author: PLEASANTS, 0. J.

text:
    NATIONAL SURETY CO. v. AMERICAN FINANCE CO. OF GALVESTON.
    No. 9565.
    Court of Civil Appeals of Texas. Galveston.
    July 8, 1931.
    C. E. Leiden and Worsham, Rollins, Bur-ford, Ryburn & Hincks, all of Dallas, for appellant.
    Terry, Cavin & Mills and Lewis Jeffrey, ¿II of Galveston, for appellee.
   PLEASANTS, 0. J.

Appellee brought this suit against appellant to recover 80 per cent, of the sum of $1,161 alleged to be due it by appellant upon a fidelity bond| designated on its facé a “Wholesale Automobile Conversion Bond,” issued by appellant to appellee. The petition alleges:

. That by the terms of this bond appellant agrqed and bound itself to indemnify appel-lee against 80 per cent, of any direct loss “(a) Through the wrongful or fraudulent sale, mortgage, pledge, or conversion by a dealer named in the schedule forming part of this bond, of any motor vehicle so placed in the custody and/or possession of such dealer, or the possession of any warehouseman, for such dealer’s account, under a title retaining instrument in which such motor vehicle is described, or through the wrongful or fraudulent conversion by such dealer of the proceeds of any sale of such motor vehicle made by such dealer for the account of the Obligee under the terms of such title.retaining instrument.”

That, in the schedule provided for in said bond and furnished plaintiff as effective -on April 15,1929, the Le Sage Motor Company of San Antonio was designated a dealer in automobiles whos,e fidelity was covered and guaranteed by said bond to the amount of $20,000.

“That prior to April 15, 1929, on said date and thereafter until November 12, 1929, Le Sage Motor Company, being a business conducted by J. H. Le Sage under the assumed name of Le Sage Motor Company, was engaged in a retail automobile sales business in San Antonio, Bexar County, Texas; that on April 15, 1929, and at all times subsequent thereto up to November 12,1929, plaintiff was, by contract with said Le .Sage Motor Company, placing with said Le Sage Motor Company and carrying in said Le Sage Motor Company’s place of business, automobiles un-dei' Trust Receipts which said automobiles, under the terms of the contract or trust receipt, said Le Sage Motor Company was authorized to sell in its retail trade and was required, under the terms of said contract of trust receipt, to make remittances in cáse forthwith to plaintiff upon the sale by it, the said Le Sage Motor Company, of any motor vehicle placed with said Le Sage Motor Company by plaintiff under said contract or trust receipt.

“That defendant was fully informed and advised of the terms, conditions, and provisions of said trust receipt or contract entered into between plaintiff and Le Sage Motor Company, and the bond herein sued 'upon, hereinabove more particularly described, was executed for the specific purpose and intent, among others, to indemnify plaintiff against any direct loss resulting from the failure of the said Le Sage Motor Company to remit to plaintiff any proceeds from the sale of automobile or automobiles covered by trust receipts which, under said trust receipts or contract, it was required to remit.”

That' on or about November 1, 1929, said Le Sage Motor Company wrongfully sold, mortgaged, and converted two automobiles belonging to plaintiff which were held by said motor company under trust receipts given by it to plaintiff which obligated and required said company to forthwith remit to plaintiff the proceeds of the sale of the automobiles so held by it for plaintiff. That the amount dale plaintiff as the value of the automobiles so converted by the motor company was $1,-200, but that said motor company has “failed and refused and still fails and refuses to remit to plaintiff the proceeds of the sale of said automobiles above described or any part thereof save and except the sum of Thirty-nine and No/100 Dollars ($39.00); that plaintiff has properly credited the sum of $39.00 upon said account, and there is now owing plaintiff by Le Sage Motor Company, the sum of Eleven Hundred Sixty-one and No/100 Dollars ($1161.00) from the proceeds of the-sale of the automobiles hereinabove described, which said sum, said Le Sage Motor Company, although obligated to return to plaintiff, has wholly failed and refused to pay to plaintiff, but said Le Sage Motor Company has wrongfully and fraudulently converted to its own use and benefit the proceeds from the sale of said above described automobiles.

