author: CONNER, O. J.

text:
    R. B. SPENCER & CO. v. THORP SPRINGS CHRISTIAN COLLEGE et al.
    No. 12446.
    Court of Civil Appeals of Texas. Fort Worth.
    March 28, 1931.
    Rehearing Denied April 25, 1931.
    S. J. T. Smith,' of Waco, for appellant.
    J. H. Beavers, of WInnsboro, Estes & Estes, of Granbury, Kenley & Kenley, of Wichita Falls, R. T. Wilkinson, Jr., of Mt. Vernon, and J. M. Carter, of Fort Worth, for appellees.
   CONNER, O. J.

This suit was instituted in the district court of Hood county on the 9th day of August, 1928, by R. B. Spencer & Company against the Thorp Springs Christian College, of Hood County, Tex., to recover the. principal, interest, and attorney’s fees due upon a promissory note executed in December, 1926, for tte principal sum of $1,440.17, with interest from its date at the rate of 10 per cent, and 10 per cent, attorney’s fees if sued upon. The name of the Thorp Springs Christian College was signed to the note, by A. R. Holton, alleged to have been at the time the “duly elected, qualified and empowered president” of the college. The note was made payable to the order of the Hood County Lumber Company for lumber and building material alleged to have been used in the building and repair of one of the college buildings situated on lots 1 and 2, block 18, in Thorp Springs, upon all which a mortgage was expressly given to secure the payment of the note according to its terms. The plaintiffs alleged that they were the legal successors of the lumber company, and the legal owners of the note and mortgage, and they prayed for judgment and foreclosure.

The defendant college answered by a general demurrer, a general denial, and special pleas to the effect that the person who executed the mortgage and note sued upon was without authority to do so, and further that said instruments were void in that they were in violation of charter provisions of the defendant’s charter. By a trial amendment, the college also pleaded the two-year statute of limitation.

J. L. Rutherford intervened in the suit, claiming title to the mortgaged property under a judgment and execution sale. Hr. T. H. Dabney, as chairman of the board of trustees of the college, also intervened and adopted the answer of the defendant college, alleging that said board had never authorized the execution of the note and lien sued upon. There áre other interveners, all of whom will hereafter be referred to collectively as interveners.

The trial was by the court without a jury, and resulted in a finding and judgment that “plaintiff’s statutory and constitutional lien” was void and the same was canceled and removed as a cloud upon the title of the defendant college. The plaintiff was further adjudged to pay all costs. The interveners were denied all recovery, but discharged “without prejudice in any way or manner to their respective rights and claims to the land and property involved in this suit as against the defendant and as against each other.”

From the judgment so rendered, the plaintiff below has duly prosecuted this appeal.

The plea of want of authority in A. R. Hol-ton to sign the note and mortgage, declared upon reads as follows: “For special answer this defendant says that it .is not liable for the payment of the note or debt forming the basis of plaintiff’s suit, because the same was executed by a person who had no authority under the law or under the charter of said corporation to execute notes and obligations for and in behalf of this defendant, and because of the same reasons the purported mechanic’s or materialman’s lien or mortgage sought to be foreclosed, and which is described in plaintiff’s original petition, is likewise null and. void, and of this the defendant prays the judgment of this court.”

The following demurrer thereto appears in the plaintiff’s petition: “Plaintiff excepts generally to the defendant’s answer and the plea of intervention on file in this cause, says that the same are too general, remote and indefinite, and are each insufficient in law, allege no defense to plaintiff’s cause of action and of this plaintiff prays judgment of the court.”

Appellant, under an enlarged proposition, urges that the court erred in overruling the demurrer. We think the-assignment and proposition must be overruled. The plea in terms is sufficient as against a general'demurrer. It was duly verified by one of the counsel for the defendant, and the plea formally adopted by the intervener Dr. Dabney. Moreover, the record fails to show that the demurrer was ever called to the attention of or ruled upon by the trial court. See Central Lumber Co. v. Fall (Tex. Civ. App.) 264 S. W. 513. The demurrers and exceptions to the sufficiency of the extended pleadings of the various interveners will also be overruled in view of the fact that the several interveners were denied all affirmative relief and dismissed from the case, and no exception or objection to this action is presented in the record. Nor do we find prejudicial error in the rulings of the court in the introduction or rejection of the evidence, or other incidental proceedings. The vital question, as we view the record, is: Does the evidence support the trial court's finding and judgment that the mechanic’s and constitutional liens claimed by the plaintiff below are void?

It is undisputed in the evidence that the predecessor of the plaintiff furnished the material for which the note and mortgage was given, and that the same was used in the improvement of the building located on the property described in the plaintiff’s petition. It is also undisputed that the note and mortgage was owned by the plaintiff and executed by A. R. Holton on December 4, 1926, the signature being in the following form, viz.:

“Thorp Springs Christian College “A. R. Holton.”

On the same day Holton executed a written instrument reciting the purchase of the lumber, the price to be paid therefor, etc., for the purpose of fixing a materialman’s lien on the property. This instrument was signed:

“Thorp Springs Christian College
“A. R. Holton, Pres.”

No objection to the form of this instrument has been urged, and it was duly acknowledged by Holton and recorded in the office of the county clerk of Hood county on the 6th day of December, 1926. This instrument is declared upon as a statutory materialman’s lien, for the foreclosure of which the plaintiff prays. The plaintiff also pleaded the facts of Hol-ton’s purchase and use of the lumber in the repair of the building mentioned as a lien under the terms of the Constitution. The plaintiff also alleged that Holton had been held out by the defendant college as having authority to make purchases and contracts of the kind, and that the facts mentioned estop-ped the college from denying the relief sought.

It is apparent, therefore, that a vital question for our determination is whether the trial court erred in the finding that must he imputed to his judgment that A. R. Holton was wholly without authority to make the purchase of the material and execute the obligations as shown. After due consideration, we feel unable to say that the court erred in this respect. We think we must say that the defendant college introduced testimony, not subject to the objections made, that at least tends to show that Holton was without authority from the college to make the purchase and execute the note .and-mortgage in controversy.

The evidence shows that the college was incorporated under the general incorporation laws to be found in volume 1, Vernon’s Sayles’ Statutes 1914,' authorizing incorporations for educational purposes. These laws provide for thp election of a board of directors or trustees, which, by article 1159, “shall have the general management of the affairs of the corporation.” The amended charter.under which the defendant was acting at the time of the sale and mortgage in question provided that the “college shall be managed and controlled as hereinafter set forth by a Board of Trustees. * * * ” The board of trustees were required to have “(a) presiding officer” and (2) elect a “president (and) other teachers of the college; a treasurer * * * and such other agents as the Board may deem advisable.”

The charter also contains the following special provision, to wit: “This corporation shall never mortgage nor place a deed of trust or other lien on any of its properties for any purpose, nor shall it, save for current expenses, incur indebtedness at any time during its term of existence.”

Dr. T. H. Dabney testified in behalf of the defendant, among other things, that: “We (the college) bought out the property * ⅜ ⅜ in 1909. * * * I have been a member of this board (of trustees) since elected in 1909. I have never resigned. * * * I remained as chairman of this institution, that was organized in 1910. I remained Chairman of that Board * * * from 1910 until about 1906 or 1907 [1926 or 1927] along. * * * Now these articles were never changed by the Board of Directors of the institution, and no change was ever suggested or made to these articles [unless perhaps as to the number of trustees]. We held the property in trust for the Church of Christ all over the world. * ⅜ * I did not, as a member of the Board of Trustees, nor did the Trustees of that institution, ever authorize anybody to put a lien on that property, and I never knew it was on there until this suit was brought. I never knew it until today, right here in the court, and I have been right here all the time, that is, I was here in town. Spencer has had a business here for a number of years, but I never knew there was a lien until today here in court. * ⅜ .* I remember the Wood-house transaction. I made it. I understand now that "that’s the property that is involved in this suit, and I understand that they are attempting to foreclose a lien on what they call the Rutherford Hall, which is one of the dormitories. The connection I had with this property is that I bought it. The funds were furnished to buy that property by a Dr. Miller’s mother-in-law, Mrs. Murphy, donated to the school. But I bought the property, but that consideration was paid by monies donated by Mrs. Murphy. * * * As president of the school, Mr. Holton’s duties were to hire teachers, and pay the teachers, and manage the operations of the school, and draw up student attendance, collection of tuition, run the- dormitories to board students, and [take] notes for students. I never at any time gave him authority and authorized him to control the properties, the real estate of that institution, in making loans, placing liens on it and there was never a resolution passed authorizing that. * * * We frequently had to buy coal in the summer time when it was hot and get it in here in time for winter. We didn’t have the money, and then we would come and get it, would borrow the money, and he would come to me and I would go on his note; that was one instance. Sometimes they might advance me as much as a thousand dollars; when we were compelled to advance it by the school, we had to go on it not as trustees, but as personal 'securities, and personal liabilities. I never did endorse any note as an officer of the school. It was personal liability alone. I know of no instance where the trustees as a body, authorized anyone as a representative of that school to place an incumbrance on any of the real estate. I didn’t do it. When we bought this piece of property known as the Rutherford Hall, we paid all of the consideration in cash. We bought it in for the college, and it become a part of the college property of the Thorp Springs Christian College.”

