain an advantage over the plaintiff in the controversy between him and plaintiff over a strip of land inside the fence, destroyed and removed the fence and placed it approximately ten feet over on the land claimed and possessed by plaintiff; that defendant acted without authority of law and in violation of the criminal statutes of the state, and did it for the purpose of injuring plaintiff, and for the purpose of compelling plaintiff to institute and prosecute a suit in trespass to try title, while knowing it was incumbent upon him to institute such proceedings if he claimed any land within plaintiff’s inclosure; that the fence, as now placed, leaves the shrubbery, flowers, trees, cesspool and sewerage system outside of plaintiff’s possession, and, if same be permitted to remain out of such inclosure, all of such property will be destroyed. It was further averred the plaintiff had been irreparably damaged thereby in the sum of $1,000, and that it had no adequate legal remedy.

Judgment was prayed for a writ of injunction ordering, directing, and compelling defendant to restore the fence and put it back where it originally was, and that defendant be compelled to restore the property, to the condition it was aforesaid, and for judgment in the sum of $1000.

Defendant answered by exceptions general and special, and special denials, substantially, as follows: Denied that the fence as originally situated was on the line between plaintiff and defendant’s land; denied the allegations of the unlawful and wrongful trespass. He further set up that prior to the removal of the fence there was a question as to the location of the dividing line between the property of the plaintiff and defendant, and defendant had the county surveyor of El Paso county to survey and establish the line between the properties, which the surveyor did, and placed iron stakes at either end of the line, and thereafter the defendant placed the fence on his own land along the line established by the surveyor.

Upon trial without a jury, judgment was rendered denying plaintiff the relief sought.

The evidence is undisputed. Briefly stated, it shows that plaintiff is the owner and entitled to the possession of the lots described in its petition, and defendant is the owner of lot 24, immediately west of and adjoining lot 23. It shows that the controversy arises over the true location of the boundary line between said lots 23 and 24, and that prior to the removal of the fence the defendant had his line twice surveyed and marked by the county surveyor, and that the defendant had removed the fence about dark one day and had placed the same upon the line established by such surveyor.

There can be no doubt that the controversy is solely over the true location of the boundary line in dispute. The plaintiff .offered no evidence upon that issue. The only evidence upon the issue is that of the defendant that he had the line twice surveyed by the county surveyor who fixed the same at the point he placed the fence.

Plaintiff has a clear, adequate, and complete remedy at jaw by action' in trespass to try title and sequestration. In such cases, a court of equity will not grant injunctive relief. Hill v. Brown (Tex. Com. App.) 237 S. W. 252; Jowell v. Carnine (Tex. Civ. App.) 20 S.W.(2d) 1087, and cases there cited.

The equitable remedy of injunction is not to be substituted for the action of trespáss to try title.

Allen & Yarbrough v. T. & P. Ry. Co. (Tex. Civ. App.) 7 S.W.(2d) 1102, and authorities there cited.

Again, “Mandatory injunctions will never be granted unless extreme or very serious damage at least will ensue from withholding that relief; and each case must of course depend on its own circumstances.” 16 Am. & Eng. Eincy. Daw (2d Ed.) 342, quoted with approval in Southwestern Tel. & Tel. Co. v. Smithdeal, 104 Tex. 258, 136 S. W. 1049, 1052.”

Plaintiff is here attempting to invoke the equitable remedy of injunction when 'it has a clear, adequate, and complete remedy at law. It is attempting by mandatory injunction to recover the possession of land taken by defendant under claim of right, and -no sufficient reason shown which would justify resort to such injunctive relief. The relief sought by plaintiff was properly denied under the authorities cited.

Affirmed.


author: SEDLEKS, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. JONES.
    No. 4037.
    Court of Civil Appeals of Texas. Texarkana.
    May 28, 1931.
    King, Mahaffey, Wheeler & Bryson, of Texarkana, and Shelby S. Cox, of Dallas, for appellant.
    Wm. V. Brown, of Texarkana, for appellee.
   SEDLEKS, J.

This is an appeal from a judgment of the district court of Bowie county in favor of ap-pellee against the appellant for the sum .oí $1,500.70.

The suit was instituted under the provisions of the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. arts. 8306-8309), and upon a trial before a jury it was determined that appellee received an injury in the usual course of his employment with P. O. B. Montgomery on October 30, 1929; that such injury resulted in the total incapacity of ap-pellee for work: that such total incapacity was not permanent, but would continue for 141 weeks; that a failure to pay appellee his compensation in a lump sum would work a manifest hardship and injustice upon him. Upon these facts and the further fact, as found by the court, that 60 per cent, of ap-pellee’s average weekly wage was $10.80, the court entered a lump sum judgment for ap-pellee in the sum of $1,500.70.

Appellant on this appeal has but one assignment of error, which is as follows: “Unless the incapacity for labor is both total and permanent the trial court is without authority to render judgment that future installments of compensation shall be paid in one lump sum.”

We think the assignment should be sustained. The statute involved has been so often and uniformly construed by a number of the Courts of Civil Appeals, including this court, that a further discussion of such statute is unnecessary, and we deem it sufficient to quote from an opinion by Justice Levy of this court in the case of Norwich Union Indemnity Co. v. Maynard, 300 S. W. 196, 198, wherein this court’s views are very ably expressed:

“The commutation of compensation to a lump sum payment is regulated by the act itself. Article 8306, ■§ 15, reads as follows:
“ ‘In cases where death or total permanent incapacity results from an injury, the liability of the association may be redeemed by the payment of a lump sum by agreement of the parties thereto, subject to the approval of the Industrial Accident Board. This section shall be construed as excluding any other character of lump sum settlement except as herein specified. In special cases where in the judgment of the board manifest hardship and injustice would otherwise result, the board may compel the association in the cases provided for in this section to redeem their liability by payment of a lump sum as may be determined by the board.’
“Further, as provided in section 18: •
“ ‘It is the purpose of this law that ■ the compensation herein provided for shall be paid from week to week and as it accrues, and directly to the person entitled thereto, unless the liability is redeemed as in such cases provided elsewhere herein.’
“It is quite manifest that this section was intended to be applicable only to the class of cases which is expressly declared to be that of ‘death or total permanent incapacity’ resulting ‘from an injury.’ Within the purview of the act, a person may be totally disabled permanently for work as a result of an injury, or he may be partially disabled permanently or temporarily. It is believed the purpose and intention of the section is to make distinguishment between the two kinds of incapacity or disability resulting from an injury. It does not seem a reasonable construction of the lan-' guage of the section to hold that the court may, in the absence of an agreement of the parties, against the will of either one, commute the payments to a lump sum payment in case of injury of a forearm or hand, as here, although a permanent injury, yet not amounting to a total incapacity to perform labor. [Ætna] Life Ins. Co. v. Rodriquez (Tex. Civ. App.) 255 S. W. 446. The exception in the proviso that a lump sum may be awarded when it is ‘manifest hardship and injustice would otherwise result’ is limited to eases ‘provided for in this section,’ namely, of where death or total permanent incapacity is the result. [Texas Employers’] Ins. Ass’n v. Pierce (Tex. Civ. App.) 230 S. W. 872; [Texas Employers’] Ins. Ass’n v. Shilling (Tex. Civ. App.) 259 S. W. 236.”

We have carefully considered appellee’s cross-assignment of fundamental error contained in his brief, to the effect that the court erred in failing to render judgment for him for 141 weeks partial disability in addition to the 141 weeks total disability for which judgment was rendered, and have concluded that the trial court awarded appellee all the relief the pleadings and issues, as submitted by the court and as answered by the jury, would authorize.

The judgment of the trial court is reformed so as to allow appellee compensation for 141 weeks from October 30, 1929, at $10.80 per week, with interest at the.rate of 6 per cent, per annum for all past due installments from t'heir maturity dates; the appellee to pay all costs of this appeal; and, as so reformed, the judgment of the trial court is affirmed.


text:
    PURE OIL CO. v. CLARK et al.
    No. 3989.
    Court of Civil Appeals of Texas. Texarkana.
    May 21, 1931.
    Rehearing Denied June 4, 1931.

      See, also, 35 S.W.(2d) 838; 37 S.W.(2d) 1083, 1088.

      Vinson, Elkins, Sweeton & Weems, of Houston, and Wynne & Wynne, of Wills Point, for appellant.
    McEntire, Shields & Elam, of Canton, Beall & Beall, of Sweetwater, and Edgar J. Elam, of Dallas, for appellees.
   LEVY, J.

(after stating the case as above).

