author: BUCK, J.

text:
    GULF, C. & S. F. RY. CO. et al. v. HINES et al.
    (No. 11853.)
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 10, 1927.
    Rehearing Granted Feb. 11, 1928.
    1. Carriers <&wkey;2l I — Terminal railroad receiving live stock from another railroad for delivery is “connecting carrier” within meaning of federal 28-hour law.
    A terminal railroad company which receives ears of live stock from other railroad companies for transportation and delivery to another company or to stockyards is a “connecting carrier,” whose road forms a part of the line of road over which shipment is made, within meaning of federal 28-hour law, and is subject to its provisions as to interstate shipments.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Connecting Carrier.]
    2. Evidence <&wkey;20(2) — Court of Civil Appeals could judicially notice that railway was extensive system.
    Court of Civil Appeals could take judicial cognizance of fact that the Texas & Pacific Railway was extensive system, extending in Texas from Texarkana to El Paso.
    3. Carriers <⅞=>224 — That railroad with extensive system acted but for short distance In switching cars of live stock did not destroy its “common carrier” character/so as to prevent suit in any county where connecting carrier did business (Rev. St. 1925, art. 905, and art. 1995, § 24; Const, art. IÓ, § 2).
    That railroad with extensive system hauled live stock but a short distance in switching ears transferred to it by connecting carrier did not destroy its character as “common carrier,” within meaning of Rev. St. 1925, art. 905, and Const, art. 10, § 2, so as to prevent its being sued pursuant to Rev. St. 1925, art. 1995, § 24, in a county other than its domicile and where its connecting carrier did business; “common carrier being one who, by virtue of his business or calling, undertakes, for compensation, to transport personal property from one place to another by land or water, and delivers same for all as may choose to employ him (citing Words and Phrases, Second Series, “Common Carrier”).
    4. Carriers <&wkey;228 (5) — -Findings that connecting carrier’s delay in delivering live stock con¡-stituted negligence and caused injury to shipment held sustained by evidence.
    Findings that connecting carrier’s delay in delivery of live stock transferred to it was negligence and constituted proximate cause of injury to shipment held sustained by evidence.
    5. Evidence <&wkey;525 — Witness showing acquaintance with selling price of jacks could testify thereto, though there was no fixed, “market value.”
    A witness showing his acquaintance with the selling price of jacks could properly testify as to such value, even though there was no fixed or definite market price for them as for cattle and hogs; “market value” being such sum'of money as property is worth in the market generally to persons who would pay the just and full value for what the property would bring at a fair sale where one party wants to sell and the other to buy (citing 3 Words and Phrases, “Market Value”).
    6. Trial <&wkey;277 — Objections to charges should not be couched in veiled terms.
    Objections to charges should not be couched in veiled terms so as to hide rather than express the real objection.
    On Appellants’ Motion for Rehearing.
    7. Appeal and error <&wkey;216(1) — Objections sufficiently specifying error will preserve point on appeal without necessity of directing court’s attention thereto by special charge (Rev. St. 1925, arts. 2185, 2190).
    Under Rev. St. 1925, arts. 2185, 2190 (Rev. St. 1911, arts. 1971, 1985), objections which sufficiently specify the error will preserve the point on appeal without the necessity of again directing the court’s attention to the subject by special charge.
    8. Trial <&wkey;366 — Objection to submission of issue of what was reasonable cash market value because issue of there being a market value was not submitted held sufficient objection that issue was charge on weight of evidence.
    In action for damages for death of live stock as result of carrier’s negligence, objection to the submission of issue of what was the reasonable cash market value, on the ground that no issue of there being any market value had been submitted, held a sufficient objection that issue was a charge on weight of evidence.
    9. Carriers <&wkey;228( I) — Plaintiffs suing to recover market value of jaoks • dying because of carrier’s negligence had burden of showing market value.
    Plaintiffs suing carrier for damages for market value of jacks dying as result of exposure in transportation had burden of showing market value.
    Appeal from District Court, Johnson County ; Irwin T. Ward, Judge.
    Action by Tom W. Hines and another against the Gulf, Colorado & Santa Fé Railway Company, in which said defendant im-pleaded the Texas & Pacific Railway Company. Judgment for plaintiffs against the original defendant, and for the original defendant against the impleaded defendant, and both defendants appeals.
    Reversed and remanded.
    Thompson & Barwise and Lee, Lomax & Wren, all of Fort Worth, T. D. Gresham, of Dallas, and J. O. Lockett and Heber Henry, both of Cleburne, for appellants.
    J. D. Kugle, of Dallas, and O. O. Chrisman, of Cleburne, for appellees.
   BUCK, J.

Tom W. Plines and son, Ben J. Hines, sued the Gulf, Colorado & Santa Fé Railway Company, hereinafter called Santa Fé Railway, for damages, alleging that on October 9, 1925, they shipped from Venus, Johnson county, a carload of live stock, consisting of 8 jacks, 7 jennets, 4 mules, and 1 mare, destination Dallas, to be unloaded at the Fair Grounds; that the car upon reaching Dallas was negligently placed upon a side track and left standing there from about 3 o’clock in the afternoon of October 9th until 9:30 p. m. of the same day; that it was raining and the weather was cold, and the live stock became chilled; and that three of the jacks contracted pneumonia and two of them died two days thereafter. Plaintiffs alleged that the reasonable cash market value of the said jacks was $750 each. He sued for $1,500 damages.

The defendant Santa Fé Railway implead-ed the Texas & Pacific Railway Company, hereinafter called T. & P. Railway, alleging that if the original- defendant were liable by reason of the allegations in plaintiffs’ petition that it had a right to recover against the T. & P.'Railway for any judgment that should be recovered against the Santa Fé Railway. The T. & P. Railway interposed its plea of privilege to be sued in Dallas county, alleging that the district court of Johnson county had no jurisdiction over it in this cause, because it was not at the institution of the suit nor at the time of the trial, nor at the time service was had upon it, a resident of Johnson county, but that it was a resident of Dallas county, where it is domiciled and has its principal-place of business. The court overruled the plea of privilege.

A trial was had on November 9, 1926, and the cause was submitted to, a jury upon special issues, which, with .the answers thereto, are hereinafter set out:

“(1) Was the car of live stock belonging to the plaintiff delivered at its destination at the Pair Grounds at Dallas, Tes., with reasonable diligence and dispatch? Answer: No.
“(2) Did the failure to deliver said stock at the Pair Grounds with reasonable diligence and dispatch constitute negligence, as hereinafter defined? Answer: Yes.
“(3) Was such negligence on the part of the defendant Gulf, Oolorado & Santa Pé Railway Company, its agents, and employees, the proximate cause of the death of the two jacks, the value of which is sued for in this case? Answer: Yes.
“(4) Did the failure to deliver said stock at the Pair Grounds with reasonable diligence and dispatch also constitute .negligence on the part of the Texas & Pacific Railway 'Company, acting in this instance as the agent of the •defendant Gulf, Colorado & Santa Pé Railway Company? Answer: Yes.
“(5) Was such negligence on the part of the Texas & Pacific Railway Company the proximate and sole cause of the death of the two jacks, the value of which is sued for in this •case? Answer: Yes.
“(6) What was the reasonable cash market value of the two jacks at the time of their ■death? Answer: $1,400.”
Special issue requested by the defendant Texas & Pacific Railway Company:
“Was the damage, if any, sustained by the shipment in question caused by the inherent vice of the animals which died of> pneumonia? Answer: No.”

Upon the answers of the jury, the court entered judgment for plaintiffs against the Santa Pé Railway for $1,400, and interest, and gave judgment for the Santa Pé Railway over against the T. & P. Railway for a like amount. Fi’om this judgment both railway companies have appealed.

Opinion.

We will first dispose of the T. & P. Railway’s plea of privilege. The contention is made that in the service performed by the T. & P. Railway it was but a switching agent, and was not a connecting carrier, or a common carrier; that the Santa Pé Railway, inasmuch as it had no tracks out to the Pair Grounds, hired the T. & P. Railway as its agent to secure the delivery of the car of live ■ stock to the Pair Grounds; that the T. & P. Railway received the shipment at the transfer track and shipped it to a point within the city of Dallas. Article 10, § 2, of the. state Constitution, provides:

“Railroads heretofore constructed or which may hereafter be constructed in this state are hereby declared public highways, and railroad companies, common carriers.”
“A ‘common carrier’ is one who, by virtue of his business or calling, undertakes for compensation to transport personal property from one place to another, either by land or water, and deliver the same, for all such as may choose to employ him; and every one who undertakes to carry and deliver for compensation the goods of all persons indifferently is, as to liability, to be deemed a ‘common carrier.’ United States v. Ramsey, 116 C. C. A. 568, 197 P. 144, 146” — cited in Words and Phrases, Second Series, 801.