Cross-examined, he said: “I never do authorize any one to sign any note in behalf of the college, there, for any amount. * * ⅜ Holton was not President of anything except the college, the educational department.”

The cross-examination further developed that Holton was elected a member of the board of trustees about two years before he left, which was, the witness thought, “about 1928,” according to his best recollection. That “after he was elected a member of the Board, or while he was employed by the people, he, as a matter of fact, exercised general supervision of the school out there. Sometimes he purchased material for the improvement and betterment of the school out there. I think he did; there wasn’t much purchasing made out there, in the improvement; improvement that some times they would want to fix or buy and he would buy our supplies there of the actual working there, I think he did. I think he did buy that and pay for it out of the institution’s funds. He took that authority. We didn’t give him that. We never objected to it.”

The cross-examination of this witness further developed that after Holton became a trustee, that he, together with Holton, a number of times, signed notes as comakers. That he saw the building in question going on, but supposed the building was being improved with donations from different individuals over the country, and that Holton was doing it; that he did not inquire into that, and he knew that none of the other trustees knew of it as none of them lived there so as to have a meeting; that he never objected to any of the accounts that Mr. Holton made or that he paid for. That he (Holton) “took all the monies in, received all the monies, and paid out all the monies, and he fell down on it, and that Trustees came over and had to dig up. * * * X didn’t know anything about this account for these liens or anything of that kind. I never knew anything about that until today,- and heard him read it. As far as that building that he spoke about, I suppose it was being built and being improved. I knew it because I saw it. My impression was that it was built by donations over the state, that had an interest in the school. I never did know the property was being incumbered, that is, the dormitory. The big dormitory they were building. * ⅜ ⅜ The Board of Trustees at no time ever pássed any resolution authorizing Holton and we never did at any time authorize him to incur any indebtedness with improving that building. * ⅝ * We did not ratify anything about this lien; we did not know it at all to ratify it. * * * We did not give him authority to incumber the property at all. Knowing the situation and having been and was, Chairman of the Board at the time, if I had known that Holton was making this indebtedness, and creating a mechanic’s lien on this property, I would not have ratified that for the reason that the charter provided against it.”

T. A. Davidson, another member of the board, testified in substance, among other things, that at the time the improvements in question were being made, he knew of it, but knew that a subscription list was being circulated to pay for the improvements and that he understood and believed that the improvements were being paid for in that way and did not know until the suit of the procedure engaged in by Holton.

J. L. Rutherford, one of the trustees and member of the board of directors, testified, among other things, that he knew of the improvements in question at the time they were being made, but that he donated toward them and he understood* and thought that they were being paid for by donations from private persons, and did not know until the date of the trial that they were purchased on credit and that Holton had undertaken to mortgage the real estate of the corporation for indebtedness.

There was other testimony conflicting perhaps in particulars with that given by Dr. Dabney and others, but the trial court was the judge of the credibility of the witnesses and the weight to be given to the testimony, and the most favorable view of it, of course, must be taken by this court. At all events, however, there is an entire absence of evidence that the board of trustees, as such, authorized or had their attention called to Holton’s acts in purchasing the lumber and executing the note and mechanic’s lien in controversy.

Section 37, of article 16, of the Constitution, provides that: “Mechanics, artisans and material men, of every class, have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor; and the legislature shall provide by law for the speedy and efficient enforcement of said liens.”

Pursuant to the direction thus given, the Legislature [article 5621 of vol. 4, Vernon’s Sayles’ Statutes] undertook to comply with the mandate of the Constitution to provide for the enforcement of materialman’s liens. The article referred to was amended by Act approved March 31, 1917, 35th Legislature, page 383, c. 171, § 1. It is there provided that “any person or firm, lumber dealer or corporation, artisan, laborer, mechanic or subcontractor who may labor or furnish material, machinery, fixtures or tools to erect any house or improvement or to repair any building or improvement whatever * ⅜ $ shall have a lien on such house, building, fixtures, improvements, ⅜ ⅜ * and shall have a lien on the lot or lots of land necessarily connected therewith. * ⅜ ⅜ ”

Article 5622 of Vernon’s Sayles’ Statutes provides that: “In order to fix and secure the lien herein provided for, it shall be the duty of every * * * person seeking to obtain the benefits of the provisions of this law * =s * -t0 ⅛ or their contract in the office of the county clerk of the county in which such property is situated. * * * ” The next article (5623) provides: “Any person, firm, or corporation, who may furnish any material to any contractor, sub-contractor, agent, or receiver, to be. used in the erection of ány house, building or improvement, or to repair any house, building or improvement, * * * by giving written notice to the owner or his agent of such house, building or improvement, ⅜ ⅜ ⅜ may fix and secure the lien provided for in this chapter,” etc.

It is thus seen that notice to the owner, or to his authorized agent, is necessary in order that the statutory lien may be fixed. Such has been the* uniform holding of our courts. Thus it is said in the case of First National Bank v. Lyon-Gray Lumber Co. (Tex. Civ. App.) 194 S. W. 1146, that, quoting from the headnotes: “Under Rev. St. arts. 5621, 5623, giving materialmen mechanics’ liens, and requiring the giving of notice to the owner and filing with county clerk, the provisions regarding notice are mandatory.”

See also same case, by the Supreme Court, as reported in 110 Tex. 162, 217 S. W. 133; and Ball v. Davis, 118 Tex. 534, 18 S.W.(2d) 1063, also by the Supreme Court.

In the case of Sheer v. Cummings, 80 Tex. 294, 16 S. W. 37, it appears that Mrs. Jane Cummings, the mother of John Cummings, who owned the lot there in controversy, entered into a contract and pursued proper proceedings to fix a mechanic’s lien on the lot, but it was held that a mechanic’s lien cannot be established against the owner of land without his knowledge or consent, and further that even if the mother had claimed to act as agent, but without authority, the doctrine of ratification would not apply because his taking possession of the improvements must then have been referred to his ownership of the land. This case has been cited with approval a number of times since. See McCallen v. Mogul Producing & Refining Co. (Tex. Civ. App.) 257 S. W. 918; Campbell v. Teeple (Tex. Civ. App.) 273 S. W. 304, 305; Morrison v. State Trust Co. (Tex. Civ. App.) 274 S. W. 341. It seems clear, therefore, that the court below correctly denied plaintiff‘the mechanic’s lien upon which he declared for want of the proper notice.

However, if the foregoing conclusions should for any reason be deemed inconclusive, the want of authority in Holton to make the purchase and execute the materialman’s lien is more certainly shown by referring to section 11 of the charter, which inhibits the imposition of a lien of any character upon the property of the college. A corporation is an artificial person, and under the statutes can only act by and through its duly and legal constituted officers. The charter, under the statutes, measures the power to the exclusion of all others not expressed or that may be fairly implied.

In the case of Standard Underground Cable Co. v. Southern Independent Telephone Co. (Tex. Civ. App.) 134 S. W. 429, 432, the court, among other things, said: “It clearly appears that the directors of the Telephone Company had never authorized Mrs. Brett to buy any material or assume any debts for them, and the by-laws did not clothe her with any such authority, and the general law as to the authority vested in the president and secretary of a corporation to make purchases, or to assume the indebtedness of another, must be looked to to determine the power and authority vested in Mrs. Brett. It is the general rule that the president of a corporation has no power to buy, sell, or contract for the corporation, nor to control its property or funds, in the absence of anything in the act of incorporation or the action of the board of directors clothing him with such power. He has without such special authority no more control over the corporate property and funds than has any other director. [Citing authorities.] In the last case cited, it was held that a corporation cannot be held liable where its president, without corporate action, being shown, assumed the debts of a person, even though the money arising from the transaction came into possession of the corporation.”

In the ease of Adkins-Polk Co. v. Pate (Tex. Civ. App.) 11 S.W.(2d) 654, we take the following from the syllabus: “One who seeks to hold a corporation liable upon a contract made by an agent has the burden of proof, not only of the execution of the contract for the corporation, but the authority of the agent through whom it is claimed the corporation acted.”

In the case of Prairie Lea Production Co. v. Lincoln Tank Co. et al. (Tex. Civ. App.) 294 S. W. 270, 271, the court in its opinion, among other things, said: “Under the statute, the directors have general management of the affairs of the corporation. Article 1327, R. S. 1925. And the general rule is that the president of a corporation, in the absence of authority conferred by its charter, or specially vested in him by the board of directors, has no more power or authority to contract or act for' the corporation than any other officer. Standard Cable Co. v. Tel. Co. (Tex. Civ. App.) 134 S. W. 433; Railway Co. v. Logue (Tex. Civ. App.) 139 S. W. 11; El Fresnal Irrigated Land Co. v. Bank (Tex. Civ. App.) 182 S. W. 701. There is no evidence as to what powers the charter of appellant corporation conferred upon its president.”

In the case of Yacarezza v. Realty Industrial Co. (Tex. Civ. App.) 165 S. W. 516, 517, the court in its opinion, among other things, said:

“Article II, section III, of the by-laws of the corporation provides that the president shall sign all papers and contracts, deeds, etc., and article IY provides that no purchase or sale oí realty shall be consummated without the consent of the hoard of directors. The evidence clearly shows that the consent of the board of directors was never given in this matter. Furthermore, the undisputed testimony shows that the contract was really made for the benefit and on behalf of R. H. Wester Company, and that Vacarezza thought he was dealing with that company.
“A corporation, being a creature of the law, must act and be bound as the law provides. Parties dealing with it are charged with the duty of knowing this. They must know that whatever power the agent has is derived from the board of directors.”