The points chiefly for consideration are (1) as to the validity of the guardianship proceedings, and (2) as to the termination of the period of the lease as it was fixed in the order of the probate court and the written lease. In considering the validity of the guardianship proceedings the essential facts in view are that at the time of the appointment of tlie guardian of the person and estate of Henry Clark he was both a person of unsound mind, by judicial inquisition and adjudication, and a person over nineteen but under twenty-one years of age. And it will be observed that /the order of the probate court, which is here attacked, appointing the guardian, expressly made the appointment of the guardian to be as “guardian of the person and estate” in each of the different disabilities of “a minor” and of “a person of unsound mind.”

Where minority and mental unsoundness coexist during minority, has the probate court the jurisdiction to appoint a guardian of the person and. estate for each disability and to continue until each disability disappears, the appointee in each instance being the same identical person? By the express provision of article 4124, R. S., only “one guardian can be appointed of the person or estate.” The inhibition is evidently directed entirely against having two or 'more persons appointed and acting at the same time as guardians of the estate or of the person.' There cannot be two separate guardians of the person and two separate guardians of the estate of “a minor” during minority. A single appointment of the guardian in each instance must be made, and the authority to do otherwise would not exist and would be denied. The case of St. Paul Sanatarium v. Crim, 38 Tex. Civ. App. 1, 84 S. W. 1114, is not authority upon the point being now considered. That case means and goes to the extent of holding only that, in virtue of the above statutory provision, where a guardian has already been appointed upon the ground of disability of “minority,” and such guardian has not resigned or his guardianship re- • voked, the probate court has not jurisdiction to appoint another and separate person as guardian of the “minor.” And the special facts are not suitable to the application of the above statute. Here there are not two different persons applying for and appointed as guardian upon the ground of disability of minority nor upon the ground of disability of mental unsoundness. There is a single appointment, and the appointee in each instance is the same identical person. It is thought that the conclusion that the same person can be appointed guardian for each disability for which the law allows a guardianship is in line with and not opposed to the spirit and purpose of the statutory provision being considered. Neither does any article of the statutes, as they were originally passed (General Laws, vol. 8, p. 1011) and as presently existing, expressly or impliedly provide that only a person who has reached his majority, and is not a minor, can be put under a general guardianship for lunacy or unsound mind. As has been held, there is no legal objection to the putting under genera] guardianship of a minor, where' minority and mental unsoundness coexist during minority. Francklyn v. Sprague, 121 U. S. 215, 7 S. Ct. 951, 30 L. Ed. 936; In re McMillan, 126 App. Div. 155, 110 N. Y. S. 622. The combining of the field of “minority” and the existing field of “mental unsoundness” and the appointment of the same person as guardian of the person and estate of the ward would not in any wise present a situation legally conflicting and inconsistent, for the two fields can easily stand together in harmony and not conflicting in legal authority to the guardian. The authority of the guardian would be equal and the same in the-one instance as in the other. When the two fields are combined together in one proceedings, the guardian exercises the same and no greater functions, and has the same and no different legal control and authority of the ward’s property during the period of minority. Ordinarily a minor under the disability of mental unsoundness is not upon that ground alone placed under guardianship, and such was not the case in the present, proceedings.

Under the statute the guardianship of a minor ends when he becomes twenty-one years old, and the guardianship of a person of unsound mind ends when intelligence supervenes. Article 4128, R. S. But that difference does not present a legal objection nor complication in. the way of uniting and combining the proceedings, as was done in the present case. If the mental disability were to disappear before or by the time of the expiration of the minority, the term of guardianship in entirety would be legally ended at the expiration of the minority. Minority would not be the only reason for the continuation of the guardianship in case the mental disability were to remain after minority has^ passed, for then a valid legal reason for the continued retention of custody and control of the estate and the continuation of the guardianship of the ward would remain. A necessity of the control through guardianship would continue to exist until the mental disability disappeared. Therefore, if it would be competent, as is shown to be, to start the proceedings for guardianship upon the ground of mental disability on the very day the minor arrived at his majority, then setting the proceedings in motion earlier and at the time of the proceedings begun for “minority” would be justified either upon the ground of avoidance, circuity of action or upon the ground of expediency. The jurisdiction of the court would not be in any wise lacking because the proceedings were set in motion at the earlier time. It is thought that the order of the probate court appointing the guardian in the present case cannot be considered as legally null and void because in-eluding both the field of “minority” and the field of “mental unsoundness,” both grounds coexisting at the time. And neither can the proceedings be considered void upon the ground that the appointment of the guardian was made first temporary then permanent. Article 4272, providing for the appointment of the guardian “in the same manner as in the case of a minor,” operates to make applicable'all of the provisions relating to both the temporary and the permanent appointment of the guardian.

The next question is that of whether or not the period of the lease was terminated. The lease was for the “term of five years, and as long thereafter as oil, gas or other minerals is produced from said lands under said lease by said Lessee, his heirs or assigns.” The statute expressly provides that “no such lease shall extend beyond the time that the ward shall become twenty-one years of age, unless at that time the^ lessee shall have discovered such minerals as are specified in the lease, or any of such minerals, upon the premises described in such lease” art. 4182, Subdivision 5,' Yernon’s Ann. Oiv. St. Henry Clark became twenty-one years old on February 14; 1930. When he reached his majority, neither oil, gas, nor any other mineral had been discovered on the leased land. The statute having expressly fixed the expiration of the lease at the passing of the minority of the ward, the restriction would limit the power of the probate court and the authority of the guardian to lease for a term beyond the period so prescribed. The lease would be valid for the period of time authorized by the statute and void only for the excess term above the power to lease. But the statutory period of time applicable to the expiration of guardianship for “minority” would not control and have application to the guardianship proceedings for “mental unsoundness”. As seen from the terms of the statute above referred to, the guardianship for the disability of mental unsoundness does not terminate merely upon such minor’s attaining his majority. The five-year period of lease would prevail unless Henry Clark was restored to mental soundness before the five years passed. And there is no proof in this case that the minor was restored to mental soundness. Therefore, it cannot be held that the term of the lease, in view of the proof, has terminated.

The judgment is accordingly reversed, and judgment is here rendered in favor of the appellant, the Pure Oil Company, that the ap-pellee Henry Clark, appearing herein by and through his next friend, James M. Shields, recover nothing in his suit. James M. Shields, as next friend of Henry Clark, will pay all costs of the trial court and of this appeal.


author: BAUGH, J.

text:
    BENSON v. TRAVELERS’ INS. CO.
    No. 7588.
    Court of Civil Appeals of Texas. Austin.
    April 29, 1931.
    Rehearing Denied May 20, 1931.

      Smith & Smith, of Anson, for appellant.
    Thompson, Knight, Baker & Harris, of Dallas, for appellee.
   BAUGH, J.

Appeal is from an order of the district court of Brown county sustaining appellee’s plea of privilege to be sued in Dallas county. Benson sued to set aside, on the grounds of fraud committed in Brown county, a settlement agreement made by him with the insurance company of a compensation claim which had accrued under the Workmen’s Compensation Law (Rev. St. 1925, arts. 8306-8309, as amended). The only purpose of the suit, and the only relief asked in his pleadings, was the cancellation of the settlement agreement.

Appellant insists that venue of this suit was properly laid in Brown county, under article 1995 (Rev. St.), on the following grounds: 1. That it was a suit against a corporation on a cause of action arising in whole or in part in Brown county, Subdivision 23. 2. That it was based upon a fraud committed in that county. Subdivision 7 as amended by Acts 40th Leg. (1927) 1st Called Sess. c. 72 (Vernon’s Ann. Civ. St. Art. 1995, subd. 7). 3. That it was a suit against a foreign corporation on a cause of action arising in that county. Subdivision 27. And 4. That it was a suit under the Compensation Act, and that the injury having occurred in that county, venue therein was fixed by law.

On the plea of privilege hearing there was no proof offered as to whether or not ap-pellee was a corporation, and, if so, whether domestic or foreign. Some of the courts have held that it is incumbent upon the plaintiff in such case to make such proof, but wé do not find it necessary to determine that question here. The pleadings show clearly that the only cause of action pleaded, and the only relief sought, was predicated upon fraud alleged to have been committed in Brown county. And it was incumbent upon plaintiff, as against defendant’s plea of privilege, to at. least show probable fraud committed there, or to introduce sufficient evidence to reasonably raise an issue of fact thereon.