A terminal railroad company, which receives cars of live stock from other railroad companies for transportation and delivery to another company or to stockyards, is a “connecting carrier,” whose road forms a part of the line of road over which the shipment is made, within the meaning of the 28-hour law,, and is subject to its provisions as to interstate shipments. United States v. Northern Pac. Terminal Co. (C. C.) 181 P. 879.

Article' 905, Rev. Civ. Statutes of 1925, defines “connecting lines” and is in part as follows:

“All common carriers in this state over whose transportation lines, or parts thereof, is transported any freight, baggage or other property received by either of such carriers for shipment or transportation between points in this state, on a contract for carriage recognized, acquiesced in, or acted upon by such carriers shall, with respect to the undertaking and matter of such transportation be considered and construed to be connecting lines. Such lines shall be deemed and held to be agents of each other, each the agent of the others, and all the others the agents of each, and shall be deemed and held to be under a contract with each other and with the shipper, owner and consignee of such property for the safe and speedy transportation of such property from point of shipment to destination; and such contract as to the shipper, owner and consignee of such property shall be deemed and held to be the contract of each of such common carriers. The provisions of this law shall apply whether the route of such freight, baggage or other property be chosen by the owner or his agents, or by the initial carrier to whom such property is delivered.”

In T. & P. Ry. Co. v. Henson, 103 Tex. 598, 132 S. W. 118, opinion by Chief Justice Gaines, it was held that the Port Worth Belt Railway Company, delivering cattle to the stockyards shipped over the T. & P. Railway'from Midland county to Port Worth, was properly sued in Midland county. Article 1995, § 24, Rev. Civ. Statutes of 1925, provides that:

“Suits arising from damage or loss to any passenger, freight, baggage or other property, by reason of its transportation, or contract in relation thereto, in whole or in part by one or more common carriers or the assignees, lessees, trustees or receivers thereof, operating or doing business as such in this state, or having agents or representatives in this state, may be brought against one or more of those so doing business, in any county where either does business or has an agent or representative.”

In the Henson Case the Supreme Court said it might be doubtful whether the Port Worth Belt Railway was a railroad company in the broad sense of this term, or a common carrier, but the evidence showed that it was a transportation company, and that its sole business was to intercept cattle on the way to tbe stockyards north of Fort Worth and to transport them over its own line to the stockyards; that at least the Fort Worth Belt Railway was a transportation company, and included in the purport of the act defining the venue of suits against railway cpmpanies and others.

In Kansas City So. Ry. Co. v. Rosebrook-Josey Grain Co., 114 S. W. 436, by the Texarkana Court of Civil Appeals, the controversy was over some cars of grain, which, after being loaded and on the switch track of the Texarkana & Ft. Smith Railway, were de-' stroyed by fire. The railway company named was to perform only a switching service in delivering the cars to other carriers who were to transport the cars, under ordinary bills of lading, to destination. The appeal was by the switching carrier, who was held liable for the value of the grain destroyed. For the switching service the appellant was paid according to certain agreed and fixed charges, not by the owner of the grain, but by the carrier receiving the car for transportation to destination, as in the instant case. The court held that .the railway company in performing the switching service was a common carrier. In part, the court said:

“ ‘The distance over which freight is hauled, * ⅜ * -whether in its own cars or those belonging to connecting carriers, can make no difference with the capacity in which the company acts. A railroad transporting a passenger or a car load of freight one mile, using a switch engine for motive power, is just as much a comAon carrier as if the distance were a thousand miles by regular freight or passenger train. The fact that compensation for this particular service was paid by the St. Louis & San Francisco Railway Company, while it might render that company also responsible, could not relieve the defendant company from' its liability as a carrier. The defendant company was bound to receive and transport' this merchandise as a common carrier, and there • is nothing in the facts of the case showing that it did receive it in any other capacity.’ It appears to us that the reasoning employed in the foregoing opinion is peculiarly applicable to the facts in this case and announces a correct proposition of law. If a railway company is per se a common carrier, we are unable to understand how it can disrobe itself of that character when it undertakes for hire to transport freight any distance. This is the very service for which it was given the character of a common carrier, and it was intended by the law to make this peculiar characteristic follow it in all of its legitimate operation.”

In Nation v. S. A. So. Ry. Co., 115 Tex. 431, 283 S. W. 157, by Section B of the Commission of Appeals, the action was brought by Nation in Denton county against the appel-lee named, to recover damages to live stock while in transit. The railway company filed an answer that if any damage occurred to the cattle it was due to the negligence of the Houston & Texas Central Railway Company, and upon prayer for judgment over against it, the latter company was cited and brought in as a party defendant, and thereupon judgment against the Houston & Texas Central Railway was also sought by plaintiff. The shipment had moved, in part, over the line of the Gulf, Colorado & Santa Fé Railway Company, which was not sued, for the reason that such company did not cause any of the damages sued for. None of the railway companies named operated a line of railway, or had any agent in Denton county, except the Gulf, Colorado & Santa Fé Railway Company. The trial court sustained a plea of privilege filed by the Houston & Texas Central Railway, and upon appeal to this court, we certified the question to the Supreme Court. The Commission of Appeals held that the plea of privilege should not have been sustained. The holding in Kansas City So. Ry. Co. v. Rose-brook-Josey Grain Co., supra, has been cited a number of times with approval; in Elder, Dempster & Co. v. St. D. S. W. Ry. Co., 105 Tex. 628, 154 S. W. 975; West v. Whitehead (Tex. Civ. App.) 238 S. W. 976, writ of error refused, and'many other cases. In the last cited ease it is said:

“As we have said, the status of a railroad, as such, is not determined by its length; whether it is a mile long, or a thousand miles long, it is a railr.oad nevertheless” — citing cases.

We think we can take judicial cognizance of the fact that the T. & P. Railway is an extensive system, extending in Texas from Texarkana on the east to El Paso on the west. It is undoubtedly a common carrier, and the service it rendered in the instant case did not destroy its character as a common carrier. Therefore we overrule the assignments of the T. & P. Railway directed to the action of the court in overruling its plea of privñege.

Under assignments 4, 5, and 6, the contention is made that plaintiffs’ pleadings allege that the damage occurred at a particular place and time in the course of the shipment, and that the evidence undisputedly showed that the damage complained of might have ■been incurred at any time after the shipment left the barns of the plaintiffs, and before the same were delivered at the Fair Grounds- in Dallas. It is true that the plaintiffs alleged that the injury occurred after the ear containing the live stock arrived at Dallas, and was placed upon a side track near the Fair Grounds. It was alleged that the car arrived in Dallas “at or about 3 o’clock p. m.” on October 9, 1925. Henry Gorske testified:

That he was the caretaker accompanying the shipment. That the train left Venus between 9 and 10 o’clock a. m., and arrived in Dallas between 1 and 2 o’clock p. m. That it was cold that morning, but not very cold. That there had been no rainfall at Venus before the shipment left, though they passed' through some rain en route, about Midlothian. That when the shipment reached Dallas he examined the condition of the stock and found it “pretty good. He stated they were not suffering. “It was not much cold at that time. As to whether-1 have had a lot of experience in handling jacks and stock, I didn’t handle jacks, but I handled stock. I was raised on a farm. As to whether or not those jacks were in good condition when we arrived there, they were not suffering from the cold or anything like that. They were pert and holding their heads up. They did not show any signs of being chilled or of being cold. As to whether I noticed any change in their condition during the evening, about 3 o’clock or after they began to get cold. At that time there was a slow rain falling, and it was getting colder all the time. I sat out there with the stock, on the box car, for a while, and then I went up to that tower because it was too cold out there. I was so cold out there that I could not stay out there. That day was about the same as it was here yesterday as to being cold, but it was also rainy that day. That was about the first norther of the y§ar, last year in October, and just about this time of the-year. They had a fire up there in the tower, and I had to sit around the fire most of the evening. That stock began to get cold along about 3 or 4 o’clock in the evening. From that time on up until the time I was set out there at the Fair Grounds between 9 and 10 o’clock this stock kept getting cold and chilled. I know that because I would go down there where they were in the car every once in a while and see how they were. They were shivering and pawing and trying to get out. They were still there in the car. There was a mist rain falling that evening, and the wind was out of the north. That was an open slatted stock car these stock were in. It wasn’t much cold during my trip to Dallas with the stock. It was cold, but it wasn’t very cold. It got colder along in the afternoon. As to the condition of the stock when I unloaded them between 9 and 10 o’clock that night, when we took them out of the car, they were pretty cold, and they looked to me like they were shivering.”

