text:
    DOWNS v. FARMERS’ GRAIN & IMPLEMENT CO.
    No. 3552.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 18, 1931.
    H. D. Bishop, of Austin, for plaintiff in error.
    Hugh L. Umpires, of Amarillo, for defendant; in error.
   RANDOLPH, J.

This suit was filed in the district court of Armstrong county by Minnie L. Downs against the Nelson-Davis Grain Company and the Farmers’ Grain & Implement Company to recover the sum of $1,113.75, damages for the conversion of certain crops. On trial of the case, Nelson-Davis Grain Company tendered into court certain moneys which had been in its possession, and the -count thereupon disposed of the ease as to them, but subjnitted the case as between the plaintiff and the defendant Farmers’ Grain & Implement Company to the jury upon special issues. On the jury’s answers to the issues submitted, the court rendered judgment in favor of the defendant Farmers’ Grain & Implement Company and against the plaintiff for the sum of $400. Also upon the question of the mortgage lien which the defendant Farmers’ Grain & Implement Company had sought a foreclosure by cross-action, it appears that the parties herein had permitted the sale of the property covered by the mortgage, and that the proceeds thereof were deposited in the registry of the court; the court ordered the clerk of that court to apply to the judgment in favor of the Farmers’ Grain &' Implement Company a sufficient amount to pay same and all costs in the case, and, if there was any residue remaining, same should be paid to the plaintiff. Further, the court rendered judgment that the plaintiff- take nothing against any of the parties defendant and that the defendant Farmers’ Grain & Implement Company take nothing against its codefend-ant or plaintiff except as hereinabove stated. From this judgment the plaintiff has appealed.

The parties to this appeal have filed herein an agreed statement of facts, and also have filed, as a part of same, the following: “We agree that if as a matter of law the facts warranted the final judgment entered herein, then the evidence though conflicting was sufficient to support the findings, verdict and final judgment.”

In other words, this agreement obviates the necessity of our passing upon the sufficiency of the evidence to support any issue which was submitted to the jury, and, the only issue left for our determination is, Are the jury findings such as authorized the final judgment of the trial court, as a matter of law?

The plaintiff assigns as fundamental error the rendering of the trial court’s judgment, for the reason that the evidence wholly negatives the finding of the jury that the plaintiff did not execute the note and mortgage sued on under duress and wholly negatives the finding of the jury that the plaintiff did not execute said note and mortgage because of having relied on some misrepresentations of the defendant concerning some material facts which they intended to and which did induce her to execute the same; the evidence showing that said note and mortgage were executed without -consideration.

Avoiding any discussion of this assignment as being multifarious, we hold that the consideration of the question whether or not the evidence negatives such named findings is precluded by the agreement of counsel that the evidence is sufficient to support the jury’s findings. To attempt to discuss this question would be tantamount to inquiry into the sufficiency of the evidence to support the verdict, and,the counsel have, agreed that this shall not be done.

It ‘appears from the record that A. H. Downs and Minnie L. Downs were husband and wife; that Mrs. Downs was the owner of a tract of land in her own separate right and estate; that she made arrangements with ■her husband as her tenant to plant crops upon this land, he to get two-thirds of the crop and she as landlord to get one-third thereof. The husband on the 4th of June, 1927, purchased from the Farmers’ Grain & Implement Company a grain combine cutting and harvesting machine, executing four promissory notes of that date, payable to the defendant implement company, two of which notes were for the sum of $56S and $500, respectively, and payable on demand, and the other two notes were in the sum of $380 and $250, respectively, and payable on or-before July 1, 1928, and also executed a chattel mortgage on said combine^ and “my two-thirds interest in 100 acres of wheat now growing on my wife’s place, Mrs. Minnie L. Downs, and being farmed by me and located about five miles west of Goodnight, Texas. * * * This mortgage to cover the crops raised for the years 1927 and 1928.”

The husband of plaintiff used this combine in cutting and harvesting the crop, and also used it to cut and harvest several crops for the neighbors. About the 10th or 12th of July of the same year, the plaintiff’s husband disappeared, leaving said combine on his wife’s farm, and has never returned.

The plaintiff thereafter executed a note for $300 and a mortgage on the crop to be grown on the same land in the year 1928; the said land, as stated, being her separate property, which note and mortgage were executed by her in consideration of the Farmers’ Grain & Implement Company releasing her husband and herself from any personal obligation on said notes and mortgage that he had theretofore executed and in consideration of the delivery of said combine to the implement company and the execution of a bill of sale to it. The mortgage note and contract executed by her were dated July 22, 1927, which was ten or fifteen days after her husband’s disappearance and about one month and eighteen days after the date of the execution of the prior notes and mortgage by the husband. The plaintiff did not join her husband in the execution of the prior notes and mortgage, and he did not join her in the execution of the $300 note and mortgage, he ¡having disappeared before that occurrence.

The above statement shows that the husband of the plaintiff had abandoned her prior to her executing the $300 note. The jury found that the husband, A. H. Downs, had permanently abandoned the plaintiff on July 22, 1927, prior to her signing the $300 note and mortgage; that, at tlie time she signed said note and mortgage, she was acting as a feme sole, that is, an unmarried woman; that she signed said $300' note and mortgage in renewal of the balance due on the" four notes and mortgage to the defendant implement company; and further, the jury having found that she executed the $300 note and mortgage because she believed her husband had permanently abandoned her, it is immaterial that the jury also found that she believed he would probably return to her, and that said note and mortgage was not executed for the purpose of preserving her separate property also becomes immaterial.

The question, therefore, is, Did Mrs. Downs, whose husband had permanently abandoned her and who had incumbered her personal property by a note secured by a mortgage executed by her subsequent to such abandonment in renewal of a debt owed by her husband, did her separate property so incumbered become hound for the payment of such obligation?

It is apparent from the opinion of Ohief Justice Phillips in the case of the Red River National Bank v. Ferguson, 109 Tex. 287, 200 S. W. 923, 925, that the Supreme Court intended to approve the decision of the holding that the wife incurred no personal liability in the signing of a note as surety for her husband, and that she could obligate her separate property as security for it. This is evident from the court’s holding:

“Under article 1114 [Rev. St. 1911] the wife’s authority, there conferred, to convey her real estate when joined by her husband in the conveyance, includes, necessarily, the lesser power to encumber it in the same manner. Accordingly, she may mortgage it to secure the husband’s debts. Hollis v. Francois, 5 Tex. 199, 51 Am. Dec. 760; Wofford v. Unger, 55 Tex. 480; Kellett v. Trice, 95 Tex. 160, 66 S. W. 51. She incurs, thereby, no personal liability; her property merely stands in the relation of surety for the debt.
“The power heretofore possessed by the wife to mortgage her separate property for the debts of the husband was not impaired by this act. It remains with her as aforetime.”

This being the binding effect of her act in pledging her separate property to secure the debt of her husband, when joined by him, in the execution of a mortgage upon her separate property, what is the legal status of a mortgage executed by her without his joinder and under the circumstances in this case?

The- jury having found that Downs, the b(uSband, had permanently abandoned the plaintiff, his wife, before she executed the mortgage in question herein, and that such mortgage was executed by her to secure a pre-existing debt of the husband, that she executed same as a feme sole and was transacting business as such, did her legal status at that time authorize her to bind her separate property by mortgage for the husband’s px-e-existing debt when he did not join her in the execution of same?

In the case of Crowder v. McLeod, 151 S. W. 1166, 1167, Ohief Justice Conner, speaking for the Fort Worth Court of Civil Appeals, says: “While ordinárily under our statute a wife may not make contracts binding her separate property or the community property of herself and husband, save in certain cases not here pertinent, yet where, as here shown, she has been abandoned, she,, in the nature of the situation, may act as a feme sole and pay community debts and convey community property either for that purpose or for the purpose of securing necessaries for herself and family. When so abandoned, we think her powers with reference to and in preservation of the community property and in the settlement of connubial partnership business is analogous to the powers of a surviving partner generally.”

In the case of the Ft. Worth State Bank v. Irving, 241 S. W. 277, while separated from her husband and during pendency of a divorce suit, the. wife executed a mortgage signing it alone, without the joinder of her husband, covering the property which the Court of -Civil Appeals held to he her separate property, that cour-t holding that, as it was her separate property, she had the legal right to mortgage it. The Commission of Appeals in 256 S. W. 584, affirmed the judgment of the Court of Civil Appeals in that case.

In the case at bar, the husband and wife had joined in the ■ tenancy contract and agreed that the husband had a two-thirds interest in the crop and that the wife’s part was one-third. Under the decision in the Irving Case, supra, if that one-third of the croi> was the separate property of the wife, she had the right to mortgage it. If it was community property, acting as a feme sole, or a surviving partner, she had the right to mortgage it, in view of the husband’s abandonment of her, to secure the payment of a community debt.

Finding no reversible error, we affirm the judgment of the trial court.


source: Caselaw Access Project

author: GALLAGHER, C. J.

license: Public Domain

text:
    KOSSE NAT. BANK v. DERDEN et al.
    No. 973.
    Court of Civil Appeals of Texas. Waco.
    Feb. 26, 1931.
    H. O. Jennings and O. R. Glass, both of Marlin, and L. W. Shepperd, of Groesbeek, for appellant.
    Albert Derden, of Corpus Christi, and Bartlett & Peterson and Llewellyn & Henderson, all of Marlin, for appellees.
   GALLAGHER, C. J.