“That because of the wrongful or fraudulent conversion by the said Le Sage Motor Company and/or J. H. Le Sage, doing business as Le Sage Motor. Company, of the sum of Eleven Hundred Sixty-one and No/100 ($1161.00) Dollars owing plaintiff out of the proceeds of the sale of the above described two automobiles, or because of wrongful or fraudulent sale or conversion thereof, plaintiff has suffered a direct loss in the sum of Eleven Hundred Sixty-one and No/100 Dollars ($1161.00) and defendant has, by the execution of the bond hereinabove pleaded ¡and described, obligated and bound itself to pay to plaintiff eighty (80%) per cent, of Eleven Hundred Sixty-one and No/100 Dollars ($1161.00) from which obligation a cause of action has arisen in favor of plaintiff against defendant to recover the sum of eighty (80%) per cent, of Eleven Hundred Sixty-one and No/100 Dollars ($1161.00), with interest thereon at the rate of six (6%) per cent per annum from November 1, 1929, until paid; that plaintiff has timely furnished notices and proof of loss to defendant.”

The defendant answered by general demurrer and general denial and special pleas setting up the failure of plaintiff to comply with its obligations stipulated in the bond as conditions precedent to plaintiff’s right of recovery on the bond.

One of these provisions of the bond is pleaded in defense of plaintiff’s suit and is as follows:

“In condition 17 of said bond it is provided:
“ ‘If at any time after the effective date hereof, the Obligee or any of its officers, suspect or become aware of any act, fact or information affecting the moral or business standing of any dealer named in the schedule forming part of this bond, or such evidence as would warrant any prudent person in reducing or withdrawing credit or accommodation ; or in case the Obligee in any other way receives information indicating a probable default hereunder or that any dealer named in such schedule is unreliable or unworthy of confidence; and should any such act, fact or information be not forthwith communicated to the Surety in writing, the surety shall not be liable for any act of any such dealer thereafter committed, nor for any motor vehicle not then delivered to such dealer.’
“In connection with this condition of the bond the defendant respectfully shows to the Court that the plaintiff or its officers had ground to suspect and did suspect and became aware of information affecting the business standing of the said dealer, and that such information as the plaintiff possessed would warrant and would require a prudent person to withdraw credit and accommodation, and the plaintiff receive^ information indicating a probable default by the said dealer, and that such information was not forthwith communicated to the defendant in writing, and in fact was not communicated at all until after the dealer had become insolvent and gone out of business, and that the loss of which the plaintiff complains and for which it sues herein, if sustained at all, was sustained by the plaintiff long after it had acquired such information and failed to communicate same to this defendant, and therefore this defendant under the plain provisions of the instrument sued on is not liable to the plaintiff, and plaintiff is not entitled to recover anything.”

The defendant further pleaded an accord and satisfaction of the indebtedness due plaintiff by the motor company by its acceptance thx-ough its duly authorized agent and general manager, O. H. Pomeroy, of the sum of $39 in cash and negotiable paper of the value of $1,161.

The trial in the court below resulted in a judgment in favor of plaintiff for the sum of $928.80.

At the request of appellant the trial court filed'conclusions of fact and law. The material fact findings of the court, all of which are amply sustained by the evidence, support the allegations of plaintiff’s petition. These findings of fact upon the special pleas of defendant,«above shown, are as follows:

“That on November 6, 1929, plaintiff had resident in the City of San Antonio one 0. H. Pomeroy as its Branch Manager; that on November 6, 1929, and after the sale by Re-Sage Motor Company of the two automobiles héi;ein above described, said ReSage Motor Company offered to plaintiff’s Branch Manager in San Antonio, C. H. Pomeroy, six sets 'of promissory notes secured by chattel mortgages on ears executed by persons purchasing cars from ReSage Motor Company, and made payable to ReSage Motor Company, to plaintiff’s said Branch Manager totalling $1161.00, together with the sum of Thirty-Nine and 00/100 ($39.00) Dollars in cash to balance the principal amount, to-wit, Twelve Hundred Dollars ($1200.00), due plaintiff by ReSage Motor Company under said Trust Receipt with the additional sum of Nine and 73/100 ($9.73) Dollars accrued interest, in full payment of said Trust Receipts; that said Pomeroy informed ReSage Motor Company .at the time that he did not think the paper thus tendered would be acceptable to his principal but that he thought his principal would demand that the entire amount due under said Trust Receipts be paid in cash, but that if ReSage Motor Company desired he would transmit the proposal to his principal, the plaintiff, in Galveston for its acceptance or rejection; that this was agreed to by ReSage Motor Company who clearly understood and agreed that the commercial paper in question was: being accepted by Mr. Pom-eroy for transmittal to Galveston subject to acceptance or rejection by the home office; that said commercial paper was forwarded to Galveston by Mr. Pomeroy the same day he received it from ReSage Motor Company and on the same day such commercial paper was received in Galveston it was rejected by plaintiff and returned to Mr. 'Pomeroy with instruction to deliver same back to ReSage Motor Company, with the information that it was not acceptable and that plaintiff demanded the payment of the balance In cash. Plaintiff did accept and retain the cash payment of Thirty-nine and 00/100 ($39.00) Dollars, plus the cash payment of interest amounting to Nine and 73/100 ($9.73) Dollars and applied same to the credit of Re-Sage Motor Company on said Trust Receipt; that immediately on receipt of the return of the commercial paper in question by Mr. Pomeroy he delivered same to ReSage Motor Company with the advice that it was not acceptable to his principal, and he then demanded the balance due in cash, which demand was refused; shortly thereafter ReSage Motor Company went into bankruptcy and the commercial paper in question passed into the hands of the Trustee in bankruptcy.
“I find that plaintiff complied with all of the obligations and stipulations in the Bond aforesaid imposed upon it with reference to -making audits and in giving notices to defendant, National Surety Company, with reference to default of ReSage Motor Company.
“I specifically find that at no time after the effective date of the Bond in question did the obligee therein, American Finance Company, or any of its officers, suspect or become aware of any act, fact or information affecting the moral or business standing of ReSage Motor Company, or receive or come in possession' of such evidence as would warrant a prudent person in reducing or withdrawing credit or accommodation to ReSage Motor Company, nor did it in any other way receive information indicating a probable default by ReSage Motor Company under said bond or that Re-Sage Motor Company was unreliable or unworthy of confidence, prior to the 14th day of November, 1929, on which said date American Finance Company promptly telegraphed fully and explicitly its suspicion of the ReSage Motor Company to the defendant in accordance with the duty imposed upon it in the Bond aforesaid.”

By the first proposition presented in its brief appellant contends that, when the Re Sage Motor Company tendered to appellee in settlement of its indebtedness the cash and negotiable paper shown in the pleadings and findings of fact, the appellee was bound to accept or reject the entire tender, and by retaining the cash it accepted the offered settlement and released the motor company from further liability upon the original indebtedness.

This -contention is not sound. Appellee’s claim against the motor company was- liquidated, and there was. no dispute between the parties as to the amount due thereon. The cash payment was admittedly due appellee by the motor company, and there was no .agreement expressed or implied which would restrict appellee^s right to retain this cash payment on the indebtedness and refuse’ to accept the proposed negotiable paper for tbe balance due it by tbe motor company.

If appellee bad agreed to accept tbe casb payment in satisfaction of tbe whole admittedly due Indebtedness of tbe motor company, such agreement would be unenforceable for want of consideration. 1 R. C. L. page 184; 1 C. J. pages 530-541; 1 Tex. Jur. page 257.

It is true tbat in applying this general rule our courts have gone to the verge of reason in finding a consideration for such agreement, and it is now settled tbat any benefit to tbe creditor or detriment to tbe debtor will be considered a sufficient consideration to support the agreement; but manifestly such benefit or detriment must be something more than tbe receiving by tbe creditor and tbe payment by tbe debtor of a part of the indebtedness, for otherwise • tbe general rule requiring a consideration for such agreement would be abrogated.

In this case, however, tbe fact findings of tbe trial court show there was no agreement on tbe part of appellee to accept tbe casb payment in satisfaction of tbe entire indebtedness, and under these findings tbe question of an accord and satisfaction is eliminated from tbe case.

Tbe remaining propositions presented by appellant complain of tbe fact findings of tbe trial court before set out on tbe ground that such findings are not sustained.

We have considered each proposition and tbe evidence upon which tbe findings of tbe trial court are based, and we think the evidence is sufficient to sustain each of tbe findings upon which the judgment rests.

It follows that tbe judgment should be affirmed, and it has been so ordered.

Affirmed.


