author: McClendon, C. J.

text:
    QUINN et al. v. TAYLOR.
    No. 7549.
    Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1931.
    Rehearing Denied March 4, 1931.
    Dibrell & Starnes, of Coleman, for appellants.
    Butts & Wright, of Cisco, and Critz & Woodward, of Coleman, for appellee.
   McClendon, C. J.

This is tbe second appeal of this case. For our former opinion, see 12 S.W.(2d) 1097 (error refused).

Appellants urge the same questions presented and decided in tbe former appeal relating to tbe 'statute of frauds as applied to the description of tbe property and subject-matter in contracts in suit. Tbe assignments in this regard are overruled by reference to our former opinion without further comment.

The following statement will suffice to an understanding of the other questions presented by the present appeal: December 5, 1925, a number of persons owning lands in the northwestern part of McCulloch county executed an escrow agreement in the form of a letter addressed to the Coleman National Bank by which they agreed to place in the bank form 88 oil and gas leases in favor of Barnum, covering some 2,250 acres of land. Bamum was to assemble the leases and was to have thirty days thereafter in which to make a geological survey of the area, and, if favorable, he was to drill a well on some part of the land to a depth of 1,800 feet, unless oil in commercial quantities were found at a lesser depth. The lessors were to furnish abstracts of title as soon as the leases were assembled, and when the geological survey was made and the titles approved Barnum was to deposit in escrow in the bank $1 per acre, which sum was to be returned to Barnum as soon as be actually commenced drilling operations. The several leases were executed and bore different dates all prior to February 1, 1926. When they were in fact delivered to the bank does not appear. In April, 1923, Barnum assigned all the leases to appellee Taylor, who later opened negotiations with appellant Lester, resulting in the two instruments set forth in our former opinion. Under the first of these instruments (dated June 15, 1926), Lester, in consideration of drilling the well and $1,000, was to have his choice of leases covering 1,500 acres in the block. He was given fifteen days in which to make the geological survey, which was done, and on July 7th the agreement was closed by instrument of that date, in which Lester designated 1,520 acres selected by him, and agreed, upon acceptance of title by bis attorneys, to pay the $1,000. The instrument further provided that, should any objection be found to the title, “you (Taylor) shall use your best endeavor to have same cured at earliest moment possible.” Abstracts of title were furnished and approved, but Lester failed to carry out any portion of the contract. There was considerable correspondence by wire and letter between Tester and Taylor in regard to the matter, and a number of verbal conferences as to which latter the evidence of the different witnesses was not in accord. However, it conclusively appears that the titles were accepted, and no objection was made in that regard until after suit was filed.

Suit was brought by Taylor against Lester and Ehom and Quinn, under the allegation that they were all partners in the transaction. This allegation was denied under oath and found against plaintiff; manifestly upon the testimony of the three defendants that there was no partnership or joint ownership in the venture, but that, on account of a lawsuit in which valuable properties belonging to the three defendants were tied up, Bhorn and Quinn in an adjustment agreement made in January, 1927, each assumed one-third of any liability incurred by Lester in the transaction here in suit.

The jury findings upon the only two facts issues submitted to them' were: (1) That (here was no partnership between the defendants in the transaction sued upon; and (2)that the contract between Taylor and Lester was not for the joint benefit of the latter and Ehorn and Quinn. Upon this verdict the court rendered judgment in favor of-Taylor against Lester for $1,000, and against Ehorn and Quinn for $333.33 each, the latter when paid to operate as a credit pro tanto on the judgment against Taylor; and in favor of Taylor over against Ehorn and Quinn to the extent of $333.33 each for any payment made by him on the $1,00.0 judgment above $333.33. Separate appeals have been prosecuted by Taylor and by Ehorn and Quinn.

Ehorn and Quinn contend that the burden was upon Taylor to show as a condition precedent to recovering the $1,000 that the leases he held were valid; and, further, that, since it appeared from the Barnum escrow agreement that the thirty-day period in which the geological survey was to be made had elapsed prior to negotiations between Taylor and Lester, there was an affirmative showing that Lester was not in a position to carry out his contract. We overrule this contention. The record conclusively shows that Taylor’s title to the leases was approved by Lester. If impossibility to comply with his contract was a valid defense to 'his suit, it was incumbent upon Lester to allege and prove that fact. The agreement of July 7, 1926, obligated Taylor in ease objections were pointed out in the title to use his best endeavor to have them cured at the earliest moment possible. Since Lester accepted the title, in order to defeat Taylor’s claim that he had complied with his contract, it would (have been necessary for Lester to allege and prove both that there were defects in the title, and that Taylor could not have cured' them. No proof upon this subject was offered further than as might appear from the face of the Barnum escrow agreement.

It is' the contention of Taylor in his-appeal that he was entitled to an additional judgment for $8,000 as damages for failure to drill the well, the uncontradicted evidence-showing that the balance of the leases owned by him and covering some 700 acres would have been worth at least $12.50 per acre, as soon as drilling operations were commenced, and that it would have cost at least $8,000' to drill the well; his recovery being the same under either measure of damages. We overrule this contention upon the ground that Taylor failed to show any damage, in that he-failed to show his ownership of valid leases. Taylor’s only interest in the drilling of the-oil well was in its effect upon the other leases he held in the block. Lester had no interest in these leases, and there was no admission by him of title in Taylor in so far as they were concerned. The burden rested upon Taylor to show all elements essential to his right of action for damages, and one of these elements consisted in his ownership of valid leases which would be affected by failure to drill the well. Taylor did not meet this burden.

The only other question raised by the appeals is the contention of Ehorn and Quinn that there was no direct liability on their part to Taylor. We overrule this contention on the authority of Southern Surety Co. v. Solomon (Tex. Civ. App.) 4 S.W.(2d) 599, and cases there cited.

The trial court’s judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    DAVIS v. KIDD.
    No. 3983.
    Court of Civil Appeals of Texas. Texarkana.
    March 26, 1931.

      Hamp P. Abney, of Sherman, for plaintiff in. error.
    Hare & Batsell, of Sherman, for defendant in error.
   LEVY, J.

(after stating the case as above).

The plaintiff in error insists that under the undisputed evidence the court should have given his requested peremptory instruction to the jury to return a verdict in his favor. The defendant in error answers the contention of the plaintiff in error, in substance, that the deed to William Davis was ineffective because of a condition appearing as a clause in the deed, and that the evidence was such as to authorize the submission of the issues and the findings of the jury. Upon a consideration of the whole instrument in evidence,, it is apparent that Mrs. West clearly intended that William Davis should have “a life estate only” in the lands, with reservation for herself of all the rights to the property not expressly vested in said William Davis. In the light of all the recitals of the deed and giving effect to Mrs. West’s intention, the-word “and” in the condition appearing in the deed should be construed as a clerical error and the word “not” as intended to be used.

It is believed in the evidence that the possession of William Davis of the 128-acre tract was' such as to put K. D. Kidd upon notice, but that the possession as to the 100-acre tract, distant some 1½ miles from the 128-acre tract, was not of that character as to put Mr. Kidd upon notice. In this view, then, the plaintiff in error was not entitled to recover the judgment he did as to the 128-acre tract. He would be entitled to recover, though, as to the 100-acre tract. Mrs. West having an estate in the 128-acre tract, and having passed same to Mr. Kidd through way of mortgage with power of sale, Mr. Kidd as mortgagee would be entitled to have foreclosure of his lien against her interest and estate in the said tract of land and to have sale of her interest and estate, subject, however, to the life estate and the right of possession in virtue of such life estate of plaintiff in error, William Davis.

The judgment is therefore modified so as to decree in favor of K. D. Kidd foreclosure of the deed of trust lien and sale thereunder upon the 128-acre tract subject to the life estate and the right of possession of William Davis in and to the said 128-acre tract; otherwise the judgment of the district court will be in -all things affirmed; costs of appeal to be taxed against the defendant in error, K. D. Kidd.


author: BUCK, J.

text:
    TEMPLETON et al. v. SMALL, County Judge, et al.
    No. 12527.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 17, 1931.

      J. A. Templeton and Cecil Morgan, both of Port Worth, for relators.
    Simpson, Collins & Moore, of Port Worth, for respondents.
   BUCK, J.