The only evidence offered was the testimony of appellant. The agreement sought to be set aside was not introduced. After testifying as to his injury, payment for a time of compensation by the defendant, and his rejection of defendant’s first offer of settlement, appellant testified as follows:

“I met another man under the same circumstances that I met this man, but this last time it was not in Mr. Timmins office but in Southern Hotel. Mr. Timmins made me acquainted with him. Mr. Timmins met me on the street in his car and took me up and introduced me to him. I do not recall the name of this man either. This last man represented to me that he was an agent for the Travelers Insurance Company. He offered to settle on the basis of a letter that the Travelers Insurance Company had written me. That was for $1078.00 and some cents. I have not got that letter now. In that conversation, before he made me the proposition he made me, I advised him of my financial situation. I advised him that I was in debt. There was something said about that my compensation had been stopped at that time. They had stopped it at that time. I did not at that time have any funds to live on. I was in debt at that time.
“As to whether there was at that time any conversation between us relative to carrying this matter into court: He asked me did I have a lawyer and I said to him, ‘No’, that I was thinking about getting one though, and he said that if I did employ a lawyer that it would be in court a year or two or three years. I did not know whether to believe what he said or not. I had no lawyer to advise me.
“As to what prompted me to make settlement with them: It looked like I had gone as far as I could and that I had to have some money to pay up my debts. I was not able to do any work.
“All of this took place in Brown County. I received my injury at the Texas Brick Company, in Brown County, Texas.”

The foregoing is the only testimony on the issue of fraud, and wholly fails, we think, to raise that issue. It does not disclose any false statements made by the defendant’s agents to plaintiff; nor that he-acted upon such as were made; nor that he was in any manner injured. There is no evidence that the settlement was unfair, or unjust, or that he did not receive what he was entitled to under the law. The allegations in the petition and those in the controverting affidavit are not proof of the facts therein stated. Meadows & Co. v. Turner (Tex. Civ. App.) 270 S. W. 899; Vilbig Motor Freight Lines v. Jenness (Tex. Civ. App.) 84 S.W.(2d) 684. Having failed on said plea to show a cause of action arising in Brown county, the issue as to whether defendant was shown to have been a corporation is immaterial.

Nor do we sustain appellant’s contention that his was a cause of action arising under the Workmen’s Compensation Act, and that because his - injury occurred in Brown county venue was properly laid there under that act. His pleadings themselves -negative this contention. He sought no recovery of compensation. On the contrary, he alleged that the Industrial Accident B'oard had made no award. in his case — a matter essential to give the court jurisdiction to award him compensation. The approval by said board of his settlement, which was not proven, does not amount to an award. Lumbermen’s Reciprocal Ass’n v. Henderson (Tex. Com. App.) 15 S.W.(2d) 565. The settlement agreement sought to be set aside, while authorized by the Compensation Act [R. S. art. 8307, § 5 as amended by Acts 40th Leg. (1927) p. 328, c. 223, § 1 (Vernon’s Ann. Civ. St. art. 8307, §. 5)] was, as stated in Lumbermen’s Reciprocal Ass’n v. Day (Tex. Com. App.) 17 S.W.(2d) 1043, 1045, “a substitution for the board’s action of an agreed settlement independent of the statute, fixing the amount of compensation.”

The suit here involved sounding wholly in fraud to set aside an agreement not governed by the Compensation Act, that law has no 'application to the issue of venue here raised.

Under the state of the record here presented the trial court properly sustained the plea of privilege.

Appellee urges a plea to the jurisdiction of this court and of the trial court based upon the following: After appellee had filed its plea of privilege, the appellant filed an amended petition in the trial court. Ap-pellee thereupon filed application and bond to have this suit removed to the federal court on the ground of diversity of citizenship (alleging that appellee was a foreign corporation) and that under the amended pleadings more than $3,000 was involved; its contention being that whether or not said sum was involved was a fact issue determinable by the Federal District Court and not the state district court, citing First Nat. Bank v. Glaser, 46 Tex. Civ. App. 286, 102 S. W. 171. We find no cross-assignment of error to the action of the trial court in overruling said plea. But whether properly presented or not, we think it has no merit. The amended pleading did allege some additional facts relative to plaintiff’s injury, which, if this were a suit for compensation, might authorize a larger recovery than his original petition; but it did not in any manner change the character of his suit nor the amount involved. It still remained a suit in equity to cancel a written instrument for fraud in its procurement. Appellee’s contention on its plea of privilege, first filed and never withdrawn nor waived, was that appellant’s suit was not for compensation but for cancellation of a written instrument. Whereas, the only ground upon which its plea for removal to the federal court could be sustained was that it was a suit for compensation wherein the appellant might recover more than $3,000, thereby giving the federal court jurisdiction. Appellee cannot be heard to invoke the jurisdiction of the state court for one purpose and deny it for another. And as above stated, appellant’s cause of action being solely one for cancellation of a settlement agreement involving only $1,078, and no other relief being sought, appellee cannot assert for purposes of removal- to the federal court, another and different cause of action from that pleaded by appellant. The trial court therefore properly overruled appellee’s application for removal.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


author: BLAIR, J.

text:
    SHAW, Banking Com’r, v. LONE STAR BUILDING & LOAN ASS’N.

    No. 7627.
    Court of Civil Appeals of Texas. Austin.
    May 27, 1931.
    Rehearing Denied June 10, 1931.

      James V. Allred, Atty. Gen., Everett L. Looney, Asst. Atty. Gen., and Jno. W. Goodwin, of Austin, for appellant.
    Barkley & Webb and Kenneth Krahl, all of Houston, for appellee.

      Writ of error granted.

   BLAIR, J.

This appeal is from an order perpetually restraining appellant, as banking commissioner of Texas, from annulling appellee’s permit to do a building and loan business, except by an action in court, because appellee was charging a larger membership fee on its capital stock sold than authorized by section 45 of chapter 61, Acts 2d Called Session, 41st Legislature (Vernon’s Ann. Civ. St. art. 881a— 44), regulating building and loan associations, and under which appellee was incorporated and was operating. Appellant claimed authority to annul the permit without court action under section 13 of said chapter 61 (Vernon’s Ann. Civ. St. art. 881a — 13), which reads as follows: “Sec. 13. Illegal, Unauthorized, Unsafe, or Fraudulent Practices. — Remedies. In case the Banking Commissioner of Texas shall find, upon examination or from other evidence, that any building and loan association is conducting its business, in whole or in part, contrary to law, or failing to comply with the law, that its assets are less than its liabilities, including all its capital stock, or is conducting its business in an unsafe, unauthorized or fraudulent manner, the Banking Commissioner of Texas shall, by an order in writing addressed to the president of such association, direct attention thereto and order compliance with the law, and that the assets be increased to equal liabilities, and in case such association shall refuse or neglect to comply with any such order lawfully made, or in case any such association is insolvent or in danger of insolvency, or its assets are impaired, then the Banking Commissioner of Texas shall annul its certificate of authority and may begin an action to revoke the charter of such association and for the appointment of a receiver thereof and the winding up of its affairs. Any action begun under this Section shall be brought in the county where such association has its principal place of business, and in the name of the State of Texas on relation of the Banking Commissioner of .Texas, and shall be prosecuted by the Attorney General.”

The trial court construed this statute to authorize appellant to annul appellee’s permit to do business only by an action brought in accordance with the provisions of the last sentence of the act, and we have reached the same conclusion. It provides for only two actions which the banking commissioner may bring against a building and loan association found to be doing “illegal, unauthorized, unsafe” acts, or engaged in “fraudulent practices,” namely, to annul its permit to do business and to revoke its corporate charter. He may bring either one or both actions for the same wrongful act or conduct on the part of the association; but “any action begun under ■this section shall be brought” as directed by the last sentence of the section above quoted.

The word “any” is defined and is used in this statute to mean “every” or “all,” or “no matter what one.” Webster’s New International Dictionary. “Any” is also used as a ■term synonymous with “either” and is given the full force of “every” or “all.” Bouvier Law Dictionary, p. 205; McMurray v. Brown, 91 U. S. 265, 23 L. Ed. 321; People v. Fidelity & Casualty Co. of New York, 153 Ill. 25, 38 N. E. 752, 26 L. R. A. 295.

In its legal sense and acceptance and as used in this statute, the term “action” has been defined to mean “the formal demand of one’s right from another person, made and insisted on in a court of justice.” Bouvier Haw Dictionary, p. 128. “A suit or action, according to its legal definition, is the lawful demand of one’s right in a court of justice.” 1 Words and Phrases, First Series, page 129, and cases there cited.

When these definitions of the terms “any” and “action” are considered together and given their legal meaning as applied to the language, “any action begun under this Section shall he brought,” etc., we think the Legislature intended to provide that any action, not the action alone for revocation of the charter, but any action provided for “under this Section,” must be brought in the county where the “association has its principal place of business, and in the name of the State of Texas on relation of the Banking Commissioner of Texas, and shall be prosecuted by-the Attorney General.”