If, therefore, article II of defendant’s charter is available as a defense, it must certainly follow that neither Holton nor any trustee or the board as a whole had authority to incumber the real property of the institution. The record, as already shown, indicates that the property of the college, was acquired and many of its needs supplied by the voluntary contributions of citizens, and the purpose of the charter provision was apparently for the protection of such contributors.

The charter provision referred to has not been assailed, but it occurs to us that it might be said that it was violative of the constitutional provision granting materialman liens, and also perhaps of subdivision 4 of article 1140, of Vernon’s Say les’ Statutes, which confers the right upon corporations generally “to purchase, hold, sell, mortgage or otherwise convey such real and personal estate as the purposes of the corporation shall require, * ⅜ * a an(j therefore inhibited by article 1135, Vernon’s Sayles’ Statutes, vol. 1. That article relates to amendments of charters and provides specifically that: “No amendment or change violative of thi constitution or laws of this state or any of the provisions of this title shall be of any force or effect. * * *"

But waiving the above suggestion as unimportant in this case, it was held in Strang v. Pray, 89 Tex. 525, 35 S. W. 1054, that the constitutional provision for mechanic’s lien was enforceable regardless of the proceedings required by the statute, and this case has been followed by Trammell v. Mount, 68 Tex. 210, 4 S. W. 377, 2 Am. St. Rep. 479; Keating Implement & Mach. Co. v. Marshall Elec. Light & Power Co., 74 Tex. 605, 12 S. W. 489; Farmers’ & Mechanics’ Nat. Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966. By an examination of those decisions, however, it will be seen that in each instance the- owner of the property had notice of the facts-which brought the case within the purview of the decision, and we have therefore concluded that whatever might be the effect of the constitutional and statutory provisions on section 11 of the defendant’s amended charter, in cases where the person or corporation owning the property has notice and consent to the fact of material being furnished, used, and retained, that in the present case, a want of notice and consent of the college being shown by the evidence and found by the court, the doctrine in the case of Strang v. Pray and those following cannot be applied here. AVe have already referred to the case-of Sheer v. Cummings, which was a case in which it was sought to enforce a mechanic’s' lien for materials'furnished in the erection of a house upon land owned by John Cummings, and where it was held that it having appeared that Jane Cummings, who contract-, ed for the material, was without authority to do so, no lien attached as against- the son, and that this was true even though the mother had claimed to act as the son’s agent. And it was further held there that the doctrine of ratification would not apply as against the son because of his taking possession of the improvements, his possession in that case being made referable to his ownership of the land.

In the case of Morrison v. State Trust Co., supra, it was said, by the Amarillo Court of Civil Appeals, that the placing of improvements on property of another, without express or implied agreement with the owner to pay for them, was not entitled to a mechanic’s lien. AVhile the case was reversed by Section A of the Commission of Appeals (282 S. AV. 214), the expression of the Amarillo Court to which we have just referred, was not repudiated. To the same effect in principle we think is the case of Campbell v. Teeple, by the San Antonio Court of Civil Appeals, 273 S. W. 304. Indeed, it would seem to be un-controvertible that neither the constitutional nor mechanic’s lien could be fixed or enforced upon land owned by another without notice to or authority from such owner. In Fitzhugh v. Franco-Texas Land Co., 81 Tex. 307, 16 S. W. 1078, it is held that all persons dealing with a corporation must take notice of the powers conferred upon it by its charter and that its agents cannot exercise any authority in excess of those powers. The record also discloses that Thorp Springs Christian College held under a deed executed by the former holder on the 26th day of September, 1918, conveying the lots in controversy, together with other properties, to T. H. Dabney, chairman of the board of trustees of the college and his associates in trust, for the benefit of the college, “upon the express condition that the property herein conveyed shall never be mortgaged and upon the condition that they and their successors shall hold the same in trust for the Church of Christ.” This deed was duly acknowledged and recorded in -Hood county on the day of its execution and of which the plaintiff below had constructive notice by virtue of 'our registration statutes. The plaintiff was also required to take notice of the terms' of the charter of the college and hence affected with notice of the powers conferred hy the charter upon its operating agencies. The charter, as already seen, plainly confers control upon the board of directors alone. Regardless, therefore, of the section of the charter which inhibits the imposition of liens on property of the college, the plaintiff must be held to have known that in no event could he fix a valid lien on the property in question in the absence of notice to, and the consent of, the controlling agencies of the college, and the evidence is undoubtedly sufficient to support a finding that the plaintiff failed to give the necessary notice or obtain the necessary consent.

The plaintiff in this case for some reason sought for no relief other than the establishment and foreclosure of his alleged liens,'and we therefore finally conclude that neither of the asserted liens of the plaintiff in this case is enforceable, and that under the authorities cited, the fact that the college retains possession of the building, which is a fixture upon the lots, does not amount to an estoppel on the part of the college nor yet to a ratification of the unauthorized acts of Holton.

The judgment below will accordingly be in all things affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    MAGNOLIA PETROLEUM CO. v. BECK.
    No. 12441.
    Court of Civil Appeals of Texas. Fort Worth.
    March 21, 1931.
    Rehearing Denied April 18, 1931.

      Lightfoot & Robertson and Nelson Seur-loek, all of Port 'Worth, for appellant.
    McCart, Curtis & McCart, of Port Worth, for appellee.
   CONNER, C. J.

Appellee Beck instituted this suit against the appellant, Magnolia Petroleum Company, on the 22d day of August, 1929. Beck’s residence was a frame building situated at a designated place in the city of Port Worth, in which he operated a dry cleaning establishment. In connection with his business, he had been purchasing naphtha from the defendant company in quantities of five and ten gallons, using the naphtha in an A. B.' C. washing machine located in the kitchen of his home. In connection therewith he had constructed what he termed a “clarifier”; the washing machine was located in the center of the kitchen, the clarifier just outside the kitchen on the back porch. Plaintiff would use about eight or ten gallons of liquid at a time in the process of cleaning clothes. The clothes were put in the washing machine and were cleaned by what is termed the pulsation of the agitator which made 104 pulsations per minute. The evidence showed that the operator operated the machine with the top open. After the clothes were cleaned the operator would take them out of the machine compartment and place them in a drier, which made 1,000 revolutions per minute, and by the centrifugal force the liquid was emitted from the clothes into a spout which drained into a bucket set on the floor. Plaintiff’s testimony showed that it was his custom to draw the naphtha out of the clarifier into a bucket and pour it into the washing machine as needed; that when he completed washing a few garments he would draw the naphtha out of the washing machine into a bucket and carry it to the back porch where it was poured into the settling chamber underneath the clarifier; then the liquid would be pumped from the settling chamber up into the clarifier.

On Monday, June 3, 1929, plaintiff ordered 55 gallons of naphtha; about noon of the same day the defendant’s employee, one Hughes, who was a driver of a truck, called at the plaintiff’s residence and delivered 55 gallons (60 gallons as shown by the defendant’s evidence) of naphtha, or what was represented to be naphtha. This was poured into the plaintiff’s clarifier and used by him that afternoon. About 3 o’clock p. m. June 3d, the plaintiff began his work of cleaning clothes, and the evidence showed that he had repeated the process described above incident to washing three batches of clothes (about 16 or 17 garments). About 4 o’clock of the same afternoon, the plaintiff’s nephew, Jimmie Beck, came into the kitchen and struck a match for the purpose of lighting the hot water heater. When he struck the match a flash occurred in the room, followed by a fire. The plaintiff ran to the washing -machine for the purpose of closing the lid, and then ran out of the room. The clothes which he was wearing caught fire from which he suffered injuries by reason of the burns. The fire also partially destroyed plaintiff’s residence and some of the furniture and fixtures located therein.

In the petition filed by plaintiff it was alleged that the driver of defendant’s truck had negligently delivered to plaintiff 30 gallons of naphtha and 25 gallons of gasoline, instead of 55 gallons of naphtha, as ordered by plaintiff, and that such negligence on the part of the employee was the proximate cause of the damages sustained by plaintiff.

In addition to filing a general demurrer and a general denial, defendant pleaded contributory negligence on the part of plaintiff, in that he was operating a dry cleaning establishment and using an inflammable liquid in the kitchen of a frame dwelling house, where there-was poor ventilation due to the fact that there were no vents or ventilating fans to take care of the fumes, where there was a stove and a hot .water heater in the same room and where matches were kept; that he was guilty of negligence in operating the washing machine with the lid -open and in permitting fumes from the inflammable liquid to escape and collect in the room; and that, while this very dangerous condition existed, he permitted his nephew to strike a match for the purpose of lighting the hot water heater.

The defendant also pleaded provisions of the building code of the city of Fort‘Worth, regulating dry cleaning establishments, which are made applicable to every person “keeping or using more than two quarts of gasoline, naphtha, benzine * * ⅜ or other light petroleum of coal tar products for the purpose of dry cleaning for profit or reward.” The ordinance pleaded was attached as an exhibit to the defendant’s answers, and the defendant alleged that the plaintiff’s conduct in violating the provisions of said building code was negligence per se and the proximate . cause, or a proximately contributing cause, of the damages sustained by the plaintiff.