This suit is an appeal from the action of the county judge of the court of law No. 2, Tarrant county, in failing to render a judgment for defendants P. V. Templeton and wife. The facts in the case are recited in Templeton et ux. v. Oliver H. Ross Piano Company (Tex. Civ. App.) 17 S.W.(2d) 474. In the present suit, the court submitted the case upon special issues, which, together with the answers thereto, are as follows:

“Did plaintiff’s agent, E. I. Conkling, in negotiating the sale of the piano in question to the defendants, as an inducement to such sale, state and represent to the defendants or either of them in substance as follows:
“(a) That it was a $750 piano; that his company had theretofore handled two grades of De Kalb grand pianos one to sell for, and which was then and there of the value of $750, and the other a cheaper piano which regularly sold for $595. To which the jury answered ‘Yes.’
“(b) That he and his company had theretofore sold a number of s'aid $750 pianos to divers persons in Fort Worth, naming them, for $750. Answer ‘No.’
“(c) That his company was not going to handle the higher grade piano any longer, and that it had been decided to reduce the price on the two yet remaining on hand to $595. Answer: ‘Yes.’
“(d) That said piano was in truth and in fact well worth the sum of $750 and more; that notice had already been received from the factory which manufactured said pianos that a $200 advance in the price of both grades of De Kalb pianos would go into effect at a very early date, notice of which advance would be given his company, and which was expected momentarily; and that said piano so sold to defendant would actually advance in price and value and then be, not later than February 1, 1925, of the price and value of $950; and that after such notice was received said piano could not be sold or purchased for less than $950, and which price his company would be compelled to demand and receive therefor? Answer ‘Yes.’
“(e) That unless defendant Irene Templeton made a deposit on said piano, so that it could be tagged ‘sold’ and held for her, the said advance in price would go into effect immediately and the chance of a lifetime would be lost to her? Answer ‘Yes.’
“(f) That said piano was of the very best grade and quality and would last a lifetime; that it would be delivered in first-class condition, and that his company’ would stand behind it and remedy any and all defects in same should there be any? Answer ‘Yes.’
“2. If you have answered the above questions in the negative, then you need not answer this question, but if you have answered one or more of the 'above in the affirmative, then state:
“Were such representations made by the agent as the statement of an existing fact? Answer ‘No.’
“3. If you have answered the above question ‘yes,’ then you need not answer the following questions, but if you have answered same ‘no,’ then, answer the following questions:
“Were the statements, as you have found them to be made, statements of an opinion only on the part of the agent E. I. Conklin? Answer ‘Yes.’
“4. If you have answered question N.o. 1 and the subdivisions thereof all in the negative, then you need not answer the following questions, but if you have answer-fed one or more of such questions in the affirmative, then answer the following questions, viz:
“(a) Were the statements which you find were so made to the defendants, one or both of them as the case may be, true or false ? Answer ‘False.’
“(b) If you have answered the next preceding question that the statements were true, you need not answer this question, but if you have answered that they were false, then answer the following question:
“Did the defendants, one or both of them, as -the case may be, believe that the statements so made to them, if you find same were so made, to be true? Answer ‘Yes.’
“(c) Did the defendants rely on the truth of the statements so made by said agent, if you find same were so made and that they were untrue, and were they thereby induced to purchase said piano and to execute the contract ■and mortgage herein sued upon? Answer ‘Yes.’
“5. Did the plaintiff’s agent, E. I. Conkling, in negotiating the sale of the piano in question to -the defendants, as an inducement to such sale, state and represent to them, or to either of them, in substance, that:
“(a) Although the note provided for interest from date, thlat same would not be charged? Answer‘Yes.’
“(b) That the last payment of $150, provided for in said note, when due, upon the receipt of the defendants would be extended and split up over the period of the following year so that the defendants would pay same in equal monthly amounts? Answer ‘Yes.’
“(6) If you have answered ‘no’ to the above question 6(b), you need not answer this question, but if you1 have answered ‘yes’ then state:
“Did the agent represent that said note would be extended, provided payments were regularly made and kept up by the defendants? Answer ‘Yes.’
“(7) If you have answered subdivisions (a) and (b) of question No. 5, in 'the negative, you need not answer the following questions, but if you have answered same in the affirmative, you will then answer:
“(a) Were the statements so made true or false? Answer ‘True.’
“(8) Was the piano in question materially defective and of an inferior quality at the time it was sold to the defendants? Answer ‘No.’
“(9) When did the defendants, or either of tbpin offer to surrender the piano back to the plaintiff and ask for a rescission and eaneella-' tion of the contract in question. Answer ‘October 23, 1926.’
“(10) After the defendants discovered the defects in. said piano, if any there were, did the defendants within a reasonable length of time thereafter tender the piano back to the plaintiff and seek a cancellation and rescission of the transaction? Answer‘No.’
“(11) After defendants discovered the misrepresentations, if any, by the agent of the plaintiff, did the defendants within a reasonable length of time thereafter tender the piano back to the plaintiff and seek a cancellation and rescission of the transaction? Answer ‘No.’
“12. What do you find from the evidence was the reasonable market value of said piano at the time it was sold'to the defendants? Answer ‘$695.06.’
“13. What do you find from the evidence is the reasonable market value of said piano at this time? Answer ‘$310.00.’ ”

In answer to defendants’ specially requested issue No. 7,‘the jury answered that plaintiff’s agent, E. I. Oonkling, in procuring the consent of the defendant P. Y. Templeton to the sale and purchase of said piano, and his signature to the note and mortgage herein sued on, represented to Mm or both of said defendants, and promised and agreed with him or them, that he (Oonkling) would not deliver said note and mortgage to his company as a binding obligation on defendants unless and until siaid company agreed to and did strike from said note and mortgage the provision therein contained with reference to same bearing interest.

In answer to defendants’ specially requested issue No. 8, the jury answered that the defendant P. V. Templeton believed and relied on such representations, and was thereby induced to sign said note and give same to the possession of said Oonkling.

In answer to defendants’ specially requested issue No. 9, the jury answered that the defendants, after they discovered the fraud and misrepresentation which had been practiced on them, waived such fraud or misrepresentations and elected to abide by the contract wMeh they made.

In answer to plaintiff's special issue No. 1, the jury answered that the defendant P. Y. Templeton,, after he discovered that plaintiff was claiming interest under the provisions of the contract sued upon, repudiated said contract witMn a reasonable time.

The cause was tried in the court below on October 3, 1930. Both plaintiff and the defendant moved the court to render judgment on the findings of the jury, and on November 1,1930, the last day of the term of court, the defendant’s motion for judgment, was in all things overruled and denied, because of the alleged conflict in the answers of the jury to the several issues made to them, and the court declared a mistrial and that no judgment be rendered on the verdict, to which ruling of the court the defendants then and there excepted and have applied to this court for a writ of mandamus to compel the judge ■to enter judgment in their favor.

Opinion.

Article 1824, Rev. Civ. Statutes of 1925, with reference to the powers of Courts of Civil Appeals, provides: “Said courts, or any judge thereof, in vacation may issue the writ of mandamus to compel a judge of the district court to proceed to trial and judgment an a cause, returnable as the nature of the ease may require.”

Under this statute it has been held .that a mlandamus will not lie to compel county judge to proceed to trial and judgment. Fannin Oounty v. Hightower, 9 Tex. Civ. App. 293, 29 S. W. 187. But the 1929 Legislature (chapter 33) amended articles 1819, 1821, and 1824 (Vernon’s Ann. Civ. St. arts. 1819, 1821, 1824), and added to article 1824, after “judge of the district court,” the words “or county court.” Therefore, it would seem that there is no statutory inhibition against issuing a writ of mandamus to la judge of the county court to proceed to trial and judgment in a cause on special issues, where such issues are answered by,the jury in such a way as would require the judge to enter judgment for one of the parties.

It will be noted that in answer to question No. 2 the jury found that the representations made by the agent did not constitute a statement of an existing fact, but was merely an expression of his opinion. The jury further found in answer to question No. 7 that, if subdivisions (a) and (b) of question No. 5 were answered in the negative, they need not answer the following questions, hut, if they were answered in the affirmative, then they were asked if the statements so made were true or false, and they answered that they were true. They further answered in answer to question No. 12 that $595 was the reasonable market value of the piano, which was the price charged for it by the plaintiff below and promised to be paid foir it by the defendants. In answer to question No. 10, the jury answered that the defendants, after they discovered the defects in said piano, did not within a reasonable length of time tender said piano back to the plaintiff and ask a cancellation and rescission of the transaction. In answer to question No. 11, the jury answered that, after defendants discovered the misrepresentations, if any, by the agent of plaintiff, defendants did not within a reasonable time thereafter tender the piano back to the plaintiff and ask a cancellation and rescission of the transaction. In answer to defendants’ specially requested issue No. 8, the jury answered that defendant P. V. Tem-pleton believed and relied on such representations and was thereby induced to sign said note and give same into the possession of said Oonkling. In answer to defendants’ specially requested issue No. 9, the jury found that the defendants, after they discovered the fraud and misrepresentations which had been iwac-ticed on them, if the jury found that there was such fraud and misrepresentation, waived such fraud and misrepresentation and elected to abide by the contract which they had made.

In view of these answers, some of them evidently conflicting, we are of the opinion that the trial court did not err in failing to render judgment for defendants. We think it admissible to show by affidavit the' action of the trial court in entering the judgment, nunc pro tunc, after the expiration of the term in which the ease was tried, inasmuch, especially, as the affidavit shows that an order was in fact rendered verbally, and that both parties knew of the entering of said order during the term in which the case was tried.

