author: HALL, C. J.

text:
    TEXAS POWER & LIGHT CO. v. MALONE et al.
    No. 3659.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 14, 1931.
    Rehearing Denied Nov. 4, 1931.
    Williams & Day, of Plainview, for appellant.
    J. M. Harris, of Snyder, for appellee M. A. Fuller.
   HALL, C. J.

The appellant light company sued appellee Charles A. Malone, to recover the principal, interest, and attorneys’ fees due upon a note executed by Malone to appellant July 24,1928, in the sum of $6,750, payable in three equal annual installments on September 1, 1929, 1930, and 1931, respectively. Plaintiff also sought to foreclose a chattel mortgage executed on the same day for the purpose of securing the payment of said note and covering one De Lavergne Diesel oil engine, one electric alternator, two centrifugal pumps, one generator switchboard panel, together with connections, etc., and also a one-story, steel-, frame galvanized iron clad building about 43x47 feet.

C. R. Spann, Guy Jacobs, Rufus Wright, M. A. Fuller, and the Plainview National Bank were all made parties defendant because, as alleged, they were claiming some interest or right in and to the mortgaged property.

Plaintiff further alleged that, since the execution and delivery of the chattel mortgage, the above-described property had been placed ■on section 4, block -S-l, Hale county, Tex., by Malone, who had erected the galvanized house en said land and placed the engine and other property therein and thereabout. Plaintiff prayed that it recover the amount due upon the note, that its chattel mortgage lien be foreclosed upon all of the property described therein, that said property be removed from the land to which it had been attáched, and for order of sale and general relief.

Malone, Spann, and Jacob defaulted.

The defendant Wright answered, .setting up a.judgment lien upon the land in his favor.

Fuller answered that on September 19,-1930, Malone executed a deed of trust to O. P. Thrane, conveying said section 4, block S-l, together with another section of land, to secure the payment of his note in the sum of $17,276.80, and alleged that the property and machinery described in plaintiff’s petition had theretofore been affixed to said real estate in such manner as to be a part and parcel thereof ; that it was attached to and located upon the realty in a permanent and stable manner, with the purpose and intention of making it a permanent fixture, and that the defendant had neither actual nor constructive knowledge of the lien claimed by the plaintiff; that plaintiff’s mortgage was not indorsed nor was it filed as required by article 5498, Revised Statutes of Texas; that it did not describe the land upon which the machinery was located; and that defendant had no constructive notice of plaintiff’s right, and was therefore a lienholder in good faith.

He further alleged that he was the owner and holder in due course of a deed of trust conveying said land, executed by Malone and wife November 1, 1927, for the purpose of securing the payment of a note in the sum of $25,000, payable to the Bankers’ Life Company, the balance of said note, viz. $23,750.00, with interest, having been assigned to him, together with the deed of trust lien securing the same; that a judgment had been rendered in the district court of Hale county, foreclosing said lien and ordering a sale of the land in satisfaction thereof; that both liens set up in his answer were valid and subsisting liens against the real estate and both had been foreclosed, and, because of plaintiff’s failure to comply with the provisions of R. S. art. 5498, plaintiff had acquired no lien on said machinery and equipment or on the real estate; and that both of defendant’s liens were superior to any right or claim asserted hy plaintiff.

The Plainview National Bank answered by general demurrer, several special exceptions, a general denial, and for special answer alleged that on the 19th day of September, 1930, Malone and wife executed and delivered to the First National Bank of Plainview a note in the sum of $17,150, payable to said bank thirty days after its date, secured by a deed of trust lien on section 4 and other property, which said note is unpaid and has been transferred to the defendant Plainview National Bank, which is now the legal and equitable owner and holder of said note; that the same has been reduced to judgment and the lien foreclosed in cause No. 3380, pending in the district court of Hale county; that the engine and other personal property described in plaintiff’s petition had been attached to and was a part of said section 4, and had been so attached prior to and ever since the execution of the deed of trust, and the defendant had not at any time had either actual or constructive notice of the rights claimed by the plaintiff.

The case was tried to the court without a jury and resulted in a judgment that appellant power and light company have judgment against Malone in the sum of $8,726.69, with 7 per cent, interest and costs of suit; that it take nothing as against the other defendants in said cause, and be denied a foreclosure of its purported chattel mortgage lien on the engine and other property as against any of the defendants; that the claims and liens of the defendants Fuller, Wright, and the bank are superior to the plaintiff’s claimed lien for the reason, as recited in the judgment, that said property had become affixed to the real property so as to be a part thereof.

The findings of fact and conclusions of law filed -by the court are, in substance, as follows: (1) That on July 24, 1928, and for several years prior thereto, Charles A. Malone was the owner in fee simple of sections 4 and 5 in block S-l in Hale county. (2) That on Nov. 1, 1927, Malone and wife executed to G. W. Fowler, trustee, a deed of trust to secure'the payment of a note in the sum of $25,-000, which had been duly recorded and which constituted a valid and subsisting lien to secure the payment of said note. (3) That Rufus Wright had a valid and subsisting judgment lien upon said sections of land evidenced by an abstract of judgment filed on June 29, 1928, to secure the payment of $445 and interest. (4) That about the 24th day of July, 1928, the plaintiff Texas Power & Light Company sold to Malone the machinery described in plaintiff’s petition and before said machinery was placed on the premises Malone executed to the power and light company a chattel mortgage which had been duly filed with the county clerk and which was indexed in the chattel mortgage records of Hale county ; that said mortgage was executed for the purpose of securing the payment of the note sued upon and described in plaintiff’s petition ; that said note is unpaid. (5) That the engine and other machinery and equipment so sold to said Malone was susceptible of being attached to real estate; that it was of such a nature that in its proper use it was contemplated that same should be attached to real estate; that immediately after said machinery came into his possession Malone proceeded to fasten and attach all of said machinery and equipment, as well as said building, to the real estate with the intention and in such a way and manner so that all of said machinery, equipmént, and building became affixed to and a part of the real estate to which it was attached. (6) The court further finds that the chattel mortgage given to the power and light company and covering said machinery and house did not describe or attempt to describe the real estate to which the same was to be attached; that the mortgage was not indorsed as required by article 5498, and was not indexed and registered in a separate book entitled “Chattel Mortgage Records on Realty,” as required by said article of tbe statute. The court further finds: (7) That on September 19, 1930, Malone and wife executed and delivered a valid deed of trust to O. P. Thrane as trustee for the purpose of securing the payment of one note in the sum of ¡¡517,276.S0, payable to M. A. Fuller, which deed of trust had been duly recorded in the deed of trust records of Hale county. (S) That on or about September 30, 1930, for valuable consideration, Fuller purchased the note held by, the Bankers’ Life Company above described, and he thereupon became the legal owner and holder thereof, together with the deed of. trust lien securing the same. (9) That on the 20th day of September, 1930, Malone and wife executed a valid deed of trust conveying to Guy Jacobs as trustee the above-described lands for the purpose of securing the payment to the First National Bank of Plainview, one note in the sum of $17,150, and that thereafter said note and lien had .been duly transferred to the Plain-view National Bank, which said bank is now the legal owner and holder thereof. (10) That said lien so securing said note is subject to the liens in favor of Fuller and Rufus Wright. (11) That Fuller has heretofore filed a suit in the district court of Hale county upon his two notes above described, making Rufus Wright and th,e Plainview National Bank additional parties defendant; that in said suit judgment has been rendered in favor of Fuller against Malone for the total sum of $48,674.45, directing a foreclosure of the liens held by Fuller, ordering the lands to be sold and the proceeds applied first to the payment of Fuller’s debt, next to the payment of Wright, and the balance, if any, to the Plainview National Bank. (12) That the Plainview National Bank had filed a suit and foreclosed its lien upon the land in question, subject to the right óf Fuller and Rufus Wright.

The court concludes as a matter of law that the mortgage filed by the power and light company was not legal notice to any one because of the failure of plaintiff to comply with the provisions of R. S. art. 5498. The court further concludes that Fuller, Wright, and the Plainview National Bank have an interest in said real estate superior to any claim asserted ’ by the Texas Power & Light Company and because the machinery, equipment, and building have become a part of the real estate, the power and light company was not entitled to sever the same from the soil by virtue of its chattel mortgage lien.

It is conceded that the appellant’s mortgage does not comply with the requirements of R. S. art. 5498, either in substance or in the matter of its indorsement and registration. That article is therefore inapplicable to the controversy. The rights of the parties are governed in part by R. S.- art. 5490, which provides that chattel mortgages upon personal property shall be absolutely void as against the creditors of the mortgagor or person making same and also against subsequent purchasers and mortgagees or lienholders in good faith unless duly filed for registration. From the foregoing findings of fact it- will be seen that appellant’s chattel mortgage upon the machinery was dated July 24, 1928. Prior thereto, on November i, 1927, Malone and wife had executed a deed of trust to secure their indebtedness to the Bankers’ Life Company in the sum of $25,000. This deed of trust covered the land upon which the machinery wrs placed by Malone a few weeks after he executed the trust deed.

The appellant attacks the fifth finding of fact by the court to the effect that the engine and other machinery* sold to Malone was of such a nature in its proper use it was contemplated that same should be attached to real estate and that immediately after it came into Malone’s possession he attached the machinery and building to the real estate with the intention that all of the machinery, equipment, and building should become a part of the real estate, and that it was a' part thereof.

The only testimony in .the record bearing upon this issue was elicited from Malone, who testified that he supervised the installation of the machinery on section 4; that the engine is on a concrete foundation 12 feet wide, 9 feet deep, and 22 feet long; that it is fastened to the foundation with heavy bolts set in the concrete; that when the engine was set on the foundation it was with a view of permanent use and that' he put it there with the intention of making it a permanent fixture; that the one-story, steel-frame, galvanized iron clad building approximately 43x47 feet located on the same section as the engine, and housing it, is fastened to the ground by a concrete foundation about 2 feet ■ in the ground, and that the building is fastened to the foundation by bolts; that the building is 16 feet high, has a solid concrete floor, flush with the foundation for the engine; that the building was put there with the idea of making it permanent; that'the alternator, exciter, ánd dynamo are upon the same foundation and directly connected with the engine and on the same foundation with it, fastened to it with bolts; that the pumps are on separate concrete foundations and fastened to the ground, bolted down like the engine, q.nd are connected with the engine by pipes; that the generator switchboard is fastened to the building by means of steel bolts; that he placed the machinery and building there as a permanent fixture, and that was his intention at the time he placed it; that it had been used in connection with the real estate as an irrigation. proposition, using it as a power plant for generating electricity to operate the pumps.