But if section 13 should be construed as .authorizing appellant to annul appellee’s permit to do business without court action, it thereby clothed him, an executive or administrative officer, with judicial power in violation of section 1 of article 5 of the state Constitution, vesting the exercise of judicial power in the judiciary; and also in violation of section 19 of article 1 of the state Constitution, known as the due process of law clause, which “requires a hearing before a lawful tribunal before condemnation and judgment” depriving a person of his property. Wichita Electric Co. v. Hinckley (Tex. Civ. App.) 131 S. W. 1192, which holds that the right to pursue a lawful occupation is one of which a citizen cannot be deprived without due process of law. It is indisputable that, if the statute authorized appellant to annul- the permit without court action, it vested in him far-reaching and intricate exercise of judicial powers. It authorized -him to determine “upon examination or from other evidence” whether a building and loan association was conducting its business illegally, or in an “unauthorized, unsafe” manner, or whether such association was engaging in “fraudulent practices.” If appellant concluded such association was unlawfully conducting its business or was engaged in fraudulent practices, then, upon the association’s refusal to cease its unlawful conduct or fraudulent practices, appellant might summarily annul its permit to do business. The determination of these questions “upon examination and other evidence,” and the imposition of the penalty, annulment of the permit to do business, involve all elements of a judicial proceeding and power, the exercise of which the Constitution has vested in the judiciary.

Another far-reaching exercise of judicial power by appellant in this ease was a determination of the question, which appellant insisted by pleadings and his brief herein that he had the right to determine; that, as applied to appellee, section 45 of chapter 61 (Vernon’s Ann. Civ. St. art. 881a — 45) inhibiting the charging of membership fee of ■more than $2 on the. $100-share of the capital stock sold, was not a retroactive law or a law impairing the obligation of appellee’s contract, in violation of the fundamental law of both state and nation, in that appellee was incorporated prior to the enactment of section 45, had adopted by-laws providing a membership fee of $2.50 on the $50-share of capital stock sold, and had on February 1, 1929, entered into an operating contract with A. B. Elkron, whereby he was given exclusive right to sell appellee’s capital stock for a period of ten years, and for which service •he was to receive $2.25 of each membership ■fee paid. In like manner appellant pleaded and here insists that he had the authority to determine the validity of this contract and to hold same invalid because it extended for a period of more than one year, and was therefore beyond the authority of ap-pellee’s board of directors, in that the board had no authority to bind the association and future boards for a period of ten years. We think it clear that the Legislature did not intend to authorize appellant to exercise these far-reaching and intricate judicial powers, but directed that where, “upon examination or from other evidence,” the banking commissioner found an association doing “illegal, unauthorized, unsafe” acts, or engaged in “fraudulent practices,” he must institute an action in accordance with the statute to annul its permit to do business, or to revoke its charter or to do both. This conclusion is sustained under the rule that courts will construe a statute to be constitutional rather than to give it a construction which would render it unconstitutional.

The trial court’s judgment is affirmed.

Affirmed'.


author: WILLSON, C. J.

text:
    CATERPILLAR TRACTOR CO. v. CHURCHILL.
    No. 3970.
    Court of Civil Appeals of Texas. Texarkana.
    June 17, 1931.
    Rehearing Denied July 4, 1931.

      Bee G. Carter,' of Dallas, for appellant.
    Guinn & Devereux, of Jacksonville, for ap-pellee. ‘
   WILLSON, C. J.

(after stating the case as above).

Unless the. notes on which the claim presented by appellant to appellee as administra-trix was based had been effectively renewed when so presented, they were'barred by the statute of limitations of four years, and the administratrix acted within her rights and in the discharge of her duty when she rejected the claim. Article 5527, R. S. 1925; Howard v. Johnson, 69 Tex. 655, 7 S. W. 522; Jackson v. Stone (Tex. Civ. App.) 155 S. W. 960.

It appeared in the evidence (1) that on January 19, 1927, E. E. Churchill wrote the holder of the notes a letter in which he (Churchill) stated he was “wholly unable” to pay the notes at that time, but could pay $250 thereon by March 15, 1927, and “the balance in two equal notes six months apart” ; and (2) that on January 31, 1927, in a letter he then wrote, E. E. Churchill stated he “could and would” pay $250 March 15, 1927, $250 in June 1927, and the balance October 15, 1927.

Construing the statements referred to as an acknowledgment of the justness of the indebtedness evidenced by the notes and as a promise to pay same, appellant insists the letters operated to toll said statute of limitations of four years. We agree that such was the meaning and effect of the letters. Article 5539, R. S. 1925; Reynolds Iron Works v. Mitchell (Tex. Civ. App.) 27 S. W. 508; Elsby v. Luna (Tex. Com. App.) 15 S.W.(2d) 604; Howard v. Windom, 86 Tex. 560, 26 S. W. 483. The rule applicable is stated in 37 C. J. 1098, as follows: “A new promise, whether made before or after the bar is complete, will avoid the operation of the statute of limitations, although, with a debt alive, it will require less evidence to create a promise extending the running of the statute, than, with a debt barred, to revive the debt and renew the expired period.”

While, as we have determined, the notes were not barred when the claim was presented to appellee February 24,1930', they appeared to be, for the letters were not made a part of the claim, nor was any mention thereof made therein. Appellee did not know the letters existed, and did not know from any source that the notes had been renewed or that appellant claimed they had been. Therefore she was justified in rejecting the claim as it was presented to fier on said February 24, 1930.

But we do not think such rejection deprived appellant of the right it thereafter, to wit, on June 14, 1930, exercised, when it amended its claim by making the letters a part thereof and presented same as amended ^to appellee for allowance. And we do not "think the fact that appellant had theretofore, to wit, on May 21, 1930, commenced this suit was a reason justifying appellee in rejecting the claim as amended. The cause was tried on an amended petition filed June 22, 1930, based on the amended claim presented to ap-pellee June 14, 1930, and rejected by her. There was no legal reason why, had appellant seen proper to do so, it could not have dismissed its suit on the claim as it was when first presented and have maintained a new suit on the claim as it was when last presented. The fact that appellant might have done that and did not, was not a reason why it could not by an amended petition abandon its suit so far as it was on the claim as first presented to appellee, and instead sue on the claim as presented to her June 14, 1930. The most appellee could claim because of appellant’s pursuing the course it did pursue, instead of bringing a new suit, was that the costs to the time of filing the amended petition should be taxed against appellant.

It is apparent from what has been said that we think the judgment is erroneous. It will be reversed, and the cause will be remanded to the court below, with instructions to enter a judgment establishing appellant’s claim as a valid one against the estate of F. E.-Churchill⅛ and certifying same to the probate court for payment in due course of the administration of said estate. In said judgment the costs of the cause to the filing of the amended petition should be taxed against appellant.

On Motion of Appellee for a Rehearing.

It is insisted the statement in the opinion disposing of the appeal that “there was no legal reason why, had appellant seen proper to do so, it could not have dismissed its suit on the claim as it was when first presented and have maintained a new suit as it was when last presented,” is incorrect, “as (appel-lee says) more than 90 days had elapsed from the date of the original injection (February 25, 1930), and such claim would have been forever barred by the prohibitive statute (Rev. St. 1925, art. 3522) providing that suits must be instituted on rejected claims within 90 days from the date of such rejection and not thereafter.” It may be the statement is incorrect as claimed, but correcting it would not, we think, require a different disposition to be made of the appeal. As a matter of fact, the suit on the claim as it appeared to be when first rejected was not dismissed, but was continued on the claim as it appeared to be when last rejected by the amended petition filed within 90 days after such last rejection. The truth being that the claim was not bari’ed when presented for allowance, we think one of two things was necessarily true —either (1) the suit, having been commenced within 9.0 days after the claim was first rejected, was maintainable on the notes and appellant was entitled to prove they in fact were not barred at the time it presented the claim; or else (2) appellant by said amended petition was entitled to maintain the suit on the renewals evidenced by the letters as another and different claim from the one first presented. Hooks v. Martin (Tex. Civ. App.) 229 S. W. 592; Coles v. Kelsey, 2 Tex. 541, 47 Am. Dec. 661; Howard v. Windom, 86 Tex. 560, 26 S. W. 483.

The contention in the motion that it did not appear the claim was rejected when it was last presented is without merit. The statute (article 3517, R. S. 1925) provided that failure of an administrator to indorse on a claim whether he allowed or rejected it should operate as a rejection of the claim.

Thé motion is overruled.


text:
    TEXAS EMPLOYERS’ INS. ASS’N v. GALLOWAY.
    No. 7599.
    Court of Civil Appeals of Texas. Austin.
    May 13, 1931.
    Rehearing Denied June 3, 1931.