Article 1822, Rev. Oiv. Statutes, says: “Said courts shall have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of fact as may he necessary to the proper exercise of their jurisdiction.”

The evidence shows that the cause was begun on September 30,1930, and lasted through October 4, 1930; that, after the verdict was rendered, motions for judgment by both parties were made during the last week of the term, ending November 30, 1930. The court during that term set aside the verdict and declared a mistrial, as shown by the order quoted in this opinion, and by a nunc pro tunc order he declared a mistrial and granted a new trial in this cause.

In Wright v. Swayne, 104 Tex. 440, 140 S. W. 221, 222, Ann. Cas. 1914B, 288 by tbe Supreme Court, Judge Ramsey said: “It is a rule of universal application that this court would have no authority to issue the writ of mandamus to an inferior court, except in respect to ⅛⅞ performance of a purely ministerial act. We are without power in a direct proceeding, such as this, to direct such court as to how it should proceed, or to control such court ■ in respect to a matter involving the exercise of its judgment and discretion. We would be and are wholly without authority and power to grant the mandamus in this ease, unless we should determine and hold that the action of the district court in undertaking to grant said motion for a new trial is absolutely void in. law, and that the same is wholly of no effect. If we should so- determine, it is not doubted or denied that petitioners would be entitled to tbe due execution of the judgment in their favor, and, if the court should willfully refuse to execute its own judgments according to their true intent and effect, we would have the authority, and it would be our duty, to direct it to proceed to execute the judgment and sentence of the law. Unless, however, the action of the court in undertaking to grant, and in granting, such third motion for new trial is wholly and absolutely void, then we are poVverless to act, and this without reference to whether the ruling of the count in granting such motion was or was not justified under the law.”

The rule that a writ of mandamus will not lie to an inferior count to compel the performance of an act invoiving judicial discretion is well settled and of universal application.

The application for writ of mandamus is denied.


author: I-IADD, C. J.

text:
    NICHOLAS v. OLIVER FARM EQUIPMENT SALES CO. et al.
    No. 3570.
    Court of Civil Appeals of Texas. Amarillo.
    March 18, 1931.
    Rehearing Denied April 8, 1931.
    Sanders & Scott, of Amarillo, and H. E. Florey, of Overton, for appellant.
    Clayton & Bralley and W. W. Gibson, all of Amarillo, for appellees.
   I-IADD, C. J.

The appellee company sued the appellant to recover .the amount of $350 evidenced by one note and $1,450 evidenced by two notes of $725 each, executed by appellant and payable to M. D. Womble.

The notes were executed as part of the purchase price for a combine, and plaintiff prayed for the foreclosure of a chattel mortgage on the combine and certain wheat which it is alleged was located on the farm and in an elevator. The appellee alleged the transfer of the note and mortgage to it by Womble and its election to mature the whole series under the acceleration clause contained in the first note. J. B. Holland and Farmers’ Elevator, a corporation, were made defendants under the allegation that they claimed some interest in the wheat and had converted the same. A writ of sequestration was issued and served, and the wheat was taken into possession by the sheriff.

Nicholas answered by general demurrer, numerous special exceptions, a general denial, and specially alleged that Womble, the payee in the notes and the mortgagee, was acting as the agent and representative of the plaintiff in the transaction in which said notes and mortgage were executed; that Womble represented that the combine purchased by appellant would be a new, unused, 1929 model machine; that it would perform well and do the work as well as any other model or make of combine, and that he would service said combine for a period of one year, next, after the purchase thereof.

Appellant further alleges that he relied upon Womble’s representations, believing they were made in good faith, and executed the series of notes sued on and the mortgage and accepted the combine; that he would not have executed the notes or mortgage but for the fact that he relied upon Womble’s representations and promises; that the combine was not a 1929 model, as represented, but was an old 1928 model; that it was not new, but was a secondhand machine, and would-not perform well, and, in fact, would not perform at all, and could not be made to harvest and thresh defendant’s wheat. Appellant further alleges that he called upon Womble as the agent of plaintiff repeatedly to service the combine, but Womble wholly failed and refused to do so; that appellant gave the machine a full and fair test, and found it to be absolutely worthless for the purposes for which it was purchased, and was forced to abandon the use of the same, and he tendered the combine to plaintiff through its agent, Womble, and demanded the return of his notes and a release of his chattel mortgage.

The plaintiff filed a supplemental petition, denying -that Womble was its agent at any time, and alleging that he was an individual dealer in such implements and machinery manufactured by plaintiff. It denied the authority of Womble to make any representations concerning the model of the machine by which plaintiff would be bound or to make any promises binding the plaintiff with reference to the performance or service of the machine, and alleged that it was a purchaser in due course'of business, for value, without notice, of said notes and mortgage.

There was a trial to the court without a jury. The court filed findings of fact and conclusions of law, the material portions of which are, in substance, as follows: (a) That appellant Nicholas executed the notes .and chattel mortgage to M. D. Womble; (b) that there was almost an entire failure of consideration for the notes, but that, after Nicholas knew of such failure of consideration, lie instructed that the balance of $300 and interest due on the $350 note sued on should be paid; (c) that there was no fraud perpetrated upon appellant by Womble in the inception of the notes; (d) that Womble was not the agent of’ the Oliver Farm Equipment Sales Gom-pany, but was merely a dealer in the imple-' ments and machinery put out by the plaintiff sales company; (e) that the wheat taken under the writ of sequestration was included in the ehaAtei mortgage which appellant gave to Womble; and (f) “while the defendant Nicholas has requested a finding as to whether or not the plaintiff purchased the notes sued upon before maturity without knowledge of fraud or failure of consideration, if any, I can make no finding upon this point because there is no evidence as to when or under what circumstances the notes passed into the hands of the plaintiff, though I do find that said notes did pass into the hands of the plaintiff and that the plaintiff was the holder of said notes at the time of the filing of this suit.”

The court concludes as a matter of law that there was no defect in the title to the notes sued upon, because the signature of appellant had not been obtained by fraud, duress, force, or fear or other unlawful means, or for an illegal consideration or under circumstances amounting to fraud; that, since the only defense is a plea of failure of consideration, the holder is deemed prima facie to be a holder in due course, and the record being in this condition, the burden is upon the appellant to prove that the holder was not a holder in due course, and, there being no such proof, a showing of failure of consideration is insufficient to require the appellee to prove that it became the holder of said notes in due course.

A judgment was entered in accordance with the findings, from which Nicholas has appealed.

There are numerous assignments of error which have been grouped by the appellant and are submitted as propositions.

Under the first group of assignments, it is contended that, because there was a failure of consideration for the notes, as found by the court, the title to the notes was defective in the hands of the payee, Womble, which shifted upon the appellee the burden of proving that it was a holder in due course, which burden it failed to discharge.

In support of this contention, the appellant cites Taylor & Co. v. Nehi Bottling Co. (Tex. Civ. App.) 30 S.W.(2d) 494; Campbell v. Rosenow (Tex. Civ. App.) 32 S.W.(2d) 372; R. S. art. 5935, §§ 55 and 59.

Section 55 is:

“The title of a person who negotiates an instrument is defective within the meaning ®f this Act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means,, or for an illegal consideration, or when he negotiates it in breach of faith, or under such, circumstances as amount to a fraud.”

Section 59, under this article, is:

“Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as holder in due course,” etc.

Reference to the cases cited shows that they sustain the appellant’s contention to the effect that a proof of failure of consideration of a note in the hands of a holder in due course shifts the burden upon such holder to prove his bona fides. The eases cited are by the Courts of Civil Appeals, and are persuasive in support of the rule announced, but in Lozano et ux. v. Meyers (Tex. Com. App.) 18 S.W.(2d) 588, affirming same case in (Tex. Civ. App.) 8 S.W.(2d) 785, Harvey, P. J., says that the holder in due course of a negotiable note executed in part payment for architectural work in construction of improvements was entitled to recover thereon under R. S. 1925, art. 5933, §§ 25, 28, regardless of contractor’s failure to construct the building, since the status of a holder in due course was not lost by reason of subsequent failure of consideration or breach of contract. In Jackes-Evans Mfg. Co. v. Goss (Tex. Civ. App.) 254. S. W. 320, Judge Willson of the Texarkana court had construed the negotiable instruments law in the same manner. See 6 Tex. Jur. 855, 856, § 207, note 2, and authorities cited.

We believe these cases aré conclusive of the contentions, -and appellant’s first proposition is overruled.

Under the second group of propositions, it is insisted that, because the record discloses fraud or shows circumstances raising a' strong suspicion that Womble had perpetrated a fraud upon appellant in the sale of the combine constituting a defective title to the notes in the payee’s hands, the burden of proving that it was a holder in due course was cast upon the appellee.