Dr. A. C. Burns, a veterinary, testified that he examined the stock at Venus in the afternoon of October 8th, and in the morning of October 9th, and he found the condition of the stock to >be good; that they were in a good healthy condition; that one can judge the condition of a jack by the way he holds his head, and his alertness.

Tom W. Hines, one of the plaintiffs, testified that he personally inspected .the car of jacks before they left Venus the morning of the 9th, and that if he had seen anything the matter with them he would not have shipped them; that he did not see any jacks that looked droopy or in any condition that indicated that they were not in A-l order for show purposes.

Dr. Burns further testified as follows:

“As to what produces pneumonia in stock, there are predisposing factors, possibly several; an animal becoming too hot and then chilling, or a chill itself, and at times we have possibly a pneumonia following other infectious diseases, such as shipping fever, due to complications. If caused from exposure, an animal is very much' like a human in a disease of that kind. The same condition that would give an individual an awful cold and from that run into pneumonia will do that in an animal. A jack is more susceptible to .cold than the average animal. Where he is housed and taken care of he is more susceptible than the average animal. * * * you as]j me*o suppose that these animals, which I examined and found in good condition when they left Venus, arrived in Dallas at 2 o’clock, in good condition when they arrived there, and stood in an open car there from 2 o’clock until 9:30 that night, with a slow rain falling a large portion of the evening and with the temperature down about like it was yesterday, around 43, standing there in that car, and that when they were unloaded from that car they were chilled and couldn’t hardly keep quiet, and then were taken into the barns, and two days later died from pneumonia — asking me also what in my judgment and opinion was the cause of the death of those mules. I should judge the predisposing factor was a chill. I would say that it is possible that the 6½ hours of exposure there produced the pneumonia from which they died, and it is probable. Assuming that these animals arrived at that time, at 2 o’clock, and that they were in good condition, suffering from no cold or exposure, and that they stood there 6½ hours on those tracks, and when they were unloaded they were chilled and cold and shivering, and that two days later they died from pneumonia, in my judgment and opinion it is possible that they died from such exposure. If the pneumonia was caused from exposure and they had no other exposure, that would have apparently been the cause of their death.”

On cross-examination by counsel for the Santa F6 Railway, Dr. Burns further testified:

“As to whether pneumonia prevented those jacks from being entered there at that time in the fair, and whether or not that was one of the diseases that I was called on to test for, I examined them for any condition that would make them unfit for showing. Glanders is the main test required, but they require an examination as to whether the animals are in good health at the time they are examined. The test for good health included pneumonia, and it included everything other than blemishes. In this instance, I did not make a test for pneumonia. There is no test for pneumonia, other than the physical condition of the animals. As to whether pneumonia is the character of disease where the germ can be carried in the system for some time and then if the vitality is lowered the germ goes to work and the disease results, lots of times that is the case. If you lower the vitality of the animal possibly you can have pneumonia from an infection. The general accepted theory about tuberculosis in animals as well as in people is that practically everybody in normal health carry the germ, but it doesn’t work on them until something lowers their vitality, and then the germ gets to work. That is the general conception of tuberculosis, that every human harbors tubercular organisms, and when resistance is lowered possibly it will offer a better opportunity for the disease to take hold. The same thing is possibly true with reference to the pneumonia germ. * * *
“This shipment moved from Venus to Dallas, I judge, in a stock car; however, I couldn’t describe the car. Assuming this shipment left Venus for Dallas anywhere between 7:30 o’clock and 10 o’clock and arrived in Dallas about 1 o’clock, and that during that period a norther was blowing and it was raining, it could have been possible for that Cbngestion to have developed with that norther blowing on the animals even before the shipment got to Dallas. And that congestion might have developed into pneumonia before they got to Dallas. I am not in a position to say that the pneumonia that these mules died of was contracted between 3 o’clock in the afternoon and 9 o’clock at night on October 9th. I don’t know about that. As to how long after mules have started with congestion of the' lungs or have this infection until they develop into pneumonia, we consider congestion is usually the first stage of pneumonia, and then it goes into the real stage of pneumonia, the stage of red hepitization, where the lung becomes filled and is liver-like in character. As to how long it takes to do that, it varies, of course; possibly 24 to 36 hours, or something of that kind. If one of these jacks died within two days after arriving in Dallas and had pneumonia for a period before it died, this congestion could have developed, the beginning of it, even back as far as Venus. As to whether I would say it did or didn’t from my knowledge of the case, I would say this, that I don’t think there were any symptoms of congestion or pneumonia symptoms when I made my final examination of the animals at Venus. I was not examining them particularly for a slight congeston of the lungs. That would have been something I would have discovered if it had been sufficiently noticeable at the time I examined them. As to what effect it would have on mules standing in open pen from 3 o’clock in the afternoon until some time after 7 o’clock the next morning, and as to whether there was a chance that they might get chilled somewhat standing there in the open pens at Venus, that would depend upon the weather conditions and such as that. If there was a lowering of the temperature running down from 61 degrees, and a slight mist, there would be a possible chance; more so where the animals had been previously housed, possibly, than otherwise.”

Dr. A. E.. Flowers, of Dallas, testified:

“Assuming that this stock had been taken from the barns at the farm on the. evening of ■the 8th and brought to Venus, the temperature at that time ranging from 70 to 75 degrees, ahd stood in open pens during the night and about 3 o’clock next morning they were loaded in the ear before there was any rain, before they became wet, and they stood in the open stock car from that time up until -about 8 o’clock that night, all through the day, •that the temperature from.about 8 o’clock in the morning began to lower up until say about 12 to about 60 degrees, and then from 60 degrees went down to 43 or 44' degrees at 8 ■o’clock that night, as to what part of that exposure I would say would be most severe upon this stock, and most likely to produce the lung trouble from which they died, I would say the longer they were exposed to that falling temperature the more apt they would be to have trouble. If this stock had been housed entirely open and went to the pens at 8 o’clock in the evening, with a falling temperature from 8 o’clock in the morning, that would have a tendency to produce trouble, and it might be considered an exposure, and I would consider it exposure, if they were housed until that time of night and taken up there and left standing in the open with a falling temperature. It is true with reference to live stock, as it is with human beings, that they will stand a certain amount of exposure without any bad effects, if subjected to a continued exposure, that the longer they are subjected to that exposure, that the more apt they are to contract the trouble from which these stock died. ’
“Saying that the temperature from the time the stock was driven to the pens, at 8 o’clock, up until 12 o’clock the next day ranged from around 60 degrees, and then from 12 o’clock on until 8 o’clock that night, that it ranged downward to 43 or 44 degrees, with the stock exposed all during that time, as £o what part of that exposure would in my judgment and opinion, probably produce the condition' that I found in this stock, I will say that animals exposed for a short length of time might withstand a certain amount of exposure; but the longer they are exposed the more the animal is debilitated, especially if they had not been eating and drinking well, they would naturally become more susceptible to the elements.”

On cross-examination Dr. Flowers further testified:

“I would not attempt to say át what point in this exposure this condition was caused, except that the longer an animal is exposed the more apt it is to have trouble. I would not say whether it was contracted down at the depot at Venus or not.”