We sustain this contention and hold that the evidence does not sustain the court in the conclusion reached that the machinery had become a part of the realty as between the parties to the contract.

The mortgage upon the machinery provides that upon default by Malone in payment of said note, “said mortgagee or its assigns, agents or representatives are hereby authorized at their option to declare all said note due and take actual possession of said property and to sell the same at public auction for cash at the courthouse door in Hale County, Texas, with or without having possession of said property present at said sale after having given notice of the time, place and terms of said sale as the law now requires for sales of property under execution.”

As stated, this mortgage was executed by Malone about a month before the property was unloaded and moved to the premises where he placed it upon the foundation. The above-quoted stipulation is inconsistent with the contention that the parties intended that the machinery should become a part of the realty until fully paid for. The appellant could not take possession of the property and sell it at public auction at the courthouse door having the property present at such sale unless it was intended by the parties that the property should retain its character as personalty. The fact that Malone testified that it was his intention that the machinery and building should become a permanent fixture, is immaterial, as was decided by this court in Southwestern Public Service Co. v. Smith, 31 S.W.(2d) 472, 473.

As said in that case: “Inasmuch as the conditional sales contract executed by the defendant Smith and appellant for the purchase and sale of the refrigeration equipment provided that title should not pass to Smith and the property should remain chattels until the purchase price therefor was fully paid, the intention of the parties manifestly was that the property should remain chattels, and, notwithstanding Smith testified on the trial of this case that it was installed as a permanent arrangement for use in connection with the building, this does not contravene the original intention of the parties that, until paid for, the title should not pass from appellant and the property should remain chattels.” Citing Murray Co. v. Simmons (Tex. Com. App.) 229 S. W. 461.

The several machines, according to the testimony, still retain their distinctive character, although bolted to the foundations prepared for them. Unlike bricks, mortar, and lumber, built into a structure of. any kind, they have not lost'their specific character. There is no testimony showing that the building and the machinery could not all be moved without seriouáy injuring the section of land upon which they are located, nor is it shown ■ that their removal would lessen the value of the land as security as it existed before the installation. It is true that the concrete foundations originally intended for the installation of an irrigation plant might still remain, but, in the absence of testimony to the contrary, we must presume that their presence would enhance the value of the land at least for irrigation purposes. The preponderance of authority is to the effect that, where the removal of such fixtures will not materially injure the premises, the seller and mortgagee may assert his right as against a prior mortgagee of the premises.

In accordance with the general rule, the record of appellant’s chattel mortgage is not notice to any purchaser or subsequent mortgagee of the real estate upon which the machinery was situated. A prior mortgagee of the premises, of course, occupies no advantageous position such as may be held by a bona fide purchaser or subsequent mortgagee in good faith without notice of the chattel mortgage, and he cannot complain unless the removal of the improvements would materially injure the property and lessen the value of his security. Willis v. Munger Imp. Cotton Mach. Mfg. Co., 13 Tex. Civ. App. 677, 36 S. W. 1010; Panhandle Tel. & T. Co. v. Kellogg Switchboard & Supply Co., 62 Tex. Civ. App. 402, 132 S. W. 963; Harkey v. Cain, 69 Tex. 146, 6 S. W. 637; Williamson v. Pye (Tex. Civ. App.) 18 S.W.(2d) 707; Wagner Supply Co. v. Bateman, 118 Tex. 498, 18 S.W.(2d) 1052; David v. Roe (Tex. Civ. App.) 271 S. W. 196; Murray Co. v. Simmons (Tex. Com. App.) 229 S. W. 461; Hutchins v. Masterson & Street, 46 Tex. 551, 26 Am. Rep. 286; Reader v. Christian (Tex. Civ. App.) 234 S. W. 155.

It is held that the giving of a chattel mortgage on articles before their annexation to the land of the mortgagor is equivalent to an agreement by him that they shall remain personalty for the purpose of the mortgage. 26 C. J. 678, § 41b.

We think the court erred in failing to foreclose the appellant’s lien upon the machinery as against Malone and Spann.

The only remaining contentions necessary to be considered are as to the rights of Puller as a junior mortgagee against the property and the further contention on the part of the appellant that the burden of proof to show that Puller was a subsequent lien-holder in good faith rested upon him. Since appellant’s mortgage does not comply with the requirements of article 5498, its registration upon the chattel mortgage records was not constructive notice to Puller of appellant’s claim, and, unless .Puller had actual notice of the existence of the mortgage, his deed of trust, executed September 19, 1930, is entitled to priority. This is also true with reference to the deed of trust given by Malone and wife to Jacob, as trustee for the Pirst .National Bank of Plainviéw. Citizens’ National Bank of Abilene v. Elk Mfg. Co. (Tex. Com. App.) 29 S.W.(2d) 1062. We sustain appellant’s contention to tbe effect that the burden of proof rested upon these subsequent mortgagees to show that they acquired their liens upon the land in good faith. Duller alleged that he was a mortgagee in good faith, but offered no proof whatever to sustain his allegation. The bank made no such allegation.

In the late case of Lindig v. Johnson City State Bank (Tex. Com. App.) 41 S.W.(2d) 222, Judge Ryan discusses the relative rights of prior and junior mortgagees in cases like this and holds that the burden of proof rests upon the junior mortgagee to show facts which would give it precedence over the prior unrecorded mortgage. The discussion makes clear the law applicable to such cases, and for the sake of brevity we refer to the opinion as controlling the rights of the parties in this suit upon another trial. Since neither Fuller nor the bank sought to discharge the burden resting upon them to show that they were mortgagees in good faith and since there was no evidence that they were holders for valuable consideration without notice of the previous chattel mortgage, the judgment is without evidence to support it.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded.


source: Caselaw Access Project

author: ■ WALKER, J..

license: Public Domain

text:
    SCANLAN et al. v. DE ZAVALA et al.
    No. 2108.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 5, 1931.
    Rehearing Denied Nov. 4, 1931.
    Walter F. Brown, of Houston, for appellants.
    Boyles, Brown & Scott and Frank G. Dyer, all of Houston, for appellees.
   ■ WALKER, J..

In cause No. 70,004, August De Zavala v. Areola Sugar Mills et al., in district court, Harris county, Tex., De Zavala was plaintiff and Areola Sugar Mills and Kate Scanlan were defendants. The suit was by the plaintiff against the defendants, jointly and severally, for services rendered by him in procuring a loan for Areola Sugar Mills. The trial was to a jury, and, after conclusion of the evidence, defendant Kate Scanlan moved for a peremptory instruction, which was refused. The case was then submitted to the jury against both defendants on the following special issues, answered as indicated:

“Special Issue No. 1.
“Did the defendant Kate Scanlan, make an arrangement with plaintiff to assist in procuring said loan for the Areola Sugar Mills Company? Answer of Jury: She did.”
“Special Issue No. 2.
“Was it or not agreed between plaintiff and defendant, Kate Scanlan, that plaintiff should receive compensation from said Kate Scanlan or the Areola Sugar Mills Company for services to be rendered by him in procuring said loan? Answer of jury: It was.”
“Special Issue No. 3.
“If in answer to the preceding issue you have stated that it was agreed between plaintiff and Miss Kate Scanlan that plaintiff was to receive compensation for his services in procuring said loan, then you will answer this question: ‘What was the reasonable value of the services rendered by plaintiff in procuring said loan? Answer of the jury: $2,500.00.”
“Special Issue No. 4.
“Was it understood between plaintiff and defendants that no commission was to be charged by or paid to plaintiff for his help in procuring such loan? Answer of the jury: It was not.”

. The judgment entered upon this verdict recited that the case was called for trial, a jury duly impaneled, and that the issues copied above were submitted as the court’s charge, and were answered by the jury as indicated. The judgment concluded with the following decree, and exceptions, and notice of appeal to the Court of Civil Appeals: “Wherefore, said verdict having been received by the court and order filed, it was ordered, adjudged and decreed that the plaintiff, August De Zavala do have and recover of and from the defendant, Areola Sugar Mills Company, a corporation, the sum of .Twenty-five Hundred Dollars ($2500.00) with interest thereon from March 1st, 1016, at the rate of 6% per annum, until- paid, together with all costs of suit in this behalf incurred, for which execution may issue. The plaintiff excepts to action of the court in refusing judgment in his behalf against defendant Kate Scanlan, and gives notice of appeal, and 90 days after adjournment shall allow in which to file statement of facts and bills of exception. To which judgment Areola Sugar Mills Company excepted as against it and gave notice of appeal and said allowance for statement of facts and bills of exception.”