      Morris, Sewell, Taylor & Morris, of Houston, for appellant. '
    Polk, Allen & Helm, of Houston, for appel-lee.
   BLAIR, J.

This suit arose under the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. arts. 8306-8309) as an appeal by appellant from an order of the Industrial Accident Board awarding appellee compensation for an injury received in the course of his employment. In substance, appellee alleged and proved that he was injured on May 3, 1928, in the course of his employment with the Houston Wood Preserving Company while trimming' poles with an adz, which slipped and cut him on the right leg below the knee, severing the tissues, tendons, nerves, ligaments, blood vessels, and muscles, causing a paralysis of -the leg and extending up into his right^ hip, body, spine, neck, and head, causing excruciating headaches and intense nervousness, and causing his whole right side to become numb and cold and paralyzed, and thereby affecting his whole body, rendering hini wholly and permanently incapacitated from performing labor. By specific answers, appellant alleged as follows:

(1) That if appellee was injured, the injury was of a temporary nature and from which he had entirely recovered prior to the trial of this case.

(2) That if appellee was injured and is now suffering any disability therefrom, such disability is limited to his right leg below the knee.

(3) That if such disability is not limited to appellee’s right leg below the knee, that same is confined to his right leg below the knee and at and above the knee.

(4) That if appellee-has lost the use of his leg, such loss was due to his failure and refusal to use and exercise his leg and body.

(5) That if appellee is now disabled, he has engaged in injurious practices which have prevented or retarded his recovery.

The jury was instructed to answer each special issue submitted “from the preponderance of the evidence, that is, the greater degree and weight of credible testimony before you.” The court correctly defined the terms permanent incapacity, temporary incapacity, total incapacity, partial incapacity, and injury, as used in the charge to the jury, and submitted, and the jury answered under direction of the court, the following issues:

“1. Did or did not the injury which the defendant, W. H. Galloway received on May 23rd, 1928, result in permanent incapacity or temporary incapacity as those terms have been hereinbefore defined to you. Answer ‘permanent’ or ‘temporary’, as you find the facts to be.” Answer: “Permanent.”
“2. If you have answered the foregoing special issue No. 1 ‘permanent incapacity’, and only in that event, then answer: Do you find such incapacity resulting from defendant’s injury, to be total or partial. Answer ‘total’ or ‘partial’ as you find the facts to be.” Answer: “Total.”
“If you have answered special issue No. 1 ‘permanent’ and special issue No. 2 ‘total’ then you need not answer any further issues submitted to you except special issues Nos. 2a & No. 8.”
“2a. If you have answered special issue No. 1, ‘permanent’ and special issue No. 2 ‘total’, then answer:
“Would manifest hardship and injustice result to the defendant, W. H. Galloway if compensation, if any, be paid to him otherwise than in a lump sum. Answer ‘it will,’ o-r ‘it will not’ as you find the facts to be.” Answer : “It will.”
“8. What was the defendant’s average weekly wages during his employment with the Houston Wood Preserving Company? .
■ “If you find the defendant did not. work in such employment during substantially the whole year next preceding May 23rd, 1928, then Ms average annual wage would consist of 300 times the average daily wage of employees of the same class and in the same class of work, working substantially the whole year immediately preceding May 23rd, 1928, in the same or similar employment in the same or a neighboring place, would have earned in such employment during the days so employed and the average weekly wages of such employee would be one-fifty-second part of such average annual wages. Answer by stating in dollars and cents.” Answer: “$32.-50.”

Contrary to the instruction to answer only the above issues, the jury also answered issue 9, which with jury’s answer reads as follows: “Was or is the disability of defendant, if any, confined entirely to his right legV Answer ‘it is’ or ‘it is not’ as you find the facts to be.” Answer: “No.”

Appellant had paid appellee weekly payments aggregating $201.11, and, upon the preceding findings of the jury, the court rendered a lump sum judgment for appellee for $6,823.82, divided as follows: $4519.22 to ap-pellee, and one-third, $2274.60, to appellee’s attorneys of record.

Appellant complains that the court erred in refusing to submit its requested special issue and defense that appellee had entirely recovered from his alleged injury prior to the trial of the case. The effect of appellant’s pleading and proof in this regard was that appellee only received an injury resulting in temporary incapacity and from which he had recovered prior to the trial of the case. The issue of temporary incapacity was submitted in issue 1, and it was therefore not necessary to submit the issue again in the form requested. Burns v. American Nat. Ins. Co. (Tex. Com. App.) 280 S. W. 762.

Appellant contends that the court erred in refusing to submit its special requested issue and defense that, if appellee was injured and is now suffering any disability as the result of the injury, such disability is limited to his right leg below the knee, and for which specific injury the statutes only authorize compensation for 150 weeks, even though the injury be permanent. In support of this special defense, appellant offered testimony tending to limit the effect of appellee’s injury to his leg below the kñee; and that if the injury were permanent, it only partially incapacitated appellee. The statute relied upon by appellant is article 8306, § 12, which enumerates specific injuries and specifies the weekly compensation allowed for each; and which is only applicable to “enumerated cases of permanent, partial incapacity.” Ap-pellee plead and offered testimony tending to show that the effect of the injury to his leg extended to and affected Ms whole body and nervous system, rendering him totally and permanently incapacitated. So that since the questions of whether the effect of appellee’s injury was limited to his leg below the knee, causing permanent partial incapacity, or whether the effect of the injury to his leg extended to and affected his whole body and nervous system, rendering him totally and permanently disabled, were determinable from conflicting evidence, these issues were for the jury. And since there was neither a jury finding that the injury to appellee’s leg extended to and affected his whole body, rendering him permanently and totally incapacitated, nor a finding that his injury was confined to his leg below the knee, resulting in permanent partial incapacity, the court was not authorized to assume permanent and total disability affecting the whole body and allow compensation for 401 weeks. Texas Employers’ Ins. Ass’n v. Varner (Tex. Civ. App.) 20 S.W.(2d) 334; Petroleum Casualty Co. v. Seale (Tex. Com. App.) 13 S.W.(2d) 364. It is true that the jury impliedly found, in answer to issue 2, that appellee’s injury did not result in partial incapacity, and that a finding that his injury was confined to his leg below the knee might be in conflict with such finding and with the finding of total disability, still the latter issue was pleaded as a special defense to appellee's right of recovery for an injury resulting in total and permanent disability, and it is definitely settled law that a defendant is entitled to have each separate and independent defense to a cause of action or a part thereof pleaded and supported by evidence affirmatively submitted to the jury, even though the jury’s answers might be conflicting. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517; Montrief & Montrief v. Bragg (Tex. Com. App.) 2 S.W.(2d) 276; Missouri, K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Northern Texas Traction Co. v. Woodall (Tex. Com. App.) 299 S. W. 220; Article 2190, R. S. 1925.

This holding is also applicable to appellant’s contention that the court erred in refusing to submit its requested issue and special defense that if appellee was suffering any disability, such disability was confined to his right leg below the knee and at and above the knee. We do not pass upon the effect of the jury’s answering, contrary to the court’s instruction, issue No. 9, to the effect that ap-pellee’s injury was not confined to his entire right leg. In view of another trial, this issue should be affirmatively submitted and not in the alternative. If the injury was confined to the entire right leg, rendering appellee partially incapacitated, he would be entitled to only 200 weeks compensation under the terms of the statute, supra, although the injury be permanent.

Appellant complains that the court erred in refusing to submit its requested issue and special defense that if appellee was injured and disabled as alleged, such disability was due to his failure and refusal to exercise and use his leg and body. Appellant predicates this defense upon that portion of article 8307, § 4, which reads as follows: “If any employee shall persist in unsanitary or injurious practices which tend to either imperil or retard his recovery, or shall refuse to submit to such medical or surgical treatment as is reasonably essential to promote his recovery, the board may in its discretion order or direct the association to reduce or suspend the compensation of any such injured employee. No compensation shall be reduced or suspended under the terms of this section without reasonable notice to the employee and an opportunity to be heard.”