The allegations of the appellant’s answer are sufficient to show fraud, although it is not alleged that the representations were fraudulently, made, and there is no statement in the pleading that Womble had made the representations falsely and fraudulently. Hickernall v. Gregory (Tex. Civ. App.) 224 S. W. 691. The trial court, however, heard the evidence, observed the witnesses as they testified, and has found that Womble was not guilty of fraud. We cannot disturb that finding, and the second contention is therefore overruled.

The court having found that Womble was not the agent of the appellee, and there being evidence to sustain the finding, for the reasons just' stated we overrule the contentions under the third group of propositions.

By the last proposition it is insisted that the court erred in foreclosing the chattel mortgage lien on 14,440 pounds of wheat stored in the Castro county grain elevator, be-pause the evidence was insufficient to identify the wheat 'as being that covered by the mortgage.

This proposition is not followed by any statement from the record, and cannot therefore be considered. It is true that the court found that Nicholas had instructed some of his employees to pay off the $300 note and interest after he had discovered that there was a failure of consideration, but the judgment is not based upon any such finding, and, because waiver and ratification was not alleged by the appellee, the issue is not in the case, and this finding is immaterial.

We find no reversible error in the record, and the judgment is affirmed.


author: WALKER, J.

text:
    HOLLAND TEXAS HYPOTHEEK BANK OF AMSTERDAM, HOLLAND, et al. v. LINSCOME.
    No. 2096.
    Court of Civil Appeals of Texas. Beaumont.
    March 19, 1931.
    E. L. Nall, of Beaumont, for appellants.
    A. L. Shaw, of Beaumont, for appellee.
   WALKER, J.

This is an appeal from an order in chambers, made by the judge of the Fifty-Eighth district court of Jefferson county upon the petition of appellee, A. M. Linseome, granting him a temporary injunction restraining appellants from selling, under a deed of trust, certain property described in appellee’s petition and in the deed of trust.

Appellee alleged in his sworn petition that he bought the property in question from Industrial Investment Company, a corporation, for the consideration of $6,500 paid and to be paid as follows, to wit, $1,600-in property as cash, one vendor’s lien note for $2,700 executed by appellee to Industrial Investment Company, and the assumption of a certain promissory note against said property for the sum of $2,800 dated October 30, 1925, due five years after its date, payable to tbe defendant Holland Texas Hypotheek Bank of Amsterdam, Holland. Under the allegations of the petition the $2,800 note was secured by a deed of trust upon the property in controversy. The note was duo and the bank was attempting to force its collection by selling the property under its deed of trust after having given due notice of such sale. For grounds of relief appellee alleged that he purchased the property from the Industrial Investment Company upon its representations that the property was worth $6,500 and a bargain ht the price-; that the improvements thereon were only three years old and were made of good material, all of which representations wore alleged to be false. There was no allegation that Holland Texas Hypotheek Bank was a party in any way to the transactions between appellee and Industrial Investment Company, nor was there an allegation that Holland Texas Hypotheek Bank was seeking to hold appellee upon his assumption of the $2,800 note; nor was there an allegation that Industrial Investment "Company was not able to respond in damages to any judgment that appellee might recover against it; nor was there an allegation that the property under the deed of trust sale would not bring enough to pay the $2,800 note in full. The prayer was for temporary injunction, and, upon hearing for cancellation of the $2,-700 vendor’s lien note, for the recovery of the eonsideration paid and for release against his promise to pay the $2,800 note, and for general relief.

The temporary injunction was issued upon the following order of the district judge:

“The foregoing petition for injunction being considered it is ordered that the Clerk of the District Court of Jefferson County, Texas, issue a writ of injunction in all things prayed for within the petition of plaintiffs.

“Geo. C. O’Brien, Judge 58th District Court.”

The writ of injunction made the following recitation as to the injunction bond: “And, whereas, the said petitioner has executed and ■filed with the Clerk of said Court, a bond in the sum of $-Dollars made payable and conditioned as required by law and the fiat of the Judge.” Though the order of the judge required no bond, and the injunction did not Tecite the execution of an injunction bond, appellee, on the same day the writ was issued, filed with the clerk his bond in the sum of $150, which contains the recitation: “The amount fixed by the order of the Judge.” As above stated, the judge made no order requiring any bond whatever, so the recitation in the bond as just quoted is without support.

The appeal is before us upon briefs by both parties, but no.assignments of error were filed in the trial court, nor do we find any assignments of error in the transcript. Upon this ground appellee prays that the appeal be dismissed. The motion is overruled. Under article 4662, It. S. 1925, appeals from orders granting temporary injunctions may be heard by the Court of Civil Appeals without assignments of error. Cameron v. City of Waco (Tex. Civ. App.) 8 S.W.(2d) 249; Smith v. Crank (Tex. Civ. App.) 259 S. W. 989; Moore v. Norton (Tex. Civ. App.) 215 S. W. 373; Lilly v. City of Houston Heights (Tex. Civ. App.) 158 S. W. 189.

The provisions of article 4648 requiring the judge to specify in the order granting the writ the amount of the bond to be given by the applicant as a prerequisite to the issuance -of the writ of injunction is mandatory. Ex Parte Coward, 110 Tex. 587, 222 S. W. 531; Phoebus v. Connellee (Tex. Civ. App.) 228 S. W. 982; Boykin v. Patterson (Tex. Civ. App.) 214 S. W. 611; Paine v. Carpenter, 51 Tex. Civ. App. 191, 111 S. W. 430, 431; Houston Ice & Brewing Co. v. Clint (Tex. Civ. App.) 159 S. W. 409; Marshall v. Spiller (Tex. Civ. App.) 184 S. W. 285; Cole v. Varner (Tex. Civ. App.) 246 S. W. 410; Farb v. Theis (Tex. Civ. App.) 250 S. W. 290; Pruett v. Fortenberry (Tex. Civ. App.) 254 S. W. 592; West Texas Abstract & Guaranty Co. v. Stolte (Tex. Civ. App.) 256 S. W. 632; Irrigation Co. v. Ford (Tex. Civ. App.) 260 S. W. 277; Griffin v. State, 100 Tex. Cr. R. 641, 274 S. W. 611.

The bond executed by appellee in the sum of $150 did not cure the omission in the fiat of the judge in failing to require of ap-pellee the execution of a bonfl. In Ex parte Coward, 110 Tex. 587, 222 S. W. 531, the Supreme Court said: “The judge was therefore without power to grant the injunction without requiring a bond from the plaintiff, and the injunction was accordingly void.”

But apart from what has been said, the writ was improvidently granted. Under the allegations of appellee’s petition, appellant Holland Texas Hypotheek Bank was in no way a party to the transactions between ap-pellee and Industrial Investment Company. There being no allegation that this appellant was seeking to take advantage of appellee's promise to assume and pay off the $2,800 note, appellee’s petition failed to state grounds sustaining the writ of injunction against Holland Texas Hypotheek Bank.

For the reasons stated, the judgment of the lower court is reversed, and the temporary injunction dissolved.


author: PLY, C. J.

text:
    GIBSON v. CHAPMAN, Banking Com’r.
    No. 8557.
    Court of Civil Appeals of Texas. San Antonio.
    March 4, 1931.
    Rehearing Denied April 8, 1931.

      W. R. Blackshear, of Laredo, for appellant.
    N. A. Rector, of Laredo, for appellee.
   PLY, C. J.

This is a second appeal of this cause. J. L. Chapman, Banking Commissioner v. Gordon Gibson (Civ. App.) 8 S.W.(2d) 711. We adopt the statement of the proceedings in that case:

“The suit was instituted in Aransas county, in which the bank operated and failed; it being alleged that appellee resided in Tar-rant county. On January 6, 1925, on the first day of the first term of the county court after the suit was filed, appellee filed a plea of privilege to be sued in Webb county. On the same day appellant filed an exception to the plea of privilege ‘because said plea reguests this court to transfer this cause to the district court of Webb county, Tex., without giving any reason why the same ought to be transferred to said court.’ No controverting answer was filed. On the same day, January 6, 1925, the court held the exception well taken, overruled the plea of privilege, and rendered judgment against appellee for $500, with interest. Appellant sought to collect that judgment by execution and writ of garnishment ; the prosecution of the last-named writ being restrained by the district court of Webb county June 2, 1927. Ón July 18, 1927, Charles 0: Austin, successor as banking commissioner to J. L. Chapman, moved the county court of Aransas county to set aside its orders and judgment of January 6, 1925, and prayed that court in addition to enter an order transferring the cause to Webb county. The motion was in all things granted, and the cause transferred to Webb county. The transcript of the proceedings of the county court of Aransas county was filed in the district court of Webb county on August 8, 1927, and on October 17, 1927, appellee filed an answer to the petition of appellant, and on same .date filed a motion to dismiss the cause for want of prosecution.”