This suit was instituted by J.” H. Gibson against appellee W. E. Derden to recover on two promissory notes executed by appellee to B. C. Hadley, and by him assigned and transferred to said Gibson. He alleged that each of said notes was for the sum of $625.58, and recited that the same was given in part payment for a certain tract of land situated in Limestone county, and consisting of 400 acres, and that the vendor’s lien was retained to secure the same. Said Gibson prayed for judgment for his debt, with interest and attorney’s fees as stipulated in said notes, and for general relief. Appellee filed an answer in said cause, consisting of a general demurrer and a general denial. He also filed a pleading in the nature of a cross-action against the Kosse National Bank, appellant herein, and against H. J. Waller, T. W. Whailey, and W. L. Forbes as individuals. He alleged therein that appellant was the successor of the First National Bank of Kosse, Tex.; that it had taken over the assets and assumed all the liabilities thereof; that he had theretofore sold and conveyed said tract of land consisting of 400 acres as aforesaid to said H. J. Waller, who was then and there acting as agent of said First National Bank; that said bank was the real purchaser and said deed was made to said Waller at its request; that the terms of said sale were negotiated and agreed upon between him and Whailey and Forbes, officers and agents of said bank. He. further alleged that in all said negotiations he told said parties that his purpose in- disposing of said land was to relieve himself of the burden of the indebtedness against the same; that they both knew and understood that such was his purpose and that such relief was a substantial part of the consideration for such trade; that they prepared the deed by which said land was conveyed by him to said Waller; that said deed at the time it was prepared and at the time it was executed’by him recited that all the indebtedness referred to therein was assumed by the purchaser; that, subsequent to the execution and delivery of said deed by, him and prior to the time the same was recorded, it was, without his consent, fraudulently altered and changed by the agents of said bank to read, in substance, that said conveyance was “subject to” said indebtedness, instead of reciting that the grantee assumed the same, as agreed between him and the officers and agents of said bank. He further alleged that the indebtedness sued upon herein was a part of the indebtedness which said bank had agreed to assume. He prayed in event of a recovery against him by said Gibson, that he have judgment over and against all the defendants in said cross-action for the amount so recovered, and that the deed of record from him to said Waller be reformed so as to conform to the real agreement and to show affirmatively that the grantee assumed all said indebtedness. All the defendants in said cross-action appeared and answered in the cause, denied liability, and set up special defenses. Appellant in that connection alleged affirmatively that said Waller had conveyed the land to the First National Bank by a deed containing substantially the same recitals as the deed from Der-den to said Waller.

The case was submitted on special issues, in response to which the jury found, in substance, that the original agreement between appellee and said Forbes, acting for said First National Bank, was that said bank should assume the indebtedness against said tract of land and that appellee’s deed conveying the same should contain such provision, and that the deed he executed and delivered did contain such provision at the time he executed and delivered the same.

The court entered judgment on the verdict in favor of said Gibson against appellee for the sum of $1,273.92, and in favor of appellee against appellant for a like sum, and, further, that the deeds of record conveying said land from appellee to said Waller and from Waller to said First National Bank be changed and reformed to read and state that the grantee in each deed, respectively, assumed the indebtedness against said tract of land. No mention of said Waller, Whailey, or Forbes, defendants in said cross-action, is made in such judgment, and there is nothing in the record before us showing any disposition of said cross-action between appellee- and them.

Our Revised Statutes provide, in substance, that an appeal may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases. R. S. art. 2249. With certain statutory exceptions, it is well settled by a long line of decisions that no appeal can be prosecuted until a final judgment has been rendered. Wooton v. Jones (Tex. Civ. App.) 189 S. W. 350, 351, par. 1. Our Supreme Court, in Linn v. Arambould, 55 Tex. 611, 616, et seq., defined a final judgment to be one in which the whole matter in controversy is disposed of as to all parties. See, also, Simpson v. Bennett, 42 Tex. 241; Martin v. Crow, 28 Tex. 614, 615, et seq. The judgment rendered by the court in this case, for failure to dispose of the cross-defendants Waller, Whailey, and Forbes, lacks finality, and this court is therefore without jurisdiction of this appeal. Wootters v. Kauffman, 67 Tex. 488, 496, et seq., 3 S. W. 465; Whitaker v. Gee, 61 Tex. 217, 218; Oilmen's Reciprocal Ass’n v. Coe (Tex. Civ. App.) 6 S.W. (2d) 1046, 1047, par. 4, and authorities there cited; Community Natural Gas Co. v. Henley (Tex. Civ. App.) 11 S.W. (2d) 206, and authorities there cited; Erwin v. Griffin (Tex. Civ. App.) 24 S.W.(2d) 78; Foster v. Little Motor Kar Co. (Tex. Civ. App.) 290 S. W. 228, 230, par. 3, and authorities there ’ cited. When it appears from the record submitted that an appellate court is without jurisdiction, it is its duty to dismiss the appeal on its own motion. Holek & Co. v. Varona, 63 Tex. 65, 66; Community Natural Gas Co. v. Henley, supra, and authorities there cited; Meredith v. Bell (Tex. Civ. App.) 7 S.W.(2d) 605, 606, par. 1; St. Louis S. W. Ry. Co. v. Elliston (Tex. Civ. App.) 128 S. W. 675; Converse v. Trapp (Tex. Civ. App.) 29 S. W. 415.

The appeal in this ease is therefore dismissed.

On Motion for Rehearing.

Appellant .has filed herein application for writ of certiorari, and has attached thereto certified copy of a judgment nunc pro tunc entered by the trial court disposing of the defendants Waller, Whailey, and Forbes by dismissing the cause of action asserted against them by appellee Derden. Such judgment nunc pro tunc is based on docket entries made by the court at the time of trial, and the regularity of the proceedings is not attacked. The order of dismissal is here set aside, and the case considered and disposed of on its merits.

The judgment of the trial court is based on the affirmative finding by the jury in response to issues submitted that the original agreement between appellee Derden and W. L. Forbes, acting for the First National Bank of Kosse, was that said bank should assume the indebtedness against the tract of land conveyed by appellee to H. J. Waller as agent and representative of said bank, that appel-lee’s deed conveying the same should contain such provision, and that the deed he executed and delivered did contain such provision at the time he executed and delivered the same.

Appellant presents a proposition in ■which it contends that there was misconduct on the part of certain members of the jury trying the case, of such nature as to render it reasonably doubtful whether their verdict was influenced thereby. W. L. Forbes was president of the First National Bank of Kosse at the time of the transaction involved in this case. He represented the bank in the final consummation thereof.- His deposition was read in evidence, and the testimony therein given was material to appellant’s defense, especially on the issue of whether the deed as offered in evidence had been fraudulently altered after its execution and delivery by appellee and his wife so as to show that the banlftook the title to said property subject to all prior liens, instead of assuming the indebtedness secured thereby, as contended by appellee and found by the jury. No attack on either the competency or credibility of said witness was made at the trial. During the deliberation of the jury and-before a verdict was agreed upon, one of the jurors inquired why Forbes’ testimony was presented by deposition instead of having him present to testify in person. One of the jurors who testified that he knew the facts replied that Forbes was not qualified as a witness and that appellant might not want him there. Upon further inquiry he stated that Forbes bad been convicted and sent to the federal penitentiary for a year for some transaction in connection with said bank, but that the same was not the transaction involved in this case. These statements were made by said juror during the consideration of the first issue presented for their determination. Said issue involved-appellees’ charge that the deed executed and delivered by him was fraudulently altered after its delivery and before’ it was introduced in evidence in this case. One vote had been taken upon this issue. On such vote eleven of the jurors voted in favor of an affirmative answer thereto and one of the jurors in favor of a negative answer. Shortly after hearing said statements, all the jurors voted for an affirmative answer to all the issues submitted. Such answers were all in accord with ap-pellee’s testimony and contentions and contrary to the testimony of said Forbes and appellant’s other witnesses. Three of the jurors testified on motion for new trial. The juror Murphy testified that he knew that Forbes had been convicted and sent to the penitentiary before he went on the jury, and that he thought he was the one that made the statements above recited. He denied that he was in any way influenced either by his knowledge of the facts or the recital of the same in the jury room. The juror Parten also denied that he was influenced by such statements. The juror Russell testified that he was the one who first voted for a negative answer to the first issue and afterwards joined the others in voting for an affirmative answer thereto. He further stated that he did not believe these statements influenced his decision, but that he did not know, that they might have unconsciously helped turn him over to the other side. He also testified that he recalled in that connection certain testimony concerning the note given by Waller to Derden and by him assigned to the bank and the contention that said note was, as he expressed it, “juggled.” The statements under consideration made by one of the jurors to other members of the jury in their retirement constituted a communication made and testimony received By the jury within the meaning of the statute. The necessary effect thereof was to forcibly discredit appellant’s most material witness, and was reasonably calculated to influence the jury in arriving at a verdict. The fact of such communication and the substance thereof were not controverted. Appellees’ only contention in this connection is that it was not shown that the verdict of the jury was in fact affected thereby. As said by the court in Moore v. Ivey (Tex. Com. App.) 277 S. W. 106, 107, par. 4: “The absence of actual effect cannot be established (conclusively, at least) by the most emphatic denials made by jurors wñen they aré called to account.”