Appellant contends that since its doctor witnesses testified that a failure of appellee to exercise his leg might probably cause the loss of its use, a question was raised for the jury to determine whether appellee did “willfully fail and refuse to exercise and use his leg, and if he did so refuse, he was not entitled to recover under the terms of Art. 8307, Sec. 4,” supra. This contention cannot be sustained, because in no event would appellee be deprived of.a recovery of compensation under this statute, since the only remedy given is that upon proper notice the Industrial Accident Board may “reduce or suspend the compensation” until the', employee refrains from “unsanitary or injurious practices which tend to either imperil or retard his recovery.” It is also clear that this provision is merely a part of the statute authorizing the insurance company to have an injured employee examined by doctors at all reasonable times, and before the insurer would be entitled to complain that an employee was engaged in unsanitary or injurious practices which tend to either imperil or retard recovery of his injury, it would have to allege a request to, and a refusal by, the employee to refrain from such injurious practices. Texas Employers’ Ins. Ass’n v. Downing (Tex. Civ. App.) 218 S. W. 112. This construction of the statute is clearly correct in view of the other compensation statutes which provide that in no instance shall the insurance company avail itself of the defense of the contributory negligence of the employee.

The requested issue and defense that, if ap-pellee is now disabled, he has engaged in injurious practices which have prevented or retarded his recovery was correctly refused for the reasons stated last above, and for the further reasons that the term “injurious practices” is indefinite, a conclusioit of the pleader, and involves a question of law with which the jury is not concerned.

Appellant complains that the court erred in refusing to give its requested charge that the burden’of proof was upon appellee to establish the extent and duration of his incapacity. This contention is predicated 'upon the provision of article 8307, § 5, that, if either party shall appeal from an award or denial of an award by the board, the trial shall be “de novo and the burden of proof shall be upon the party claiming compensation.” The purpose of this statute was merely to place the burden upon a claimant of insurance as a matter of law, and as a direction to courts in passing upon compensation cases; that is, the court trying a compensation case on appeal from the board shall first determine as a matter of law if claimant has made a prima facie case for compensation. If so, and if the case is submitted to the jury on special issues, no necessity exists to charge the jury as to the burden of proof; but the jury need only be instructed to answer.the issues of fact submitted them from a preponderance of the evidence ; that is, the greater degree and weight of the credible testimony before them; and which instruction the court gave in this case. Stooksbury v. Swan, 85 Tex. 566, 22 S. W. 963; Bernard’s Inc., v. Austin (Tex. Civ. App.) 300 S. W. 256, 260; Davis v. Morrison (Tex. Civ. App.) 14 S.W.(2d) 296, 299; Ford v. Couch (Tex. Civ. App.) 16 S.W.(2d) 869, 870; St. Louis Southwestern Ry. Co. v. Preston (Tex. Com. App.) 228 S. W. 928; Gulf, C. & S. F. Ry. Co. v. Bush & Witherspoon Co. (Tex. Civ. App.) 136 S. W. 102, 103; Sunlite Co. Manufacturers v. Justice (Tex. Civ. App.) 257 S. W. 579; Wootton v. Jones (Tex. Civ. App.) 286 S. W. 680, 688.

In view of another trial, we suggest that the special issue requested by appellant with respect to the average weekly wage of appel-lee be submitted in lieu of the one given by the court on this trial, as the requested issue more nearly complies with the pleadings and proof in the ease.

For the reasons stated herein we reverse and remand the cause for another trial.


author: BEVY, J.

text:
    COLEMAN et al. v. BUTTRAM.
    No. 4034.
    Court of Civil Appeals of Texas. Texarkana.
    May 28, 1931.

      L. E. Keeney and N. L. Dalby, both of Tex-arkana, for appellants.
    Pirkey & Atchley, of New Boston, for ap-pellee.
   BEVY, J.

(after stating the case as above).

It is concluded that the appellants’ first proposition relating to the refusal to peremptorily instruct a verdict should be overruled because the acts and circumstances in evidence are fairly sufficient to carry to the jury the issue of whether or not the appellee’s possession became adverse to the appellants as cotenants. The appellee, who was a stranger to the title in the first instance, purchased the entire tract from the mother of the appellants, in the information and upon the belief that the mother owned the full title, and took immediate possession and visibly used and exclusively claimed as his own all the land from December, 1915, to the date of the trial in 1929. 1-Ie also paid all the taxes on the land. The appellee’s open and visible use and claim of ownership of all the land was apparently of a notoriety in the community such as would, as the jury might find, have enabled appellants, by diligence on their part, to have learned of the adverse claim and its active assertion. Where the grantee is, as here, a stranger to the title and enters into visible possession of all the property, although not recording his deed, and claims title thereto, acts of ownership and use may, according to the facts of the particular case, present a question for the jury’s consideration of dis-seisin of the other cotenants wherever the acts of ownership and possession go to show inconsistency with the joint title. The general rule is stated in Long v. McCoy (Tex. Civ. App.) 294 S. W. 633; 2 Tex. Jur. §§ 56, 57, p. 106.

The second proposition is based upon a refusal to give special charges. It is thought the court did not err in refusing the charges. Acts which affirmatively show adverse possession, and are not otherwise so explained as to show a consistency with the joint title, will have the same effect as against cotenants as in other cases. And adverse possession was sufficiently explained in the main instruction of the court.

The third proposition is based upon the refusal to sustain the claim of Jewel Coleman that he was under 21 years old and that the bar of limitation was not complete against him. Jewel Coleman, a defendant in the suit, and claiming an interest in the land and a partition, pleaded, as against limitation, that he was a minor. His brothers and sisters were not examined as to his age, although they were witnesses testifying in the case. 1-Ie, and no other witness, testified in support of his plea, as to his age, that he was “thirty-one years old on April 19, 1930.” Minority and proof thereof legally constitute a complete ground of defense. That ground of defense was not submitted nor requested to be submitted to the jury. Under Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, 1085, it was expressly laid down, viz.: “When the omitted issue constitutes a complete ground of recovery, or a complete defense, a failure to request a submission of that issue waives said ground of recovery or said ground of defense.” Citing authorities. Therefore the ground of defense would have to be regarded as waived, unless the further contention of appellant should prevail. As appellant insists the evidence of Jewel Coleman being direct, positive, and unimpeached, and unopposed by other witnesses, his evidence could not be arbitrarily disregarded by either the court or the jury, and therefore there arose no issue of fact in respect to the particular issue for decision by the jury. Ordinarily a person may be regarded competent to testify as to his own age, although that sort of evidence- is in the nature of hearsay. But sometimes his means of knowledge of the very month and year of birth may or may not be equal to that of other persons who might have been called as witnesses. And sometimes circumstances of self-interest or being a party to" the suit may or may not discredit the testimony of the witness, although there is no affirmative evidence contradicting Lis statement. In this case if the statement of the witness that he was “thirty-one years old on April 19, 1930,” be correct and taken in the case as conclusive proof, then the witness was not barred of his title to the land by the bar of ten years’ limitation, (Rev. St. 1925, art. 5510) lacking about nine months of completing the bar. The month and year of birth thus became very material particulars of proof. There is then presented the very pertinent inquiry of: Did the circumstance that Jewel Coleman was a party to the suit and had an actual, legal existing pecuniary interest in the question in litigation require submission to the jury for finding of the fact of minority or not? Parties to a suit who testify in their own cases, and who have an actual legal existing pecuniary interest in the issue in litigation, are in a different class as witnesses who have no actual legally existing pecuniary interest in the issues or in the litigation. Under the common law “the parties to the case” were arbitrarily excluded as witnesses, as wholly incompetent to testify, because of their interest “in the issue” of the litigation. 1 Greenleaf on Evidence, §§ 328-328e. The circumstance creating this disqualification was known as self-interest. The ground of being thus disqualified as a witness was because of “that supposed inclination to falsify which arose from the prospect of gaining or losing by the issue of the proceedings.” Parties to the suit are now let in as witnesses in their own cases by statute. Article 3714 (Rev. St.). Although parties are made competent to testify and their testimony is admissible, yet the question, of the credibility of their testimony, although un-contradicted, nevertheless becomes a matter for the consideration and determination of the court or jury because of the circumstance appearing of self-interest in the proceedings; and in making this inquiry the factual element of self-interest in the suit, or in the issue being tried, can be taken into consideration. The jury or the court under the well-settled rule in this state has the right to respond to the question of how far the factual element or circumstance of self-interest would impair or warp the credibility of a party to the suit who is a witness in his own case. Burleson v. Tinnin (Tex. Civ. App.) 100 S. W. 350; Rayner v. Posey (Tex. Civ. App.) 173 S. W. 246; Peerless Fire Ins. Co. v. Barcus (Tex. Civ. App.) 227 S. W. 368; Mills v. Mills (Tex. Com. App.) 228 S. W. 919; Texas & N. O. R. Co. v. Gericke (Tex. Com. App.) 231 S. W. 745; Queen v. Turman (Tex. Civ. App.) 241 S. W. 786; Guaranty State Bank v. Roark (Tex. Civ. App.) 243 S. W. 591; First Nat. Bank v. Howard (Tex. Civ. App.) 174 S. W. 719; Keton v. Silbert (Tex. Civ. App.) 250 S. W. 316; Brannan v. Bank (Tex. Civ. App.) 211 S. W. 945; Dendinger v. Martin (Tex. Civ. App.) 221 S. W. 1095; Pope v. Beauchamp, 110 Tex. 271, 219 S. W. 447; Moore v. Moore (Tex. Civ. App.) 259 S. W. 322; Hartman v. Chumley (Tex. Civ. App.) 266 S. W. 444; Chicago, R. I. & G. R. Co. v. Hammond (Tex. Civ. App.) 286 S. W. 483; 28 R. C. L. p. 471; 4 Jones on Evid. § 725; 40 Cyc. pp. 2652-2655.