Upon the trial the defendant contended vigorously and offered evidence in the form of records, as weli as the driver’s testimony, tending to show that part of the liquid delivered to the • plaintiff could not have been gasoline because the dtiver had no gasoline on the truck at the time the delivery was made. Furthermore, the defendant offered evidence to show that a sample of the liquid which was delivered by the defendant to the plaintiff was obtained by the fire marshal of the city of Fort Worth -from the plaintiff’s clarifier early in the morning following the fire; that a test was made by the Port Worth Laboratories in order to determine whether the substance was gasoline or naphtha, and that such test revealed heyond a doubt that the liquid was naphtha.

The case .was submitted to a jury on special issues, and the jury rendered a verdict to the effect that part of the substance delivered by the driver to the plaintiff was gasoline, that the delivery of such gasoline to the plaintiff by the defendant’s driver was negligence, and that such negligence was the proximate cause of the plaintiff’s injuries. On the issues of contributory negligence, the jury found that the plaintiff’s action in violating the provision of the city ordinance, requiring a building where a dry cleaning establishment is located to be ventilated by means of exhaust fans of sufficient capacity to change the air in the room every three minutes, was a proximate cause of the damages received by the plaintiff. The jury also found that the plaintiff was guilty of negligence in that he failed to use ordinary care to prevent the naphtha from being exposed to fire and 'flame in the room, and that he was negligent in failing to have the room properly ventilated in order to prevent the fumes from collecting in the room; but, in each instance, the jury also answered that such negligence was not the proximate cause of the injuries sued for. Finally, on the issues of damages, the jury found that the plaintiff had suffered damage to the extent of $6,500, to which was added the agreed value of the personal property destroyed by the fire,' and the doctor and hospital expense incurred, making a total of $7,190.26.

The defendant filed a motion for judgment based on the verdict of the jury,- but the motion was overruled, and- judgment rendered against the defendant on February 3, 1930, for the amount stated above, to wit, $7,190.20. From the judgment so rendered, the defendant has duly prosecuted this appeal.

The defendant urges that the court erred in rendering judgment, notwithstanding the verdict, for the reason that the undisputed evidence shows that plaintiff was conducting a dry cleaning establishment in violation of the City Ordinance No. 1389 requiring ventilation, as indicated in our statement of the case. It is also contended that defendant was entitled to judgment upon the verdict of the jury in finding plaintiff guilty of contributory negligence in failing to conduct his establishment without propfcr ventilation, etc. It was further' urged that the court erred in overruling defendant’s motion for a new trial, in that, the jury having found plaintiff guilty of negligence under common-law rules in failing to have his kitchen properly ventilated at the time and shortly before the accident in question, and the evidence having shown that the vapors which collected in the kitchen ignited and caused the flash in the room and that the fire immediately followed, such negligence on the part of plaintiff must have been a proximate cause of the damage sustained by the fire, and the finding of the jury to the contrary should be set aside.

Other alleged errors are assigned to the introduction of the testimony of several of ■the witnesses, to the argument of counsel, etc,, but in view of the conclusion reached by us, we deem it unnecessary to discuss or determine the questions relating to these several matters.

Ordinance No. 1389, which the jury found that the plaintiff had not complied with, appears in pamphlet form entitled “Building Code of the City of Fort Worth, Texas, ordained by the City Council February 28, 1928.” To the pamphlet appears the certificate of Henry Keller, assistant city secretary and treasurer, to the effect that “the above and foregoing is a true and correct copy of Ordinance No. 1389, known as the Building Code, adopted by the City Council of the City of Fort Worth at a meeting held on the 28th day of February, 192S, as the same appears of record in the office of the City secretary, recorded in Minute Book B-l page 390.” The ordinance contains many regulations relating to building zones and other matters that have no application to the present controversy, but section 32-7-1 reads as follows: “Every person, firm, or corporation keeping or using more than two quarts of gasoline, naphtha, benzine, benzolene, or other light petroleum of coal tar products for the purpose of dry cleaning for profit or reward shall be held and is hereby declared and defined to be operating a dry cleaning establishment.”

After prescribing the height and construction of the building, floors, stairways, doors, etc., it is provided in paragraph 32-7-13 that: “Walls shall have vent holes at the floor line not less than 16 inches in area, not more than 6 feet apart, measured from center to center, which vent holes shall be protected by such walls or by iron bars or screens of large mesh on the outside of such walls.”

Paragraph 32-7-14 provides: “Such buildings [cleaning establishments] shall be further ventilated by means of exhaust fans of sufficient capacity to change the air in the building every three minutes and shall be kept in operation at all times during the use of such building. Such exhaust fan shall be located in an air-tight conduit, whose inlet openings shall be at or near the floor level in the wall fartherest away from any other building or structure and the discharge end of such conduit shall be carried over the roof of such building.”

Paragraph 32-7-15 reads: “(a) Every such dry cleaning plant shall be equipped with "high pressure steam boiler of sufficient capacity to admit of flooding the dry cleaning and dry rooms with steam in case of fire.”

Paragraph 32-7-16 reads: “It shall be unlawful for any person, firm or corporation to carry on or conduct the business of -dry cleaning as herein defined in any dwelling house or in any building, any portion of which is used or intended to be used as a sleeping apartment or dwelling place. No person shall be permitted to sleep in any dry cleaning or dry rooms.”

Paragraph 32-7-18 reads: “Dry room shall have an 8 inch vent opening into the atmosphere for each 450 cubic feet of space or fraction thereof; said vent pipe shall be carried up to a height of 2 feet above the roof of building and terminate in an approved ventilator hood.”

It is not contended in behalf of appellee, who presents a very forceful brief, that the verdict of the jury, to the effect that the failure to comply with Ordinance 1389 did not constitute negligence, is unsupported by the evidence, or that such violation was not a proximately contributing cause of the explosion resulting in the injuries of which plaintiff complains. The contention is that the verdict in this particular should be wholly disergarded, on the ground that the ordinance is wholly void. This contention is based upon certain charter provisions of the city of Port "Worth and an agreement of counsel relating thereto. The provision of the charter relied upon is to be found in chapter 26 of the charter under the title “Ordinances.” Section 1 of the chapter provides that: “All ordinances, resolutions, rules and regulations of the City of Port Worth heretofore ordained, passed or enacted that are in force at the time this Charter becomes effective, and which are not in conflict herewith, shall remain in full force and vigor, until altered, amended or repealed by the City Council after this Charter takes effect. Provided, that said ordinances, resolutions, rules and regulations have become in effect by the terms of the Charter under which the same were enacted, and provided, further, that the same were valid and authorized by said charter.”

Sections 2, 3, 4, 5, and 7 read:

“2. It shall not be necessary to the validity of any ordinance that it be read more than one time or considered at more than one session .of the Council. * * * Ordinances not requiring publication shali take effect from and aftek their passage, unless otherwise therein expressly provided. No publication of any ordinance shall be required excepting those imposing a fine, penalty or forfeiture, or those granting a public easement ■jv franchise, or the general appropriation ordinance, as provided for in the Chapter of this Charter dealing with the appropriation ordinance.

“Revised or digested ordinances published in pamphlet form by authority of the City Council shall not be required to be published in a newspaper, and the publication in pamphlet of such ordinances shall be held and taken a-s sufficient publication, notwithstanding such ordinance may impose a fine, penalty or forfeiture or should contain a grant of easement or public franchise.”

3. “All ordinances of the City of -Fort Worth, published or compiled in book or pamphlet form by the City shall be presumed to have been by and with the authority of said City, and shall be admitted as evidence in all courts, State and Federal, without further proof beyond the production of said printed book or pamphlet; and provided further that copies of ordinances, resolutions, minutes and proceedings of the City Council, or prior governing bodies of the City of Fort Worth, certified by the City Secretary to be true copies of the originals, with the seal of the City affixed thereon, shall also be admitted in evidence without further proof in all said courts.”

4. “The final passage of an ordinance by the Council and the publication of the same when so required shall be all that is necessary to make such ordinance valid and effective. The approval or signature of the Mayor shall not be necessary.”

5. “It shall be the duty of the City Council, as soon as practicable after the adoption of this Charter, to provide for a revision, codification and publication of all the ordinances in force at that time in the City, and thereafter provide for a similar revision and publication as often as they may deem advisable.”

7. “All ordinances and resolutions, except ordinances making appropriations, shall be confined to one subject, which shall be clearly expressed in the title. The ordinance making appropriations shall be confined to the subject of appropriations.”

It is insisted that the ordinance is in violation of section 7 of the charter, above quoted, in that the title thereof is not confined to one subject. We think this object tion may be disposed of briefly. The requirement of the charter i§ similar to that of oür state Constitution, which provides that “no bill * * ⅜ which contains more than one subject shall be expressed in its title. * *

In the case of Tadlock v. Eccles, 20 Tex. 782, 73 Am. Dec. 213, it is said that the word “oh-: ject” was not intended in the sense of “provision,” as this would render the title of the act as long as the act itself; that the intention of , the provision was “to prevent embracing in an Act, having one ostensible ob-. ject, provisions having no relevancy to that object, but really designed to effectuate other and wholly different objects, and thus to conceal and disguise the real object proposed by the provisions of an Act under a false or deceptive title.”