The court cited in support of the holding quoted Hines v. Parry (Tex. Com. App.) 238 S. W. 886; San Antonio Traction Co. v. Cassanova (Tex. Civ. App.) 154 S. W. 1190; and J. H. W. Steele Co. v. Dover (Tex. Civ. App.) 170 S. W. 809. See, also, in this connection, Southern Traction Co. v. Wilson (Tex. Com. App.) 254 S. W. 1104, 1106, par. 3; Payne v. Harris (Tex. Com. App.) 241 S. W. 1008, 1012, par. 9; City of Waco v. Rast (Tex. Civ. App.) 2 S.W.(2d) 563, 565, pars. 2 to 5; Kennard v. Kennard (Tex. Civ. App.) 26 S.W.(2d) 336, 337, pars. 1 to 3, inclusive. We think that the record as a whole presents reasonable doubt as to the purity of the verdict returned in this case and that the trial court erred in refusing to grant a new trial. Houston & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606; Rhoades v. El Paso & S. W. Ry. Co. (Tex. Com. App.) 248 S. W. 1064, 1066 (bottom first column), 27. A. D. R. 1048; Gulf, C. & S. F. Ry. Co. v. Harvey (Tex. Com. App.) 278 S. W. 839; Hines v. Parry, supra; Southern Traction Co. v. Wilson, supra; Dallas Ry. Co. v. Skorodynski (Tex. Civ. App.) 292 S. W. 638, 639, par. 7, and authorities there cited.

Appellant in the trial court presented both by exception and pleas its contention that the purchase of said land from appellee by the First National Bank of Kosse was prohibited by the express provisions of the federal statutes, that the same was ultra vires and void, and that appellee could not lawfully recover on the alleged assumption of the indebtedness sued .on by said bank. The testimony discloses that prior to the transaction under consideration said First National Bank had lawfully acquired and then held another tract of land in Limestone county consisting of 600 acres, and was anxious to dispose of the same; that the bank traded said tract of land to appellee Derden in consideration of a nominal sum in cash, a promissory note payable to the bank in the sum of $1,220, and the further consideration that the indebtedness thereon should, as contended by appellee, be assumed by him, or, as contended by the bank, should be satisfied out of the land so conveyed. The testimony further discloses that the agreement between appellee and said bank in its entirety involved not only the purchase by him from said bank of the land aforesaid, but also the purchase by said bank from him of the land involved herein. Appellee’s said land was situated in Limestone county, and consisted of 400 acres, and was incumbered by first and second liens amounting in the aggregate to approximately $17,500. Ap-pellee, at the request of the bank, conveyed the same to H. J. Waller in consideration of a nominal sum in cash, a note executed by Waller to him in the sum of $5,000, and the further consideration that the indebtedness thereon, as contended by appellee, be assumed by the grantee and said bank, or, as contended by the bank, should be satisfied out of the land so conveyed. There is testimony tending to show that the real purpose in having ap-pellee convey the land to Waller instead of the bank was the execution of said note and the securing of the same by a lien on the land. Appellee, under the terms of the agreement, was, without further consideration, to indorse said note without recourse and deliver it to the bank. He did so. The bank thereupon became the holder of said note, and the same was listed among its assets. Waller then conveyed the land to the bank. He recited said note in his deed of conveyance and further provided therein that such conveyance was subject to the prior indebtedness recited in appellee’s deed to him. The notes sued on constituted a part of such prior indebtedness. The record shows an agreement between the parties in open court that appellant acquired all the assets of said Eirst National Bank and assumed all its' outstanding- liabilities, both known and unknown.

The authority of a national bank to bind itself by contract is conferred and limited by the federal statutes. In determining such authority and limitations, the decisions of the federal courts control. Wray v. Citizens’ Nat. Bank (Tex. Com. App.) 288 S. W. 171, 172, par. 1, and authorities there cited; Edrington v. Gee (Tex. Civ. App.) 30 S.W.(2d) 360, 362, par. 2; Missouri, Kansas & Texas R. Co. v. Jordan (Tex. Civ. App.) 2 S.W.(2d) 312, 315, par. 5. There is no contention that the purchase from appellee by said bank of the land involved herein was within the power conferred by Congress upon national banks. On the contrary, such purchase was clearly prohibited by the provisions of section 29 of title 12 of the United States Code (12 USOA § 29). The case of Williams v. Merchants’ National Bank (D. C.) 42 F.(2d) 243, involved substantially the same elements as this case. The facts in that case showed an exchange of lands held by a national bank for other lands conveyed to it and the attempted assumption by the bank as a part of the consideration therefor of an indebtedness of $35,000. That particular action was brought to recover past-due installments of interest on the indebtedness so assumed. The court held the transaction ultra vires and void, and refused a recovery on such assumption. The decision in that case was by a federal District Court, and was rendered on July 19, 1930. The published reports do not of course at this time disclose whether an appeal was prosecuted therefrom or not. We cite it, however, because it is the only case we have found involving substantially the same facts as this ease. The question of the right to recover against a national bank upon its ultra vires contract was considered by the Circuit Court of Appeals for the Eighth Circuit in Jackman v. Continental National Bank, 16 F.(2d) 728, 51 A. L. R. 336. The court in that case cited discussed and distinguished a large number of decisions of the federal courts, and held [page 734, par. 5 of 16 F.(2d)], in the language of McCormick v. Bank, 165 U. S. 538, 17 S. Ct. 433, 41 L. Ed. 817, that an obligation attempted to be assumed by a national bank beyond its power to contract “will not support an action against the bank to recover anything beyond the value of what it has actually received and enjoyed.” See, also, in this connection, Central Transportation Co. v. Pullman’s Palace Car Co., 139 U. S. 24, 11 S. Ct. 478, 488, 35 L. Ed. 55; McQueen v. First National Bank (Ariz.) 283 P. 273, 275, pars. 2 and 3, and authorities there cited. Further discussion of the rules announced and applied by the federal courts in determining the liability of national banks on their ultra vires contracts is not deemed necessary. Appellee upon another trial will have an opportunity to assert his right to recover from appellant in accordance with the rules announced by the federal courts.

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


author: McClendon, c. j.

text:
    DOMINGUEZ v. GARCIA et al.
    No. 7547.
    Court of Civil Appeals of Texas. Austin.
    Jan. 28, 1931.
    Rehearing Denied Feb. 11, 1931.
    J. A. Thomas, Lloyd Kerr, and Louis D. Gayer, all of San Angelo, for appellant.
   McClendon, c. j.

This appeal concerns only the title to lots 3 and 4 in block 21, Miles addition to the city of San Angelo, and only appellant and ap-pellee Carlos Garcia are interested in the controversy here. The action was one in trespass to try title. Dominguez has the legal title to the propertry unless defeated by limitation under the five or ten years’ statutes (Rev. St. 1925, arts. 5509, 5510) asserted by Garcia, who claims such title as the only heir at law of his mother who died April 13,1929. The case was tried to a jury upon special issues, and the jury found in favor of Garcia upon his limitation pleas both under the five and ten years’ statutes. Appellant questions the sufficiency of the evidence to support the limitation title, and also assigns error upon the admission of certain testimony of Garcia. The evidence of possession of Garcia's mother and its adverse character is very meager, but since the case does not appear to have been fully developed, and since we are reversing it upon the assignments regarding the admission of testimony, we refrain from commenting upon the sufficiency of the evidence.

With reference to the possession of Garcia’s mother, he was permitted to testify over objection that he was disqualified under Revised Statutes, art. 3716, with reference to transactions with deceased, as follows: “We lived out on that farm and we came in every Saturday, and every time we came in we came there (to the property involved), and stopped and when we gathered our crop we moved in and stayed there a couple of months and then would go back to the farm.”

The “we” in this quotation has reference to Garcia’s mother and himself and other members of the family. Garcia was the only witness who testified in his behalf, and, if this testimony is excluded, there is no evidence of adverse possession. We hold this testimony inadmissible under the rule laid down in Holland v. Nimitz, 111 Tex. 419, 232 S. W. 298, 299, 239 S. W. 185. The validity of Garcia’s title depended upon the possession of his mother and its adverse character. In the Holland Case the testimony held inadmissible was the opinion of the witness as to the sanity of the deceased, independent of any statements made by or transactions with the latter, “but merely from observation of decedent’s acts, conduct, and mental and physical condition.” In holding this testimony inadmissible under the statute in question, the court say: “The words ‘transaction with,’ as used in statutes similar to ours relating to the admissibility of transactions with decedents, have often received judicial interpretation, and have been held to include every method by which one person can derive impressions or information from the conduct, condition, or language of another.” This language is peculiarly apt to the question at bar, and we think clearly precludes the admission of the testimony. See, also; International. Travelers’ Ass’n v. Bettis (Tex. Civ. App.) 3 S.W.(2d) 478, for a full discussion of this question.

Garcia was also permitted, over objection of appellant, to .testify that his mother owned the property in question. This testimony was also clearly inadmissible. Gilbert v. Odum, 69 Tex. 670, 7 S. W. 510; Webb v. Reynolds (Tex. Com. App.) 207 S. W. 914. The very question at issue here was' one of title, and “facts and circumstances must be shown that establish it. It cannot be established by the conclusion of a witness.”

Appellant also questions the ruling of the trial court in excluding certain of his own testimony. These assignments are overruled.

For the errors pointed out, the trial court’s jugdment is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: JACKSON, J.

text:
    MAGEE et al. v. STILL et al.
    No. 3569.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 14, 1931.
    Rehearing Denied Feb. 18, 1931.
    W. M. Harris, of Dallas, and Carl Ratliff, of Levelland, for appellants.
    Vickers & Campbell, of. Lubbock, and' Weldon Johnson, of Levelland, for appellees.
   JACKSON, J.