After the verdict was returned, the plaintiff filed a motion asking the court to render judgment on the verdict in his favor against both Kate Scanlan and Areola Sugar Mills. Within the time required by law, Areola Sugar Mills perfected its appeal to the Galveston Court of Civil Appeals by filing its petition for writ of error and the following super-sedeas bond:

“Whereas in Cause No. 70,004 on the docket-of the District Court of Harris County, Texas, for the 61st Judicial District, wherein August De Zavala was plaintiff and Areola Sugar Mills Co., et al., were defendants, judgment was rendered in favor of said plaintiff against defendant Areola Sugar Mills Co., a corporation, for Twenty-five Hundred ($2500.00) Dollars with interest thereon from March 1, 1916, at the rate of six per cent per annum, and all court costs, which judgment is recorded in Yol. 19, page 443, of the Minutes of said Court, referred to as part hereof, to which judgment said Areola Sugar Mills Co., properly excepted and gave due notice of appeal to the Court of Civil Appeals for the Eirst Supreme Judicial District at Galveston, Texas, and now desires to give Supersedeas bond with respect thereto as provided by law.
“Therefore, Areola Sugar Mills Co. as principal and the other undersigned as sureties, agree, promise, obligate and bind ourselves jointly and severally, to pay to August De Zavala, defendant in error, the sum of Seventy-five Hundred ($7500.00) Dollars, conditioned that said Areola Sugar Mills Co., a corporation, plaintiff in error, shall prosecute its writ of error with effect, and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against it, it shall perT form its judgment, sentence or decree, and pay all such damages as said court may award against it.
“Areola Sugar Mills Co. Principal,
“By E. P. & Otis K. Hamblen¿
“Its Attorneys of Record.
“Kate Scanlan
“Wm. J. Dermody, Sureties.”

Though the petition for writ of error was duly filed and the supersedeas bond was duly approved by the clerk of the district court of Harris county, no transcript in that case was ever filed in the Court of Civil Appeals by any one, and the Court of Civil Appeals entered no judgment of any kind whatever in said cause. After that judgment became dormant, August De Zavala, joined by others to whom he had assigned all his interest in the judgment against Areola Sugar Mills, brought this suit upon the supersedeas bond copied above, naming as defendants Areola Sugar Mills, as principal on said bond, and Kate Scanlan and Wm. J. Dermody as sureties. Of the answer of defendants, it is sufficient to say that they raised the issue that the bond was void because the judgment upon which it was based was merely interlocutory and not final. Upon trial of this suit, judgment was entered in favor of August De Zavala and the other plaintiffs against the three named defendants, for the sum of $4,-621.14, from which appeal was duly prosecuted to the Galveston Court of Civil Appeals and transferred to this court by order of the Supreme Court.

Opinion.

The failure of the trial court to make Kate Scanlan a party to the decree in the judgment in question, made the judgment interlocutory, and not final. To be final, a judgment must dispose of the entire case as to all the parties, and, except where the statute authorizes appeal from interlocutory judgments, an appellate court “has no jurisdiction of attempted appeal from a judgment or decree that is not final other than to dismiss the appeal.” 3 Tex. Jur. 107. Construing the judgment by the terms of the decree, appel-lees themselves concede that it was merely interlocutory and not final. On this proposition, they say:

“We know of no rule of law of more uniform application than the rule that a. judgment is not a final judgment unless it disposes of all the parties and issues in suit. Mo. Pac. Railway v. Scott, 78 Tex. 360, 14 S. W. 791; Mendoza v. Railway, 94 Tex. 650, 62 S. W. 418; Willis v. Keator (Tex. Civ. App.) 181 S. W. 556; Southern Trading Co. of Texas v. Feldman (Tex. Com. App.) 259 S. W. 566. If the judgment under consideration does not meet this test, then it is not a final judgment.
“The suit in which said judgment was rendered was filed by De Zavala against Areola Sugar Mills Company and Miss Kate Scanlan and in said suit De Zavala sought a joint and several judgment against each .of said defendants. The judgment shows on its face that it was rendered in response to the jury’s findings that it was understood between De Zavala and Kate Scanlan that he was to receive compensation from Kate Scanlan or the Areola Sugar Mills Company for services rendered for procuring a loan and that the reasonable value of said services was $2500.00. The court stated in its judgment ‘wherefore, said verdict having been received by the court and ordered filed it was ordered, adjudged and decreed that the plaintiff August De Zavala do have and recover of and from the defendant Areola Sugar Mills Company, a corporation, the sum of Twenty-five Hundred Dollars ($2500.00) with interest thereon from March 1st, 1916 at the rate of six percent per annum until paid, together with all costs of suit in this behalf expended for which execution may issue.’ If the. judgment of the court had stopped at this point it is clear that the judgment would not have been a final judgment for it would not have made any disposition of Bliss Kate Scanlan, one of the defendants in said suit, but the judgment did not stop at this point.”

However, notwithstanding these concessions made by them, it is the further contention of appellees that the concluding part of the judgment immediately following the quotation made by them, supra, “the plaintiff excepts to the action of the court,” etc., made the judgment final. In support of this conclusion, they say: “It is very evident from this judgment that the court was of the opinion that De Zavala was only entitled to a judgment against the Areola Sugar Mills Company and was not entitled to a judgment against Bliss Kate Scanlan and that the judgment of the court was to this effect. Otherwise the court would not have stated in its judgment that it refused to enter a judgment in favor of plaintiff against the defendant, Kate Scan-lan. Appellees have not correctly construed their judgment. The concluding portion of the judgment relied upon by them to make it final was no part of the decree, but merely August De Zavala’s bill of exceptions to an adverse ruling of the court on his motion for judgment, with notice of appeal to the Court of Civil Appeals. Having overruled this motion for judgment, it was the duty of the court to enter any and all exceptions reserved by August De Zavala to that ruling. In considering the motion for judgment, even though the trial court may have thought that De Zavala was not entitled to judgment against Kate Scanlan, he could not make her a party to the decree merely by refusing the motion and noting the exceptions to this ruling. Having submitted the case to the jury on the theory of a joint and several liability as against both Areola Sugar Mills and Kate Scanlan, she became a necessary party to the final decree, and, since the decree' did not dispose of her, it was not a final judgment but merely interlocutory, whatever may have been the construction given by the court to his judgment in overruling De Zavala’s motion for a judgment against Kate Scanlan. “It is not enough that a final judgment should have been rendered; it must actually have been entered.” 3 Tex. Jur. 108. That the intention of the trial court, in entering his judgment, cannot control its construction was clearly held in Batson v. Bentley (Tex. Civ. App.) 295 S. W. 316, 4 S.W. (2d) 577. In that case, the trial court, in the introduction to his judgment, clearly manifested an intention that the plaintiff was not entitled to recover as to any of the defendants, but in en-i tering the decree failed to name one of the defendants. Because of that omission, the judgment was construed as interlocutory and not final. We think the judgment in question was clearly interlocutory and not final, and therefore the Court of Civil Appeals had no jurisdiction to enter judgment against the sureties thereon. The bond was wholly void as a statutory bond, and therefore insufficient to .constitute the basis of the cause Of action on the theory of a valid appeal.

If in error in their construction of the judgment, that is, if in fact the judgment in question was merely interlocutory and not final, appellees insist further that the super-sedeas bond was valid as at common law, and sufficient to support a common-law action for the amount of the judgment rendered in favor of De Zavala against Areola Sugar Mills. Their propositions are: (a) The bond was sufficient to supersede the judgment, thereby-depriving De Zavala of his right to have execution issued thereon, and “this deprivation of plaintiff De Zavala’s right constituted a valid consideration for said bond, and it’s immaterial to the issues in this case whether or not the judgment was, in fact, a final judgment.” (b) “By filing said bond defendants Areola Sugar Mills Company, Kate Scanlan and Wm. J. Dermody recognized the validity of the judgment, and having done this, and deprived plaintiff De Zavala of having, or attempting to have, execution issue on the judgment, defendants are now estop-ped to deny the validity of said judgment in this action.” Appellees have not correctly construed the effect of their supersedeas bond. Since the judgment was merely interlocutory and not final, August De Zavala never had the right to an execution thereon; therefore the filing of the bond did not have the effect of suspending any legal right vesting in August De Zavala under his judgment. It appears, as a matter of law, from what has just been said, that the bond was executed without consideration. Again, since the judgment was merely interlocutory and not final, and since De Zavala had no right to issue execution thereon, he was not deprived of any affirmative right in his judgment, and there- - fore the supersedeas bond does not form the basis of an estoppel against the principal and sureties executing the same. These propositions are fully supported by the opinion of Judge Talbot in S. A. Pace Grocery Co. v. Savage (Tex. Civ. App.) 114 S. W. 866, 867, where he said:

“The purpose of a statutory appeal bond is to furnish security for the payment of the debt evidenced by the judgment appealed from, and it is unquestionably true that such a bond, when entered into voluntarily, and for a valid consideration, is good at common law. Such an undertaking, however, is only for the appeal sought, and the perfecting of the ap•peal is the consideration supporting it. If therefore the appeal is not perfected, the bond is without consideration, and a suit upon - it cannot be maintained. This view seems to be supported not only by decisions of our courts, but by decisions of courts of other states. Trent v. Rhomberg, 66 Tex. 249, 18 S. W. 510; Estado Land & Cattle Co. et al. v. Ansley, 6 Tex. Civ. App. 185, 24 S. W. 933; Gimperling v. Hanes, 40 Ohio St. 114; Gregory v. Obrian, 13 N. J. Law, 11. In the case of Trent v. Rhomberg, cited, the Supreme Court of this state, in holding that a super-sedeas appeal bond has all the requisites of a valid contract, and that an independent suit could be maintained upon it, was careful to state that the appeal, to secure which the bond in that case was given, was perfected.' The court said: ‘In this ease the execution was superseded, the appeal was perfected, the consideration of the contract ample, and was received.’ It is clearly deducible from this language that the consideration supporting such bonds is the perfecting of the appeal, and that the bond is without consideration and will not support an action if the appeal is not perfected. Estado Land & Cattle Co. v. Ansley, supra, was a suit upon a super-sedeas appeal bond, and it was there distinctly held by the Court of Civil Appeals for the Fourth District that, where an appeal has not been perfected by the entry of record of the notice of appeal, no action can be maintained on the appeal bond. In discussing the question, the court said: ‘There can be no breach of the condition of an appeal bond where no appeal has ever existed, and where therefore the appellate court referred to in the bond has had no jurisdiction.’ In the present case the appeal desired and sought to be obtained by the bond sued on never had any existence because said bond was a nullity and the jurisdiction of the county court for that reason never attached. We therefore hold that appellees’ demurrer was properly sustained and the suit dismissed.
“The fact that no execution was issued on the judgment from which the appeal was attempted to be prosecuted, pending the litigation, to test the sufficiency of the bond to support the appeal, does not alter the case. The appeal not having been perfected, there was no legal obstacle to the issuance of an execution, and the failure to have it issued can be attributed to the forbearance of appellant. At least, it cannot be said that the delay was occasioned by the filing of the bond. Estado Land & Cattle Co. v. Ansley, supra.”