In Breen v. T. & P. Ry. Co., 44 Tex. 302, it was held that a sufficient compliance with this provision of the Constitution is that the law have one general object which is fairly indicated by its title, though it may embrace different subjects which are connected with' or appropriate for the accomplishment of this general object. It was further held that the constitutional provision is entitled to a liberal construction, and that, if the several subjects in the law are germane, one to another, and reasonably appropriate to effectuate the general object of the act, it is sufficient. Indeed, appellant lays but little stress upon this contention, and it will be overruled without further notice. See Consolidated Underwriters v. Kirby Lumber Co. (Tex. Com. App.) 267 S. W. 703.

. A further contention earnestly urged is that the ordinance is one imposing a penalty, and that it had not been published for five days in the official newspaper of the city before taking effect, and as evidence of this the following written argument, entered into in behalf of appellant, was offered in evidence on the trial:

“It is agreed for the purpose of the record in this case that on June 28, 1927, the City Council of the City of Port Worth, a quorum being present, adopted a motion, authorizing the letting of a contract to Stafford Lowdon Company for the printing of a new Building Code, that is, for the printing of 2500 copies of a new Building Code for $1234.00, with additional changes at six cents per line. That acting under said contract, Stafford Lowdon Company set up the galley proofs of said proposed Building Code and that thereafter, after the desired changes, and amendments had been made in the same, that on February 28 1928, the said City Council, by order or motion adopted said purported Building Code, being ordinance No. 1389. That at no time was said proposed Building Code or ordinance No. 1389, either in its original form, or in its amended form, or as finally adopted by the said City Council, published in the official newspaper of the City of Fort Worth, Texas, for five days, or for any other length of time.

“That said ordinance No. 1389 is a penal ordinance, and provides a penalty for the violation of its different provisions.

“That the title or caption of said ordinance No. 1389 is as follows:

“ ‘Ordinance 1389
“ ‘An ordinance governing and regulating the construction, erection, raising and wrecking, maintenance, alteration, repairing, remodeling, rebuilding, securing, moving and shoring and the inspection of buildings and structures in Fort Worth and providing for their safety; defining the duties of said office; regulating the installation and use of heating apparatus, boilers, and means of vertical transportation; governing the storage of combustible materials, and providing a penalty for any violation thereof, repealing all existing ordinances in conflict herewith, and declaring an emergency.’
“That the above mentioned authorization for the printing or publication in pamphlet form of said proposed ordinance was the only authorization thereof made by the said City Council.
“That since February 28, 1928, there has been no revision of recodification of all of the ordinances of the City of Fort Worth.
“That said purported ordinance No. 1389 and the publication thereof in pamphlet form, and said pamphlet or book, contains no other ordinance except said ordinance No. 1389, and no part of any other ordinance except said ordinance No. 1389.
“That Chapter 1, section 1-1, paragraph 1-1-2, headed ‘Intent and Purpose’, reads as follows:
“ ‘The intent and purpose of this code is to regulate the construction, erection, enlargement, raising, alteration, repair, removal, maintenance, use and height of buildings and structures; to regulate the character and use of materials in and for buildings and structures; ,to regulate the character and use of certain mechanical equipment in buildings; to establish fire limits; and provide for emergencies.’
“That chapter 1, section 1-1, paragraph 1-1-4 of said purported ordinance is as follows:
“ ‘Conflicting- ordinances repealed. All ordinances or parts thereof, insofar as they conflict with the provisions herein contained, are hereby repealed. Should any section, word or sentence, or any part of this ordinance be held to be invalid, the same shall not be construed to affect any other valid provision of same.’
“The ordinance introduced in evidence is the same ordinance which was purported to be adopted by the City Council on February 28, 1928.
“It is further agreed that the title or caption to ordinance No. 610 is as set out in the caption therepf, attached to the defendant’s pleadings, and that said ordinance is a penal ordinance.”

Appellee cites the case of Texas Traction Co. v. Scoggings (Tex. Civ. App.) 175 S. W. 1128, 1131, writ denied, which holds that, when the Legislature provides the mode of publication of an ordinance, none other is sufficient to give it validity, and until such publication is had the ordinance is void and in fact has never become a law. The cases of Woodruff v. Deshazo (Tex. Civ. App.) 181 S. W. 250; Commonwealth v. Kelly, 250 Pa. 18, 95 A. 322, Ann. Cas. 1916B, 48; and Smith Detective Agency, etc., v. Highland Park (Tex. Civ. App.) 5 S.W.(2d) 598, are all to the same effect.

This court judicially knows that the present charter of the city of Port Worth was adopted under the Home-Rule Amendment to the Constitution (Const, art. 11, § 5) in December, 1924, and that prior to that time the city had been acting for many years under previous charters, and the record is silent as to whether under any previous charter the city had or had not enacted an ordinance regulating cleaning establishments, and we do not feel quite prepared to say that the written agreement made by counsel must be so construed as that it should be said that the present Ordinance No. 1389 is other than a “revised or digested ordinances” which the city, under the terms of its charter, was fully authorized to enact and have printed in pamphlet form. In terms, the agreement that the ordinance was not published in a newspaper is apparently limited to codified Ordinance No. 1389. We have already quoted from the charter where it is declared that “revised or digested ordinances published in pamphlet form by authority of the City Council shall not be required to be published in a newspaper.” As also already shown, the ordinance under consideration appears in the building code of the city in pamphlet form, and the charter further declares that “the publication in pamphlet form of such ordinance shall be held and taken as sufficient publication notwithstanding such ordinance may impose a fine, penalty or forfeiture. * * * ” And as also further shown, the charter further specifically provides that “all ordinances of the City of Fort Worth, published or compiled in book or pamphlet form by the City shall be presumed to have been by and with the authority of said City, and shall be admitted as evidence in all courts, State and Federal, without further proof beyond the production of said printed book or pamphlet.” And as further appears, the charter made express provision for the revision and digesting of previous ordinances. As it seems to us, under all the circumstances and in view of express terms of the charter, we must overrule the contention that the ordinance is void. If not void, we need not cite authorities to the effect that appellee in conducting his cleaning business in violation of Ordinance No. 1389 was guilty of negligence as a matter of law, which, as the jury found, was the proximate cause of the explosion and following injuries. Nor do we need to cite authorities for the proposition that it was the duty of the court to render his judgment upon the verdict of the jury in answer to material issues. The court therefore erred in rendering a judgment in favor of appellee non obstante veredicto. However, we are of the further opinion that a proper determination of the verdict of the jury on the issue of appellee’s negligence under common-law principles will lead to the same result.

Webster thus defines “naphtha”: “Any of the various volatile, strong-smelling, inflammable liquids, as ordinary ether,” etc. In 3 Words & Phrases, Second Series, page 517, under the title “Naphtha,” it is said: “ ‘Naphtha’ * * * which is a product of petroleum intermediate between the associate products of gasoline and benzine, all of which do not differ in their essential nature, but vary only in the degree of inflammability when brought into contact with radiant heat,”— citing Gately v. Taylor, 211 Mass. 60, 97 N. E. 619, 39 L. R. A. (N. S.) 472.

It will be thus seen that naphtha is classed as inflammatory, together with gasoline and benzine, in the approved definition of the term, in the decisions of the court, and in the ordinance relating to the subject. It may therefore be doubted whether the fact, if admitted, that part of defendant’s delivery was gasoline, is very material. The ordinance is made applicable to “every person, firm, or corporation keeping or using more than two quarts of gasoline, naphtha, benzine, benzo-lene, or other light petroleum of coal tar products for the purpose of dry cleaning for profit or reward.”

The undisputed facts show that appellee ordered and received 25 gallons of naphtha in addition to 30 gallons of what he insists was gasoline; that the liquids were received about 12 o’clock, and that he began his cleaning operations about 3 o’clock, and that the explosion occurred about an hour thereafter. It was thought to be necessary and enjoined by the ordinance, among other things, that buildings used,' as was appellee’s, should not only have vent holes, etc., but should be “ventilated by means of exhaust fans of sufficient capacity to change the air in the building every three minutes and shall be kept in operation at all times during the use of such building.”

It is said in Parker v. Barnard, 135 Mass. 116, 46 Am. Rep. 450, citing Salisbury v. Herchenroder, 106 Mass. 458, 8 Am. Rep. 354, that: “Where an act is enjoined or forbidden under a statutory penalty, and the failure to do the act enjoined, or the doing of the act forbidden has contributed to an injury, the party thus in default is liable therefor to the party injured, notwithstanding he may also be subject to a penalty.”

The trial court, in entering his judgment, presumably disregarded the jury’s finding on the issues of common-law negligence, for the reason that the jury also found that such negligence was not a proximate or prbximately contributing causes of the injuries. In 23 Corpus Juris; § 810, the rule is announced that: “Courts may properly take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Other common statements of the rule are that the,courts will take notice of Whatever is, or ought to be, generally known within the limits of their jurisdiction; and that they ought not to assume ignorance of, or exclude from their knowledge, matters which are known to all persons of intelligence.”

Chief Justice Phillips, in his note to the opinion written in the case of Brass v. Texarkana & Port Smith Railway, 110 Tex. 281, 218 S. W. 1040, 1042, said: “A court cannot blind its eyes to the knowledge of a fact which is notorious throughout its jurisdiction.”