We think the evidence cited and other evidence in the record supports the finding of the jury that the failure to deliver said stock at the Fair Grounds with reasonable diligence and dispatch constituted negligence on the part of the T. & P. Railway, and that such-negligence was the proximate and sole cause of the death of the two jacks, for which suit was brought. The evidence shows that Mr. Gorske, through the man in charge of, the tower, and Mr. Tom and Ben Hines through the railway officials and superintendent of the live stock department of the Texas State Fair, telephoned a number of times during the afternoon and'early part of the night, urging that the car be delivered promptly, and stating that they were suffering from the cold and rainy weather. There appears no good reason why the delivery of the car was delayed from the time it was placed on the siding of the T. & P. Railway to the time when they were actually delivered, about 9:30 or 10 o’clock. The evidence shows that the ear was standing on the T. & P. Railway track about one-half or three-fourths óf a mile from the Fair Grounds during 'these some 6 or 7 hours, and we believe that the jury were justified in finding that such delay was negligence.

Complaint is also made tliat the evidence .of market value of the jacks were not shown. Mr. Tom W. Hines testified:

“I am acquainted with the reasonable cash market value of such type jacks as I lost over there — as these two jacks that died. As to what was the reasonable cash market value of those two jacks I lost' there at the Fair at that time, I know How I valued them. I know the cash market value of jacks at that time. If those jacks would have sold at all, they would have brought between seven and nine hundred dollars. I had sold some jacks from those before that, similar to these jacks, and I had gotten prices in keeping with that. There is no fixed price for jacks like there are for cattle and hogs. You can’t take them to a stockyard and sell them like other stock. It depends on the demand for them. It depends on whether a man wants them and whether he wants that kind or class of an animal. And it depends on a man’s appreciation for good animals. The jacks I sold were of this same class of jacks. As to whether these jacks that died were as good jacks as the ones I sold, a man always thinks he keeps the best. I try, if I can, and if I have to have any left, I try to keep the best ones. The whole herd of jacks had the same sire. I know the different prices I have received for jacks from year to year. Of course, that depends on the condition of the mule market and demand. Sometimes people breed right sharply and then again they fall off of it and there is no market, like there has been for the' last twelve months.”

On cross-examination, Mr. Hines further testified with reference to the market value of these jacks, as follows:

“In regard to these other jacks I talked about that I sold, one of those jacks went to Pecos, Tex. One was sold the fall before. I sold some jacks this last year after the Fair. I did state that I sold some jacks prior to the time these jacks died. I sold some along early in the fall; I couldn’t say exactly what time. I can tell from my record. It was in the early fall when I sold them. Those jacks were at my farm when I sold them. I never sold any other jacks in Dallas during that Fair. * * * I said that those jacks were worth from seven to nine hundred dollars. I meant that they were worth that each.”

Evidently, as stated by counsel for the plaintiff in the oral argument, the jack sold to a party at Pecos, Tex., was one of this shipment. As stated by Mr: Hines, there may not be a fixed price for jacks like there is for cattle and hogs, yet if a witness shows that he is acquainted with the market value of high-bred cattle, horses, etc., and knows what the market value is, as between those who have them to sell and those who are in the market for such live stock, we think that he can testify therefrom as to the market value. As said in 3 Words and Phrases, p. 301, “market value” is such sum of money as the property is worth in the market generally to the persons who would pay the just and full value for what the property would bring at a fair sale, where one party wants to sell and the other to buy. The market value of-land is the price that in all probability would result from fair negotiation, where the seller is willing to sell and the buyer desires to buy the thing in question.

Complaint is also made of the failure of the court to submit to the jury the issue as to whether or not there was any market value at Dallas for the jacks of the kind and character in question, and that the submission of issue No. 6 was a charge on the weight of the evidence. Apparently no request was made for the submission of the issue as to whether there was any market value at Dallas for jacks of the kind and character in question, but the objection made to the submission of issue No. 6 was “for the reason that the court failed to submit the issue as to whether or not there was any market value at Dallas for the jacks of the kind and character in question, and special issue No. 6 thereby became a charge on the weight of the evidence.” Appellant T. & P. Railway cites a number of cases in support of its contention, among them Fort Worth & Denver City Ry. Co. v. Harle, 240 S. W. 1004, by this court, and Wichita Talley Ry. Co. v. Turbeville, 269 S. W. 498, by Justice Dunklin of this court. In the latter case this court held that the issue of intrinsic value could not be submitted until it had been shown that there was no market value. In Fort Worth & Denver City Ry. Co. v. Harle, supra, by the writer hereof, this court said:

“The ground of attack on this charge is that it assumes that the cattle and horses in question had a market value at Malta, and the evidence in the ease being in dispute and in conflict as to whether there was a market value for the cattle and horses at Malta, the court should not have assumed that there was a market value as a matter of law. Hardin testified that he did not know enough about the horses in this shipment to testify as to their reasonable market value, and did not know whether the kind and quality of such horses could have been sold in Malta or in that vicinity in the spring of 1917. The only other testimony as to the reasonable market value of the horses was that of R. H. Harle, plaintiff. Even were there no objection to his qualification as an expert witness upon the question of value (and this objection is very strenuous on the part of appellants), we think that the court should not have assumed that a market value of the horses had been established. Harle was an interested witness, and the jury were authorized under the law to disregard any part of his testimony, even though such testimony was reasonable and uncontradicted. Smith v. A. T. & S. F. Ry. Co. (Tex. Com. App.) 232 S. W. 290; Railway Co. v. Runnels, 92 Tex. 307, 47 S. W. 971; West Lumber Co. v. Goodrich (Tex. Com. App.) 223 S. W. 183, 192; Wichita Falls Traction Co. v. Berry (Tex. Civ. App.) 187 S. W. 415, 421; G. H. & S. A. Ry. Co. v. Murray (Tex. Civ. App.) 99 S. W. 144. We believe this assignment must be sustained, and the judgment reversed.”

Iii that case only two witnesses testified as to the market value. One of them, Hardin, testified that he did not know enough about the horses in this shipment to testify as to their reasonable value and did not know whether the kind and quality of such horses could have been sold in Malta or in that vicinity in the spring of 1917. The plaintiff testified, over strenuous objection as to his qualification to do so, as to the market value. We held that under the circumstances shown it was error for the court to submit a charge which assumed that there was a market value for the horses in question. A writ of error was denied in the I-Iarle Case.

In the objection to this charge in the instant case there was no request made for the submission of an issue as to whether there was any market' value at Dallas for jacks of the kind and character of the two which died. Nor is there any suggestion that the court should have submitted such issue. The .only objection made is that the court assumed that there was a market value and thereby charged the jury on the weight of the evidence. A subsequent objection to this charge is that there was no evidence showing the existence of a market in Dallas for such jacks. There was evidence which we hold was sufficient to establish the market value of the jacks at Dallas. It is true that this evidence depends on the testimony of plaintiff Hines, who was an interested party, and if this objection had been properly presented and a request made for the submission of the issue as to the market value for such jacks at Dallas, we think the court should have submitted such issue. But we do not believe that objections to charges should be couched in veiled terms so as to hide rather than express the real objection thereto. Hart Bros. & Hamm v. Angus, 225 S. W. 813, by this court, opinion by Justice Dunklin; Isbell v. Lennox (Tex. Civ. App.) 224 S. W. 524, affirmed by Supreme Court, 295 S. W. 920. As said by Chief Justice Phillips of our Supreme Court in Walker v. Haley, 110 Tex. 50, 214 S. W. 295, the plain purpose of the statute “is to provide the court, in advance, with the objections to which the charge is deemed subject, so as to afford opportunity for its correction in the particulars urged. It is, in a word, to secure, as far as possible, the preparation and submission of a correct charge to the jury.” Hence, we have .concluded that no reversible error is shown by reason of the action of the trial court in not submitting this issue. We think that the record discloses a different state of facts from those- in the Harle Case, supra, and the assignment should be overruled.

We have examined the other assignments carefully, and find no error therein. The judgment of the trial court is affirmed, in favor of the plaintiffs as against the defendant Santa Fé Railway, and in favor of the Santa Fé Railway over against the Texas & Pacific Railway.

On Appellants’ Motions for Rehearing.

Appellants Texas & Pacific Railway Company and Gulf, Colorado & Santa Fé Railway Company have both filed motions for rehearing, the latter company’s motion being in the main formal. The Texas & Pacific Railway Company’s motion insists that the trial court erred in failing to submit the issue as to whether there was a market value at Dallas for the jaoks which died, and that such failure may be taken advantage of by appellant in the absence of a written request for such submission. That an objection to the issue submitted on the ground stated was sufficient to call the court’s attention to the insufficiency, incompleteness, and error in the issues as submitted, and that no special request for the submission of the issue as to whether there was a market value in Dallas for the jacks in question, was necessary. It is urged that the Supreme Court laid down the rule in G., C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183; Id. (Tex. Com. App.) 252 S. W. 737, that when a charge is improper or incomplete, it is not necessary for the party objecting to do more than to object to the manner and form in which the charge is submitted, and there is no duty on appellant’s part to tender a charge or issue which will correct the defect or error in the charge given or proposed to be given by the court.