The Savage Case was quoted with approval by Judge Jenkins in Allen v. Kitchen (Tex. Civ. App.) 156 S. W. 331, 332, where, discussing the validity of an appeal bond, he said: “But if the bond does not perfect the appeal it is without consideration, and will not support an action as a common-law obligation. Grocery Co. v. Savage [Tex. Civ. App.] 114 S. W. 866, 867, and authorities there cited. Where an appeal has not been perfected by giving an appeal or supersedeas bond, or filing proper affidavit in lieu thereof, the party recovering judgment may have execution thereon, notwithstanding the attempted appeal, and the clerk is no more justified in refusing to issue such execution than he would be if no notice of appeal had been given, or-. no bond or affidavit in lieu thereof had been attempted to be filed.”

What we have said above is in full recognition of the legal proposition that a supersedeas bond, duly executed and filed, whereby the appeal or writ of error is perfected, may be enforced as a common-law obligation. This proposition has clear recognition by our Supreme Court in such cases as Trent v. Rhomberg, 66 Tex. 249, 18 S. W. 510; Wooldridge v. Rawlings, 14 S. W. 667, and Michael v. Ball, 8 Tex. Civ. App. 406, 27 S. W. 948. Citing these three cases, Judge Jenkins said, in Allen v. Kitchen, supra, “Where a valid supersedeas bond has been given and filed within the time required by law, and the appeal has not been prosecuted to effect, the appellee may bring suit on such bond as a common-law obligation.” It will be noted in the quotation given above in the Savage Case, that Judge Talbot construed Trent v. Rhom-berg as holding that a common-law action lies upon a supersedeas bond only when the appeal “was perfected.”

Por the reasons stated, the judgment of the lower court is reversed, and judgment here rendered in favor of appellants.


author: BEVY, J.

text:
    PITTS et al. v. CAMP COUNTY et al.
    No. 3775.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 2, 1931.
    Rehearing Denied Oct. 8, 1931.

      S. P. Jones and Franklin Jones, both of Marshall, and M. M. Smith, of Pittsburg, for appellants.
    J. A. Ward, of Mt. Pleasant, and J. D. Bass and J. A. Guest, both of Pittsburg, for ap-pellees.
   BEVY, J.

(after stating the case as above).

It became necessary to determine whether the written instrument in suit, executed in the form of a deed and reciting a consideration, should be construed in the light of the surrounding circumstances and the purposes sought to be obtained by W. H. Pitts as passing the indefeasible fee-simple title to the lots to Camp county, or as establishing a dedication merely of the lots for the particular uses of a courthouse and any other public buildings which may be necessary for Camp county. On appeal, the question was certified to the Supreme Court [39 S.W.(2d) 608, 610] and the answer made and returned was “No,” the county of Camp did not acquire an indefeasible fee-simple title to the lots. Hence, .in effect, the instrument or deed- was one establishing a dedication merely of the lots for the specified use “as a place for erecting the courthouse, and any other public buildings which may. be necessary for said County of Camp.” The duration of the user of the lots for the specified uses was, as provided to be, “forever,” but upon the condition and with the limitation imposed upon the dedication, namely: “Nevertheless, the condition of this conveyance is such that if the county seat should be hereafter removed to any place in the said county, then, and in that ease, this obligation shall be null and void, and the property herein conveyed shall revert to the said W. H. Pitts, his heirs or assigns.”

The above-quoted condition and limitation of dedication being in no wise inconsistent with the legal character of the dedication of the lots, it was competent, under established rules, for the dedicator, W. H. Pitts, not only to limit the use of the lots to the specified uses of a courthouse and other necessary public buildings, but also to make his dedication conditional on the county seat being continued in and not removed from the town of Pittsburg. 18 C. J. p. 70. Therefore, speaking as a general rule, the legal representatives of the dedicator appearing in this suit would be entitled to have their legal rights to take back and re-enter the possession of the lots determined, according as the facts may appear, by (1) whether or not there has been failure of the condition and limitation imposed on the dedication; or (2) whether or not there has been voluntary relinquishment or abandonment by the county of Camp of the use of the lots for the use specified in the dedication deed. For, in the event the county seat was moved from the town of Pittsburg and Pittsburg ceased to be the-county seat, then, in virtue of the condition subsequent imposed by the dedicator upon the grant, the easement to use the lots for the specified purposes would come to an end and the existence of the easement cease. In such breach of the condition subsequent the legal representatives of the dedicator could invoke the legal remedy of revocation of the dedication, entitling them to take possession of the dedicated lots and reappropriate them to their own use. 18 C. J. p. 122; 8R. C. L. p. 915; Gaskins v. Williams, 235 Mo. 568, 139 S. W. 117, 35 L. R. A. (N. S.) 603. And, although there be no breach of such condition subsequent, yet if abandonment is otherwise effectuated showing voluntary relinquishment of the use for which the lots were specifically dedicated, then the legal representatives of the dedicator are entitled to retake the possession of and use the dedicated lots. 18 C. J. § 159; p. 123; 14 Tex. Jur. § 37, p. 733; 8 R. C. L. p. 915. An easement granted for a use specifically declared ceases when the specified use is voluntarily abandoned and no longer exists, and the dedicator or. his legal representatives become entitled to retake the possession of the lots. The legal questions thus discussed were, in view of the facts, certified to the Supreme Court. The answer was made and returned of “No,” that there was not shown a right to a revocation of the dedication, and the lots could not be held to have reverted to the heirs .of the dedicator, W. H. Pitts, because the facts established that the county seat had not been removed, but was located in the town of Pittsburg. The court expressed the opinion that “in the absence of proof that the county seat of Camp County had been removed beyond the territorial limits of the town of Pittsburg, as it existed on August 4, 1874, the appellants in this case have no cause of action against, Camp County, and so long as the county seat of Camp County remains located within said territorial limits Camp County is entitled to the unrestricted possession of the property involved in this case.” And because of the answer and opinion upon said question 3, the Commission of Appeals concluded and so certified to the Court of Civil Appeals that it was “unnecessary” to give an answer to the further aspect of the case asked about in certified question No. 2, reading: “If it is a deed as one establishing the dedication merely, then has Camp County relinquished its rights 'to the lots dedicated by permanent abandonment, as done, of its use for purposes of a site for the county courthouse?”

As found by the trial court: “I find that in -erecting the new courthouse it was the intention of the county to abandon the old -courthouse and the property described in the plaintiff’s petition’ for all courthouse and jail purposes, and it in fact has so abandoned the same for the aforesaid purposes. But the building thereon is being used as a public building by the citizens of Camp County as a public rest room and toilet, and is intended to be so used in the future.”

As further found by the trial court, this building “was a necessary public building for Camp County.” The commissioners’ court of Camp county has consented, it appears, that the city of Pittsburg can use a part of this building as a fire department, and the city of Pittsburg and Camp county jointly maintain the -building and pay the expenses of operating the same. The terms of the deed of dedication cover “any other public buildings,” besides a courthouse, “which may be necessary for-said County of Camp.” As described in the findings of fact, the resthouse was of a public purpose and was used “by the citizens of Camp County” and was within the corporate powers of the county to erect and provide for the public. All these facts appeared in the statement of the case, and the latter answer of “unnecessary” to question 2 was evidently intended to be conclusive of thp effect of the above facts, that the lots did not revert to the heirs of the dedicator upon the 'ground of abandonment so long as the county seat was located in the town, although the courthouse was not on the lots, but could be devoted by the county to the other public uses. The court evidently meant to be understood as holding that the terms of the dedication were wider than for courthouse purposes and the lots could be devoted exclusively to any needed county purposes. The appellant here now contends that such ruling was erroneous.

We conclude, however, that the answers made and returned to the certified questions were intended to definitely determine all the questions of the appeal, and, so understanding, we feel constrained in deference thereto to affirm the judgment, and it is accordingly so ordered.

On Motion for Rehearing.

The appellants complain, and correctly so, of the failure to sustain their assignment of error complaining of the judgment in cross-action by the appellee. The county of Gamp sought and obtained judgment vesting in the county title in fee simple to .the lots. The assignment in question was overlooked and should now be sustained, we think, in view of the answer returned to the certified question that the county of Camp did not acquire a fee-simple title to the lots. The judgment is accordingly so reformed as to deny any recovery to the appellees on the cross-action. The judgment will otherwise remain undisturbed.

Except as to reformation of the judgment, the motion for rehearing is overruled.


author: WALKER, J.

text:
    HILL v. BELNOSKI.
    No. 2132.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 29, 1931.
    Rehearing Denied Nov. 4, 1931.
    J. L. Pitts, of Conroe, for appellant.
    S. A. Crawford, of Conroe, for appellee.
   WALKER, J.