In Peterson v. Standard Oil Co., 55 Or. 511, 106 P. 337, 339, Ann. Cas. 1912A, 625, the court said,, in speaking of light petroleum products, that: “The use of these distillates has become so general that we think the courts should take notice of their dangerous qualities, especially where the consequences of their use are shown by the complaint to have been accompanied by deadly results^ Thus, where gun powder or dynamite are mentioned, no statement in explanation of their dangerous character is necessary because they are so universally known that to name them is at once a suggestion of their dangerous qualities. Courts take judicial knowledge, of what is generally known and of facts that have such general notoriety that any one may be fairly presumed to know them.”

In Rome Ry. & Light Co. v. Keel, 3 Ga. App. 769, 60 S. E. 468, 470, cited in Central of Georgia R. Co. v. Lawley, 33 Ga. App. 375, 126 S. E. 273, it is said-that: “A party will not be permitted to maintain in his pleadings a contradiction of those things of which the court is required to take judicial cognizance. Of the primary physical laws the courts must take notice. 16 Cyc. 854 (8). Therefore the pleading is demurrable when it sets up a contradiction .of these, laws. Since a physical impossibility cannot exist at all, it cannot be admitted even by demurrer. Such an allegation must be treated by the courts just as, they would treat an allegation that what is not iaw is law; i. e., it must-be wholly disregarded.”

In the light of the principles so announced, how can it be disputed that the negligence as found by the jury on the part of appellee in failing to ventilate his premises so as to permit the escape of-the inflammable gas that arose during his operations and use of the quantity, of naphtha on hand was not at least a contributing cause of the explosion that occurred and of -its consequent injuries? It is a rule well recognized by our decisions that an issue established by an undisputed fact is not a question for a jury’s determination, but, on the contrary, in such case, it becomes a question of law for the court. In the case of Eastern Texas Elec. Co. v. Baker, 238 S. W. 335, 336, by-the Beaumont Court of Civil Appeals, it is said, quoting from the headnotes: “In an action for willful, aggravated assault and battery, proximate cause.is not an issue requiring instruction to jury, and the perpetrator of the act is presumed to have intended the consequences.”

In M., K. & T. Ry. Co. v. Hines, 40 S. W. 152, 154, by the San Antonio Court of Civil Appeals, where a member or members of a bridge gang were guilty of negligence in unloading timbers off of a flat car, causing them to fall off and strike a conductor of the train and there was no contributory negligence on the part of the conductor, the court said: “It is apparent that the former’s negligence would be the proximate cause, because in that event the sole cause; there being no other or intervening agencies claimed. It seems to us that it would be an absurdity to submit in this connection an issue of whether or not an injury *' * ⅝ would or could have been foreseen, or whether or not it could have been foreseen that negligence in unloading the timbers might result in their falling off.”

We conclude, therefore, that while as a general rule the issue of proximate cause, is one for the determination of the jury, under the circumstances of this case, the jury’s findings of negligence on the part of the ap-pellee under common-law principles must be given effect. 'We surmise that the jury must have had in mind that such negligence was not the immediate cause. In T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, 163, it is said by Chief Justice Gaines that: “In ordinary language, a' proximate cause is the nearest cause; but, in a legal sense, an act of negligence may be deemed a proximate cause of an injury, although it may not be the last cause in a connected succession of events which have led to a result.”

It certainly eould not have been legally determined that such negligence was not at least, one of the contributing causes to the explosion. We think the undisputed facts show as a matter of law that it was, and that the jury’s findings to the contrary should be disregarded.

Without further discussion, we conclude that the court erred in rendering judgment in favor of appellee, -notwithstanding the jury’s finding, and-that we should now and here enter judgment on the verdict that should have been rendered below, to wit, that appellee take nothing by . reason" of his suit and the defendant go hehce without day and recover its costs.

On Motion for Rehearing.

In addition to what we said in our original opinion with reference to Ordinance 1389, we wish to call attention to section 5 of the charter provisions quoted, which provides that: “5. It shall be the duty of the City Council, as soon as practicable after the adoption of this Charter, to provide for a revision, codification and publication of all the ordinances in force at that time in the City, and thereafter provide for a similar revision and publication as often as they may deem advisable.”

The city council was' undoubtedly vested with power under the city’s home-rule charter to revise, codify, and publish in pamphlet form previous ordinances that were in force, and, Ordinance 1389 appearing in pamphlet form and purporting to be a revision and codification, the presumption exists that the council did what it was right to do and not that which was wrong. In other words, the presumption must be indulged that, in some form, extent, or detail, an ordinance relating to the general subject was in force which it was advisable to revise and codify. And we do not think the written agreement of counsel relating to the subject of publication is sufficiently specific and certain to overcome such presumption. This is especially true when considered in connection with the second paragraph of section 2 of the charter, quoted in our original opinion, and paragraph 1-1-4 of section 1, chapter 1, of Ordinance 1389 (quoted in the agreement of counsel, as set out in our original opinion). The record discloses that Ordinance 1389, as it appears in its pamphlet form, has 37 chapters of 130 sections, printed on 187 pages. It contains many regulations other than .those relating to cleaning establishments, and manifestly not of the character of those ordinances required to be published in a newspaper for the benefit of the public at large.

Paragraph 2, of section 2, of the charter, set out in the original opinion, declares that: "Revised or digested ordinances published in pamphlet form by authority of the City Council shall not be required to be published in a newspaper, and the publication in pamphlet of such ordinances shall be held and taken as sufficient publication, notwithstanding such ordinance may impose a fine, penalty or forfeiture or should contain a grant of easement or public franchise.”

Paragraph 1-1-4, of section 1, chapter 1, of the ordinance reads: “Conflicting ordinances repealed. All ordinances or parts thereof, insofar as they conflict with the provisions herein contained, are hereby repealed. Should any section, word or sentence, or any part of this ordinance be held to be invalid, the same shall not be construed to affect any other valid provision of same.”

It is thus apparent that' the city council has been given a very wide power in the matter of, printing ordinances in digested and pamphlet form, and when this has been done, as in the present case, paragraph 2, of section 2, of the charter, expressly declares that “the publication in pamphlet of such ordinances shall be held and taken as sufficient publication, ⅜ ⅝ * ” thus presenting a real, or apparent conflict with paragraph 1, of section 2, of the charter, which hence may be disregarded by virtue of said paragraph 1-1-4, of section 1, of chapter 1, of the ordinance.

From the nature of the subject, it is not to be presumed that the requirement of

Suit by J. R. Donges against Orville Beall, be applied to a codification of an entire system of laws on the part of the city. Codification necessarily must include a variety of subjects and many details, and constitute a volume of matter that cannot practically.be published in a newspaper, and we are npt prepared to say that in a case of codification it is not within the power of the council to embody new features or details germane to the general subject codified.

We accordingly retain the view originally expressed that Ordinance 4389 is valid. and enforceable. If so, its violation constituted negligence per se on the part of appellee, and, the jury having found that to have been a proximate cause of the resulting damage, the judgment below should have been for the defendant regardless of the remaining findings.

It follows that our conclusions relating to the issues of appellee’s common-law negligence were not necessary to support the general conclusion in our original opinion that the judgment below should be reversed and here rendered for appellant. In view of that fact, we should perhaps reserve" our conclusion that the jury’s findings that appellee’s general want of ordinary care were not the proximate or' contributing proximate cause of the damage done to await a final determination of whether the ordinance under consideration was valid and enforceable. Should the Supreme Court determine it to be invalid, we would then at least have the power to determine whether the jury’s findings that we ignored are sufficiently supported by the .evidence. However, in view of the earnest contention in behalf of appel-lee that we erred in this particular, we carefully read and considered the entire statement of facts before us, and, while detached portions of the testimony may give color to appellee’s contention, we do not feel quite prepared from the whole to say that we were in error. Nevertheless, in view of their immaterial character as we view the case, we have concluded to withdraw for the present what we said in our original opinion relating to the entire lack of evidence to support the findings of' the jury which we ignored, thus leaving that question, or the question of the sufficiency of the evidence to sustain those findings, for future determination should necessity therefor ever become necessary.

Except ás just indicated, the motion for rehearing is overruled.


author: JACKSON, J.

text:
    JONES et al. v. JONES.
    No. 3625.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1931.
    Rehearing Denied July 11, 1931.
    Bean & Klett, of Lubbock, for appellants.
    Levens, McWhorter & Howard, of Lubbock, for appellee.
   JACKSON, J.

This suit was instituted in the district court of Lubbock county, Tex.,’ by the plaintiff Frank Jones, to recover the sum of $2,000 against the defendants Mrs. Florence Jones, a feme sole, and J. M. Jones, in their individual capacities and as executrix and executor of the estate of E. M. Jones, deceased.

The plaintiff alleges that he was engaged as a real estate broker by the defendants, who were the owners thereof, to procure a purchaser for section 28, block A, in Lubbock county, Tex., at $70 per acre, and that the defendants agreed to pay him 5 per cent, commission for his services.