The Conley Case, opinion by Chief Justice Cureton, involved the giving of a charge which the Supreme Court held was affirmatively erroneous. The Court of Civil Appeals had held that the charge was not affirmatively erroneous, and therefore not reversible error in the absence of a requested instruction by appellant more fully explaining the degree of care required by appellant as a carrier of passengers. The Supreme Court held that this was once the rule with reference to charges affirmatively erroneous: but due, however, to statutory enactments, it is no longer so. The court, after referring to article 2185 (then article 1971 [Rev. St. 1911]), which defines the duties of a judge as to the giving of a charge, and submitting it to the respective parties or their attorneys for inspection, arid providing that “all objections not so made and presented shall be considered as waived,” and article 2190 (then article 1985) providing for the submission of a case upon special issues, said:

“These two statutes were enacted to accomplish the same purpose, and we think a failure to submit any particular issue under either statute can be reviewed on appeal only where the record shows a special charge was tendered on that issue. But in the instance of a defective or erroneous charge on a subject or issue which the court has undertaken to charge upon, the objections required by article 1971 take the
place of special charges, and render it unnecessary that the latter be tendered. It is immaterial whether the matter objected to in the court’s charge is a mere defective or incomplete statement of the law or issue to be determined or is affirmatively erroneous; objections which sufficiently specify the error will preserve the point on appeal, without the necessity of again directing the court’s attention to the same subject by special charge.
“Had the Legislature intended that the complaining party should not only make objections, but tender a special charge as well, it undoubtedly would have said so. Having undertaken to state what must be done in this respect, the statute, under a well-known rule of construction must be held to have excluded the necessity of doing anything else. Other cogent reasons are given in the cases cited. Houston & Texas Central Ry. Co. v. Gant [Tex. Civ. App.] 175 S. W. 745; Hines v. Kelley [Tex. Com. App.] 252 S. W. 1033.”

In the instant case the only objections which the Texas & Pacific Railway Company submitted on the submission of special issue No. 6, which inquired as to what was the reasonable cash value of the two jacks at the time of their death, were:

“26. This defendant excepts and objects to the submission of special issue No. 6 of the court’s main charge to the jury, for the reason that the court fails to submit the issue as to whether or not there was any market value at Dallas for the jacks of the kind and character in question herein, and special issue No. 6 thereby becomes a charge on the weight of the evidence.
“27. This defendant excepts and objects to the submission of special issue No. 6 of the court’s main charge to the jury, for the reason that there is no evidence showing that there is a market in Dallas, Tex., and that the testimony as given with reference thereto does not show that these jacks would have had the value as stated if placed on the market at that point. . “28. This defendant excepts and objects to the submission of special issue No. 6 of the court’s charge to the jury, for the reason that the undisputed testimony shows that the plaintiff who testified with reference to market value stated that he had not sold any jacks in Dallas, but that jacks sold by him had been sold at other places, and therefore there is insufficient evidence in this case to show that the jacks in question had any market value in Dallas at the place where the damage is alleged to have been incurred.”

It will be noted that appellant does not object or except to the failure of the court to submit the issue as to whether there was any market value for said jacks in Dallas at the time of their death, but objects only to issue No. 6 as given, because, as charged, such issue, by reason of a failure to submit the issue as to whether there was any market value in Dallas for the jacks, becomes a charge on the weight of the evidence. The majority, at least, have concluded that objection No. 26, set out above, does raise the objection that the submission of issue No. 6, without the submission of the issue as to whether or not there was a market value for said jacks in Dallas at the time, was a charge on the weight of the evidence. Hines, who was the only witness that testified as to the market value, was the plaintiff, and the jury might have disregarded his testimony as to this matter altogether, as held in many cases, such as Ft. W. & D. G. Ry. Co. v. Harle, 240 S. W. 1004, by this court, and cases therein cited. The writer does not believe that the objection or exception to the issue as submitted is couched in such clear and unmistakable terms as such exceptions should be to a charge and that the form of the exception is calculated to mislead the trial court as to its purport. But the majority have concluded otherwise, and the motions for both appellants for rehearing are granted, and the judgment below is reversed and the cause is remanded.

The majority are of the opinion that the objection made in' paragraph 26 was clearly an objection that the submission of issue No. 6 was a charge on the weight of the evidence, in that it assumed that jacks of the kind and character of those in question had a market value in Dallas at the time of their shipment, and the objection clearly suggested to the court that an issue should be submitted as to whether there was a market value for said jacks'at Dallas at the time of the shipment, that being the only issue of value alleged in the petition. Plaintiffs sued to recover the market value of the jacks, and the burden was on them to show market value. It was not incumbent on defendants to assist plaintiffs in making out their case. For the reasons stated, the majority are of the opinion that the authorities noted above have no proper application.
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source: Caselaw Access Project

author: HALL, C. J.

license: Public Domain

text:
    INDEMNITY CO. OF AMERICA v. SLADE.

    (No. 2943.)
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 11, 1928.
    Rehearing Denied Feb. 1, 1928.
    I. Insurance &wkey;>668( 10) — -Insurance company’s liability on theft policy held for jury under evidence of conversion of automobile by bailee (Pen. Code 19-25, art. 1429).
    In action to recover on theft policy, evidence of taking of automobile by bailee in whose possession car was left for repairs, held, to make issue for jury as to liability of insurance company under Pen. Code 1925, art. 1429, which makes a bailee who fraudulently converts personal property with intent to deprive the owner thereof guilty of theft.

      2. Insurance <@=»658 — Letter written by bailee on eve of departure with automobile stating destination as place different from that to which he actually traveled held admissible in action on theft policy (Pen. Code 1925, art. 1429).
    In action on policy of theft insurance covering automobile, in which plaintiff claimed that bailee to whom it was delivered for repairs had ■converted it and was guilty of theft under Pen. Code 1925, art. 1429, evidence of letter left by bailee at time of his departure with the ear, which stated he was leaving for New York by way of Florida, held, admissible upon issue of his criminal conversion where evidence showed that he actually took the car to California.
    3. Appeal and error &wkey;>I97(l) — Objection to testimony on ground of variance cannot be considered for first time on appeal.
    Objection to testimony upon ground of variance cannot be considered on appeal where no such objection was urged on trial.
    4. Trial <&wkey;35l (2, 5) — Requested special issues submitted on single paper are not considered on appeal where one or more is submitted in general charge or is improper.
    Refusal of trial' court to submit several special issues, written on one sheet of paper or document signed but once by counsel, will not be reviewed, where one or more of such issues is submitted in the general charge or is improper.
    5. Insurance <&wkey;640(2) — Breach of provision in theft policy excusing insurance company in event of insured’s gross negligence was affirmative defense required to be pleaded.
    A provision in theft insurance policy covering automobile, whereby insurance company was excused from liability in case of insured’s, gross negligence was required to be specially pleaded in action on policy, since a breach thereof would be an affirmative defense.
    6. Insurance <&wkey;668(4) — Evidence of insured’s delivery of ¿utomobile to garage for repairs held not to raise issue of negligence in action on theft policy.
    Mere delivery of car by insured to garage for purpose of having it repaired, held, not to raise issue of negligence or gross negligence m action oñ policy covering automobile against theft.
    Appeal fro.m District Court, Potter Conn-: ty; W. E. Gee, Judge.
    Action by Frances Imogene Slade against the Indemnity Company of America. 'Judgment for plaintiff, and defendant appeals.
    Affirmed.
    James O. Cade, of Amarillo, for- appellant.
    McGregor & Cooper, of Amarillo, for ap-pellee.

      writ of error refused.

   HALL, C. J.

On December 4, 1925, the appellant company issued its policy of insurance covering an automobile, whereby it insured the appellee against theft of the automobile in the sum of $750. Thereafter the car was delivered to a -garage for repairs and was, by the owner of the garage, converted and stolen, and driven to California.