In the court below appellee was plaintiff and appellant defendant. Since appellant’s first fourteen propositions challenge the sufficiency of appellee’s petition to state a cause of action, we quote as follows from the petition:

“Plaintiff represents to the court that during the year, 1928, the defendant herein and your petitioner were engaged in buying and selling at different times land and timber and especially about the months of March, April and May of that year; that the defendant, Warfield 1-Iill, came to Willis during the month of March, 1928, or about said time and told this plaintiff if he knew where there was any land and timber that they would handle the same and the plaintiff replied to the defendant that he would get him timber and lands that were for sale provided he would finance the deals, to which defendant agreed. This agreement was reached and the defendant agreed to furnish the money and the plaintiff would locate and purchase the timber or land and the profits were to be divided equally between them; that plaintiff explained at that time to this defendant that he had in mind three tracts of timber and land that he could purchase, The Rice Spiller,, the Dr. Curtis timber and the 171 acres of land and timber in the De La Garza survey and it was then the defendant drew up the memorandum contract which stated in substance that when the land and timber was located and sold, as provided for in the contract, that all profits should be divided between plaintiff and defendant in an equal proportion. This contract was reduced to writing and delivered to plaintiff but the same has been mislaid and cannot be produced at this time. That in pursuance of said contract and agreement, made between plaintiff and defendant, whereby it was agreed, one with the other, that the said Belnoski would locate the land and timber and the defendant, Warfield Hill, would finance the deal and divide the profits equally, which contract was mutual and the terms of which were agreed upon by both parties; the plaintiff located and had located the 171 acres of land and timber described herein and plaintiff and defendant went upon said land to locate the corners and look at the. timber before a deal was closed; sought purchasers before defendant went to Cleveland to close a deal for them before the same was closed and asked plaintiff to go with him, when plaintiff replied in substance that he, defendant, could close the transaction without his assistance and to go to Cleveland and buy the land and timber and they would resell it, divide the profits, to which defendant agreed. That under and by virtue of the terms of the contract between plaintiff and defendant the plaintiff is entitled to one-half the net profits of the timber sold to the J. S. Hunt Lumber Company and one-half of said land.
“III. The first two tracts mentioned herein were sold by plaintiff and defendant and the profits divided equally; that all of said land was situated in Montgomery County; that the contract herein referred to was made and entered into at Willis, Montgomery County, Texas; that the defendant misrepresented to plaintiff when he stated to him and provided for in the contract that he would divide equally the land and timber or the profits arising therefrom as to the 171 acres hereinafter described as he secretly and without knowledge on the.part of this plaintiff and with the intent to defraud him, left Montgomery County and went to Cleveland, in Liberty County, and there closed the deal for this land and timber and took the title to the same in his own name and thereafter sold the timber from said land for the sum of One Thousand ($1,000.00) Dollars to the J. S. Hunt Lumber Company without paying this plaintiff any part of the profits or giving him any portion of the land, or deeding him any portion of the same, consisting of the 171 acres described herein.
'TV. That this defendant acquired said land, consisting of 171 acres, from the Estate of Edwin Hobby for a consideration of Six Hundred Fifty & 00/100 ($650.00) Dollars as recited in the Deed which is duly, of record in the Deed Records of Montgomery County, Texas, in Book 120, page 102, which he bought in Oct. 1928 and which land is described as follows. (Here follows a description of the land in controversy.)
“V. That the said defendant practiced a fraud upon plaintiff and violated and breached his contract when the same was entered into as herein stated, in that he failed to do what he agreed to do and fraudulently obtained title to this in his own name without disclosing to this plaintiff the purchase of said land and timber, as herein set out.
“VI. That this plaintiff under and by virtue of all the facts in this ease and the agreement made and entered'into herein is the owner of an undivided one-half interest in said 171 acres of land and the timber sold therefrom; that during the year 1928, the exact time being unknown to plaintiff, as stated herein, the pine timber from said 171 acres of land was sold to the J. S. Hunt Lumber Company for the consideration of One Thousand ($1,-000.00) Dollars.”

Appellant answered by general and special exceptions, general denial, and specially as follows:

“Further answering herein this defendant would respectfully show to the Court that on or about February A. D. 1928, the exact date being to him unknown, he did ask plaintiff if he knew of any timber that could be bought, or that a man could buy. That if plaintiff did know of the location of any timber that could be purchased, and that this defendant thought was good, he could get it financed; that if plaintiff discovered any such tract of timber and communicated that fact to defendant and arranged for the purchase of said tract of timber, that defendant, in the event he was of the opinion that 'said timber was worth the price demanded, would make the advances necessary for its purchase, and would divide with him the profits resulting from said purchase.
“Defendant says that at no time was the tract of land set out in plaintiff’s said first amended original petition mentioned by and between plaintiff and defendant in any way or manner, either verbal or in writing. That this defendant knew of said tract of land, and that it was for sale long prior to his conversation with plaintiff, and that plaintiff never at any time mentioned said tract of land to defendant, or had any contract with defendant with reference thereto.”

The issues submitted by appellee’s petition were found by the jury in his favor, and the judgment entered gave due effect to the jury’s verdict, by awarding appellee judgment against appellant for $150 and for an undivided one-half interest in the land described in the petition.

Opinion.

Appellant has no assignments against the answers of the jury, to the questions submitted, but on oral argument asserted that the court failed to submit his defensive issues. However, he has no proposition directing our attention to any specific issue raised by- his pleadings and testimony, not covered by the court’s charge.

His general demurrer and special exceptions to the plaintiff’s petition are brought forward by the following propositions:

(1, 6,10, and 11) The petition did not identify the subject-matter of the controversy and did not state the time of its performance. (2) Since appellee pleaded an executory contract, it was necessary to allege due performance of its material conditions. (3, 8, and 9) The petition failed to state facts entitling appellee to the specific relief prayed for. (4) The extraneous matters alleged in the petition should have been eliminated as being immaterial, irrelevant, and prejudicial. (5 and 7) The contract pleaded was unilateral. (10 and 11) The contract as pleaded was within the statute of frauds because the land in controversy was not specifically described in tbe contract. (12 and 13) Tbe facts pleaded did not constitute fraud. (14) Tbe written contract pleaded by appellee was witbin tbe statute of frauds and, therefore, could not be extended by a parol contemporaneous agreement.

Tbe above contentions are brought forward by appellant under fourteen different propositions, which we have grouped as above indicated. In our judgment tbe petition was not subject to any of tbe exceptions urged. Tbe land and timber included in the contract was sufficiently identified. Tbe tract of 17L acres on tbe De La Garza survey was identified in tbe contract by a specific designation and by the pleading by specific metes and bounds. Appellee’s petition clearly alleged tbe performance of every element of tbe contract as pleaded; tbe pointing out of tbe timber by him, its purchase under tbe contract in a manner satisfactory to both parties, and tbe sale of tbe timber at a price in excess of tbe purchase price, under tbe evidence, showing a net profit on tbe timber alone of $300, thereby leaving tbe partners entitled to tbe land also as an element of tbe profit contemplated by the contract. These facts were sufficient to support appellee’s prayer for one-half the net profits in tbe timber and an undivided one-half interest in tbe land. The court did not err in refusing to strike from tbe petition tbe allegation to tbe effect that tbe Spiller and Curtis timber were included witbin tbe original contract. Tbe contract was not unilateral, but was, in its essential conditions, a valid and binding obligation against both parties, Tbe facts pleaded constituted actionable fraud sufficient to entitle appellee to the equitable relief prayed for. Tbe petition contained no allegation in violation of tbe statute of frauds.

By tbe fifteenth proposition appellant compla'ins that tbe court erred in receiving testimony relating to property other than tbe 171'acres. There is no merit in this contention. It was permissible for appellee to prove that tbe original contract included not only tbe 171 acres involved in this litigation, but also tbe Spiller and Curtis timber.

Tbe sixteenth, seventeenth, and eighteenth propositions complain of tbe admission of certain testimony offered by appellee. No error is shown under these propositions. Thus it was permissible for appellee to show that, in company with appellant, be approached a third person with tbe proposition to sell him this timber. That appellant was not present during all tbe conversation was immaterial, in view of tbe fact that the testimony offered went no further than to show a persistent effort by appellant and appellee to sell tbe timber in controversy in this suit. While under these propositions appellant complains that tbe court erred in permitting appellee to lead his witnesses, no statement is made in tbe brief supporting this contention.

Under tbe evidence it was conceded that tbe Spiller and Curtis timber were included in tbe contract between appellee and appellant. Appellant insists that tbe issues raised by appellee’s petition should have been limited to tbe 171 acres in controversy and that tbe questions should have been so framed as to eliminate all other, timber. Question No. 1 inquired of tbe jury whether or not ap-pellee and appellant entered into a contract “to buy and sell land and timber.” Tbe other questions related specifically to tbe 171 acres in controversy. Under tbe facts stated, the form of Question No. 1 was not reversible error. Tbe questions submitted involved no issue not raised by tbe pleadings. This disposes of appellant’s nineteenth and twentieth propositions.

Tbe twenty-first and twenty-second propositions are to tbe effect that it is tbe duty of tbe court to submit all issues raised by the pleadings, and where a material issue is raised by tbe pleadings and evidence “it becomes an issue of fact for the jury to determine under proper instructions.” We think tbe charge submitted to tbe jury all material issues; at least, appellant has pointed out no specific issue that tbe court refused to submit.

By tbe'twenty-third proposition appellant insists that, “where tbe obligations of a contract are mutual and dependent, a party seeking to enforce it, or recover damages for a breach, must show that be has performed, or offered to perform, all its provisions on his part.” No error is shown under this proposition. Appellee pleaded the reciprocal obligations assumed by each party under the contract and then pleaded tbe due performance by him of tbe obligations assumed by him in a manner satisfactory to both parties. His testimony supported bis pleadings.

We have carefully reviewed all of appellant’s assignments and find no error under any of them.

It is, therefore, ordered that tbe judgment of tbe lower court be, and tbe same is hereby, in all things affirmed.

On Rehearing.

Appellant asserts that we erred in bolding that be has no proposition directing our attention to any specific issue raised by tbe pleadings and testimony, not covered by tbe trial court’s main charge. His propositions, pertinent to this assignment, with their accompanying statements, are as follows:

“Twenty-First Proposition. When a cause of action is submitted to tbe jury on special issues, all tbe issues of fact made by tbe pleadings must be submitted and determined by them before final judgment.” Tbe statement made under this proposition consists of an analysis of tlie petition and of the three first issues submitted by the charge. In this statement appellant does not direct our attention to any specific issue not covered by the charge.
“Twenty-Second Proposition. Where a material issue is raised, both by the pleadings and by the evidence, it becomes an issue of fact for the jury to determine under proper instructions.” The statement under • this proposition is as follows: “The plaintiff pleaded and proved that the defendant agreed to divide the profits derived from the sale of the property here sued upon the defendant denied, both in his pleadings and in his testimony that he ever promised anything to the plaintiff (appellee) with reference to this particular tract.”
“Twenty-Third Proposition. Where the obligations of a contract are mutual and dependent, a party seeking to enforce it, or recover damages for a breach, must show that he has performed or offered to perform all its provisions on his part.” The statement under this proposition consists only of excerpts from the testimony of appellee.