There are some exceptions, as may be seen in the particular facts of eases, as to the parties in the suit to whom this general rule is made applicable. The mere fact alone of being a party is not always sufficient. But in this case the party was well within the general rule because of the fact that he was a party to the suit having an actual legal existing pecuniary interest in the issue and the litigation. 1 Greenleaf on Evid. p. 882, § 386; 4 Jones on Evid. § 726.

The judgment is affirmed.


text:
    COTTLE v. SANDERS et al.
    No. 4024.
    Court of Civil Appeals of Texas. Texarkana.
    May 27, 1931.
    Rehearing Denied June 25, 1931.

      H. N. Nelson and P. P. Long, both of Carthage, for plaintiff in error.
    Woolworth & Baker, of Carthage, for defendants in error.
   WILLSON, C. J.

(after stating the case as above).

The legal effect of the failure (before it was executed and delivered) to express in the note a time for the payment thereof was to make it payable on demand. Section 7, art. 5932, R. S. 1925. The legal effect of the alteration accomplished by adding the words, “On or before October 1st,” was to change the due date of the note. Hence the alteration was a material one. Section 125, art. 5939, R. S. 1925. The legal effect of materially altering a negotiable instrument “without the assent of all parties liable thereon” is to avoid it, “except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers.” Section 124, art. 5939, R. S. 1925. The note in question here having been altered in a material way after it was executed and delivered by appel-lees to appellant, it follows appellant was not entitled to recover thereon against makers thereof, if any, who did not consent to the alteration made. The jury found, in effect, that none of the makers except appellee Wade Sanders consented to the alteration. There being evidence to support the finding, except as to appellee L. M. Hunt, the judgment should be affirmed so far as it denied appellant a recovery of anything against appellees Barton, Anderson, and Underwood, unless there is merit in appellants’ contention that the effect of section 14, art. 5932, R. S. 1925, was to authorize him to alter the instrument as he did. Said section, so far as it is material to the contention, is as follows: “Where the [negotiable] instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein.” The contention is based on evidence showing that in making the note a printed form with blanks to be filled in_was used. It will be noted that the authority conferred by the statute to fill blanks was prima facie only — meaning, evidently, that the existence of such authority was rebuttable by evidence to the contrary.

We agree with appellant in the contention presented by his ninth assignment, that it was error not to render judgment in his fhvor against L. M. Hunt for the amount of the note, instead of for one-fourth of the amount thereof. The judgment will be reformed accordingly, and as reformed will be affirmed.

On Motion of Appellant for a Rehearing.

We do not think the motion- should be granted for any of the reasons set forth in it. (1) The burden of proving his case was on appellant, and it was not error for the trial court to so instruct the jury. Doubtless the burden of proving the note was altered as charged would have been on appellees had it not conclusively appeared the note was so altered. Moore v. Orgain (Tex. Civ. App.) 291 S. W. 583. But it so appearing, the burden clearly was on appellant to prove that the makers he sought judgment against consented to the alteration. Dewees v. Bluntzer, 70 Tex. 406, 7 S. W. 820; Kalteyer v. Mitchell, 102 Tex. 390, 117 S. W. 792; note to Burgess v. Blake, 128 Ala. 105, 28 So. 963, 86 Am. St. Rep. 78, note 128. (2) The findings of the jury numbered 1, 2, 3 and 4 were not conflicting. The one numbered 1 was not that all the parties who signed the note consented to the alteration, but (considered in connection with the finding numbered 2) was that only one of them, to wit, Wade Sanders, so consented. And so as to the findings numbered 3 and 4. Construed together, they were that Wade Sanders alone ratified appellant’s act in altering the note. (3) The fact that the answer of ap-pellees setting up the alteration in the note was sworn to by only one of them (to wit, Wade Sanders) was of no importance. It was not necessary that it should have been sworn to by any of them. Ruiz v. Campbell, 6 Tex. Civ. App. 714, 26 S. W. 295. (4) The burden of proof being (as we have seen) on appellant to prove that appellees consented to the alteration, this court, after reading and considering the evidence, does not think it ought to say that the conclusion of the Jury that appellant had not discharged the burden as to appellee Barton was unwarranted.

The motion is overruled.


author: WALTHALL, J.

text:
    DODRILL v. JENKINS et ux.
    No. 2552.
    Court of Civil Appeals of Texas. El Paso.
    June 25, 1931.
    Chas. Owen, of El Paso, for appellant.
    Jones, Goldstein, Hardie & Grambling and Ben R. Howell, all of El Paso, for appellees.
   WALTHALL, J.

Mrs. J. E. Jenkins was driving her automobile westerly on McKinley avenue, and W. B. Dodrill was driving his automobile southerly on Byron street, in the city of El Paso, when a collision occurred between the two cars at the intersection of said streets.

Mrs. Jenkins, joined by her husband, brought this suit in the justice of the peace court against Dodrill for the damage to her car, alleging negligence, and placing the damages at $125 as the proximate result of the negligence assigned. Dodrill answered denying negligence on his part, and filed a cross-action against Mrs. Jenkins and her husband for damages to his automobile in the sum of $120, alleging negligence on her part, and the damages sustained as the proximate result of the negligence assigned. The case was tried, and judgment rendered in the justice court, from which an appeal was duly prosecuted to the county court at law.1

The case was tried with a jury, in the county court at law, and all issues of fact were found in appellee’s favor, and judgment entered on the verdict. The case is here on appeal.

Opinion.

Appellant presents one question only. Judge J. M. Deaver is the regular judge of the county court at law of El Palso county. At the time this case tvas tried, Hon. Del W. Harrington was duly selected and qualified and serving as special judge of the county court at law in a case he was elected to try, and was then in the trial of said other case in said court.

Appellant submits that the regular judge of the county court at law, having certified his disqualification in a certain cáse, and another having been duly selected and qualified as special judge, and that while the special judge is actually serving as such in the trial of the case, the regular judge is without authority to call and try this case at the same time the special judge is trying the case he qualified to try; that is, both judges cannot function as such regular and special judge in the trial of eases at the same time.

Without quoting from or discussing the cases, w;e think the following rule the question against appellant’s contention under the facts presented: Niagara Ins. Co. v. Lee, 73 Tex. 641, 11 S. W. 1024; Bedford et al. v. Stone, 43 Tex. Civ. App. 200, 95 S. W. 1086; Daniel v. Bridges, 73 Tex. 150, 11 S. W. 121; Oliver v. State, 70 Tex. Cr. R. 140, 159 S. W. 235, at page 239, the court reviews the Daniel 'v. Bridges Oase, supra, holding that the two judges could hold court at the same time. Hamilton v. State, 74 Tex. Cr. R. 219, 168 S. W. 536, 537, holds that while a special judge was hearing the case he was elected to try the regular judge could continue to try other cases.

No reversible errors appearing, the ease is affirmed.


author: WALICER, J.

text:
    WADE v. PRATT.
    No. 2088.
    Court of Civil Appeals of Texas. Beaumont.
    June 15, 1931.
    Rehearing Denied July 1, 1931.
    Adams & Hamilton, of Jasper, for appellant.
    Minton & Minton, of Hemphill, for appellee.
   WALICER, J.

This suit originated in justice court, precinct No. 1, Sabine county, and was an action by appellee against appellant for rent for a certain building belonging to appellee, situated in said precinct No. 1, and also to foreclose a claimed lien against certain property located in said building. Appellant filed his plea of privilege to be sued in precinct No. 1, San Augustine county. This plea was overruled in justice court and again upon appellant’s appeal to county court. The appeal is before us on assignments of error complaining of the ruling of the lower court in overruling the plea of privilege.

The judgment must be affirmed. The suit was properly filed in said precinct No. 1, Sabine county, though appellant had his home and resided, at the time the suit was filed, in precinct No. 1, San Augustine county, under subdivision 5, art. 2390, Revised Statutes, which reads as follows: “Suits for the recovery of rents may be brought in the county and precinct in which the rented premises, or a part thereof are situated.”