‘.This suit was instituted to recover under the provisions of the policy, the appellee alleging, in substance, the issuance of the policy and the payment of the premium by her, and that the car was stolen prior to the expiration of the policy. She alleges that she gave the notice of the theft of the car, required by the policy, to the local agents of the appellant, at Amarillo, and that, though often requested, the appellant had failed and refused to pay her the $750 indemnity provided in .the policy.

■ The defendant company answered by general demurrer, a general denial, and specially alleged that the car was not stolen as alleged in the petition, but was driven to the state of California, by a bailee in whose hands the car had been placed about a month prior thereto, said car having been delivered to said bailee by the plaintiff- for the purpose of sale, repairs, and general management by said bailee, by reason of which facts the appellant was not liable.

.'The case was submitted to a jury upon special issues, which, together with the answers, are, in effect, as follows:

No. 1. The person having possession of the automobile in question fraudulently converted the same to his own use, without the consent of the owner or her agent, and with the intent to deprive the owner of the value of the same.

No. 2. The value of the automobile at the time it was taken was $750.

In accordance with the verdict, judgment was rendered for appellee for the amount named in the verdict and costs of suit.

The court did not err in refusing to give the peremptory instructions requested by the parties, and correctly submitted the case to the jury upon special issues. The first contention to be considered is that the court erred in permitting the appellee to introduce in evidence the following sentence contained in a letter which the bailee, Gorman, had left upon the dresser of the witness Smith at the time Gorman left with the car for California: “I am leaving for New York by way of Florida.” The objection to this evidence was that it was irrelevant and- immaterial to any issue in this case. This contention is overruled. The evidence showed that. Gorman, the thief, went from Amarillo to California in the car and did not go either to Florida or New York, and was admissible upon the issue of his criminal purpose in converting the car. It is clear that the purpose of the letter was to mislead Smith and the officers and throw them off his track.

Smith testified that he put the date, October 21, 1926, upon the letter which Gorman had written and left upon his dresser; that he had furnished Gorman with tools and apparatus necessary to establish the latter in the business of repairing automobiles, and that Gorman’s shop was in the rear of Smith’s place of business; that Gorman had tried to sell him the ear, and that on the morning after Gorman left, he looked for the car and found it was gone, and phoned the appellee’s mother to that effect; that she requested him to go to police headquarters and report the matter, which he did, and that he also had the insurance company notified that the car had been stolen. The letter was written by Gorman on the eve of his departure with the car and was a false statement of his purpose and intent. It was part of the res gestae and was material upon the issue of his criminal intent. 22 O. J. 286, 287. No objection was urged to this testimony upon the ground of variance, and that contention cannot be considered here.

The appellant next insists that the court erred in refusing to submit to the jury certain special issues with reference to the gross negligence of Mrs. Nannie I. Slade, in allowing the car to remain in the bailee’s possession, and whether the bailee came into possession of the car lawfully. These issues, together with others, were requested en masse.

The refusal of the trial court to submit several special issues will not be reviewed, where all of such issues are written on one sheet of paper or document signed but once by counsel, where one or more of them is submitted in the court’s general charge, or is not a proper issue. Ater v. Ellis (Tex. Civ. App.) 227 S. W. 222; White v. Bell (Tex. Civ. App.) 242 S. W. 1083; McBurnett v. Smith (Tex. Civ. App.) 286 S. W. 600; Hall v. Johnson (Tex. Civ. App.) 225 S. W. 1111.

Article 1429, P. C. 1925, provides that a bailee of personal property “who shall without the consent of the owner, fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft.” The evidence in this case is sufficient, under this definition of theft, to show the liability of the appellant, under the provisions of the policy.

The substance of appellant’s answer is set out above. No special provision of the policy, limiting its liability, and no facts which, under any provision of the policy, would avoid it, are alleged. The mere delivery of the car by the appellee to the garage, for the purpose of having it repaired, was not a violation of any stipulation .contained in the policy and cannot be considered as negligence.

By the third proposition it is insisted that the court erred in refusing to submit to the jury an issue inquiring if appellee was guilty of gross negligence in allowing Gorman to remain in possession of the car, and under this proposition it is insisted that she was grossly negligent, which greatly increased the risk, without the knowledge of the insurer, and therefore the policy was void. If the policy contains any such provision, a breach thereof would be an affirmative defense, and, before appellant could avail itself of it, that term of the policy must be specially pleaded. Etna Life Insurance Co. v. El Paso Electric Ry. Co. (Tex. Civ. App.) 184 S. W. 628; Ginners’, etc. v. Wiley & House (Tex. Civ. App.) 147 S. W. 629. Negligence was not alleged by defendant.

Aside from this, however, the evidence itself is insufficient to raise the issue of gross negligence or negligence in any degree.

We find no reversible error in the record, and the judgment is affirmed.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      &wkey;»For other cases see same toplo and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GALLAGHER, C. J.

text:
    DETROIT BELT LACER CO. v. FOWLER CO.
    (No. 638.)
    Court of Civil Appeals of Texas. Waco.
    March 15, 1928.
    Rehearing Denied April 5, 1928.
    1. Accord and satisfaction <&wkey;IO(l)—Compro-mise and settlement <&wkey;6(2)—Demand amount of which had been fixed and agreed upon at time orders were filled, held a “liquidated. demand.”
    Where plaintiff suing for balance due on an account for merchandise, defense being accord and satisfaction, quoted prices on merchandise sold defendant prior to the latter’s orders therefor, and defendant was charged at prices so quoted, amount of plaintiff’s demand was fixed and agreed upon at time the orders were filled and shipped, and hence such demand was a “liquidated demand.”
    [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Liquidated.]
    2. Accord and satisfaction <&wkey;IO(l)—Compro-mise and settlement &wkey;>6(2)—To constitute “dispute as to liability” for balance due on' account sued on dispute must be honest and reasonable.
    In action for balance due on account for merchandise wherein defendant pleaded accord and satisfaction, in order to constitute a dispute as to defendant’s liability for balance due within meaning of term as used in connection with accord and satisfaction, such dispute must be an honest one and based on reasonably tenable grounds, though it need not be in fact well founded, and it must appear that such dispute did not arise merely from an arbitrary denial of an obligation obviously due.
    3. Accord and satisfaction <§=»26(3)—Compro-mise and settlement <&wkey;>23(3)—Evidence held' not to show dispute as to liability for balance due on merchandise account sued on as basis of defense for accord and satisfaction-
    In action for balance due on account for-merchandise wherein defendant pleaded accord! and satisfaction, in that amount of plaintiff’s demand was in dispute because of plaintiff’s agreement to reduce contract prices, evidence held, not to show any substantial basis for claim by defendant of right to reduction of contract price.
    4. Evidence <&wkey;>27l(l9) — Declarations in defendant’s letter to plaintiff held self-serving,
    and not proof of assertions there made.
    In action for balance due on merchandise account, wherein defendant pleaded accord and satisfaction, declarations in defendant’s letter to plaintiff tending to support defense, were self-serving and did not constitute proof of assertions there made.
    Appeal from Dallas County Court; Paine D. Bush, Judge.
    Action by the Detroit Belt Bacer Company, against the Fowler Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Saner, Saner & Jack, of Dallas, for appellant.
    W. R. Herring, of Dallas, for appellee.
   GALLAGHER, C. J.

This suit was instituted in the justice court by appellant, Detroit Belt Laeer Company, to recover from appellee, The Fowler Company, a balance of $171.47 alleged to be due it on account for merchandise sold by it to appellee. Said account was verified under the statute. Ap-pellee denied said account under oath and pleaded accord and satisfaction, alleging that it had theretofore tendered to appellant, and appellant had accepted a certain payment in full satisfaction of all demands against it thereon. On appeal to the county court the ease was tried de novo.

The evidence shows that on January 15, 1924, appellee ordered of appellant certain items of merchandise called hooks. Appellee in said order inquired whether appellant was making a hook of lower grade or was making Others a lower price therefor. Appellee stated in that connection that others were using a cheaper hook made specially for them; that appellee needed all the help it could get, and asked appellant, if it had any suggestions to offer, to do so promptly so appellee could place another order on receipt of appellant’s reply. Appellant filled said order and sent an invoice showing the prices charged for the several items to appellee. Appellant’s reply to said inquiry is not contained in the statement of facts. Appellee, however, on January 25, 1924, sent appellant a second order for hooks. Appellee in said order referred to appellant’s reply to its inquiry in the preceding order as follows:

■ “We understand from your letter that you make only one quality of hook, the one we are getting. If this is not correct please inform Us by wire before filling the following order, quoting prices, so that we may confirm or change this order immediately.”