The cause was tried without a jury, and judgment for $500, with interest at 6 per cent, from date of judgment, was rendered against appellant.

The court, under the testimony, properly found that the bank of which appellant was a shareholder and director was closed and taken possession of by the commissioner of banking of the state of Texas,.and that an assessment of $500 was duly and legally placed on appellant. It-was not paid and suit was instituted by the commissioner against appellant. He filed, in due course, his plea of privilege to be sued in Webb county. No controverting affidavit was filed, but an exception to the plea was presented to and sustained by the court and judgment rendered against appellant for the amount of the assessment. Further facts are stated in the statement made on the former appeal. More than two years after the rendition of the judgment,. Austin, who had succeeded Chapman as banking commissioner, had the judgment set aside and the cause transferred to Webb county. It is strenuously insisted that appellee abandoned the prosecution of his-cause for the reason that he did not ignore the judgment of the county'court of Aransas county and at once have the case transferred to Webb county for trial. He has cited a number of causes to sustain that contention as he" did on the former appeal. A reiteration that the authorities sustain his position does not add to nor alter this decision, and renders them no more applicable to the facts of this case than when the case was here on the former appeal. Not one of them is in point. For instance, in the old case of Flanagan v. Smith, 21 Tex. 493, it was held where a suit was filed in a justice’s court and no further action taken therein by the plaintiff or the justice of the peace for four years, the cause was abandoned and should be dismissed for want of prosecution. Does it require argument or discussion to demonstrate that the facts of that case render it totally inapplicable to the facts of this ease? The difference is so apparent that it would seem that any one could see it. The case of Brooks Supply Co. v. Hardee (Tex. Civ. App.) 32 S.W.(2d) 384, is one in which a party had given notice of appeal from an order granting a change of venue and no further action was taken by the plaintiff for six years. Of course, the court held that the plaintiff had abandoned the cause. The difference between the facts of that case and this is plain. No case has been cited in which the plaintiff acted with decision and had used all means afforded by law to carry out a judgment and was held to have abandoned his suit. Appellant seeks to hold appellee, a state officer, responsible, not for his own neglect, but for errors committed by a court in rendering a judgment in his favor. The state officer who held the office when the judgment was rendered in his favor, evidently believed it was correct and used all means given him by law to collect the amount for which the judgment was rendered. The new banking commissioner concluded it was best to have the judgment set aside and to transfer the cause under the plea of privilege. For this action it is sought to penalize the banking department of the state.

The facts sustain the judgment as found by the trial judge, and the judgment is affirmed.


author: ' HALL, C. j.

text:
    HICKS et al. v. WELLS et al.
    No. 3574.
    Court of Civil Appeals of Texas. Amarillo.
    March 18, 1931.
    Rehearing Denied April 8, 1931.
    Carl Gilliland, of Hereford, for appellants.
    Shannon, Oehsner & Pheiffer, of Amarillo, for appellees.
   ' HALL, C. j.

This suit was filed by Wells & Wells, real estate brokers, to recover of J. W. Hicks and W. H. Hicks commissions alleged to be due plaintiffs for their services in effecting a sale of certain land which belonged to the defendants to Clemens Rickwartz and wife.

The plaintiffs allege that they procured Rickwartz and wife as purchasers for the land belonging to the defendants, who were satisfactory to defendants and who entered into a valid enforceable contract in writing with said proposed purchasers, setting forth the terms and conditions of the sale. That .plaintiffs were entitled under their contract to receive 5 per cent, upon the purchase price, which amounts to $1,306, which defendants have failed and refused to pay.

The defendants answered by general demurrer and general denial, and later filed a trial amendment in which they allege that the plaintiffs have been disloyal, caused their contract with Rickwartz and wife to be -acknowledged on the 18th day of February, 1930, and before any commissions were due and payable, and had said contract recorded in the office of the county clerk of Randall county on the 19th day of February, 1930, for the purpose of clouding the defendants’ title to the land and compel the defendants to pay plaintiffs the commissions which they claim.

The sufficiency of the pleadings is not questioned.

The case is before us upon one proposition by which it is insisted that the court erred in refusing to peremptorily instruct the jury to find in favor of the defendants.

The court submitted only one issue, as follows: “Did the defendant W. H. Hicks, before or on the 18th day of February, 1930, disaffirm and refuse to perform the written contract dated January 27, 1930, introduced in evidence as plaintiffs’ exhibit ‘A’?” To which the jury answered “Yes.” Based upon tbis verdict, the court rendered judgment against the defendants for the full amount sued for and interest.

The record shows that the defendants had entered into a written valid contract of sale with Rickwartz and wife, and later, without any excuse, refused to consummate the deal. The willingness and ability of Rickwartz and wife to complete the sale prior to the time the defendants refused to convey and breached their contract to do so is not questioned. The plaintiffs were entitled to their commission when the bindin'g contract between defendants and the proposed purchasers was entered into, and upon breach of the contract by defendants, and their refusal to consummate the deal, plaintiffs were justified in terminating the relation of principal and broker and at once take the necessary steps to collect what was due them under their brokerage contract.

The appellants rely upon the case of Rogers v. McMillen, 62 Tex. Civ. App. 486, 132 S. W. 853. That case is not applicable. In that case there was only a conditional agreement on the part of the purchasers to buy the land. In the instant case, a valid binding contract had been entered into. In the Rogers Case the broker attached his principal’s land before he was entitled to recover his commission. That is not the condition here. There is a maxim that he who comes into equity must come with clean hands.

In Sanders v. Cauley, 52 Tex. Civ. App. 261, 113 S. W. 560, the court said equity will not aid a complainant if his claim grows out of or depends on or is inseparably connected with his own prior fraud or misconduct. It is not contended that the defendants in this ease were justified in breaching their contract to sell to Rickwartz. Since they are the original wrongdoers, they are in no position to ask a court of equity to protect them against the payment of compensation which had already been earned, because, as 'they allege, the brokers had been disloyal 'and unfaithful.

We are not called upon to discuss the ethical side of this controversy, but as a matter of equity the defendants’ hands are unclean, and they are in no position to charge the other party to the transaction with fraud, even if such a charge could be sustained. The act of the plaintiffs in procuring Rickwar-tz and wife to acknowledge the contract after the defendants had refused to comply with it, and the further conduct of plaintiffs in having the contract placed upon the deed records, may have had the effect of clouding the title to the land described in the contract, but this is not a suit to remove cloud, and we are not concerned with that matter.

There is no reversible error in the record, and the judgment is affirmed.


author: CONNER, C. J.

text:
    FLOURNOY v. STORY.
    No. 12398.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 13, 1930.
    Taylor, Muse- & Taylor, of Wichita Falls, for appellant.-
    Fischer & Fischer, of Wichita Falls, for appellee.
   CONNER, C. J.

Appellant, A. M. Flournoy, instituted this-'suit against J. L. Story to recover actual and exemplary damages in a large amount for libel based upon a letter written by Story which was attached to the plaintiff’s petition.

The trial resulted in a judgment that plaintiff, A. M. Flournoy, take nothing by reason of his suit, and that defendant, J. L. Story, be discharged with his costs. From the judgment so entered, plaintiff has duly prosecuted an appeal to this court.

The case was tried before a jury upon special issues, which, together with the answers thereto, are as follows:

“1. Do you find from a preponderance of the evidence that the statements made by the defendant of, about or concerning the plaintiff .were true?
“Answer: No.
“2. If you have answered issue No. ‘1’ ‘yes,’’ you need not answer any subsequent issues, but if you have answered the same ‘no,’ tHen answer:
“Find from a preponderance of the evidence what amount, if -any, if paid now, would reasonably compensate the plaintiff for the actual damages suffered by him, if any?
“Answer: None.
“3. In answering the -above issue, you may take into consideration -the occupation, age and standing of plaintiff and all of the surrounding circumstances, as well as any loss of credit, if any, positive or mental anguish, if any, arising therefrom or caused thereby, if you find that he suffered any pecuniary loss,, together with any loss of reputation or standing among the people who know him and you-may consider all of these matters in fixing the-amount of damages, if -any.
“3. Do you find by a preponderance of evidence that defendant Story was prompted by ill-will, hatred or malice towards the plaintiff at the time he made the statement concerning the plaintiff,'if you have found the-statements so made -by the defendant Story to be untrue.
“Answer: Yes.
“In answering the above issue you are in-■struc-ted that by the term ‘malice’ as used in-■this charge, is meant wrongful acts done or words spoken intentionally, towards, about or concerning a person without just cause or excuse, the person uttering same being at the time actuated by feeling of hatred or ill-will.
“4. If you have answered issue No. 3 ‘no,’ then you need not answer this issue, but if you have answered ‘yes,’ then answer:
“Find by a preponderance of evidence what sum of money would reasonably punish the defendant for having made such wrongful and malicious statements, if you find that he made any concerning the plaintiff.
“Answer: $600.00.
“Tlie damages referred to in special issue No. 4 is known as ‘exemplary damages,’ and as used in this charge is meant that punishment to which a person is subjected for the wilfull, wanton or reckless disregard of a persons’ rights, which may be prompted by malice, ill-will or hatred. And if you find that at the time defendant made the statements thai; he believe the same to he true, then you will not find exemplary damages against the defendant as referred to in issue No. 4.”