We think this statement from the record satisfactorily answers appellant’s assignment.

The motion for rehearing is, therefore, in all things overruled.


author: SELLERS, J.

text:
    SHERWIN-WILLIAMS CO. OF TEXAS v. OFFENHAUSER.
    No. 4060.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 3, 1931.
    Rehearing Denied Oct. 22, 1931.
    King, Mahaffey, Wheeler & Bryson, of Tex-arkana, Tex., and J. D. Head, of Texarkana, Ark., for appellant.
    H. M. Barney and Frank S. Quinn, both of Texarkana, Ark., and Elmer L. Lincoln, of Texarkana, Tex., for appellee.
   SELLERS, J.

This suit was brought in the district court of Bowie county by John S. Offenhauser Company against the Sherwin-Williams Company of Texas, alleging, among other things, that plaintiff was a merchant in the city of Texarkana engaged in selling farm supplies and equipment, and also engaged in buying for resale, and selling to its customers an article of commerce known and designated as arsenate of calcium. That the defendant is, and was at the time complained of, a manufacturer and seller of arsenate of calcium having its brand of said article known as “Sherwin- ■ Williams Products Arsenate of Calcium.” The petition states, in part, as follows:

. “On the 8th day of July, 1929, the plaintiff and defendant in the city of Texarkana, Texas, entered into an executory .agreement and purchase and sale of 650 one-hundred-pound drums of defendant’s Arsenate of Calcium, being two carloads thereof, at and for the price and sum of 6 cents per pound, the plaintiff being the purchaser and the defendant the seller, to be delivered to plaintiff at Texarkana and shipment to be subject to plaintiff’s notification ; one car to be shipped on or before July 31,1929, and the other car to be shipped on or before August 15,1929. Said agreement was and is represented by an order signed by the plaintiff dated July 8, 1929, duly accepted by the defendant, a copy of which order is ■ hereto attached marked ‘Exhibit A” and made a part of this petition. In the said order the said article is designated by its commonly known name as ‘Calcium Arsenate.’
“Thereafter, to-wit, on the 6th day of August, 1929, plaintiff and defendant in the City of Texarkana, Texas, entered into another ex-ecutory agreement for the purchase by the plaintiff and the sale by the defendant, of an additional amount of 150 drums of Arsenate of Calcium, at the price of Eight Dollars ($8.00) per hundred pounds, to be delivered to the plaintiff at Texarkana, to be shipped to plaintiff in the second car of plaintiff’s original order, said agreement being represented by order of this plaintiff of said 6th day of August, 1929, and duly accepted by the defendant, a copy of which order is hereto attached marked ‘Exhibit B,’ and made a part of this petition. The said article is named and described in said order by its common name of Calcium Arsenate.
“Plaintiff also shows that the said defendant, at the times of said sales to plaintiff, agreed to and did sell its said Arsenate of Calcium to plaintiff under the descriptive name of ‘Calcium Arsenate’; that by the use of said descriptive term the defendant covenanted with the plaintiff and obligated itself to him, to furnish to him Arseilate of Calcium of the brand and quality indicated by its descriptive name and of the brand and quality manufactured, sold and dealt in by the defendant and reasonably fit for the purposes for which the defendant sold it and marketable and salable as Arsenate of Calcium.
“Plaintiff states, at the times of the giving of said orders, by representing to the plaintiff that' its said arsenate of calcium was an insecticide, and also by knowing that the said Arsenate was bought by the plaintiff as an insecticide, and by knowing' that it was so bought to be resold by the plaintiff as such insecticide, and by knowing the purposes for which said arsenate was to be used, the said defendant then and thereby warranted to the plaintiff that the said Arsenate of Calcium so sold to him was an insecticide, and would poison, destroy, control, and kill cotton worms, boll worms, boll weevils, army worms, and other insects damaging to farm and garden plants, and that the said arsenate was reasonably fit for the purposes for which it was intended, and for resale by the plaintiff as such, and that it was free from any remarkable defects and was merchantable. And, in selling the said article to the plaintiff under its descriptive name of Calcium Arsenate the defendant thereby warranted to the plaintiff that the said article was Arsenate of Calcium of the defendant’s known brand and quality, and was marketable and salable as such.
“Plaintiff shows that the first car of Arse-nate of Calcium so ordered from the defendant was received by plaintiff, and paid for, on July 29, 1929; that the second ear so ordered from the defendant, and purporting to be the remainder of plaintiff’s said orders, was received by plaintiff on August 8, 1929, and the balance due upon the said orders was on the said date paid by the plaintiff to the defendant.
“Plaintiff alleges and states that the second ear received by plaintiff on August 8, 1929, contained 400 drums labeled ‘Sherwin-Wil-liams Products Arsenate of Calcium.’' But plaintiff shows that either the said drums were mislabeled and did not in fact contain Arsenate of Calcium, or else if the said substance was Arsenate of Calcium, it contained some remarkable defect which rendered it unfit for use and unmerchantable and unsalable as Arsenate of Calcium. Plaintiff shows that upon the receipt of the said second car he sold all of the said shipment except eleven drums to his customers for use by them as an insecticide for the destruction of boll worms, leaf worms, cotton worms, boll weevils, army worms, and other insects damaging to farm and garden plants but that the said substance so received by him from defendant and so sold to his customers, and so represented and labeled as Arsenate of Calcium, was not, in fact, an insecticide, and did not, in fact, when used by his said customers, kill or destroy or poison boll weevils, leaf worms, cotton worms, boll worms, army worms, or other insects damaging to farm and garden plants. That 68 drums of the said substance so sold by the plaintiff to his customers were returned to the plaintiff by his customers, and plaintiff was required to, and did exchange and substitute therefor Arsenate of Calcium of a different brand; that the persons so returning the said 68 drums, and the number of drums returned by each and the date thereof are as follows: (Here follows list.) * * *
“Plaintiff shows that because the said substance so delivered to the plaintiff by the defendant in fulfillment of his said orders was not an insecticide, and because the same was not marketable and was not suitable and fit for the purposes for which intended, and for which it was sold to this plaintiff by the defendant, and for which it was resold by the plaintiff to his customers, the defendant breached its warranty to the plaintiff.”

Exhibit A to petition of John S. Offen-hauser, plaintiff, was as follows:

“Order to the Sherwin-Williams Paint Co.
“We hereby order of you the following goods: •
“650 100-Lb. Drums, Calcium Arsenate-price 6(5 per lb. — f. o. b. Texarkana, Shipment subject to our notification. — one car on or before July 31st, Other car on or before August 15th.
“This order cancels all previous orders.
“John Offenhauser Co.
“By J. S. Offenhauser.
“Accepted by
“The Sherwin-Williams Co.
“By H. D. Becker.
“By M. Camerata.”

The defendant’s answer consisted of a general demurrer and certain special exceptions and a general denial. The record discloses that the first car of arsenate of calcium was satisfactory and that this controversy is over the contents of the second car which contained 400 drums for which plaintiff paid $2,-700. It is further made to appear that plaintiff sold all of the 400 drums except eleven at retail for the total sum of $4,983. That plaintiff had complaints from all or a major portion of all to whom he sold this article; that some of it was replaced by other brands of arsenate of calcium, and that which was not replaced the plaintiff was unable to collect for because it was worthies as an insecticide for killing army worms and boll weevils on cotton plants. The plaintiff testified, in substance:

■ That he was engaged in business in the city of Texarkana, Ark., as a merchant, dealing in arsenate of calcium for sale to his farmer customers as an insecticide for the control of cotton leaf worms and other cotton-destroying insects, and that he was solicited by the defendant to purchase for resale to his trade its Sherwin-Williams brand of calcium arsenate, and that he gave to the defendant two orders for arsenate, the first order being dated July 8, 1929, for 650 100-pound drums at 6 cents per pound, and the second order on August 6,1929, for 150 drums at $8 per hundredweight. The first order provided that the arsenate should be shipped f. o. b. Texarkana, shipment subject to notification of plaintiff, 'one car on or before July 31st, and another car on or before August 15th. The second order provided that the 150 drums covered by it should be shipped with the balance of the original order of 650 drums.

The goods are described in the two orders as “Calcium Arsenate.” That he was at the time engaged in business under the name of John S. Offenhauser Company, and he himself placed the first order with defendant at defendant’s place of business; and the second order was placed by his bookkeeper. Both orders were accepted by defendant. Under said orders he received the two cars; the first one July 22, 1929. Accompanying the shipment was a draft for the sum of $2,400, the purchase price of the car, and that draft was paid at the time the ear was delivered to him. The second ear was received August 8, 1929, and it was also accompanied by a draft for the purchase price of the car, $2,700. That he had to pay this draft for $2,700 before he could get the second car. He had not seen the arsenate and had no opportunity to examine it when he paid the draft. At the time he gave the orders he did not examine the goods because there were no samples. Since the calcium arsenate was shipped in metallic drums with friction tops, he could not have told what was in the substance after opening the drums unless he had had a chemical analysis made. At the time the drafts were paid the drums were in the car, sealed up.

This arsenate was bought for the purpose of killing cotton infections, cotton worms, and boll weevils. A representative of Sherwin-Williams Company, Mr. Becker, the manager, came to his place of business saying he understood plaintiff handled a good deal of calcium arsenate. He quoted prices, and plaiiltiff said that he had never used any of defendant’s brand. Becker said that defendant company sold all over the South for dusting cotton; that it was good stuff; that plaintiff would be well-pleased with it; that it would be in new drums, and would be salable and merchantable. The price was quoted, and plaintiff went to the Sherwin-Williams office and signed the contract for 650 drums.