The plaintiffs W. H. Still, A. G. Oden, S. B. Pierson, J. P. Potts, J. L. Williams, J. P. Shafner, and W. N. McMillan, on December 5, 1930, presented their petition to the district judge of Hockley county, Tex-., seeking a temporary injunction restraining the defendants D. E. Magee, county judge of Hock-ley county, J. P. McLean, J. H. Pettit, and Ed Langford, members of the commissioners’ court of said county, from entering into and consummating any contract for the purchase of road machinery for said county, without complying with the law.

Plaintiffs alleged that the defendants, acting in their official capacity, had made a proposed contract with the Central West Machinery Company to purchase certain road machinery and pay therefor a price in excess of $2,000 without giving notice of such contract and obtaining ‘competitive bids thereon as the law requires, and that no calamity and no urgent necessity existed such as would authorize the defendants to appropriate county funds for the purchase of said machinery; that, if not restrained, the defendants would consummate the proposed contract without complying with the law, and pleaded in detail' sufficient facts to authorize the relief sought.

' On the same day, after considering the petition, the court had issued a temporary injunction restraining the defendants and each of them from making and consummating said contract or purchasing any machinery and •equipment for Hockley county, or in any manner paying out or directing the payment of any money for machinery and equipment until a further hearing by the court.

On the 12th of December, the defendants met in regular session and passed an order by the' terms of which they purchased from the Central West Machinery Company road machinery for which they agreed to pay $12,-250, and directed the issuance of warrants of said county numbered from 1 to 25, inclusive, aggregating the sum of $12,250, with interest thereon at the rate of 6 per cent, per annum, payable to the Machinery Company at the Continental Illinois Bank & Trust Co. of Chicago, Ill. The order also provided for the execution óf the warrants, the form therefor, the printing thereof, and created a fund for the payment of the warrants and the interest thereon. As a basis for their order, they recite that the roads of the county in November, 1930, had become in a bad state of repair, were practically impassable, and dangerous for travel and traffic, and that on December 8th and 9th thereafter excessive rains in said county so mulched the roads and highways that said roads became impassable, ears bogged down, and in many instances had to turn back and in other instances detour, and that such conditions were a calámity, and created such an urgent public necessity as authorized and required the purchase of said machinery to repair the road; that they had undertaken to advertise as the law requires, but for some reason unknown to them the advertisement was not published the requisite number of times, and on account of the conditions of the roads it was impracticable to re-advertise. The order also contains a statement that they were acting in good faith and without any purpose or intention of violating the restraining order issued by the district court on December 5th.

No hearing was had until December 19th, at which time the plaintiffs filed a supplemental petition alleging that the defendants by a subterfuge had attempted to and had evaded the order of the court, making the purchase on December 12th and creating obligations of the county for the price thereof, and asked that the order of the commissioners’ court be canceled and held for naught, and the temporary injunction continued in force and effect.

On the same day the defendants answered by general demurrer, special exception, general denial, and especially pleaded the order of the commissioners on December 12th, alleging their good faith and that a calamity existed creating an urgent public necessity lor the purchase of such machinery, and denying the equities of plaintiffs’ bill.

The court, after, hearing the pleadings and evidence, found that no public calamity and no urgent necessity existed authorizing the purchase by the commissioners’ court of the machinery, and that such attempted purchase was a violation of the temporary restraining order, directed that the defendants rescind their action of December 12th, and instructed the sheriff to bring the defendants before the district judge for punishment for contempt in the event they failed and refused to rescind their order for the purchase of the machinery on or before December 31, 1930. Erom this judgment of the district court the defendants prosecuted their appeal, and filed the record in the case in this court on December 31, 1930.

At the request of the appellants, the case was advanced and set for submission on January 8th in this court, and an order entered directing the sheriff of said county and the district judge to refrain from punishing the appellants for contempt until this court could pass on the appeal.

On January Sth the commissioners’ court asked to dismiss the appeal, presenting facts wffiich it is contended disclose that the questions involved had become moot.

The record discloses that on December 31st the commissioners’ court of Hockley county entered an order reading as follows:

“It is ordered by the Court that in obedience to the order of the District Judge of date December 19, 1930, and subject to said order having been appealed from and subject to all rights that may accrue from said appeal, that the order of this Court dated December 12, 1930, for the purchase of” the machinery in question be rescinded.

The record discloses that on January 1st D. E. Magee was succeeded as county judge of said county by J. P. Potts, and Ed Lang-ford was succeeded as commissioner of precinct No. 1 of said county by J. P. 'Schafner, thus changing the personnel of the commissioners’ court; that on January 6, 1931, the new commissioners’ court met in regular session with the county judge and all the commissioners present, and entered upon the minutes of the court an order canceling and rescinding the order for the purchase of the machinery and the issuance of warrants in-payment therefor, and reciting that such order should be held for naught.

The purpose of the temporary restraining order issued by the district court was to enjoin the defendants, who at that time constituted the commissioners’ court, from purchasing machinery for road purposes, the price of which exceeded $2,000, without complying with the law and giving notice of such proposed contract and obtaining competitive bids thereon. The order of the commissioners’ court of December 12th, for the purchase of machinery and the issuance of warrants in payment thereof, having been canceled by the commissioners’ court on December 31st, in compliance with the direction of the decree of the district court, and the personnel of the court having changed on January 1st, and the new court having entered an order unconditionally canceling the action of the commissioners’ court of December 12th, in our opinion discloses that the purpose of the restraining order has been accomplished, and the question on which such order was issued is at this time moot. Law v. Lubbock National Bank et al. (Tex. Civ. App.) 21 S.W. (2d) 92. Hudgens v. Yancey (Tex. Civ. App.) 284 S. W. 347.

The appeal is therefore dismissed.


author: PEBPHREY, C. J.

text:
    DEES v. McDONALD.
    No. 2496.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 12, 1931.
    Rehearing Denied March 5, 1931.
    B. E. Howell, of Rankin, and Lloyd Kerr, L. D. Gayer, and J. A. Thomas, all of San Angelo, for appellant.
    W. B. Silliman, of Ft. Stockton, and J. E. Sutton, James Cornell, and R. G. Hughes, all of San Angelo, for appellee.
   PEBPHREY, C. J.

Appellee filed this suit in. the district court of Pecos county, Tex., against appellant, who he alleged to he a resident of Upton county.

Appellee alleged that he was the owner in fee simple of an undivided one-third interest in “all of Survey No. 38, original survey for the public -school fund by virfue of Certificate No. 8/1630, issued to the H. & G-. N. Railway Company in Block No. 12” in Pecos county, Tex.; that on the 18th day of June, 1927, he was entitled to possession of such lands and premises; that on January 1, 1928, appellant unlawfully entered thereon and dispossessed him and withholds from him possession thereof; and that appellant had occupied and used the premises for two years to appellee’s damage in the sum of $10,000.

Appellee prayed for recovery of his one-third interest in the land, that title and possession thereof be vested in him, and that he be awarded his damages.

Appellant files his plea of privilege to be sued in Upton county. This plea was controverted by appellee, who alleged therein that the venue was properly in Pecos county by virtue of the provisions of exception No. 14 to the venue statute.

Upon a hearing,, appellant’s plea of privilege was overruled, and he has appealed.

Opinion.

The propositions advanced by appellant upon which he seeks a reversal are: (1) That the burden is on a plaintiff controverting a plea of privilege to establish the existence of one of the exceptions conferring venue in a county other than the county of defendant’s residence; (2) that the controverting affidavit and the pleadings of plaintiff are not evidence and are incompetent to establish any fact on a trial of a controverting plea of privilege; and (3) that upon a trial of a controverted plea of privilege, where no evidence is introduced except plaintiff’s pleadings and controverting affidavit, the court should transfer fhe cause to the county of defendant’s residence.

Appellee, in response to the above propositions, lays down the following counter proposition: “Where a suit in statutory form of trespass to fry title ⅛ filed, for recovery of title to and possession of real estate, in the County where the lands are alleged to lie, and defendant in such suit files a plea of privilege in statutory form, alleging his residence fo be in another County, and plaintiff controverts such plea in due time by a plea alleging that such suit is for the recovery of lands lying in the County where the suit is pending, no evidence, other than the pleadings, is necessary to such venue in the Coun»ty where the suit was filed.”

After a study of the authorities cited by both parties, we have concluded that the trial court erred in overruling the plea of privilege.

Subdivision 14 of article 1995, Revised Statutes, provides: “Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

Under the above provision there appears to be two conditions upon which the venue, in a county other than that of fhe residence of the defendant, depends: (1) That the suit must be concerning land; and (2) that the land is located in the county in which the suit is filed.

Whether or not the suit is one concerning land depends upon the allegations of the petition and is not a question of fact.

The second condition, however, is a question of fact, and before a plaintiff, where a sufficient plea of privilege has been filed by the defendant, can maintain his suit in any county other than where the defendant resides, he must allege and prove that the land is located in the county in which he sues, and the allegations in his petition are not alone sufficient proof of such fact.

As was said by this court in De Witt et al. v. Massachusetts Bonding & Ins. Co., 283 S. W. 588, 589: “If is now the settled law under article 1903, Vernon’s Sayles’ R. S. 1918, that, when a defendant sued out of the county of his residence challenges the venue by proper plea, it is incumbent upon the plaintiff to support the venue as laid by plea and proof.” See, also, World Co. v. Dow, 116 Tex. 146, 287 S. W. 241.

We haye examined the authorities cited ■by appellee, and do not think they bear out his contention or are applicable to the facts here.