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    PETERS v. LYLES-MADRY IMPLEMENT CO.
    No. 12468.
    Court of Civil Appeals of Texas. Fort Worth.
    May 16, 1931.
    Rehearing Denied June 13, 1931.
    W. W. Alcorn and M. Kleberg, both of Port Worth, for appellant.
    W. M. Short and H. M. Harrington, both of Fort Worth, for appellee.
   BUCK, J.

Tbe Lyles-Madry Implement Company, a corporation, sued C. C. Peters, and for cause of action pleaded that defendant executed and delivered to plaintiff a promissory note in tbe sum of $210.40 on May 21, 1929, due and payable at Fort Worth on June 4, 1929, bearing interest at 8 per cent, per annum from July 21, 1928, until paid, and provided for 10 per cent, additional on tbe amount of principal and interest then due, as attorney’s fees, if placed in the bands of an. attorney for collection, or if suit be brought on the same. Tbat said note was executed in evidence of and in consideration of indebtedness then owing by said defendant to plaintiff'. The note was set out in tbe pleadings as follows:

“$210.40 Fort Worth, Tex., May 21, 1929.
“On the fourth day of June, 1929, for value received, I promise to pay to Lyles-Madry Implement Company or order at Fort Worth, Texas, Two Hundred Ten 40/100 Dollars with interest at the rate of 8 per cent, per annum from July 21, 1928, until maturity and 10 per cent, per annum thereafter. In case this note is placed in tbe bands of an attorney for collection, or if collected by suit, I agree to pay 10 per cent, additional as attorney’s fees. This is given to secure the purchase money for tbe following described property.
“Ledger Account — purchased of said payee, who, the better to secure tbe payment of tbe same, hereby retains a lien on said articles which I hereby acknowledge to subsist.

It is agreed tbat a sale, removal from eounty, or legal seizure óf said property or default in the payment of this note shall authorize the holder of it to take possession of the property herein conveyed without process of law and to sell the same either at private or public sale with or without notice and to apply the proceeds of such sale to the payment of this note and all other debts I now owe Lyles-Madry Implement Co. Any surplus after satisfying said note and interest thereon and all costs of sale, to be turned over to the maker hereof. This note is one of a series of-notes executed this day and it is expressly agreed that if it is not paid at maturity all notes in said series shall, at the option of the holder, become due and payable at once.

“Post Office: Fort Worth* Texas.
“County: Tarrant.
“[Signed] ■ C. C. Peters.”

That on May 21, 1029, defendant executed and delivered to plaintiff his other promissory note for the sum of $235, payable to plaintiff at Fort Worth and due on September 1, 1929, bearing interest at the rate of 10 per cent, per annum from date until paid, and providing for the usual 10 per cent, attorneys’ fee on the principal and interest if placed in the hands of an attorney. This note is set out in the pleadings and is.as follows:

“$235. Fort Worth, Tex., May 21, 1929.
“On the first day of September, 1929, for value received, I promise to pay to Lyles-Madry Implement Co. or order at Fort Worth, Texas, Two Hundred Thirty-five no/100 dollars, with interest at the rate of 10 per cent, per annum from date until maturity and 10 per cent, per annum thereafter.
“In case this note is placed in the hands of an attorney for collection or if collected by suit, I agree to pay 10 per cent, additional as attorney’s fees. This note is given bo secure the purchase money for the following described property:
“One three folding rake, one twelve foot forty tooth rake,
“One Dain Jumbo Power Lift rake, purchased of the said payee, who, the better to secure the payment of the same hereby' retains a lien on said articles which I hereby acknowledge to subsist.
“It is agreed that a sale or removal from county or legal seizure of said property or default in the payment of this note shall authorize the holder of it to take possession of the property herein conveyed without process of law and to sell the same either at private or public sale with or without notice and to apply the proceeds of such sale to the payment of this note and all other debts I now owe Lyles-Madry Implement Co. Any surplus after satisfying said note and inter-tst thereon and all costs of sale, to be turned over to the maker hereof. This note is one of a series of-notes executed this day' and it is expressly agreed that if it is not paid at maturity all notes in-said series shall, ,at the option of the holder, become due a.nd payable at once.
“Post Office: 1639 Pa. Ave. City.
“County: Tarrant
“[Signed] C. C. Peters.”