In the alternative he alleges an implied contract with the defendants to pay him the 5 per cent, for his services, and also pleads his right to recover upon a quantum meruit. •

He alleges that he was the procuring cause of the sale of said land to the city of Lubbock for an airport site. That the defendants accepted the city of Lubbock as a purchaser and consummated the sale by conveying said section of land to the city for the sum of $40,-000 in cash, and that by reason thereof the' defendant became liable to him in the sum of $2,000, which they have failed and refused to pay.

The defendants answered by general and special exceptions and general denial. They specially pleaded in defense that the agency of plaintiff was not an exclusive one, but that the land was listed by the owners with many other parties, who were authorized to find a purchaser for the land and make a sale thereof. That the plaintiff was not the procuring cause of the sale, but that the city of Lubbock as purchaser was procured through the labors and services of 'the defendants and other agents with whom the land was listed and certain civic organizations, among whom were George E. Benson, T. B. Duggan, Joe Dick Slaughter, the Lubbock Chamber of Commerce or Board of City Development. That these individuals and organizations first brought the owners and the city together by their efforts and thereby found the city of Lubbock as a purchaser and induced it to purchase the land and were the procuring cause of the sale.

That the other agents and organizations induced the defendants to reduce the price of the land from $70 per acre to the sum of $62.50 per acre, in consideration that such parties were donating their services and waiving all commission. That the plaintiff was informed of such reduction, and that no commission was being charged by the other parties or organizations and he joined in waiving his claim to commission and made no claim therefor. That by his conduct he led the defendants to believe there would be no commission, in consideration of which the defendants reduced the price, and that, if plaintiff ever had any claim for commission, which is denied, said claim was waived and abandoned in consideration of the reduced price agreed upon between the purchaser, the city of Lubbock, and the defendants.

In a supplemental petition the plaintiff urged a general demurrer and numerous special exceptions to the defendants’ answer, pleaded a general denial, and alleged that he carried on negotiations for the sale of the land to the city of Lubbock with George E. Benson, who held himself out as the purchasing agent for the city, all of which was done with the knowledge and consent of the city, and the city thereby ratified in all things the representations and acts of George E. Benson in negotiating and finally consummating the sale. That the plaintiff has never claimed any commission against the city of Lubbock or the chamber of commerce or board of,, city development, but his claim is against the defendants.

In response to special issues submitted by the court, the jury found, in effect, that the plaintiff was the procuring cause of the sale to the city of Lubbock, and that he never1 agreed to waive his commission for the sale of the land by the defendants to the city.

On these findings the court rendered judgment that the plaintiff have and recover of and from the defendants the sum of $2,000 principal and $150 interest, from which judgment this appeal is prosecuted.

The appellants present as error the action of 'the trial court in refusing to direct a ver-diet in their behalf, because there was no testimony presenting an issue of fact for the determination of the jury, and that the testimony was wholly insufficient to support the findings of the jury on the issues submitted.

In determining whether a peremptory instruction should be given or whether there is testimony to support the findings of a jury in this case, only the testimony supporting plaintiff’s claim may be considered, and we must accept as true the evidence supporting the findings of the jury on the issues presented. Roddy et al. v. Citizens’ State Bank of Copeville (Tex. Civ. App.) 11 S.W.(2d) 652; M., K. & T. Ry. Co. of Texas v. Cunningham, 118 Tex. 607, 23 S.W. (2d) 343; Willis & Conner v. Turner (Tex. Civ. App.) 25 S.W.(2d) 642; Henry v. Publix Theatres Corporation (Tex. Civ. App.) 25 S.W. (2d) 695; Frazier v. Hanlon Gasoline Co. (Tex. Civ. App.) 29 S. W.(2d) 461; Henderson v. Burkholder (Tex. Civ. App.) 29 S.W.(2d) 937.

Without detailing the testimony, it is' our opinion that tested by these authorities' the court did not commit error in refusing to direct a verdict in appellants’ behalf, and .that there is sufficient testimony to support the' findings of the jury on the issues submitted,

The appellants by proper assignments challenge as error the action of the court in refusing to submit their requested special issue asking the jury, in effect, whether one or more of the parties named in the defendants’ answer, other than the plaintiff, was the procuring cause of the sale of the land of the defendants to the city of Lubbock.

The appellants had alleged that the plaintiff did not have the exclusive agency from the defendants for the sale of the land, that it was listed with other agents, and that George E. Benson, T. B. Duggan, and Joe Dick Slaughter, together with certain civic organizations, were the procuring cause of the sale.

The record discloses that, at a meeting of the board of city development and chamber of commerce on April 24, 1928, a committee, composed of George E. Benson, chairman, Joe Dick Slaughter, John Dalrymple, Roscoe Wilson, T. B. Duggan, and Charles A. Guy, was appointed to investigate the requirements of a municipal airport and to advise as to the necessity of securing suah airport, etc.

Mr. T. B. Duggan testified that the land had been listed with him for sale upon a 5 per cent, commission before any action was taken relative to securing a municipal airport for the city of Lubbock; that he was acquainted with this particular tract of land; that on the Sunday following after his appointment by the board of city development on the airport committee, having in mind that the land would be a good place for an airport, he went out and inspected it; that he looked at numerous different sites, but always favored this site because he thought it was the best. That, in the sale of the land by the appellants to the city, he was representing the city and not the appellants, and his efforts and purpose were to secure the most favorable price for the city. That the plaintiff never talked to him about the sale of said land to the city.

Mr. Joe Dick Slaughter testified that some time the latter part of May, about a month after he was appointed on the airport committee, he called on and interviewed Milt Jones and his brother in their office to find out whether or not they would be willing to sell this tract of land to the city for an airport site. That he advised them the object of his call. That they informed him they would sell on a cash basis for $S0 per acre, but they finally agreed to take $70 per acre cash. That he informed them that he had been appointed on the airport committee, and in his opinion the section of land in question would be a good location for an airport and'advised them the purpose for which the city'wanted the land. That there was nothing said about any commission for services with the appellants, as he did not expect to receive any commission. That as a citizen he was representing the city of Dubbock on the airport committee. That, after this conversation with the appellants, he went directly to the' office of George E. Benson, the chairman of the airport committee, and explained to him in detail the subject of the conversation he had had with appellants. That he was in the automobile business and was not a land agent. That, as he understood it, the duty of the airport committee was to select a site for an airport.

Mr. George E. Benson testified that, according to his recollection, the first person who ever put this land up to him as chairman of the airport committee was Mr. Joe Dick Slaughter. That, at the time Mr. Slaughter first mentioned it to him, he had had no communication or negotiations with the plaintiff about the land. That the plaintiff came to his office and said that he wanted him to take a ride with him, which the witness did. That, after they were out on the road and had gotten to the Jones property, the plaintiff said: “I want to show you this Jones land for an airport site.” That he advised the plaintiff that the land had already been put up to the airport committee by Mr. Slaughter.

The plaintiff testified that his negotiations for the sale of the land were all with George E. Bienson, as chairman of the airport committee. That he showed the land to Mr. Benson about July, 1928, and told him the price. He testified also that in his opinion it was August before he presented his proposition for the sale of the land, and that he does not remember doing anything prior to that time toward selling the land to the city.

Under the record in this case, as revealed by the pleadings' and the testimony, we are of the opinion that the court erred in refusing, to submit to the jury the special issue re>quested by appellants.

The law is settled that a defendant is entitled to have any defense whieh he pleads to plaintiff’s cause of action, if supported by testimony, affirmatively submitted by the court to the jury for its determination, and a failure to submit suclvissue on request constitutes reversible error. Fox v. Dallas Hotel Co., 111 Tex. 401, 240 S. W. 517; Hutton v. Burkett (Tex. Civ. App.) 18 S.W.(2d) 740, 743; Safety First Bus Co. v. Skibinski (Tex. Civ. App.) 36 S.W.(2d) 288.

The appellants challenge as erroneous that part of the court’s charge in which he advised the jury, in substance, that, even though they found that plaintiff was “not present and did not participate in the consummation of the sale,” and although the “sale was made upon different terms from ■those discussed between the parties with whom the defendants dealt directly,” if, through the efforts of Prank Jones, he brought the parties together, the plaintiff would be the procuring cause of the sale.

In view of the fact that appellants had pleaded that the appellee had waived his commission and were entitled to show, if they could, that he had abandoned his claim for commission and had offered testimony on the question of waiver, it is our opinion that this charge is erroneous.

Whether or not the charge would constitute reversible error if the only issue was whether or not the appellee was the procuring cause of the salé, it is unnecessary to determine.

The appellants urge as error the action of the trial court in failing to submit at their request the issue as to whether or not the plaintiff had abandoned his commission.

In our opinion, the testimony was not sufficient to present the issue of abandonment, and the court did not err in refusing this requested issue. Security Union Insurance Co. v. Hall (Tex. Civ. App.) 37 S.W.(2d) 811.

The judgment is reversed and the cause remanded.

On Motion for Rehearing.

The appellee, in his motion for rehearing, among other things, presents as error the action of this court in reversing the judgment obtained by him against Florence Jones and J. M. Jones in their individual capacity, for the reason that he sued and obtained judgment against Florence Jones and J. M. Jones each in his individual capacity and a,s executor and executrix and trustees of the estate, of E. M. Jones, deceased, and that no appeal or supersedeas bond was filed by either Florence Jones or- J. M. Jones, as individuals, and therefore no appeal was perfected by them-in their individual capacity, and the judgment' of the trial court as to them as individuals should in all things be affirmed.