Appellee in that connection explained that the reason it inquired about a cheaper or lower grade hook was that it was necessary for it to be on equal footing with its competitors. This order was promptly filled and invoice showing prices charged forwarded to appellee. Appellee, on April 19, 1924, sent appellant another order for hooks. In connection therewith appellee inclosed a cheek for $175, on account, stated collections had been slow and that the balance due would follow with as little delay as possible. No reference whatever to prices was made at that time. Said order was filled and invoice showing the items and prices charged therefor sent to appellee.

Appellant introduced testimony to the effect that the prices charged for the several different kinds of hooks ordered by appellee were furnished it before any of said orders were filled; that said orders were accepted and filled on the basis of the prices so quoted; that appellant was not during the time said orders were accepted and filled, manufacturing or selling any cheaper grade of hooks, and was not selling similar hooks in like quantities to anyone else at a lower price; that there was never at any time any contract, agreement, or understanding, between appellant and appellee for the sale of said hooks at a lower price than charged therefor in the respective invoices. The hooks sold to appellee on said orders at the prices quoted to it and charged therefor by appellant amounted in the aggregate to $493.-72. After crediting the remittance of $175; above referred to, the balance remaining unpaid on June 28, 1924, was $322.25. At that time appellee mailed to appellant a check for $147.25. Said check was inclosed jn a letter from appellee to appellant. We do not deem it necessary to set out the contents of said letter in full. Said letter referred to some communication from appellant with reference to the payment of its account, and then raised the question of whether it had had a fair deal in the matter of prices. In this connection appellee charged that it had “found that in some way it was not getting an equal deal”; that it had bought hooks from another dealer at prices materially lower; that it could not see that the hooks so bought would not answer its needs. Appellee then stated that if all the hooks bought from appellant were charged for at the same prices as it paid for the hooks purchased from such other dealer, it would result in a difference of $171.47 in appellant’s account against it. The concluding paragraph of said letter is as follows:

“We have liked doing business with you, our relations are very pleasant, and in sending a cheek for the balance in full, less $147.25, our only purpose is to bring the situation very much to your attention, knowing you will review the facts and give us the full benefit of our absolute confidence in your treatment when we placed the orders without asking for prices elsewhere.”

Appellee inclosed a check therewith, payable to appellant, for the sum of $147.25, leaving a balance of $171.47 unpaid. It was shown that the expression “less $147.25” in the paragraph of said letter just quoted was an error, and that “less $171.47” was intended. Said check was promptly cashed by appellant. No indorsement or memorandum of any kind appeared on said check. Appellant’s witness testified that it accepted and cashed said cheek as a payment on said account and not in full settlement thereof.

Appellee did not introduce any testimony tending to show any offer, promise, or agreement, on the part of appellant, to make any reduction in the price of hooks sold by it to appellee, nor that appellant manufactured or sold a cheaper hook, nor that it ever in any way intimated that it would reduce its prices to meet the prices charged by other dealers for similar articles. Neither did appellee introduce any testimony tending to show that it actually bought any hooks from other dealers at the prices stated in its said letter nor the quality of the hooks referred to therein.

The ease was tried by the court without a jury and judgment rendered for appeUee.

Opinion.

A liquidated demand, as used in connection with an issue of accord and satisfaction, is a demand the amount of which has been fixed or agreed upon by the parties. 1 C. J., p. 555, sec. 77; 37 O. 'J., p. 1264. The testimony in this case discloses without dispute that appellant had quoted prices on the various kinds of hooks sold appellee prior to its orders therefor; that the hooks sold appellee were ordered in writing by it, and were charged for at the prices- so quoted. The amount of appellant’s demand was therefore fixed and agreed upon at the time the several orders were filled and shipped to appellee, and such demand was therefore liquidated within the definition of that term above recited. Appellee claims that appellant’s demand was disputed by it in part and to the amount of $171.47, the balance unpaid and sued for herein. In order to constitute a dispute as to appellee’s liability for the balance due on the account sued on, within the meaning of that term as used in this connection, such dispute must be an honest one and "based on some reasonably tenable grounds, though it need not be in fact well founded. It must appear that such dispute did not arise merely from an arbitrary denial of an obligation obviously due. 1 R. C. L. p. 198, part section 33; 1 C. J. pp. 554-555, § 75 ; Fire Insurance Ass’n v. Wickham, 141 U. S. 564 et seq., 12 8. Ct. 84, 87, 35 L. Ed. 860; City of San Juan v. St. John’s Gas Co., 195 U. S. 510 et seq., 25 S. Ct. 108,113, 49 L. Ed. 299 ; Bergman Produce Co. v. Brown (Tex. Civ. App.) 156 S. W. 1102, 1104, pars. 2 and 3; Fidelity & Casualty Co. v. Mountcastle (Tex. Civ. App.) 200 S. W. 862, 866, par. 5; Woodall v. Pacific Mutual Life Ins. Co. (Tex. Civ. App.) 79 S. W. 1090, 1092; Gray v. U. S. Savings & Loan Go. (Ky.) 77 S. W. 200, 201; Creutz v. Heil (Ky.) 12 S. W. 926, 927. The correctness of the rule announced in the ahove authorities is recognized in Buford v. Inge Construction Co. (Tex. Civ. App.) 279 S. W. 513, 515, but the court in that case held that the dispute with reference to the amount of the claim sued for was advanced in good faith and rested on a substantial basis. The testimony in this case is wholly insufficient to show any substantial or tenable basis for a claim by appellee of a right to an abatement of the contract prices for the merchandise purchased by it from appellant. The testimony showed affirmatively that appellant did not manufacture any cheaper grade of hooks and did not sell like hooks to other customers at a cheaper price. "There is nothing in the whole record showing that appellant ever intimated that it would abate .its account if it was found that rival dealers were seUing hooks for a cheaper price. Neither is there any testimony showing that appellee actuaRy bought any hooks from other dealers at the prices recited in its letter of June 28, 1924, nor whether such hooks if bought were of equal quality or value with those manufactured by appellant and sold by it to appellee. The declarations in appellee’s letter were self-serving and did not constitute proof of the assertions there made. Peterson v. Clay (Tex. Civ. App.) 225 S. W. 1112, 1114, par. 8. While the record discloses a persistent and determined effort on the part of appellee to secure bed rock prices, it does not show any reasonable ground for a belief on its part that it was entitled to the reduction claimed. Appellee’s agent who wrote said letter of June 28th did not testify. Appellee’s president did testify that he knew about the writing of said letter, but he did not testify that any of the statements of fact made theréin were true. He merely claimed that appeUee had refused to pay the balance due on the account sued on, because he considered the matter settled when appellant cashed the cheek inclosed to it with said letter.

Our holding on this issue renders a .discussion of the other propositions presented as ground for reversal unnecessary.

The judgment of the trial court is reversed, and the cause remanded.
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author: ■ HALL, C. J.

text:
    MONTGOMERY v. FIRST STATE BANK OF HAPPY et al.
    (No. 2938.)