The first ear was received about July 29, and was sold out to his customers. Second order for an additional 150 drums to be shipped in the second car was given after he had received the first car. At this time plaintiff had seen the drums and some of the arsenate. Labels on drums showed the contents to be “Sherwin-Williams Products Arsenate of Calcium,” and also stated that the arsenate was a poison and was “sold for insecticide purposes.” Label also contained directions for use of the arsenate upon potatoes and other vegetables, and for dusting cotton for cotton boll weevils.

Plaintiff sold all the 400 drums in the second shipment except 11 drums which are still on hand. He had complaints from the 389 drums he sold.. Sixty-eight were brought back, and he substituted other brands (Delta and Niagara) for them. There was a difference in price between the Sherwin-Williams brand and the brand used to replace It. There was a difference of $437. Plaintiff sold the 289 drums for $4,983. That was the retail price, and the stuff cost'him $2,700.

Plaintiff has handled calcium arsenate for four years and is familiar with it, has studied chemistry, and has used calcium arsenate on his farm. It is made and sold as an insecticide to kill any chewing' insects. Pie used ten drums from the second car. Put it on about 50 or 60 acres of cotton early in the morning and late in the evening, and personally saw that it did not have any effect on the army worms. The arsenate did not kill the worms, it made the plant white, but he saw the worms on the plants, eating the leaves of cotton, and it had no effect on the worms. They kept eating. He investigated the field around the 12th or 15th of August.

He does not know of any other purpose for which arsenate of calcium is sold except as an insecticide. The retail market value' in August, 1929, increased from 11 cents to 16 cents. He sold the arsenate between the 9th and 16th, and the market value between that time was 11 cents at the beginning and 16 cents at the end.

W. J. Springer testified, in substance, as follows: That he was fire chief of Texar-kana, Tex., and also owned a farm close to Index, Miller County, Ark., in Red River bottom ; there being 240 acres in the farm, all in cultivation. In 1929 he bought arsenate of calcium-from John S. Offenhauser; the Sher-win-Williams brand, about 25 drums. Doesn’t remember just how many he used, but did not use quite all. Applied it to his cotton plants. Started in August, and covered about 200 acres. Put it on practically all of the land that was in cotton, and applied it for worms and boll weevils. The worms and boll weevils were on his cotton plants. lie saw the calcium arsenate on the plants, and it wasn’t having any effect on the worms. He told his negroes to try it on their crops, and each one tried half of his crop. It did not have any effect. They ate on just the same. Applied the arsenate with what is known as “the Farm-All Duster” and “Four-0 Duster.” Applied it in the morning mostly, and sometimes on up in the day if the wind wasn’t blowing too much. In some cases five applications were made. He had used calcium of arsenate before this and it had killed the boll weevils. This arsenate did not kill them — they ate on just the same. lie saw the dusting, and he dusted on the Sherwin-Williams brand in the same manner as the other brands.

William Varner testified:

That he lived in Miller county, Ark., and was plantation overseer for Arthur Dean. Was 26 years old and had been plantation overseer for 5 years. The plantation he runs is a 400-acre plantation. He bought from John S. Offenhauser for the farm some of Sherwin-Williams calcium arsenate in 1929. Dot 10 drums. Bought it around the 10th or 12th of August. That was the season for the boll worms. The army worms had begun to work. He applied the arsenate to his cotton plants where the army worms were on them. Put it on the next morning after he had bought it, right after daylight. Used from six to eight pounds to the acre. Put it on while the dew was on. Had a four-row machine and used some sacks also. That he saw the arsenate on the plants. It had no effect whatever upon the worms. It did not kill any worms. That he had previous experience with arsenate of calcium. It takes from 10 to 12 hours to kill the 'worms. When he got back in the evenings after having dusted the cotton plants in the morning, he could find no results whatever. The worms kept on eating just the same. The worms could be seen eating the leaves while the arsenate was being put on. He did not use all that he bought, but has a part of it now.

He got 10 other drums from Offenhauser in exchange for the Sherwin-Williams arsenate; exchanged for Delta brand. That he applied the Delta brand the same as he had applied the Sherwin-Williams brand; applied it as soon as he got it; put it on in the evening and in the morning could see dead worms. That was from Delta brand. He put the Delta brand on the cotton that he had previously dusted with Sherwin-Williams brand. He exchanged for the different brand because the Sherwin-Williams brand wasn’t doing any good. Had bought it to kill army worms, and the worms were eating the leaves after the cotton had Sherwin-Williams brand on it. The Delta brand did kill them. The arsenate was put on the cotton plants under his supervision.

Many other witnesses testified to like experiences in their use of the Sherwin-Williams arsenate of calcium.

The case was tried to a jury, and upon thé verdict of the jury the court entered judgment for plaintiff for $8,095, and the defendant appeals.

Appellant’s first assignment of error complains of the action of the court in refus-. ing at the close of the evidence to instruct the jury to retúrn a verdict in its favor. As we view the pleadings and evidence, we think it has been clearly established that arsenate of calcium has a well-defined meaning in the commercial world. That it is known as an insecticide and is used for the purpose of killing army worms and boll weevils feeding upon cotton plants. That it was known to appellant at the time it sold and delivered the arsenate of calcium in controversy in this case to appellee that it was being sold as an insecticide for resale by the purchaser to his customers for the purpose of killing army worms and boll weevils feeding upon their cotton plants.

These facts having been established, we are of the opinion that the legal conclusion necessarily follows that there was an implied warranty by appellant to appellee that the arsenate of calcium was reasonably useful for the purpose for which it was sold. Davis v. Ferguson Seed Farms (Tex. Civ. App.) 255 S. W. 655.

If we are correct in this conclusion, then the only other necessary fact to be established before appellee would be entitled to recover damages was whether the arsenate of calcium was reasonably useful for the purposes for which it was sold, and, the evidence upon this issue being in conflict, the court properly submitted it to the jury; therefore we think that there was no error in refusing to instruct a verdict in favor of appellant.

By appellant’s second assignment of error complaint is directed to action of the court in submitting special issues No. 1 to No. 4, inclusive, to the jury. We have concluded that there was no error in submitting these issues to the jury. While issues No. 2 and 3 were possibly uncalled for under the evidence, their submission to the jury could in no way, as we view it, have prejudiced appellant’s rights.

Complaint is made to special issue No. 5 and the answer thereto, in that it does not submit to the jury a correct measure of damages. Special issue No. 5 is as follows: “What do you find, from a preponderance of the evidence, was the total of the resale price of such calcium arsenate in question sold by plaintiff to defendant?” Answer: “$4,983.-00.”

The rule stated in 2 Mechem on Sales, § 1S17, is as follows:

“Where the' article furnished by the seller is not such in kind, quality, or condition as it was expressly or impliedly warranted to be, the direct and natural loss to the buyer who keeps it is obviously the difference between the value of an article of the kind he was thus entitled to receive and the value of the article which he has in fact received. For this loss he is entitled to compensation. There may, of course, be other losses resulting from the seller’s default, and these will be considered later; but the direct and immediate loss will be at least this difference in value.
“For the breach of warranty, then, as to kind, quality or condition, the measure of the buyer’s injury will be the difference between the value of an article of the kind warranted and the value of the article actually delivered ; and for this difference the buyer may recover damages. If the article delivered is wholly worthless, then the entire value of such an article as this was warranted to be could be recovered.”

Applying the rule to the facts of this case, we find that the goods were sold at retail immediately on their arrival, or within a few days thereafter, in the city of Texarkana. That said merchandise was Worthless.

Therefore, we think when the jury determined the actual amount the arsenate of calcium sold for on the market in the city of Texarkana, it in that way correctly arrived at the measure of damages in such case allowable.

As bearing upon the issue of damages, we call attention to the ease of Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; 24 R. C. L. p. 240.

The fact that appellee had not refunded all of the money received for the arsenate of calcium sold by him to the various farmers did not lessen his right to recover against appellant for the total amount of the arsenate of calcium purchased from appellant. Davis v. Fergus on Seed Farms, supra.

Without discussing appellant’s assignments Nos. 5, 6, 8, 9, and 10, wherein it complains of the court’s action in allowing appellant to recover $2,500 as injury to his business and $437 for replacing some of the worthless arsenate of calcium to the farmers and also $175 for making certain investigations, they should be sustained. Such respective items are subject to the objection of being not supported by the evidence, and too remote and speculative to authorize recovery, and to allow the item of $437, in our opinion, would certainly amount to double recovery.

In accordance with the conclusions reached, the judgment of the trial court will be modified so as to allow a recovery by appellee of the sum only of $4,983, and as so modified the judgment will be affirmed.


author: WABTHABB, J,

text:
    EL PASO ELECTRIC CO. v. LEEPER.
    No. 2579.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 15, 1931.
    Rehearing Denied Nov. 5, 1931.

      Hunter, ¡Brown & Brooke, of El Paso, for appellant.
    Knollenberg & Cameron, of El Paso, for ap-pellee.
   WABTHABB, J,

This is a personal injury suit. Augusta Beeper sued the El Paso Electric Company for damages resulting to her from injuries received as the result of the automobile, in which she was riding on the night of October 30, 1928, driven by Bieut. Nutter, colliding with a transmission line pole of the electric company, and in which collision Miss Beeper was thrown out of and some distance from the automobile and injured, and the automobile demolished.

Bieut. Howze and Mrs. Howze, riding on the back seat of the automobile, were thrown out of the automobile and Mrs. Howze killed.

The issues made by the pleadings are sufficiently indicated by the special issues submitted to the jury on the trial. On the issues submitted the jury found:

1 and 2. The defendant, electric company, was- negligent in placing or maintaining its transmission line pole complained of at the place it was, and that such negligence was the proximate cause of the accident complained of.

3 and 4. Bieut. Nutter drove the automobile at a rate of speed in excess of 35 miles an hour, and that same was a proximate cause of' the accident complained of.

5. Bieut. Nutter and plaintiff, Augusta Beeper, at the time of the accident, were not upon a joint expedition in which they were jointly and mutually interested, and in which they had an equal right, express or implied, to direct and control the conduct of each other in the operation of the automobile.