The appellants have filed a motion to be allowed to file an amended and corrected su-persedeas bond, which they tender with their motion, perfecting their appeal from the judgment obtained against them in their individual capacity and as executor and executrix and trustees of the estate of E. M. Jones, deceased.

The appellants show by affidavit that ap-pellee’s attorney prepared the judgment to be entered in his behalf and presented appellants’ attorneys with a carbon copy thereof. That in such carbon copy no judgment against the defendants in their individual capacity was tafeen. That, relying on the correctness of this carbon copy, appellants prepared and filed their supersedeas bond, perfecting their appeal for Florence Jones and J. M. Jones as executrix and executor and trustees of the estate of E. M. Jones, deceased. That thereafter the attorneys for appellee changed the judgment to be entered so as to constitute a judgment against the defendants in their individual capacity in addition to the judgment against them in their representative capacities. That appellants’ attorneys were not notified of the change, were not furnished with a carbon copy -of the judgment as changed, .and learned of such change just prior to their application to be allowed to file an amended supersedeas bond, from ap-pellee’s attorneys, who requested permission to inspect the carbon copy of the judgment theretofore furnished, and explained at this conference for the first time that the judgment had been changed and made to read so 'as to constitute a judgment against the defendants in their individual capacity as well as in their representative capacities. Attached to this affidavit is a carbon copy of the judgment as originally prepared by ap-pellee’s attorneys and presented to appellants’ attorneys.

Appellee does not controvert the facts as stated in appellants’ verified motion to be allowed to file an amended supersedeas bond, but takes the position that, inasmuch as under the law appellants were not required to file a supersedeas bond as executor and executrix, the filing of such supersedeas bond d'id not perfect appellants’ appeal to this court, and therefore no appeal was perfected by the filing of such bond, and, in law, there is no bond to be amended.

The appellants were required, in order to perfect their appeal as trustees, to give a su-persedeas bond as trustees; hence the court acquired jurisdiction of the appeal. 3 Tex. Jur. 344.

The transcript in this ease was filed in this court on the 5-th day of March, 1931. The case was submitted on June 3, 1931, and on June 10th the judgment was reversed, and the cause remanded, and thereafter, on June 22d, appellee filed his motion for rehearing and for the first time áttacfes the sufficiency of appellants’ supersedeas bond.

“No motion was made to dismiss for want of proper bond, nor was the jurisdiction of this court in any way questioned until this motion for rehearing was filed herein by ap-pellees. The objection to the bond, if at all well taken, comes too late.” Drake et al. v. Yawn et al. (Tex. Civ. App.) 248 S. W. 726, 730, and authorities cited.

“The appeal bond was made payable to Estelle’s sons, but not to their guardian ad litem, and it is urged that the bond was therefore defective; that this court acquired no jurisdiction; and the appeal should be dismissed. The record was filed in this court March 21, 1930, and this alleged defect in the bond was first called to this -court’s attention in the brief of Estelle’s sons filed October 8, 1930. The precise contention of appellant was overruled in the recent case of Roberts v. Stoneham (Tex. Civ. App.) 31 S.W.(2d) 856, 858, from which we quote:

“ ‘Under R. S. art. 1840, defects both of substance and of form in an appeal bond may be cured by amendment. Such defects are not jurisdictional (Foster v. Bunting [Tex. Civ. App.] 19 S.W.(2d) 784), and are waived by failure to present objections to the bond by motion within thirty days after the transcript is filed. Court of Civil Appeals Rule 8; De Proy v. Progakis (Tex. Civ. App.) 259 S. W. 620.’ ” Hart et al. v. Estelle et al. (Tex. Civ. App.) 34 S.W.(2d) 005, 671.

Appellants’ motion to be allowed to file an amended supersedeas bond is granted, and appellee’s motion for rehearing is overruled.


text:
    STATE LINE CONSOLIDATED SCHOOL DIST. NO. 6 OF PARMER COUNTY et al. v. FARWELL INDEPENDENT SCHOOL DIST. et al.
    No. 3456.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 8, 1930.
    Rehearing Denied Nov. 12, 1930. Writ of Error Granted Dec. 20, 1930.
    Monning & Akin, of Amarillo, for appellants.
    W. H. Russell, of Hereford, for appellees.
   JACKSON, J.

This suit was instituted by the state line tonsolidated school district No. 6 of Parmer county, Tex., a common school district, and the trustees of said district, as plaintiffs,against the Farwell independent school district and the trustees thereof, the tax assessor and tax collector thereof, the board of county school trustees of Parmer county, Tex., and the members thereof, and the county superintendent of public instruction, as defendants. The plaintiffs sought to have the court cancel and hold for naught an order of the board of county school trustees of Parmer county, Tex., detaching certain territory from the state line consolidated school district No. 6 and annexing said territory to the Farwell independent school district, and enjoin the defendants from exercising jurisdiction for school purposes over the. territory detached from the state line consolidated school district No. 6 and attached to the Farwell independent school district.

Plaintiffs alleged that such order of the Board of county school trustees was wholly void and illegal because at the time it was made there was an outstanding bonded indebtedness of approximately $500 against the common school district No. 6, and that said order was in direct contravention of article 2741 of the Statutes of 1925, providing that the area of a school district having an outstanding bonded indebtedness shall never be reduced until after such indebtedness shall have been discharged; that such order was made in utter and arbitrary disregard of the terms and provisions of article 2742b of Vernon’s Civil Statutes and in contravention of the provisions of said article. The plaintiffs attached to and made a part of their petition a copy of the order, and set out in detail, certain procedure required by the statute that was not complied with by the defendants.

A temporary restraining order was granted by the court on August 16,1929.

The defendants answered January 14, 1930, at a regular term of court, pleading a general demurrer, and admitting that the allegations of the plaintiffs with respect to parties were correct; that the board of county school trustees had made the order complained of, but denying each and every other allegation in the petition. They also pleaded that the Far-well independent school district had a scholastic population in the year 1928-29 of 217 and in 192£M50 a scholastic population of 203 ; that on January 1, 1929, there was a bonded indebtedness owing to thé state of Texas by common school district No. 6 of approximately $500, but that there had been collected from taxes' from said district and placed in the sinking fund for the purpose of discharging such indebtedness the sum of $460, which sinking fund was on deposit with the county depository of Parmer -county, Tex.; that said sum could be used for no other purpose, and that said indebtedness could be paid off at any time; that, as a matter of adjusting said bonded indebtedness against the detached territory, as alleged by plaintiffs, the defendants tendered into court the balance due on said bonded indebtedness, with all accumulated interest thereon, with the request that the court instruct the clerk to pay said money into the depository of Parmer county, with directions to deposit it in the sinking fund to pay off and discharge said bonded indebtedness.

On a hearing on the merits on January 14, 1930, the temporary writ of injunction theretofore granted was dissolved and defendants discharged with their costs. The clerk was ordered to pay to the county treasurer of Parmer county the amount deposited in court, and the county treasurer was instructed to deposit said sum in the sinking fund of the state line consolidated school district No. 6, to be used only in discharging the bonded indebtedness of said common school district. Prom this judgment of the court this appeal is prosecuted.

The record discloses that the order of the board of county school trustees complained of was made and 'entered upon the •minutes of the board on the 12th day of June, 1929; that no appeal was prosecuted from said order to any court or to any higher school tribunal; that plaintiffs filed their suit in the district court on August 1G, 1929 ; that the defendants in certain particulars failed to comply with the procedure proviaed by statute for detaching territory from a common school district and adding it to an adjacent independent school district; that at the time of the order no provision was made for discharging the $500 of bonded indebtedness against the common school district, but that thereafter an adjustment thereof was made. Acts 41st Leg. (1929) 2d Called Sess., c. TO, § 7.

These facts, in our opinion, show that the district court was without jurisdiction to grant the relief sought, and that this court is without jurisdiction to review the action of the District Court. R. C. S. 1925, arts. 2656, 2682, and article 2686, as amended by Acts 40th Leg. (1927) c. 83, § 1 (Vernon’s Ann. Civ. St. art. 2686); Acts 41st Legislature (1929), First Called Session, p. 260, c. 109, § 2 (Vernon’s Ann. Civ. St. art. 2742e, § 2); Jennings, County Judge et al. v. Carson (Tex. Com. App.) 220 S. W. 1090; Hibbitts et al. v. Robison et al. (Tex. Civ. App.) 281 S.W. 574; County School Trustees et al. v. Common School District No. 6 et al. (Tex. Civ. App.) 284 S. W. 306; Warren et al. v. Sanger Independent School District et al., 116 Tex. 183, 288 S. W. 159; Johnson et al. v. City of Dallas et al. (Tex. Civ. App.) 291 S. W. 972; Huntington Independent School District et al. v. Scroggins et al. (Tex. Civ. App.) 9 S.W.(2d) 171; Moseley et al. v. City of Dallas et al. (Tex. Com. App.) 17 S.W.(2d) 36.

Appellants’ contention that this court has jurisdiction because they attack as unconstitutional the curative statute, article 2744c, is not tenable, inasmuch as the authority of the board of county school trustees was not derived from such statute, and was in no way based upon the provisions of such article.

For the reason that the district court was without jurisdiction and this court acquired none by appeal, the ease is dismissed.'