On the return of the verdict the plaintiff by written motion requested the court to enter judgment in his favor for $600, based on the verdict of the jury. This motion being overruled, the plaintiff further requested the court by motion that a mistrial be declared and the cause set down for trial at some future day. This was also overruled, and the court entered judgment as stated in the beginning of this opinion..

There is no brief in behalf of appellee, and the principal contention of appellant is that the court erred in overruling the motion to enter judgment in his favor. From the court’s instructions it is evident that he assumed that appellee in fact wrote and circulated the letter alleged to be libelous, and that in fact the letter was libelous per-se, and appellant makes no complaint of the court having so assumed.

Article 5430, Rev. Oiv. Statutes, defines libel as follows: “A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.”

The letter upon which the plaintiff predicated his suit and which, as stated, was attached to his petition, is quite voluminous, but we think it sufficient that, among other things, it in effect charged that plaintiff was a liar, a thief, and a swindler. That the letter was circulated and published as alleged is not disputed. So that, it cannot be said that the action of plaintiff in the prosecution of the suit was not justified.

In the case of Girard v. Moore, 86 Tex. 675, 26 S. W. 945, 946, decided by our Supreme Court in answer to a certified question, it was said: “It has been repeatedly held by this court that, where no actual damage is shown, there can be no recovery for exemplary damages. Flanagan v. Womack, 54 Tex. 45; Trawick v. Martin-Brown Co., 79 Tex. 460, 14 S. W. 564; Jones v. Matthews, 75 Tex. 112 S. W. 823.”

It is stated in appellant’s brief that it was upon this theory that the court entered the judgment appealed from, and appellant’s counsel does not contend that the rule is otherwise than as stated in the case from which we have quoted, but the insistence is that a mistrial should have been declared. We are not prepared to concur in this contention, but we do think that the court erred in entirely discharging appellee as was done In his judgment, and that this error is apparent upon the face of the record, and hence available here in behalf of appellant as fundamental error.

In the case of Mayo v. Goldman, 57 Tex. Civ. App. 475, 122 S. W. 449, 450, by the Tex-arkana Court of Civil Appeals, it is said that: “If, as we think is true, the words charged to have been spoken were per se slanderous and if they were spoken as charged, and the imputation they conveyed was a false one, appellant was entitled to recover at least nominal damages, without regard to appellee’s intent in speaking them. 18 A. & E. Ency. Law (2d Ed.) p. 1088; Irwin v. Cook, 24 Tex. 244.”

In Butts v. Long, 94 Mo. App. 687, 68 S. W. 754, by the St. Louis Court of Appeals, it was held, quoting from the headnotes, that: “In an action for slander of title, plaintiff is entitled, on a proper showing, to a judgment for at least nominal damages, even though no substantial damages appear.”

In numerous decisions of our own courts it has been held that, on any invasion of a right, damages are inferred in law so as to justify the award of a nominal or trifling sum. See cases cited in Digest of Texas Reports, vol. 5, page 839. There is a clear distinction in the definitions of nominal, actual, and exemplary damages. Nominal damages are not actual damages, but an arbitrary amount that may be assessed by court or jury for the invasion of a legal right, even though no actual damage may be awarded.

The case of Irwin v. Cook, 24 Tex. 244, cited in the quotation from Mayo v. Goldman, supra, was one in which the jury gave nominal damages only, and the question was whether the court erred in refusing a new trial. In disposing of the case it was said: “It may bo, that in this case, it would have been proper for the jury to have given a verdict for a larger amount; but, as they had no evidence before them of any actual damage to the plaintiff, they could not be required to give more. It was a matter entirely within their discretion, in which they were to be governed alone by their own moral sense of justice. As, therefore, no damages were shown, nor any mode of arriving at any certain amount, the court did not err, -in refusing a new trial.”

In the case before us, it is not contended that there is any evidence tending to show that appellant suffered any actual damage. Indeed, no error is assigned to the finding of the jury that appellant suffered no actual damage. So that, we see no reason for holding that the trial court erred in refusing to declare a mistrial, but we think that the plaintiff should certainly be accorded the legal right to remove the cloud upon his good name, and, as already stated, that under the findings he was entitled to recover at least nominal damages.

It being our duty” under the statutes to here render such judgment as the court below should have rendered, it is ordered that the judgment below be reversed and here rendered in appellant’s favor for the sum of $1 as nominal damages, together with all costs of suit in the trial below, as well as all costs incurred on this appeal.


author: BAUGH, J.

text:
    PARMA v. FIRST NAT. BANK OF CAMERON.
    No. 7566.
    Court of Civil Appeals of Texas. Austin.
    March 4, 1931.
    Rehearing Denied April. 1, 1931.

      W. A. Morrison, of Cameron, for appellant.
    I-Iendorson, Kidd & Henderson, of Cameron, for appellee.
   BAUGH, J.

Tliis is the second appeal of this case. The former appeal is reported in 22 S.W.(2d) 957. Upon jury answers to special issues submitted, the trial court rendered judgment in favor of the bank for its debt, and against appellant on his cross-action; hence this appeal.

The bank sued Parma on overdrafts drawn on it by Parma and paid to farmers for cotton purchased by him from them between October 5 and October 12, 1927, aggregating $3,-218.99. Parma admitted this indebtedness, and set up a cross-action for $1,950.64, the amount of an acceptance delivered to him on September 17, 1927, by the Vest Cotton Company, a corporation, in payment for 44 bales of cotton sold by him on that date to said company, alleging: (1) That said bank had failed to give him credit for same; or (2) that the bank and the Vest Cotton Company, known by the bank to be then insolvent, had fraudulently conspired to get possession of, and had sold, said 44 bales of cotton without paying him for same; and (3) that, never having been paid for said 44 bales of cotton, the title to same never passed out of him; and that the bank, when the cotton was shipped away from Cameron, purchased the bills of lading thereon with drafts attached, and was guilty of conversion of the cotton and liable to Par-ma for its value. The Vest Cotton Company was alleged to be insolvent, and was not made a party to the suit.

It appears that appellee bank was financing the Vest Cotton Company in purchasing and shipping cotton at Cameron during the 1927 season by paying its acceptances and charging it interest on overdrafts. Parma purchased cotton for the Vest Cotton Company for which he was paid 50 cents per bale. In purchasing same, however, he paid for it with checks on his individual account in ap-pellee bank. Usually the Vest Cotton Company took up his cotton at the end of each day, giving him its check on appellee bank for all he had paid out that day, plus the 50 cents for each bale. Sometimes, however, Parma purchased cotton on his own initiative at prices above the day’s market limit, given him by the Vest Cotton Company, such purchase being made at his own risk, and subsequently sold the cotton outright to the Vest Cotton Company.

On September 17, 1927, Parma had on hand 44 bales purchased by him during the preceding ten days, partly on market quotations, and partly at his own risk. On that date, he sold same to the Vest Cotton Company, which delivered to him its check on appellee bank for $4,950.64 in payment therefor. He then delivered to Richard Vest, its agent, the compress receipts for the cotton. He also indorsed its check to him, and handed same, together with his bank passbook and deposit slip for the amount, back to said Richard Vest, with request that he deposit same to Parma’s credit in appellee bank. This method 'of deposit was a common practice between them, and was an accommodation to Parma whose place of business was about a mile from the bank. The bank had nothing to da with the arrangement between Parma and ■the Vest Cotton Company.

Purchases and sales in this manner continued until October 12 or 13; 1927, when the bank notified Parma that his personal account was overdrawn several thousand dollars. Parma then first discovered that he had not been given credit for the $4,950.64 check in question. Meantime most of the 44 bales had already been sold by the Vest Cotton Company, shipped out in different lots to Galveston and Houston, under bills of lading with drafts attached, drawn on the purchaser by said company, indorsed by it to appellee bank, which gave the Vest Cotton Company credit for same on its indebtedness to said, bank.

On the issues presented the jury found: (1) That it was in contemplation of the parties that Parma was to have the cash on said acceptance for $4,950.64 or credit for it at ap-pellee bank; (2) that Parnm redelivered the acceptance to Richard Vest for the purpose and with the request that he deposit same immediately to appellant’s credit in said bank; (3) that Richard Vest did not so deposit it; ' (4) that said Vest did not act fraudulently at the time for the purpose of cheating Parma out of his cotton without paying him for it.

The other issues submitted relate to the value of the cotton, and are not controverted.