. Plaintiff filed an affidavit and bond in attachment against defendant on September 12, 1929, and levied on 40 tons of hay which was located on defendant’s farm, some six or seven miles from Fort Worth. The defendant filed a replevy bond and retook possession of the hay.

Defendant demdrred generally to the sufficiency of plaintiff's pleading and pleaded a general denial, and also pleaded damages by reason of alleged false and untrue affidavit, to the effect that the defendant did not have property in his-possession within this state subject to execution sufficient to make plaintiff’s alleged debt. In this cross-action he asked for actual damages in the sum of $450 and exemplary damages in the sum of $525, aggregating $975.

Judgment was entered on March 13, 1930, for plaintiff, and the judgment recited that it appearing to the court that plaintiff’s cause of action was liquidated and evidenced by one promissory note in the sum of $210.40, etc., and another promissory note in the sum of $235, etc., and that said note last mentioned had been executed as part payment of the purchase money for one three-wheel John Deere folding rake, one twelve-foot forty-tooth John Deere rake, and one John Deere Dain Jumbo power lift rake; that the payment of said last-named note was further secured by a chattel mortgage executed by defendant upon the property above described and duly filed in the office of the county clerk of Tarrant county. The principal, interest, and attorney’s fees of the first note amounted to $262.04, and the principal, interest, and attorney’s fees on the second note above amounted to $279.45. The court also foreclosed the chattel mortgage lien upon the property above described and gave judgment not only against the defendant but against his bondsmen on the replevy bond. The court denied defendant’s cross-action. From this judgment the defendant has appealed.

Opinion.

In 11 Texas Jurisprudence, pp. 755, 756, it is said: “On the other hand the court may consider a cross-action or a plea in recon-vention within its jurisdiction. And if the demand made by the cross-action or plea in reconvention is within the jurisdiction of the court it confers on the court jurisdiction for all purposes, and the defendant may not on appeal object that the plaintiff’s pleadings showed an amount in controversy below the jurisdiction of the court.”

See Mackay Telegraph-Cable Co. v. Proctor (Tex. Civ. App.) 212 S. W. 547; Brunson v. Dawson State Bank (Tex. Civ. App.) 175 S. W. 438; Joyce v. Hagelstein (Tex. Civ. App.) 163 S. W. 356, writ of error refused.

We therefore overrule the first proposition, which is directed to the action of the trial court in overruling the general demurrer because plaintiff’s petition did not allege the value of the property, upon which plaintiff sought a foreclosure. Even though plaintiff did not allege the value of such property, defendant, by his cross-action, supplied the omission. Therefore, we overrule the second proposition.

In the third proposition, it is said: “To maintain action upon a note, it is necessary to aver some act on the part of the appellant which will fix liability on him; such as that he made and executed the note, showing that it was his act and deed, and it must be averred that appellee (plaintiff) is the owner and holder of such note, or has an interest in the note and mortgage.”

Plaintiff alleged that the defendant executed the notes in controversy and delivered them to plaintiff. The notes, as set out in the petition, are made payable to plaintiff and are signed by the defendant. In 6 Texas Jurisprudence, p. 904, § 239, it is said: “In conformity with an elementary rule of pleadings that the liability of the defendant to the plaintiff on the cause of action in suit, must' be distinctly averred, and that the plaintiff’s right of action will not be inferred from an alleged right of action existing in favor of other parties, the petition should allege ownership of the paper in the plaintiff; otherwise the petition is bad, as against a general demurrer. * * * And in a suit by the'payee, ownership is sufficiently averred by an allegation that the note sued on was executed and delivered to the.plaintiff by the defend-ant.”

See 6 Texas Jurisprudence, p. 905, § 240, where it is said: “When it appears in the petition that the plaintiff is the payee of the' papers sued on, he need not in terms allege that he is the owner, but ownership is, as a general rule, sufficiently averred by an allegation that the note sued on was executed and delivered to the plaintiff by the defendant.”

See Texas Land & Cattle Co. v. Carroll & Iler, 63 Tex. 48, loc. cit. 52; Barton v. Pochyla (Tex. Civ. App.) 243 S. W. 785; 8 Corpus Juris, 986, § 1159.

In appellant’s fourth proposition he claims that “plaintiff nowhere alleges in its petition that the amount of the notes sued for is unpaid, so it has failed to allege a cause of action against defendant.” Plaintiff does allege: “Although both of said notes are past due and payable, the said defendant has failed and refused to pay the same or any part thereof.” We think such allegation is sufficient to meet this objection.