    Court of Civil Appeals of Texas. Amarillo.
    Jan. 4, 1928.
    Rehearing Denied Jan. 25, 1928.
    1. Appeal and error <&wkey;758(3) — No specific error is presented for review by abstract statement in brief.
    ' Abstract statement in brief presents no specific error for review on appeal.
    2. Pleading &wkey;>l84 — Supplemental answer which mentioned note not referred to in original answer as one of chain of notes, of which note sued on was renewal, held not to state different ground of recovery.
    Supplemental answer seeking recovery on «$4,440 note alleged to have been given in renewal of $3,500 note, which in turn renewed note for $3,677, held, not to present new ground of recovery by virtue of fact that the origin of the note supd on was not fully traced in the original answer and cross-action and mention of the $3,677 note was there omitted.
    3. Bills and notes <&wkey;'539 — Findings that note was not given for accommodation, and was supported by consideration, supported holder’s recovery.
    Findings that note was not given by defendant for. accommodation, as alleged, and that it was supported by a consideration, supported judgment allowing recovery.
    4. Appeal and error <&wkey;192(1) — Allegations improper as against special exception are waived by failure to except at trial.
    Allegations in pleading which are improper and informal as against special exception are waived by failure to urge exceptions in trial court.
    5. Mortgages &wkey;j413 — In suit to enjoin foreclosure, answer and supplemental answer held to support recovery on note.
    In suit to enjoin foreclosure, original answer alleging execution of .$4,440 note sued on, in renewal of $3,500 note, including other items, which note in turn renewed a $5,000' note, and supplemental answer which alleged that the $3,500 note referred to was in renewal of a note for $8,677 held, sufficient to entitle defendant to recover upon the $4,440 note sued on.
    Appeal from District Court, Swisher County; Charles Clements, Judge.
    Suit by A. W. Montgomery against the First State Bank of Happy and others, in which defendant named filed a cross-action. From the judgment plaintiff appeals.
    Affirmed.
    D. Zimmermann, of Tulia, t. C. Penry, of Stamford, and Pearce & Triplett, of Lubbock, for appellant.
    Turner, Culton & Gibson, of Amarillo, for appellees.

      Writ oí error dismissed.

   ■ HALL, C. J.

The appellant, Montgomery, filed this suit to enjoin f:he appellee bank from foreclosing a deed of trust on two certain town lots in Happy, claiming said property as his business homestead and denying that there existed any deed of trust under which the bank was claiming the right to foreclose. A temporary injunction was granted.

The bank filed its original answer and cross-action, claiming that the property was not the business homestead of appellant, and alleged that on October 8, 1921, Montgomery had executed a note to P. C. Taylor for $5,-000, which was secured by deed of trust on-said lots; that the note was thereafter indorsed by Taylor, and in due course of business- became the property of the defendant bank; that on September 20, 1923, Montgomery executed to the bank a note in the sum of $3,500 in extension and renewal of the balance due on the said $5,000 P. C. Taylor note; that thereafter on June 26, 1925, Montgomery executed a note to the bank in-the sum of $4,440 in part in extension and renewal of said $3,500 note, and which included other items smaller in amount. Other-facts are alleged not necessary to be considered. The prayer is that the injunction be-dissolved upon final hearing, and that the defendant bank have judgment against plaintiff in the sum of $5,549.72, with interest and costs of suit, that the deed of trust lien be foreclosed, the property ordered sold, etc.

In reply to this cross-action, Montgomery filed a supplemental petition, claiming that his indebtedness had been settled by a transaction through the bank with one J. C. -Cox, whereby he had acquired some vendor’s lien notes. He further alleged that the bank, knowing that he had attempted to borrow $5,000 from an Amarillo party, and in order to do so had executed to P. O. Taylor a note for that amount, secured by a deed,of trust on said lots, that said bank requested him-to permit it to use said deed of trust and* note purely as an accommodation to raise money to prevent the failure of said bank, and that both said note and deed of trust were, therefore, without consideration and void, and to the extent that said $4,440 represented any balance due it was without consideration. Montgomery also sought a recovery against the bank by reason of the conversion by it of a note for $900, executed by Shelton payable to Oox, who in turn had indorsed it to Montgomery and which note it is alleged Montgomery had deposited with the bank for safe-keeping.

In reply to this pleading, the defendant bank, by first supplemental answer, pleaded limitation to the charge that it had converted the Shelton note for $900, and further alleged that in the latter part of 1921, or early part of 1922, plaintiff had delivered to the First National Bank of Plainview a note for $3,677, and, as collateral security, delivered tile P. O. Taylor note for $5,000; tliat the note for $3,677 was renewed from time to time and had been carried by the First National Bank of Plainview part of the time and by the defendant part of the time; that said Taylor note was recognized by plaintiff and defendant as securing such renewals; that on September 20, 1923, there was a balance due of $3,500 on said $3,677 note, and that plaintiff, on that date, gave a new note for $3,500, due December 20, 1923, which note was renewed from time to time until June 25,1925, when it was due, together with another note for $563, which' two notes aggregated $4,440, and were consolidated into one renewal note for that amount, due January 1, 1926.

The case was submitted to the jury upon special issues, and resulted in a judgment perpetuating the injunction and denying the foreclosure of the deed of trust lien by the bank, but decreed that the bank recover the sum of $5,063.33, less $1,700 on account of the bank’s conversion of the J. O. Cox note. The judgment was for this difference, with 10 per cent, attorney’s fees, aggregating $3,-699.

The case is before us upon one proposition, as follows:

“Plaintiff having sued in his original answer and cross-action on a $3,500 note, given in extension and renewal of the original P. G. Táylor $5,000 note, could not recover on proof of a $3,500 note being given in extension and renewal of a $3,677 note, same being an entirely different cause of action and one that must be pleaded originally and not in a supplemental answer or supplemental petition.”

Immediately following this in appellant’s brief, we find another “first proposition,” as follows:

“Recovery cannot be had on cause not alleged in pleading and the substantive grounds of such cause of action must be stated in the original petition or cross-action or in some amendment and cannot be set up by supplemental petition or cross-action.”

This last proposition is simply the abstract statement of a proposition of law, and does not directly complain of anything done or omitted in the trial court, does not specify any error committed, nor present any specific error for review. Davis v. Morris (Tex. Civ. App.) 257 S. W. 328; H. & T. C. Ry. Co. v. Roberts (Tex. Civ. App.) 194 S. W. 218; San Antonio Brewing Ass’n v. Gerlach (Tex. Civ. App.) 185 S. W. 316.

The only question raised by the first proposition quoted above is, Did the bank recover upon the same cause of action declared upon in the original cross-action? We think this question must be answered in the affirmative. A brief review of the pleadings shows that Montgomery filed the suit asking for an injunction restraining the sale of his business homestead. The bank was endeavoring to sell the property through a trustee named in a deed of trust, which contained a power of sale. The temporary injunction being granted, the bank then sought to recover its debt and foreclose its lien through the courts. The debt which it sought to recover upon was the note for $4,440. In its original cross-action, it attempted to set out the history of said note and to show its origin. By its first supplemental answer and cross-action in reply to Montgomery’s first supplemental petition, it again endeavored to show the origin of the note, and there are some allegations with reference to a note for $3,677 not contained in the original cross-action, but it still sought to recover as in its original cross-action. No new ground of recovery' was set up. No exceptions were urged to any of these pleadings by either party.

Among other findings of the jury, it was found that the $3,500 note executed by Montgomery to the defendant bank was not an accommodation note executed for the purpose of enabling said bank to obtain credit; that the $3,677 note executed by Montgomery to the First National Bank of Plain-view was not an accommodation note for the purpose of enabling the. defendant bank to obtain credit; And the jury further' found that the $5,000 • P. C. Taylor note was not put up by Montgomery to either the defendant bank or the First National Bank of Plainview as accommodation paper for the purpose of enabling the defendant bank to get credit thereon, and that it was not without consideration moving to Montgomery. These findings are not challenged by the appellant, and we think support the judgment of the court.

So far as the record shows, the $5,000 note was at one time held by the First National Bank of Plainview, and it may be reasonably inferred in support of the judgment that it was reduced by Montgomery to $3,677, and the renewal note for that amount given to the bank at Plainview. The record is not clear as to how the note came into the hands of the defendant bank, unless it be that certain officers of the Plainview bank were also interested in the defendant bank, but there is no testimony which tends to show that the $4,440 note last executed was not a subsequent renewal of the original $5,000 note.

There is much contention and argument in appellant’s brief with reference to the recovery being based upon altogether a different debt than that set out in the original petition, but the record does not sustain the contention. The bank made no effort to recover a judgment upon the facts set out in its first supplemental answer and cross-action different from the cause of action stated in its original cross-action. If its last pleading contained allegations which were improper and informal as against a special exception, these defects have been waived by a failure on the part of the-appellant to-urge the exceptions in the trial court.

The bank’s pleadings, as a whole, entitled it to recover upon the last note executed by Montgomery in the sum of $4,440, and no complaint is made because the court offset that amount with the sum claimed by Montgomery by reason of the conversion of the Oox note.

It is unnecessary to discuss the various contentions and arguments based upon the fundamental rules of pleading which we find in the briefs.

We think a proper judgment has been entered, and, because it is supported by the pleadings and the evidence, it is affirmed.

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