Appellant’s first contention is that, under the undisputed evidence, the sale of the cotton to Vest Cotton Company being intended as a cash transaction, and not having been paid for, no title to said cotton passed to said company, and that the bank therefore converted the cotton by purchasing the drafts with bills of lading attached.

We do not sustain this contention. It is clear,' we think that, when Parma delivered the compress receipts to the Vest Cotton Company on September 17th, it was intended as a delivery of the possession of the cotton itself. Such was its effect. Carpenter v. Coffey (Tex. Civ. App.) 245 S. W. 1041. In doing so he invested the purchaser with full power to dispose of it and make delivery to a subsequent purchaser. Parma knew at the time that said company was only a local buyer; that it was constantly shipping out cotton so handled; that this cotton would in the usual course of business probably be resold and shipped out of Cameron within a few days; and that such was the only purpose for which Vest Cotton Company purchased it; 40 bales of it were commingled with and shipped out in six different shipments prior to October 1st; and the other 4 bales subsequently shipped in other lots. There was nothing in any of these shipments to indicate that the cotton here involved had not been paid for; nor to identify the cotton in question as being purchased from Parma. That company had possession of the cotton with all the indicia of ownership, and it was handled in the same manner that thousands of other bales were handled by the same parties through appellee bank.

When Parma delivered his check to Richard Vest for deposit in the bank, he made Vest his agent for that purpose, and Vest’s dereliction in failing to do so became his own. So far as the record shows, the check was never presented to the bank for payment or credit. The evidence is undisputed that, if same had been presented at any time between September 17th and October 12th, it would have been paid. Between those dates Parma received from the Vest Cotton Company at least six other acceptances for cotton sold by him to it, aggregating more than $30,000, which were deposited to his credit in appel-lee bank; and during said intervening period he had in his possession at various times his hank passbook, in which no credit or deposit had ever been entered for the $4,950.64 check dated September 17th. Parma testified, however, that it was not until the bank called his attention to his overdraft on October 12th or 13th that he-examined his book and first discovered that no such credit had been given him.

The general rule is that in cash sales ■of personal property, where a cheek is given for the purchase price, the sale is only conditional, and title does not pass to the purchaser unless and until the check is paid. If payment of such check is refused, the seller may reclaim his property, provided ho acts promptly. But, in the instant case, payment of the check was never refused. Failure to present it for xiayment, or to ascertain that it had not been presented, for a period of 26 days, was clearly due to the negligence of appellant himself. It was his duty to examine his bank passbook, and he was charged with notice of what it disclosed. Michie Bank and Banking, vol. 2, pp. 1100, 125S; Weinstein v. Nat. Bank, 69 Tex. 38, 6 S. W. 171, 5 Am. St. Rep. 23; Fifth National Bank of San Antonio v. National Bank of Llano, 92 Tex. 436, 49 S. W. 368; Calvin Coal Co. v. Bank (Tex. Civ. App.) 286 S. W. 901.

In purchasing the drafts with bills of lading attached from the Vest Cotton Company, appellee bank was clearly an innocent purchaser for value from one in possession of the cotton clothed with all the indicia of ownership;'

Though the salp were intended as a cash transaction, a voluntary, complete, and unconditional delivery of the property, with the full knowledge and expectation that the purchaser would resell said cotton in its customary and usual order of business, and without seeing to it that he was first paid, conclusively indicates, we think, that it was the intention of the parties that title to the property should pass to the purchaser at the time of delivery. Under such circumstances Par-ma waived his right to reclaim said property in the hands of innocent third parties, and must rely upon his purchaser to pay him. Cox v. Early, Foster & Co. (Tex. Civ. App.) 143 S. W. 345; Williston on Sales, § 346; Kempner Grain Co. v. Harbour, 89 Kan. 824, 133 P. 565, 47 L. R. A. (N. S.) 173; 24 R. C. L. 37.

In any event, under the undisputed facts disclosed by the record, appellant was clearly estopped to assert any claim to said cotton as- against the bank. Kempner v. Vaughn (Tex. Civ. App.) 174 S. W. 695; 24 R. C. L. 378, and numerous authorities there cited. His failure to act for a period of more than 20 days on the information disclosed by his bank passbook, during which time the bank had paid Vest Cotton Company for the cotton, and was thereafter unable to protect itself, clearly estopped appellant to recover against it.

We find no evidence in the record of any conspiracy between the bank and the Vest Cotton Company to cheat Parma out of the value of his cotton. Hence it was hot error to refuse to submit that issue to the jury. Nor was it error to refuse to submit the issue as lo whether the bank paid the Vest Cotton Company “any cash money or other thing of value” for the cotton in question. The undisputed evidence showed that Vest Cotton Company shipped out 50 and 100 bale lots at frequent intervals; that the 44 bales in question were commingled with some ten of these shipments; and that the bank credited the Vest Cotton Company’s account with the amounts of the various drafts. No issue of fact was therefore presented. Whether payment to Vest Cotton Company was made by depositing to its credit the amount of the drafts, or merely crediting its debt to the bank with such amounts, is immaterial. Either method constituted the same valuable consideration and entitled the bank to the same protection. Howe Grain & Mercantile Co. v. Crouch Grain Co. (Tex. Civ. App.) 211 S. W. 946; Wichita Falls Compress Co. v. W. L. Moody & Co. (Tex. Civ. App.) 154 S. W. 1032.

' There was no denial that Parma had never been paid for his cotton, and it was not necessary to submit that question to the jury. Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


author: WALKER, .1.

text:
    TEXAS INDEMNITY INS. CO. v. WHITE.
    No. 2063.
    Court of Civil Appeals of Texas. Beaumont.
    March 17, 1931.
    Rehearing Denied April 1, 1931.
    Minor & Dipscomb, of Beaumont, for appellant.
    Holland & Cousins.and IIowcll & Howell, all of Beaumont, for appellee.
   WALKER, .1.

This is a compensation case tried upon ap-pellee's appeal from an award of the Industrial Accident Board denying him the compensation claimed under the provisions of the Workmen's Compensation Act (Bev. St. 1925, art. 8306 et seq.). The following agreement was made upon the trial of the case to a jury: “It was admitted by defendant, Texas Indemnity Insurance Company that on the 18th day of June, 1928, it was the insurer for Magnolia Petroleum Company; that the Industrial Accident Board made an award in the matter of the claim of Isaac White, against the Texas Indemnity Insurance Company ; that notice of dissatisfaction with the ruling of the Industrial Accident Board was given to the Company within twenty (20) days after the date of said award; and that suit was filed by the plaintiff, Isaac White in the District Court of Jefferson County, Texas, within twenty (20) days after giving notice of his dissatisfaction with the award of the Industrial Accident Board theretofore made on September 4th, 1929.’’

Answering special issues, the jury found that appellant sustained personal injuries on June IS, 1928, in the course of his employment with the Magnolia Petroleum Company, resulting in permanent total incapacity; his employer had actual notice of his injuries within thirty days after June 18, 1928; his physical condition was good cause for his failure to make claim for compensation within six months; his average weekly wage was $15.98; additional facts were found entitling him to a lump sum settlement. Judgment was accordingly entered in his favor for $8,-377.90 “in the lump sum,” with interest at 6 per cent.

Opinion.

There being no evidence upon the issue, appellant insists that the trial agreement copied above was insufficient to show that “appellee filed his claim with the Industrial Accident Board.” Appellant does not assign error against the finding of the jury on the issue of good cause for the failure to file the claim within six months. The point is that there ife no evidence that the claim was ever filed. This proposition is denied. The agreement specifically states “that the Industrial Accident Board made an award in the matter of the claim of Tsaac AVhitc.” This agreement necessarily included the fact that the claim was filed, for otherwise the- claim would not have been before the board for adjudication, and there would have been no basis for the award.

Appellant’s second proposition is that the district court was without jurisdiction to try this case or, to state the proposition differently, that appellant ■ failed to prove that the amount of his claim as adjudicated by the Industrial Accident Board was within the jurisdiction of the district court. The language of the proposition is: “It was incumbent upon the plaintiff to prove, among other things, (b) the nature of the claim, that is, whether for partial disability, total permanent disability or partial permanent disability; and (e) the amount of his claim asserted before the Industrial Accident Board.”