In the case of Thomason v. Ham (Tex. Civ. App.) 210 S. W. 561, the Fort Worth court held thaf defendant, having specially pleaded that the suit was not one concerning land or damages thereto, left that question the only one to be decided by the courf.

In Yates v. State (Tex. Civ. App.) 3 S.W.(2d) 114, the Austin court -held that the petition of the stafe was sufficient to show the venue in Travis county, and .that there was no fact controverted by the defendants.

In Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861, the Eastland court merely holds that the nature of the action is governed by the allegations of the fhe petition, but says further fhat several of the exceptions to the venue statute are based upon the nature of the action, together toith one or two other simple facts ordinarily ■easy of proof (italics ours), which holding agrees with our opinion above.

We have concluded that, the appellee having failed to discharge the burden placed upon him by the filing of the plea of privilege, the judgment is reversed, and the cause is ordered transferred to Upton county.


author: ALEXANDER, J.

text:
    PARKER et al. v. SCOBEE et al.
    No. 1021.
    Court of Civil Appeals of Texas. Waco.
    Feb. 26, 1931.
    John Abney, of Hillsboro, for appellants.
    J. Fred Rose, of Whitney, for appellees.
   ALEXANDER, J.

This was a suit brought in the district court of Hill county by Myrtle Scobee and others against Mollie Parker and others for the partition of certain land in Hill county. Judgment was for the plaintiffs for the partition of the land. Mollie Parker and her husband, A. B. Parker, and Cora Darnell, three of the named defendants, have appealed.

The petition named as defendants, among others, “the child or children of Will Darnell,' deceased, and the child or children of Lena Heath, deceased, whose names and residences are unknown to plaintiffs.” The citation by publication described the defendants in like manner. These defendants did not make * their personal appearance, but were represented by an attorney appointed by the court for that purpose. The judgment of the court adjudged to the children of Will Darnell, deceased, and, the children of Lena Heath, deceased, an interest in the property. The court in its findings of fact did not find whether Will Darnell or Lena Heath had any children, nor, if such children ever existed, whether they were living or dead.

Revised Statutes, article 2040, provides that where property in this state has accrued to the heirs as such of any deceased person, any party having a cause of action against them relative to such property, if their names be unknown to him, may bring an action against them, their heirs or legal representatives, “describing them as the heirs of such named ancestor.” Upon the making of proper affidavit citation may be had by publication. Revised Statutes, article 6085, provides that if the plaintiff, his agent or attorney, at the commencement of any suit or during the progress thereof for the partition of land, shall make affidavit that an undivided portion of the land described in the plaintiff’s petition in said suit “is owned by some person unknown to affiant,” the service of citation may be had by publication.

In the case at bar the plaintiffs did not comply with the provisions of article 6085 by alleging that the, property was owned by some person unknown to the plaintiffs, but on the contrary alleged that an interest in the property belonged to the children of Will Darnell, deceased, and the children of Lena Heath, deceased. Neither did the plaintiffs comply with the provisions of article 2Ó40 by bringing the suit against the unknown heirs of Will Darnell, deceased, and Lena Heath, deceased. The names of the children were not given in the petition as is required for citation by publication against a defendant whose residence is unknown, as' is required by article 2039.

Citation by publication was unknown to the common law. It derives its-authority solely from the statutes. Since statutes authorizing citation by publication are in derogation of the common law, they are to be strictly construed, and only those persons who plainly come within- the terms of the statutes may be served with process by publication. 50 C. J. 499. In 50 C. J. 498, it is said:

“Every step required to be taken by the statute is essential to the validity of the service and if any of the steps necessary to secure it are omitted, the court will not obtain jurisdiction over defendant to render judgment ; and this is so, although defendant may have had actual notice. Furthermore, the .method provided by statute for acquiring jurisdiction by constructive service must not only be strictly followed, but must be followed to the exclusion of any other method not also clearly provided.”

See also Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959; Davenport v. Rutledge (Tex. Civ. App.) 187 S. W. 988; Harris v. Hill, 54 Tex. Civ. App. 437, 117 S. W. 907.

As was said by the Supreme Court in Edrington v. Allsbrooks, 21 Tex. 189: “Notice by publication is, at best, but a miserable substitute for personal service.” Where the statute provides for such service, the method provided therein admits of no substitute. We know of no statute that authorizes citation by publication against “the child or children” of a deceased person. Since the heirs of Will Darnell, deceased, and Lena Heath, deceased, owned an interest in the property, they were necessary parties to the suit and a judgment against them without proper service was void. Hopkins v. Cain, 105 Tex. 591, 143 S. W. 1145; Hess v. Webb (Tex. Civ. App.) 113 S. W. 618.

The distinction between “the unknown heirs” as a party defendant and “the child or children” as defendants is well illustrated in this case. The property in question formerly belonged to J. Y. Darnell and wife, both of whom are now deceased. Lena Heath, deceased, was a daughter of J. Y. Darnell and wife. If she survived her parents and died leaving a husband surviving her, he would have inherited an interest in the land. A citation against the unknown heirs of- Lena Heath, deceased, or against an unknown owner, would have been sufficient to bind him, because he was an owner of an interest in the land and would have been an heir of Lena Heath, deceased; whereas, a citation against the child or children of Lena Heath,, deceased, would not have been sufficient against him, because he was not a child of Lena Heath. Gibson v. Oppenheimer (Tex. Civ. App.) 154 S. W. 694, 697. Moreover, there is nothing in the findings of fact as filed by the court to show that the child or children of Will Darnell, deceased, and of Lena Heath, deceased, are still living. If such child survived its parent and died leaving children surviving it, then such children would be necessary parties, but would not be required to answer under the citation issued in this case. The failure to make the necessary parties defendant and to obtain proper service of process is fundamental error apparent of record and requires a reversal of the case.

Among the defendants in the'case was-one Ella Kennedy. Plaintiffs’ petition complained of “Mrs. Ella Kennedy, a married woman, wife of Henry Kennedy.” , It is apparent from plaintiffs’ petition that Mrs. Kennedy was a married woman, and her husband was therefore a necessary party to the suit. Revised Statutes, article 1985; Tannehill v. Tannehill (Tex. Civ. App.) 171 S. W. 1050; Lopez v. Mexico-Texas Petroleum Co. (Tex. Civ. App.) 281 S. W. 326; Barmore v. Darragh (Tex. Civ. App.) 227 S. W. 522. The only reference to Henry Kennedy was in the above allegation. We do not think that this wad sufficient to make him a party to the suit. The 'statement, “a married woman wife of Henry Kennedy,” was merely descriptive of Mrs. Ella Kennedy. It served merely to distinguish her from any other person of the same name. 47 C. J. 177. The residence of Mrs. Ella Kennedy was alleged to be unknown and citation was had on her by publication. The attorney who made the affidavit for citation by publication did not mention Henry Kennedy as one of the defendants and did not allege that his residence was unknown, although the citation commanded him, as one of the defendants, to answer the suit. He did not make his personal appearance in the case. The petition was fatally defective for failure to make Henry Kennedy a party defendant to the suit. Moreover, if it was intended to make Henry Kennedy a party to the suit, the judgment of the court failed to dispose of his interest as a party defendant.

On account of the errors herein pointed out, the trial court was without jurisdiction to try the case. The judgment of the trial court is therefore reversed, and the cause is remanded for a new trial.


author: PELPHREY, J.

text:
    GILLETT v. VAN HORNE et al.
    No. 2454.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 5, 1931.
    Rehearing Denied March 12, 1931.
    C. W. Croom and C. L. Galloway, both of El Paso, for appellant.
    Knollenberg & Cameron, of El Paso, for ap-pellees.
   PELPHREY, J.

This suit was instituted by appellant against appellees, and from the citation appearing in the record, was an ordinary trespass to try title suit to recover the title and possession of a strip of land lying between the east line of the United States Reclamation Service drainage canal right of way and what is claimed by appellant to be the west line of appellee’s property. The strip appears to be about 5 feet wide at the north end and 12 feet wide at the other, and about 445 steps in length.

Appellant later filed an amended petition alleging peaceable and adverse possession for more than ten years, and praying for title .and possession, a writ of restitution, and damages.

On what appears from the record to be the day of trial, appellant filed what he terms his trial amendment, in which the allegations of the first amended petition were adopted, and in which appellant alleged that one Hardy, appellee’s predecessor in title, had granted him' a' perpetual right of way and easement over the property in question to be used by him as a road from his residence to the county road; that he had placed a fence along the entire length of the property, which fence remained where he had placed it from 1918 to 1929, when it was removed by ap-pellees. Appellant prayed in this pleading for judgment establishing the easement and right of way, for an injunction perpetually restraining appellees from interfering with his use of same, and for mandatory injunction requiring appellees to replace the fence removed by them.

Appellees answered by general demurrer, special exception, a plea of not guilty, specially denied that appellant had been in open and notorious, visible, adverse, and hostile possession of the land for a period of ten years, alleging the title to the property being in them, that the fence erected by appellant was intended to be on the property line, but by mistake was placed a few feet inside said line, and that, upon discovery of such fact by appellees, they nioved said fence onto the line.

Appellees further allege that the road used by appellant was at most only an easement, and only used as a passageway to his home, was never fenced or cultivated by appellant, and that the change made in the easement by appellees was an immaterial one, and did not and does not effect appellant’s right of ingress and egress.

Appellees further, by cross-action, prayed in trespass to try title for title and possession of the land, a writ of restitution, and for rents and damages.