6, 7, and 8. Bieut. Nutter, at or just before the time of the accident, drove the automobile at a fast, dangerous, and immoderate rate of speed, and was negligent in so doing, and such negligence was a proximate cause of the accident complained of.

9.The driver of the car drove the same at such rate -of speed as not to endanger the life and limb of persons and the safety of property.

11. The jury- assessed plaintiff’s damages at the sum of $7,500.

In response to special issues requested by appellant and submitted, the jury found: The defendant electric company’s transmission line pole was erected in such proximity to tlie traveled portion o£ the highway that the defendant, in the exercise of ordinary care, should have reasonably foreseen or anticipated that some such accident as happened in this ease would probably result to persons traveling the highway ¾ the exercise of ordinary care, and that the location and position of defendant’s pole was a proximate cause of the collision and injuries to plaintiff, Miss Leeper. The defendant’s pole was so erected as to endanger the safety of persons riding in vehicles proceeding along the highway in the exercise of ordinary care. The way and manner in which the automobile was being operated, under the circumstances prevailing just previous to the collision, was not the sole proximate cause of the collision. To the question, “Do you find from a preponderance of the evidence that the collision in which Miss Leeper was injured was not an unavoidable accident? Answer yes or no,” the jury answered, “Yes.”

On the answers as above the count entered judgment for the plaintiff, and for the amount found. Defendant’s motion for a new trial was overruled, to which ruling defendant duly excepted and prosecutes this appeal.

Opinion.

Appellant submits that the negligence of Lieut. Nutter in -driving the automobile, as found -by the jury, under the undisputed evidence which showed that Lieut. Nutter was driving the car which Miss Leeper had Borrowed from her mother — Lieut. Nutter was Miss Leeper’s agent in driving the car,'and his acts and negligence were imputable to Miss Leeper, and for that reason she should not recover. Appellant also submits that the undisputed evidence showed that Lieut. Nutter was invited to a dance by Miss Leeper; that she borrowed her mother’s automobile to be used in taking herself, Lieut. Nutter, and Lieut, and Mrs. Howze to the dance; that Miss Leeper turned over the automobile to Lieut. Nutter to drive in going to the dance; that, therefore, Lieut. Nutter. was Miss Leeper’s agent, and his negligence, as found by the jury, was her negligence, and for that reason she should not recover. We will discuss the two propositions together.

If the evidence was undisputed, as stated in the propositions, to the effect that Lieut. Nutter was Miss Leeper’s agent in driving the automobile at the time and place of the accident, the negligence of Lieut. Nutter would be her negligence and would defeat her recovery.

Without quoting the evidence, two facts are undisputed: The automobile belonged to Miss Leeper’s mother, Mrs. George Wallace, and Lieut. Nutter was driving the automobile during the entire time the parties were occupying and using the car, and at the time of the accident.

Miss Leeper testified:

“Lieut. Nutter came by for me at my home in the Wallace Annex. He came in his own car to my house, a small one-seated car. * * * My mother (Mrs. Wallace) was there. * * * When we started to go we didn’t go in this small car of Lieut. Nutter’s because we all wanted to go together, the four, the Howzes and Lieut. Nutter and I wanted to go together. If my mother would let me have her car, we would all go together.”

In question and answer: Question: “And she let you have the ear?” Answer: “Yes sir.”

Proceeding: “When we started to get in the car Lieut. Nutter took the wheel. He drove all the time until the time of the accident, I didn’t do any driving. When we left our house mother was with us; she was going to Mrs. Kettler’s on Montana (street), in the 1400 block.”

On cross-examination witness testified: “This car belonged to my mother. As to who suggested using that ear that night * * * she (Mrs. Howze)-said, T wish we could all go together’; I said, T will ask mother if we can have our car’, and when Lieut. Nutter came mother said we could have her car.”

Question and answer: Question: “You asked your mother if you could use her car and she agreed to that?” Answer: “Yes.”

Then proceeding: “As to who requested Lieut. Nutter to drive, well, I don’t know that he was requested to drive. It was sort of by common assent, he always drove. Whenever I was with him in that car, I always let him drive. * * * I have driven a car a good deal.”

Mrs. George Wallace testified: “Augusta Leeper is my daughter. The car in the accident was my car. * * * They left my house about 9:30 (P. M.) and I went with them. I turned this car over to Lieut. Nutter. When we left the house and got into the car, he took the wheel. I went with them to the 1400 block on Montana (street). * * As I got out of the car I said goodbye, have a good time, and take good care of my child. * * * I had been accustomed to letting Augusta and Lieut. Nutter drive my car. Lieut. Nutter and Augusta, upon other occasions, had driven the car with my consent. I loaned it to them whenever she requested. She asked me to let them have that car that evening. It was at Augusta’s request that I let them have the car.”

The point of appellant’s contentions, under the above evidence, is that the negligence of Lieut. Nutter in driving the car is imputed to Miss Leeper, for the reason that she had borrowed the car from her mother and had turned the car over to Lieut. Nutter to drive, thus making him her agent in driving the car.

One view of a portion of ithe evidence might lead to that construction. It is true that Mrs. Wallace, at the reguest of Miss Leeper, gave her consent to the use of the car for that • occasion. ’ Her expressions, however, were: “She asked me to let them have that car that evening. It was at Augusta’s request that I let them have the car.” It seems clear that under Mrs. Wallace’s evidence the use of- the car was let “to them,” meaning the four who were to occupy the car on that occasion, rather than to any one of them. The crucial point, as we view it, however, is not so much as to who requested the use of the car, or to whom she let it, hut rather to whom did she direct to have control of the ear to be driver. She said: “I turned this car- over to Lieut. Nutter. When we left the house and got into the car, he took the wheel.”' The above becomes pertinent in considering whether, at the time of the accident, Miss Leeper and Lieut. Nutter were upon a joint expedition at the time of the accident. In submitting that issue the court charged: “Occupants of a conveyance are supposed to be on a joint expedition where they have not only a joint interest in the object and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation- of the conveyance.”

The jury found that Miss Leeper and Lieut. Nutter were not upon a joint expedition, necessarily finding under the evidence that Miss Leeper did not have an equal right with Lieut. Nutter to direct and control' the operation of the car. The rule is well established in this state that in passing upon the sufficiency of the evidence to sustain a verdict the counts must look to all of the facts and circumstances and the evidence favorable to the verdict. Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696. The evidence shows that the parties were going some distance through and out from the city of El Paso on a rainy night, and to us it seems natural that Mrs. Waliace would want to intrust the operation of the car to the one more directly responsible for the safety -of her daughter. However, her reason for turning the car over to Lieut. Nutter is not stated, but she did caution him to “take good care of my child.”

The evidence is sufficient to justify the submission of the issue and to sustain the jury’s finding.

The jury found that the electric company “was negligent in placing and maintaining the pole at the place it was.”

■ The objection to the submission of the issue was that it was too general, and did not confine the jury to the allegations of the petition in stating the facts as to the location of the pole, and the reasons stated that made it dangerous to be placed where it was.

We think there was no affirmative error in submitting the issue as it was.

The court gave a special issue requested by appellant as to the erection of the pole in its relation to the traveled portion of the highway, on which the jury made a finding against appellant, and which we think relieved the error in the main charge, if any ■there was.

The court refused to submit requested special questions inquiring whether the. rate of speed and the condition of the weather caused the driver of the car to lose control of the car, and whether, if the driver did lose control of the car, that was the proximate cause of the collision with the pole. Appellant submits that the requested issues should have been submitted as bearing on the question of unavoidable accident.

The court heard all the .evidence and submitted the ultimate issue of unavoidable accident. The fact sought to be submitted was only an evidentiary fact. No error is shown.

The undisputed evidence showed that the pole in question was some distance from the edge of the traveled or paved part of the highway on either side, and some twenty feet from the center of either of the roads, but was within the right of way of each of the highways. If we understand the contention of appellant, it is to the effect that because there was ample room on both sides of the pole for the passage of vehicles, and the location of the pole did not interfere with or impede traffic, the answers of the jury to its special issues, finding against appellant, was contrary to and against the weight of the evidence; in other words, no negligence is shown as a matter of law. Article 784 'of our . Penal Code makes it a misdemeanor to willfully obstruct in .any manner whatever any public road or highway.

In 29 C. J., under the subject of what constitutes obstructions to highways, p. 616 et seq., it is said one is not justified in obstructing a highway because he' leaves sufficient room for the passage of the public and refers to many cases in note, including Kelley v. State, 46 Tex. Cr. R. 23, 80 S. W. 382. It is there said that the same is true of any object placed close to the roadway constituting a present source of danger.

It is said in Robinson v. State (Tex. Cr. App.) 44 S. W. 509, in a prosecution for obstructing a second class highway, that, “although every particular part of the road may not have been traveled by the public, each and every part of the same was a part of the public thoroughfare, and appellant had no right to infringe upon it, though the traveled part of the road may not have lain immediately over the portion encroached upon by appellant.” While the commissioners court is vested by law with a wide discretion in the matter of opening and establishing public roads, it cannot transcend the powers granted. We think it may not in this instance give appellant the right to obstruct the road by the erection and maintenance of the pole within the right of way of the roads in question.

With the facts undisputed that the pole was within the right of way of the roads, it cannot be successfully contended that the finding of the jury is not supported by the evidence.

The remaining assignment complains of the court’s refusal to permit Lieut. Nutter' to testify that he would have received suggestions from Miss Leeper and would have obeyed her instructions in the matter of driving the car had she given any. Witness would have stated in substance that the car was under his control, but that, as an act of courtesy, he would have taken instructions from Bliss Leeper had she given any. We think no error is shown in excluding the evidence. The fact at issue was Lieut. Nutter’s right or authority to drive or control the operation of the car, and not what he would have done under circumstances not present.

We have not discussed each point separately, but our view is expressed in points discussed.

We have concluded no reversible error is shown, and the case is affirmed.