It should be said further that the court filed conclusions of fact and law fully sustaining his judgment. His certificate to the statement of facts is that it contains twenty-four pages of typewritten matter. The statement of facts in the record before us contains only two and one-half pages. It therefore affirmatively appears that all the facts introduced in evidence below have not been brought forward in the record, and on the imperfect statement of facts we should not review the trial court’s conclusions of fact.

Affirmed.


author: HALL, O. J.

text:
    HUFSTEDLER et al. v. CITY OF LUBBOCK.
    No. 3633.
    Court of Civil Appeals of Texas. Amarillo.
    June 24, 1931.
    Vickers & Campbell, of Lubbock, for appellants.
    Bean & Klett, of Lubbock, for appellee.
   HALL, O. J.

In November, 1929, the city council of ap-pellee city finally passed Ordinance No. 457, by the terms of which certain real, estate described therein was annexed to and made a part of the city. Hufstedler and eleven others owning property in the .annexed territory filed this suit to declare the ordinance void and restrain the city and its officials from levying and collecting taxes upon their property.

They insist that the ordinance was void because it was not based on an election ordered for the purpose of determining whether the territory should be annexed. The city contends that the ordinance, if void, has been validated by the act of the Forty-Hirst Legislature, passed at the Fifth Called Session thereof, and being chapter 16, page 139 of the published acts (Vernon’s Ann. Civ. St. art. 1174b). The appellants insist that R. S. art. 1182a, as added by Acts 41 St. Leg. (1929) e. 110 (Vernon’s Ann. Civ. St. art. 1182a), is applicable to the questions herein presented; that the alleged validating act was passed at a special session; the subject thereof not being submitted by the Governor by any proclamation, its passage was unauthorized; furthermore, that the alleged validating act applies to cities which have been incorporated since 1920, and that the city of Lubbock was incorporated in 1917 as a city of over 5,000 inhabitants, existing under the home rule amendment.

The city secretary testified that prior to the enactment of the ordinance in question there was presented a petition, signed by approximately twenty-five people, requesting that the property in question be annexed as a part of the city by a valid ordinance.

The petition recites that the signers are qualified to vote for members of the Legislature, residing in the territory to be annexed; that the territory does not exceed one-half mile in width; that they “haye voted and hereby vote in favor of becoming a part of said city so that after the passage of an ordinance by the City of Lubbock receiving said territory as a part of said adjoining territory, shall be a part of said city and the inhabitants' of said adjoining territory shall be entitled to all the rights and privileges of other citizens of said city and bound by the acts and ordinances made in conformity thereto and passed in pursuance of Title 28, Art. 975 of the Revised Statutes of Texas.”

The petition described the territory to be annexed, by metes and bounds. Accompanying the petition is an affidavit, signed by three citizens, which recites: “That they are inhabitants, qualified to vote for members of the state legislature, that they reside in the territory herein described, that a majority of the inhabitants of said territory voted in favor of becoming a part of the City of Lubbock, Texas, that said territory is situated in Lubbock County, Texas, adjoining the city limits of the City of Lubbock, Texas, and is described as follows,” etc.

The affidavit describes the territory as it is described in the petition and in the ordinance.

The city secretary testified that both petition and affidavit were delivered to him before the ordinance was passed; that the city commission issued no order for an election, and no election was held on a proclamation ordered by the commission. He testified that he knew most all of the petitioners who lived outside of the city limits of Lubbock prior to the passage of the ordinance in question; that 75 per cent, of the territory annexed had been cut up into blocks, lots, showing streets and alleys, prior to the passage of the ordinance, and since its passage some of the streets have been graded, a lot - of six-inch water mains put in, together with sewer lines and extension of the electric light lines; that the city had spent approximately $10,-000 in improvements in the annexed territory.

The curative act referred to, being chapter 16, H. B. No. 1-25 of the Acts of the 41st Legislature, is as follows:

“Sec. 1. All elections, election orders, election proceedings and city ordinances annexing adjacent territory to, or extending and prescribing the corporate limits of, any Home Rule Oity that has adopted a charter under Article Eleven (11), Section Five (5), of the Constitution of Texas, and the provisions of Chapter 147, Acts of the Regular Session of the 33rd Legislature of the State of Texas, 1913, but which City did not in fact have a population of five thousand, according to the 1920 Federal Census, be and the same are hereby validated and confirmed.
“Sec. 2. The city ordinances of all Home Rule Cities in the class described in the foregoing Section fixing ,and prescribing the corporate limits extended by annexation or attempted annexation of adjacent territory are hereby validated.” Vernon’s Ann. Civ. St, art. 1174b.

It was stipulated in open court that the city of Lubbock was chartered as a city of over 5,000 inhabitants in the year 1917 and as a home rule city under the Constitution of the state so providing.

The case was tried to the court without a jury, who rendered a judgment in favor of the city.,

As we understand the controversy, there is but one question before us, and that is whether the above-quoted curative act is applicable.

If the city of Lubbock did not, in fact, have a population of 5,000 according to the 1920 federal census, then Ordinance No. 457 has been validated by section 2 of said act. There is no evidence in the record showing what the population of Lubbock was according to the federal census of 1920, but this court takes judicial notice of the population of cities and towns. 23 C. J. 161, § 1987; Urban et al. v. Harris County (Tex. Civ. App.) 251 S. W. 594.

We therefore judicially know that the population of the city of Lubbock, according to the federal census of 1920, was 4,051. It. therefore comes within the terms of the statute, and, whether any election was held or not, the ordinance has become validated in virtue of the provisions of section 2 of the act.

The judgment is therefore affirmed.


author: PER CURIAM.

text:
    WEAVER v. OLIVER et al.
    No. 7595.
    Court of Civil Appeals of Texas. Austin.
    May 27, 1931.
    Rose & Sample, of Edna, for appellant.
    Proctor, Vandenberge, Crain & Yanden-berge, of Victoria, for appellees.
   PER CURIAM.

Suit upon a promissory note for $250, dated March 10,1921, due March 9, 1922, payable to Mrs. Inez Oliver, and signed by the partnership of Branch & Weaver, and J. W. Weaver, and C. Branch, individually. The defense pleaded was that on December 12, 1921, said partnership was dissolved; that Branch assumed all of its liabilities, that appellees accepted him as the principal obligor on said note, and agreed to look to him for payment, and that extensions of date of maturity were made by appellee with Branch without the knowledge or consent of appellant Weaver, thereby releasing him. At the close of the evidence, the court gave peremptory instructions to the jury to find for the plaintiff against Weaver.

Appellant’s first contention is that there was sufficient evidence to go to the jury on the defenses pleaded. We do not sustain this contention. The note matured in March, 1922. Suit was filed in March', 1926. During that interval, ■ requests for payment were made only to Branch who made the interest payments in 1922 and 1923.

Clearly, the note was the joint and several obligation of both makers. The payee could look to either or both for payment; and the mere fact that she did demand payment of only one prior to suit did not discharge the other. No agreement between the partners, changing their liability as between themselves, would be binding upon the payee, unless she were given full notice thereof and agreed to same; “expressly assents thereto’’ is the language of the Commission of Appeals in Watson v. First State Bank, 237 S. W. 1106, 1107. This is the accepted rule in this state. Shapleigh Hdw. Co. v. Wells & Bennett, 90 Tex. 110, 37 S. W. 411, 59 Am. St. Rep. 783; Reed v. Shaw (Tex. Civ. App.) 274 S.W. 274; Frost v. Bank (Tex. Com. App.) 276 S. W. 222, 225.

Weaver himself testified that at no time did he ever advise Mrs. Oliver or her agent of the dissolution of his partnership with Branch; and that she had never agreed to release him from liability on the note sued upon. A. Oliver, husband of the payee, and who was her agent, testified that he did not know until after suit was filed that said partnership had been dissolved; that he never agreed to release Weaver; and that no extension of the note was ever made. None of this testimony was contradicted. There was, therefore, nothing to go to the jury on the issue of his release as a joint maker.

Appellant’s other contention is that the court erred in excluding a carbon copy of a purported letter from Rose & Sample, attorneys for Branch, addressed to A. Oliver, agent for Mrs. Oliver, stating that at the request of Branch they were sending his check in payment of interest on said note up to March, 1923. There was no error in this. Had it been admitted, it would have added nothing to the proof; and, being secondary evidence, no proper predicate was laid for its introduction. Appellant neither proved that the original of such letter had been mailed to A. Oliver, nor that Oliver had ever received any such letter. The purported carbon copy was, therefore, properly excluded.

Finding no error, the judgment of the trial court is affirmed.