The following two issues were submitted to the jury:

“Question No. One: Was it the intention of Sam B. Gillett to put the fence constructed by him on the boundary line between the drainage right-of-way and the west line of the Hardy-Van Horne land?
“Question No. Two: Do you find that the fence, as constructed by the Van Hornes in 1929, materially affects the use of the road from the County road to the Gillett home?”

Upon the jury’s answering the above questions in the negative, the trial court rendered judgment denying the injunction prayed for by appellant against appellant on his action for trespass to try title and against appellees on. their cross-action.

From that judgment Gillett has appealed.

Opinion.

Appellant contends that the judgment rendered was erroneous, because: (1) The undisputed evidence showing an adverse holding of the land by appellant for more than ten years, and the jury having answered question No. 1 in the negative, appellant was entitled to judgment; (2) that, the evidence showing that appellant took possession of the land under a contract with the owner, that he paid a valuable consideration therefor, that he held the same adversely for more than ten years, and that appellees had full knowledge of his rights at the time they purchased the land, judgment should have been rendered in his favor; (3) that the judgment rendered deprived appellant of all. means of ingress and egress from his residence over the land sued for; and (4) that there is no evidence to show that appellees ever owned or acquired the land in question.

He makes the further contention that question No. 2 was immaterial, its submission prejudicial to appellant, and that there was no evidence to support the jury’s answer thereto.

Appellees, on the other hand, assert the correctness of the judgment, because: (1) Ap-pellees, being the owners of the property subject to the easement, made only an incidental change in the real estate which did not materially impair the right granted; (2) that the question, in a suit for injunction, as to whether a right has been materially interfered with, is a question for the jury; (3) that appellant is not entitled to the injunctive relief prayed for because he changed his pleading from a trespass to try title to a suit for injunction, which constituted a material change which should not have been permitted; and (4) that appellees took only a part of the land subject to the easement, and, the jury finding that such taking did not materially interfere with appellant’s right to the use thereof, a judgment for appellees was a proper one.

We will first discuss the question raised by appellees’ cross-assignment of error.

Their contention is that the court’s action in permitting the filing of the trial amendment was error, in that said trial amendment was not demanded by any demurrer or exception filed by appellees, and that the facts there alleged were known to appellant when the suit was filed, and the facts there alleged set up an entirely different cause of action.

Appellees explain that this matter is called to our attention by cross-assignment for the purpose of convincing us that, the judgment should be affirmed because of the failure of proof under the original pleading.

It is true that trespass to try title is not the remedy in actions to establish or prevent the obstruction of an easement, which seems to be admitted was the only right appellant had in the land in question. Cornick et al. v. Arthur et al., 31 Tex. Civ. App. 579, 73 S. W. 410; Pouns v. Zachery, 46 Tex. Civ. App. 604, 103 S. W. 234, but it is well settled that due enjoyment of an easement will be protected by injunction against encroachments or obstructions, 9 R. C. U. p. 820.

We find no bill of exception in the record as to the trial court’s action in permitting the filing of the trial amendment in which the relief by injunction is sought, and no motion for a continuance by appellees on the ground of surprise; therefore the court’s action in that particular is not before us for review.

TLis, then, leaves the question of whether the court erred in refusing to grant the injunction as prayed for in the trial amendment.

Appellees contend that they, being the owners of the fee, had the right to make the change here made by virtue of the finding of the jury that the placing of the fence, as constructed by them in 1929, did not materially affect the use of the road from the county road to appellant’s home.

It appears to be well' settled 'that the owner of the servient estate cannot close or obstruct an easement against those entitled to its use in such manner as to prevent or to interfere with their reasonable enjoyment, 9 R. O. L. p. 79S, and cases cited; and, as a general rule, the question of whether the use of the land over which the easement extends by the owner of the fee is reasonable or unreasonable is a question of fact for the trial court or jury, but, in a case such as the one at bar, where the undisputed evidence shows that all of the easement was obstructed except a strip two feet in width, there remains no question of fact as to the materiality of the change.

The evidence discloses that appellant, when his road from the county road to his residence was made impassable by the construction of the drainage canal, began negotiations with both Hardy and the reclamation authorities for a road along the east side of said canal; that the reclamation authorities were willing to give him permission to use a portion of their right of way on condition that he also secure from Hardy the right to use a portion of his land adjoining their right of way in conjunction therewith; that he secured such right of way from Hardy on condition that he erect, at his own expense, a fence along an irrigation ditch which was located several feet from the dividing line between Hardy’s west line and the east line of the drainage canal right of way.

It is undisputed that the fence was erected by appellant in 1918, and remained along the irrigation ditch until 1929, when it was removed by appellees, who at the. same time erected a line of posts 12 feet west from the ditch on the south end and 5 feet from the ditch on the north. It therefore appears, and it is not disputed by appellees, that appellant had an easement to use the strip of land between the irrigation ditch and the east line of the drainage • canal right of way, and the finding of the jury that the fence constructed by appellees in 1929 did not materially affect the use of appellant’s road from the county road to his home could have no effect on the disposition of this case.

Appellant was granted a right by Hardy to use the land in question for a road, and any obstruction of the land which will prevent his reasonable enjoyment of such right is unlawful, and they cannot excuse their action by saying that without the land they have obstructed he still has room enough on the right of way of the drainage canal for his road.

The jury’s finding that the use of the road from the county road to the home of appellant was not materially affected by the construction of the fence by appellees is not a finding that the use of the easement was not so affected. The question submitted to them was not the one upon which a proper determination of the rights of the parties depends.

We have concluded that the trial court was in error in refusing to grant the relief, in so far as the obstructions to the use of the easement were concerned.

It being conceded that appellant is entitled to the use of the strip of land in question as a roadway, and that appellees had obstructed all except a strip 2 feet wide of the land over which the right exists, we must reverse the judgment of the trial court and render the judgment which should have been rendered.

There being nothing in the record to show that the existence of the fence as originally built by appellant is necessary to a proper enjoyment by him of the roadway, the mandatory relief requiring appellees -to replace same will not be granted.

It is the judgment of this court that appel-lees be perpetually enjoined from interfering with appellant’s use of the land in question, as a right of way, and that they forthwith remove the obstructions complained of.


author: FUNDERBURK, J.

text:
    BUTLER et al. v. NAIL et al.
    No. 745.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 14, 1930.
    Rehearing Denied March 13, 1931.

      Jas. G. Harrell, of Breckenridge, E. L. Kuy-kendall and A. M. Howsley, both of Albany, and Murchison & Davis, of Haskell, for appellants.
    Thomas L. Blanton and Matthews Blanton, both of Abilene, for appellees.
   FUNDERBURK, J.

Plaintiffs’ first amended original petition in this case named as plaintiffs W. R. Nail, John H. Sedwick, John E. Sedwick, W. G. Webb, W. Graham Webb, Jit, Thosv D. Blan-ton, Jr., Hugh Sherwood, Watt R. Matthews, and General Neon Sales Company of Texas, and recited that G. C. Butler, who had originally been named as one of the plaintiffs, was improperly joined as a party plaintiff, but should be a defendant, and thereupon named G. C. Butler and other parties as defendants. A part of the recovery sought in said pleading was the sum of $9,750, consisting of $1,625 paid by each of said plaintiffs W. R. Nail, John H. Sedwick, John F. Sedwick, W. G. Webb, W. Graham Webb, Jr., and Thos. D. Blanton, Jr., to certain of the defendants, and the recovery of which was sought on the ground of fraud. Certain of the plaintiffs sued out a writ of attachment. The affidavit for attachment, after giving the style and number of the suit and naming the court in which pending, reads: “Before me, the undersigned authority, on this day personally appeared W. R. Nail, John Horace Sedwick, W. G. Webb, John F. Sedwick and W. Graham Webb, Jr., plaintiffs in attachment in the above styled and numbered cause,” etc. The affidavit further states: “That G. C. Butler, one of the defendants, is justly -indebted to the plaintiffs in the sum of Ninety Seven Hundred Fifty and no/100 Dollars,” and, “that the said defendant, G. O. Butler, is about to dispose of his property with intent to defraud his creditors,” and “that the debt due the plaintiffs in the-above cause No. 1254 is due for property obtained under false pretenses.” The affidavit is subscribed and sworn to by W. G. Webb, John F. Sedwick, W. R. Nail, John Horace • Sedwick, and W. Graham Webb, Jr. On the same sheet with said affidavit was the bond in attachment, giving the same style and number of the suit and reciting as principals the names of those signing the affidavit, with the ' addition of Thos. D. Blanton, Jr. The bond is signed by all said parties, the name of Thos. D. Blanton, Jr., being signed by Thos. D. Blan-ton. Thereafter, all proceedings in reference to the attachment were as if Thos. D. Blanton, Jr., had joined with the others in the affidavit for attachment. The defendant G. C. Butler replevied the property attached and Chas. R. Compton and Henry Compton were sureties on the replevy bond. The Comptons filed a plea of intervention in the suit and moved the court to quash the attachment proceedings because of a variance between the petition of the plaintiffs (first amended original petition being the one on file at the time the affidavit was made) and the affidavit for attachment. The variance claimed was that the petition sought recovery in favor of the six plaintiffs hereinbefore named, of the sum of $9,750, and the affidavit alleged that that amount was due to the five plaintiffs making the affidavit for attachment: 'Another ground alleged was that the affidavit for attachment set up two distinct statutory grounds inconsistent with each other, namely: (1) That said G. C. Butler was about to dispose of his property for the purpose of defrauding his creditors, and (2) that the debt sued for was due for property obtained under false pretenses. The court overruled the motion to quash and the inter- ; veners took a bill of exceptions showing the foregoing facts.