By this proposition appellant does not assert that appellee was required to prove in dollars and cents the amount claimed by him before the Industrial Accident Board, but only that he was required to show that the nature of the claim there submitted was com-pensable within the jurisdiction of the district court. This proposition is not sound. Where the claim is denied or the claimant is not granted an amount of compensation satisfactory to him, as against this proposition, the essential jurisdictional fact to maintain his appeal, under Mingus v. Wadley, 115 Tes. 551, 285 S. W. 10S4, is the identity of the injury upon which he bases his cause of action with the injury adjudicated by the Board. The amount of the claim before the Industrial Accident Board, whether for a specific sum or for a specific injury or for a sum to be calculated from the nature and extent of the claimant’s disability, is immaterial upon the issue of jurisdiction of the forum selected by him to review the adverse award. Being the same'injury adjudicated by the Industrial Accident Board, whatever may have been its nature or its results, that is, the nature of the injury and the extent of the claimant’s incapacity as there developed, he has the right to file his suit to review: the adverse award in the court that has jurisdiction to review his claim and give full compensation for the injury and its results as they exist at the time he files his suit. This proposition has support in AEtna Life Insurance Co. v. Bulgier, 19 S.W.(2d) 821, 828, where Mr. Chief Justice Jones of the Dallas Court of Civil -Appeals said: “We overrule appellant’s contention that appellee, having given notice to appellant and to the accident board of a specific injury, to wit, an injury affecting the right arm, in that there were fractures on the bones of said arm in and around the wrist, that she is held, under the Workmen’s Compensation Law (Rev. St. 1925, arts. 8306-8309), to a claim for only a specific injury to the arm. We do not understand this to be the construction given the law by our higher courts in cases where the ultimate result of such injury was not confined to the injured member. The intention of the law is to give full remuneration under its schedule of allowances for the injury actually received, and the results actually flowing from such' injury.”

This holding directly supports our proposition. Eor, if the Industrial Accident Board in making its award is not confined to the character of the claim filed before it, but may give full compensation for the injury and its actual results at the date of the award, certainly the claimant when he files his suit on appeal from the award of the Industrial Accident Board may claim full compensation for his injuries and “the results actually flowing from such injuries” as they exist when he files his suit on appeal, without regard to the nature of the claim or extent of disability at the time of the’ award.

Appellant’s last proposition is that the court erred in refusing to submit, at its request, the following question: “Do you find from a preponderance of the evidence that the present disability of the defendant is due to a disease independent of an injury sustained in the course of his employment?”

Though this issue was pleaded by appellant, no error was committed in refusing to submit it to the jury, because no evidence was offered in support thereof.

For the reasons stated, it is ordered that the judgment of the lower court be and the same is hereby in all things affirmed.

Affirmed.


text:
    UNDERWOOD TYPEWRITER CO. v. NACOGDOCHES COUNTY.
    No. 2066.
    Court of Civil Appeals of Texas. Beaumont.
    March 27, 1931.
    Rehearing Denied April 8, 1931.

      Adams & McAlister, of Nacogdoches, for appellant.
    F. P. Marshall, of Nacogdoches, for appel-lee.
   WALKER, J.

This suit was filed in the district court of Nacogdoches county by appellant against ap-pellee to recover the sum of $107.50, the price of a typewriter sold by it to R. M. Pace, district clerk of Nacogdoches county. The following is a verbatim copy of appellant’s petition:

“State of Texas, County of Nacogdoches “In the district court of Nacogdoches County, Texas
“To the Honorable J. W. Bates, Judge of said Court:
“Now comes the Underwood Typewriter Company, Incorporated, hereinafter styled plaintiff, complaining of Nacogdoches County, hereinafter styled defendant, and for cause of action would respectfully represent and show unto the court as follows:
“1. That the Underwood Typewriter Company is a private corporation existing under and by virtue of the laws of the State of Texas, with a permit and privilege to do business in said State, and that the defendant, Nacog-doches County, is a municipal corporation existing under and by virtue of the laws of the State of Texas, with F. P. Marshall, County Judge, upon whom service may be had.
“2. That heretofore, to wit, on the 19th day of April, A. D. 1929, plaintiff, at the special instance and request of the defendant, Nacogdoches County, acting by and through R. M. Pace, its duly elected and qualified district clerk, sold to said Nacogdoches County and delivered to the said R. M. Pace, district clerk, certain goods, wares and merchandise, to wit, One Underwood Typewriter, type Pica, Model 3 — 12, Number 813,046, in consideration whereof the defendant then and there promised plaintiff to pay it the sum of $107.50, payable 60 days from date, with interest thereon at the rate of 6% per annum from the 19th day of June, 1929.
“3. That the said R. M. Pace is and was at the time of purchasing the said typewriter, as. aforesaid, the duly elected anl qualified district clerk of Nacogdoches County, Texas, as hereinbefore stated, and that said typewriter so sold to the said Nacogdoches County by and through R. M. Pace was necessary office furniture for his offices; that in truth and in fact said District Clerk’s office could not possibly be run without the use of a typewriter of some character, and that the typewriter so sold was and is an essential and necessary piece of office furniture.
“4. That upon the due date of said account plaintiff presented it to the said Nacogdoches County and the same was by the said Nacog-doches County, acting by and through its Commissioners’ Court, rejected on April 14, 1930, said claim being numbered 2420 on Docket Q, page 346, of the Commissioners’ Court docket, and that said Nacogdoches County, acting by and through its duly elected and qualified County Judge and Commissioners, constituting the Commissioners’ Court, rejected the claim, as aforesaid, and still refuses and fails to pay the same; that said order of Commissioners’ Court is still a binding, outstanding and subsisting judgment, and this Court has jurisdiction of the case by virtue of its appellate jurisdiction over the Commissioners’ Court; that said account is long past due and unpaid and plaintiff asks for 6% interest as special damages from the due date thereof until paid.
“Wherefore, plaintiff prays that it have its bill of review setting aside and annulling the order of the Commissioners’ Court rejecting its claim and that defendant be cited to appear and answer this petition; that it have judgment for its debt, together with interest at the- rate of 6% per annum from the 19th day of June, 1929, and all costs of suit, and for such other and further relief to which it may be entitled, etc.”

The trial court sustained appellee’s plea to the jurisdiction against this petition and dismissed the suit. From that judgment appellant has duly prosecuted its appeal to this court.

Opinion.

Appellant takes the position that its petition, as copied above, was in the nature of an appeal from the judgment of the commissioners’ court, refusing and denying its claim, and therefore that the attack made by it upon the judgment of the commissioners’ court was direct and not collateral and that its action came within the appellate jurisdiction of the district court under section 8 of article 5 of the Constitution, which provides,' in part, that:

“The District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law.”

While there has been no legislation making provision for the exercise of the appellate jurisdiction conferred upon the district courts by section 8 of article 5, as it relates to this character of case, it was said in Callaghan, County Judge v. Salliway, 5 Tex. Civ. App. 239, 23 S. W. 837, 838, that to constitute an appeal the “jurisdiction of the district court must be invoked in the proper manner, by an appropriate proceeding.” In School Trustees v. Farmer, 23 Tex. Civ. App. 39, 56 S. W. 555, 556, Mr. Chief Justice Garrett writing the opinion, it was said that the jurisdiction of the district court might “he invoked by certio-rari.” In proceedings of this character it was said by the San Antonio court in Fox v. Cameron County (Tex. Civ. App.) 257 S. W. 1111, 1114, that the appellate jurisdiction of the district court could he invoked by certio-rari proceedings and “in such proceeding only could the judgment of the commissioners’ court be questioned.” In Davisson v. Eastland County (Tex. Civ. App.) 6 S.W.(2d) 782, 787, similar allegations to these before us were made against certain orders of the commissioners’ court. Construing those orders the court said:

“While it is true that article 5, § 8, of our Constitution, gives the district court appellate jurisdiction over commissioners’ courts, this suit is not in the nature of an appeal.”

Under these authorities we think that appellant’s petition constituted an original proceeding in the district court, of which it had no jurisdiction because of the amount involved, and was not an appeal from the judgment of. the commissioners’ court denying and x-efusing its claim. To constitute such an appeal, in a proceeding of this character, it was necessary not only that appellant allege all the facts contained in its petition, but there should have been appropriate allegations and a prayer for certiorari. The petition should then have been presented to the district judge, whose duty it would have been, under the Constitution, to giant the writ and' in granting it to require appellant, if within his judgment it was necessary, to execute a proper bond, as in cases of ordinary appeal. Upon the execution of the writ a transcript of the proceedings of the commissioners’ court would have been made out. and filed in the district court. Such a proceeding would have constituted an appeal, within the meaning of the Constitution, under which the district court would have had jurisdiction to try appellant’s cause of action.

In making this holding, we are aware of the holding of the Supreme Court in Haverbekken v. Hale, 109 Tex. 106, 204 S. W. 1162, 1165, where Judge Phillips said that the supervisory control of the district courts over commissioners’ courts may be exercised through the equitable jurisdiction of the district courts. In that case an injunction wa.s issued against the commissioners’ court restraining it from enforcing its orders. Of this injunction, as it related to the jurisdiction of the district court under article 5, section 8, it was said:

“Power of the District Court to supervise the proceedings of the Commissioners’ Court here involved gave the injunction suit the character of a direct attack upon those proceedings rather than, a collateral one.”

But for the injunction, the attack in that suit would have been collateral, as was appellant’s attack in the case before us.

It-follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.