The case was tried upon plaintiffs’ third amended original petition, which named as plaintiffs W. R. Nail, John H. Sedwick, John F. Sedwick, W. G. Webb, W. Graham Webb, Jr., Thos. L. Blanton, Jr., and the General Neon Sales Company of Texas, and contained the same claim for recovery of $9,750 in favor of the first named six plaintiffs upon the theory that each had paid $1,625, which payment had been induced by fraud. The court gave judgment for plaintiffs against certain defendants, including the defendant G. C. Butler, for said sum of $9,750, and also gave judgment in the same amount in favor of plaintiffs against the said Henry and Chas. R. Compton, the sureties on the replevy bond of G. C. Butler. From said judgment the defendant G. C. Butler and the interveners Henry and Chas. R. Compton have appealed.

The appellant G. C. Butler, although having filed a brief, has presented no propositions contending that the judgment is erroneous, save and except such questions as are presented by appellants Henry and Chas. R. Compton. Such errors, if they exist, injuriously affect only the said Comptons and not Butler. The judgment of the trial court as against Butler and the other defendants will therefore be affirmed. .

Appellants Henry and Chas. R. Compton urge two propositions for the reversal of the judgment as to them. One contention is that the court erred in refusing to quash the attachment proceedings, in response to their motion, on the ground that the affidavit for attachment set forth two different statutory grounds inconsistent with each other. This proposition we overrule. There is no inconsistency in a declaration that “defendant G. C. Butler is about to dispose of his property with intent to defraud his creditors,” and the further declaration that “the debt due the plaintiffs in the above cause No. 1254 is due for property obtained under false pretenses.” Both grounds being consistent, the affidavit, so far as that point was concerned, was sufficient to support the writ of attachment. McKay v. Elder (Tex. Civ. App.) 92 S. W. 268; Dunnembaum v. Schram, 59 Tex. 281; Woldert v. Nedderhut, etc., Co., 18 Tex. Civ. App. 602, 46 S. W. 378.

The proposition asserting that there was a fatal variance between the affidavit and the plaintiffs’ petition, we think, must be sustained. The petition on file at the time the affidavit was made asserted definite claim for recovery of the sum of $9,750 in behalf of six of the plaintiffs, the allegation showing that each of said plaintiffs had an individual interest in the total to the extent of $1,625. The affidavit was signed and sworn to by five only of the plaintiffs: the plaintiffs Thos. L. Blanton, Jr., Hugh Sherwood, Watt R. Matthews, and General Neon Sales Company of Texas not joining therein. None of the five plaintiffs signing the affidavit purported to sign as either agent or attorney for any one else. The plaintiffs signing the affidavit designated themselves “plaintiffs in attachment in the above styled and numbered cause.” The affidavit, however, in stating the “amount of the demand,” stated- same to be $9,750.

In its final analysis the i^eal question presented is: Does the statute (R. S. art. 275), in requiring that the affidavit state “the amount of the demand,” mean the amount claimed by all the plaintiffs, regardless of how many join in making the affidavit; or, does it mean the amount of the demand of those plaintiffs (when less than all) making the affidavit?

A few principles well settled by the decisions will materiálly aid in arriving at the proper conclusion. A joinder of all plaintiffs in procuring an attachment certainly is not a prerequisite for any of them doing so. An affidavit for attachment must be made and signed by each plaintiff who claims the benefit of the attachment. The signing must be by each plaintiff personally, or by his agent or attorney. R. 8. 1925, arts. 275 and 23. When signed by an agent or attorney, the af-fiant must be described or designated as such in the affidavit. Cherryhomes v. Carter, 66 Tex. 166, 18 S. W. 443; Willis v. Lyman, 22 Tex. 268; Hook v. Payne (Tex. Civ. App.) 185 S. W. 1014; Interstate Amusement Co. v. Fisher (Tex. Civ. App.) 263 S. W. 644; Turman v. State (Tex. Civ. App.) 26 S.W.(2d) 661.

No essential fact not affirmatively appearing will be presumed in aid of such proceedings. Perrill v. Kaufman, 72 Tex. 214, 12 S. W. 125.

The conclusion'is inescapable that four plaintiffs did not join in making the affidavit for attachment. It is certain that one of such plaintiffs, Thos. L. Blanton, Jr., with the five plaintiffs making the affidavit, joined together in the demand for recovery of the sum of $9,750, each claiming one-sixth, as disclosed by the allegations of the petition. It is equally certain that either the five plaintiffs making the affidavit stated the amount of their demand to be $9,750, which would be greater than the demand of such sum by six plaintiffs in equal proportions, or else, in stating the amount of this demand, they included the demand of another plaintiff not making or subscribing to the affidavit. The law requires that the amount of the demand stated in the affidavit be at least no more than that in the petition. 5 Tex. Jur. § 94; Joiner v. Perkins, 59 Tex. 300; Sanger v. Texas Gin., etc., Co. (Tex. Civ. App.) 47 S. W. 740; Moore v. Corley (Tex. App.) 16 S. W. 787.

Clearly, if five plaintiffs demand $9,750, the dem'and of each is more than the demand of each of six plaintiffs for the same amount. Can some of the plaintiffs include in the amount of the demand required to be stated in a valid affidavit, the demand of other plaintiffs not joining in the affidavit? We think not. If so, no reason appears why the demand of some one not a party to the suit may not also be included. Suppose A and B have a demand against C amounting to $1,000. The interest of each in the total amount is $500. ' A files suit, but B does not. Can A procure the issuance of a writ of attachment by stating in his affidavit therefor that the amount of the demand .is $1,000? If so, B could then intervene in the suit and avail himself of all of the advantages of the writ without incurring any of the risks of its issuance. We are therefore of opinion that the “amount of the demand” required to be stated is the amount claimed by those plaintiffs only who join in making the affidavit.

This conclusion requires us to hold that the judgment of the court below, in so far as it awards a recovery against Henry and Chas. R. Compton, should be reversed and rendered for said parties, and it is accordingly so ordered.

Affirmed in part, and reversed and rendered in part.

On Rehearing.

In the light of appellees’ very able motion for rehearing it is deemed advisable to state more in detail the precise grounds of our decision. The affidavit stated the “amount of the demand”*to be $9,750. The purpose of the statute in requiring “the amount of the demand” to; be stated in the affidavit is to establish by the oath of the affiants the amount which the attachment is sought to secure; to authorize the statement of the amount in the writ, to satisfy which the officer executing same is commanded to seize a sufficient amount of property; to fix the amount of the attachment bond, and the amount of any replevy bond which defendant may desire to make. In 6 O. J. 126, it is said: “The statutes generally require a statement that defendant is indebted to plaintiff, and also a precise or reasonably certain statement of the amount of the indebtedness claimed. This last statement is necessary and material, not only to confer jurisdiction, but also to, enable the officer to whom the affidavit is presented to determine the amount of property which may be taken under the attachment and thus avoid an excessive levy.” As supporting the last portion of the text there is cited: Munzenheimer et al. v. Manhatten Cloak & Suit Co., 79 Tex. 318, 15 S. W. 389; Espey v. Heddenheimer, 58 Tex. 662; Marshall v. Alley, 25 Tex. 342; Norvell-Shapleigh Hdw. Co. v. Hall (Tex. Civ. App.) 91 S. W. 1092; Teague v. Lindsey, 31 Tex. Civ. App. 161, 71 S. W. 573; Smith v. Mather (Tex. Civ. App.) 49 S. W. 257; Aultman et al. v. Smyth (Tex. Civ. App.) 43 S. W. 932; Scram v. Duggan, 1 White & W. Civ. Cas. Ct. App. § 1269.

These reasons for the requirement are the basis of the rule further stated by the same authority, namely: “ * A- variance between the affidavit for attachment and the writ issued thereon as to the amount claimed has been held to be'a fatal defect.” 6 C. J. 429. See also Sanger v. Texas Gin., etc., Co. (Tex. Civ. App.) 47 S. W. 740; Moore v. Corley (Tex. App.) 16 S. W. 787; Elrod Bros, v. Rice (Tex. Civ. App.) 99 S. W. 733; Einch v. McVean, 6 Cal. App. 272, 91 P. 1019.

“The first requisite of the statute,” sa^s the Supreme Court in Espey v. Heidenheimer Bros., supra, “is that the affidavit must state that the defendant is justly indebted to the plaintiff, and the amount of the demand. * ⅞ * The averment required as to the amount of the indebtedness is just as important as any other in the affidavit.”

Keeping in mind the purpose of the statute as thus indicated, let us examine the contention so forcefully presented by appel-lees’ counsel, that there was no variance shown because the five plaintiffs who' joined in the attachment claimed an aggregate amount in excess of $9,750, as disclosed by the petition, and that therefore the rule is applicable that a variance is not material where less is claimed in the attachment than in the suit. It is well settled, we take it, that plaintiffs in attachment may institute and enforce ■attachment proceedings for some certain amount less than the total claimed in the petition. Where this is done, the total claimed in the petition will consist of two parts — one involved in the attachment proceedings, the other not. If the demand involved in the attachment is identified, either in the petition or affidavit, or both, in such a way as to distinguish it from other demands or parts of the total demand claimed in the suit, all other such demands or parts of the total demand may be and should be disregarded. They can neither be affected by nor aid the attachment. That situation, it seems to us, is clearly presented by this record. Plaintiffs’ petition, at the 'time the attachment issued, claimed judgment in behalf of some or all of the plaintiffs upon distinct grounds and for different amounts clearly identifiable one from another. One was in fa vor of plaintiffs (whether all or only a part not clearly appearing, but we will assume there was meant the six plaintiffs hereinafter referred to) for $1,111.08. Whether the interest of each was equal, or what it was, does not appear, unless there is a presumption that same was equal. Another claim was a several demand of John II. Sedwick for $500. Another was a several demand of W. R. Nail for $500. Another was .a joint demand of W. Graham Webb, Jr., and W. G. Webb only for $500, but several as between them and all other plaintiffs. Lastly, there was a definitely different claim by six plaintiffs for $9,750, each claiming $1,625 as his part thereof. This claim, as described in the pleading, when compared to that stated in the affidavit and bond in attachment, is clearly identified as the “amount of the demand” which five of the plaintiffs sought to ¡secure by the attachment. Being thus identified and segregated from the rest of the total demand of all the plantiffs, the validity of the attachment must be tested with reference to it alone. The situation, as we see it, is precisely the same as if -said $9,750 was all ■of the claim asserted by all of the plaintiffs in the suit. Since the aggregate interest of the five plaintiffs in attachment in this $9,-’750 item of the total recovery sought was only $8,125, they were only entitled to have' property attached sufficient to make said sum. ’They were required to give bond' in the sum of $16,250. The defendant in attachment had ■the right to replevy upon giving bond in. the sum of $16,250. The amount of the demand, stated in the affidavit for the purpose of enabling the clerk to issue the writ and to fix the amount of a replevy bond, if any, included, therefore, the demand of one not a party to the attachment proceedings amounting to $1,625. The result was that property of the value of $9,750 was directed to be attached, instead of .$8,125 worth. • Appellants were thereby required to give a replevy bond in the ¡sum of $19,500, instead of $16,250. In other words, there was caused to be attached property of the value of $9,750 upon a demand which, to the extent of $1,625, was not the demand of any of the plaintiffs in attachment, was not claimed by them in the pleadings, but was solely the demand of a stranger to the attachment proceedings. The fault in the proceedings is not affected by the fact that the plaintiffs in attachment could have stated a demand exclusively their own, amounting to $9,750, or more, and which was within the amount claimed by them in the petition. It clearly enough appears that they did not, in fact, do so.

It is easier, perhaps, to see that there was :a fatal defect in the attachment proceedings than to see that such defect is one that can properly be denominated a variance between the affidavit and petition. No other demand was authorized to be stated in the affidavit than that of the plaintiffs in attachment. The affidavit on its face did not show that any other demand than that of plaintiffs in attachment was included in the amount stated. Only by reference to the petition and bond does that fact appear. The clerk was under no duty to read the petition or compare the affidavit with the bond to see that plaintiffs in attachment had not overstated the amount of the demand. The clerk had no authority to issue an attachment commanding the ¡seizure of property sufficient to make some amount which, according to his construction of plaintiffs’ pleadings, was different from the amount of the demand stated in the affidavit. The attachment having been issued for $9,750, and the petition, affidavit, and bond altogether clearly showing that $1,625 of the “amount of the demand” stated in the affidavit was not any pant of the demand of any of the plaintiffs in attachment as claimed by them in the petition, there was therefore a variance between the petition and affidavit.

Independently of the conclusions above stated, there is another insuperable obstacle to an affirmance of the judgment. On the face of the record the judgment awards a recovery on the replevy bond in favor of Thos. L. Blanton, Jr. He was not an obligee in the bond. There were no pleadings, if indeed there could have been, which authorized such a judgment. It was fundamental error in such state of the record to give judgment on the bond in favor of one not a party to the bond nor for whose benefit the bond purported to have been made. In White v. Suttle (Tex. Civ. App.) 255 S. W. 253, a summary judgment upon a replevy bond was held to be fundamental error where the bond was not the one prescribed by statute. If so it is easy to see that the ¡error here is likewise fundamental.

The judgment upon the replevy bond, because of the state ¡of the pleadings, is under necessity of being sustained, if at all, as a summary judgment upon 'a statutory bond. Such being the case, the record must authorize the judgment. This fact precludes us from reversing thé judgment as to Blanton, and at the same time affirming it as| to the other five plaintiffs. This could be done, perT haps, but for the obvious necessity of reforming the judgment before it could.be affirmed in any part." Since no part of the judgment can be affirmed just as rendered, it results that, once it is disturbed, -the record itself must afford complete authority for our rendering any different judgment. Errors therefore in -the record, which the parties may have cut themselves off from complaining of as such, become necessary to be considered, not to disturb the judgment, but to determine if we can render any different judgment. Looking then to the record for such purpose, we are at once met with the defects'in the attachment pivoceedings. The record will not •support a reformation' and affirmance of the judgment for any of the parties. The defects are incurable, and therefore no purpose can be served by a remand.

We have therefore concluded that the motion for rehearing should be overruled, and it is accordingly so ordered.


author: PELPHREY, C. J.

text:
    STEELMAN et al. v. CURTISS.
    No. 2495.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 19, 1931.
    Rehearing Denied March 12, 1931.
    Loomis & Kirkland, S. J. Isaacks, and Del W. Harrington, all of El Paso, for appellants.
    Harold Potash and Turney, Burges, Cul-well & Pollard, all of El Paso, for appellee,
   PELPHREY, C. J.

On August 22, 1924, appellants sent the following wire to_ appellee:

“Bid dollar five subject any part ten thousand Texon rush reply.”

On the same day appellee wired appellants:

“Will sell you five thousand Texon dollar five net if you will have your bank wire State National Bank El Paso guaranteeing payment our draft with stock attached. Wire immediate answer.”

The following day appellants wired to ap-pellee:

“Impracticable for us to tie up funds for bank guarantee will you accept New York Stock Exchange name on contract advise.”

In reply to the above, appellee on the same date sent the following wire:

“We confirm sale of Texon on basis you have N. Y. Stock Exchange member wire us their confirmation promptly.”

On August 25th appellee received the following two telegrams:

' “We accept five thousand Texon oil and land dollar five for account Steelman and Bir-kins. Carreau and. Snedeker 59 Wall St.”

And:

“Carreau and Snedeker members Exchange have wired you acceptance rush shipment to them offer us additional. Steelman and Bir-kins.”

Appellee refused to deliver the stock on the ground that appellants had failed to furnish him the confirmation promptly.

Appellants have brought this suit for damages for breach of contract.

The following special issues were submitted in the court’s charge:

“Question No. One: Do you find from a preponderance of the evidence that the telegram from Carreau and Snedeker, ‘We accept five thousand Texon Oil and Land dollar five for account Steelman and Birkins’ of date August 25th, 1924, was a prompt confirmation of the telegram to Steelman & Birkins, ‘We confirm sale of .Texon on basis you have N. Y. Stock Exchange member wire us their confirmation promptly,’ from J. S. Curtiss <& Company of date August 23rd, 1924?”
“Question No. Two: What was the market value of five thousand shares of Texon Oil and Land stock on August 25th, August 26th, August 27th, and August 28th, 1924?”

In connection therewith the court gave the following instruction:

“You are instructed to answer Question No. One, No; and you are further instructed, by agreement of the parties, to answer Question No. Two, $1.25 per share.”

The issues were answered as directed by the court, and judgment rendered that appellants take nothing.

Opinion.

The single assignment presented by appellants reads: “The court erred in charging the jury to answer Question No. 1 in the negative, thereby instructing a verdict for the defendant” ; appellants’ contention being that, under the facts and circumstances of the ease, the question of whether the sending of the wire by Carreau & Snedeker on August 25th was -a prompt confirmation of the telegram sent by appellee on August 23d, was a ques-' tion of fact which the jury should have passed on.

Appellee, on the other hand, contends that the question of whether the Carreau & Sne-deker telegram was a prompt confirmation, under the facts, was one of law, and that, the telegraph company being the agent of appellants for the purpose of carrying on the negotiations, appellee could not be held responsible for its delay in delivering his telegram to appellants.

We are firmly of the opinion that the word “promptly” as here used meant more expedition than a reasonable time. Brewer v. Lepman, 127 Mo. App. 693, 106 S. W. 1107, and cases cited.

The record shows that the stock which was the subject-matter of the negotiation was of a highly fluctuating character, and therefore the parties in their dealings in reference thereto would be charged with more diligence' than in ordinary eases.

We have made a careful study of the cases cited by both parties, and,, while we do not deem it necessary to refer to them here, we have reached the conclusion that, there being no conflict as to the nature to the subject-matter of the negotiations, no conflict as to the time the offer was received in New York, and no conflict as to the time when the confirmation was sent by Carreau & Snedeker, the question of whether the offer was promptly confirmed or not became a question of law, and that the court did not err in instructing the jury to answer the issue relative thereto in the negative. It is not denied that the parties knew that the stock with which they were dealing was subject to sudden change in value, and we think it clear that appellee, by asking for a prompt confirmation, did not intend to hold the offer open for any such length of time as the record here shows transpired between the arrival of the offer in New York and the wire of confirmation.

The excuse offered by appellant that the Stock Exchange had closed and likewise their offices before the arrival of the telegram in New York could not, in our opinion, affect the liability of the parties. There were many members of the Stock Exchange, and we see no reason .why it would have been impossible to secure a confirmation from one of them, even though the Exchange may have closed, and certainly appellants' would not be .permitted to place themselves out of the reach of an answer to their inquiry and hold appellee bound, where to do so would, as is shown here, greatly prejudice his rights.

Finding no error in the record, the judgment is affirmed.