The fifth proposition is that the court erred in overruling defendant’s general demurrer for the reason that plaintiff nowhere alleges in its petition a demand and refusal of payment of said notes sued on, so states no breach of contract, and consequently states no cause of action against defendant. The two notes sued on were alleged to have been executed by the appellant and to have been-payable to appellee or its order. Therefore it was not necessary to state a cause of action that the petition should allege - that demand had been made upon appellant to pay said notes. The necessity of presentment to the maker of a note for payment has been dispensed with by the Negotiable Instrument Act, article 5937, § 70, Revised Statutes, 1925, which reads as follows: “Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity, such ability and : willingness are equivalent to a tender of payment upon his part. Except as herein other-' wise provided, presentment for payment is necessary in order to charge the drawer and indorsers.”

See 6 Tex. Jur. 878, § 220; same authority, p. 916, § 249; 8 C. J. 527, § 741, where it is said: “Presentment or demand is not necessary to hold the acceptor of a bill or maker of a note payable generally.”

See Hackett v. Dennison, 19 S.W.(2d) 541, by the Kansas City, Mo., Court of Appeals.

The sixth proposition is: “The court erred in rendering judgment by default against the defendant, where he had an answer then on file, and no evidence was offered to prove plaintiff’s cause.”

It is not shown that the judgment was by default. The judgment recites “that plaintiff, a corporation, appeared by attorneys, and also the defendant, by his attorney, and all parties announced ready for trial,” etc. It is further not shown that no evidence was admitted. We overrule this assignment. See Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742; Day v. Cooper (Tex. Civ. App.) 175 S. W. 485; Browne v. McGuire (Tex. Civ. App.) 181 S. W. 479.

It seems to the court that the judgment' should be affirmed, and it is so ordered.


author: DUNKLIN, J.

text:
    FRITZ MOTOR CO. v. GABERT et al.
    No. 12472.
    Court of Civil Appeals of Texas. Fort Worth.
    June 13, 1931.
    Rehearing Denied July 18, 1931.
    Kilgore & Rogers, of Wichita Falls, for appellant.
    Slay & Simon, Cecil Rotsch, and E. E. Sanders, all of Fort Worth, for appellees.
   DUNKLIN, J.

M. Gabert, doing business in the city of Fort Worth, was employed by Johnnie Pringle to do certain necessary repair work on an automobile owned by Pringle, and the value of the work so done by Gabert was $173.45. At the time the work was done, the Fritz Motor Company held a chattel mortgage on the car to secure the payment of 12 promissory notes executed by Pringle and Pat Sherman, aggregating the sum of $513.32, which was past due. Before Gabert did the repair work, he had notice of such mortgage by the prior filing thereof in the chattel mortgage records of Tarrant county, and also by actual notice conveyed to him by Pringle.

Before Gabert undertook to make the repairs on the car, Pringle, in his presence and hearing, called up the office of the Fritz Motor Company in Wichita Falls over long distance telephone, and Gabert heard him say to Mr. Fritz, the manager of that company:

“I haVe had a wreck with my car and I will have a note due, or it is due now, and if you can extend the notes I can have the car repaired and pay for it.”

Pringle then reported to Gabert that Fritz had said in reply that it was all right to have the repairs made, and that he would extend, the notes. Gabert further testified that he. would not have placed the repairs on the car if Pringle had not told him that the Fritz Motor Company had authorized him to have the repairs made.

The Fritz Motor Company instituted a suit in the county court at law of Wichita county against Pringle and Sherman, the makers of the notes, to recover the amount due thereon, and for a foreclosure of its chattel mortgage upon the automobile; and sued out a writ of sequestration in that court, directed to the sheriff or any constable of Tarrant county, and acting under that writ, a constable of Tarrant county levied upon the machine, which was then held by Gabert under a claim of statutory mechanic’s lien for the amount due for repairs made, and which Pringle bad failed to pay. After the officer making the levy had taken the machine into his possession, Gabert filed a claimant’s affidavit and bond for trial of right of property under the provisions of title 125, of the Revised Civil Statutes of 1925, beginning with article 7402, .and the car was-.then delivered,to him by'the officer who had' levied the sequestration writ, and the oath ahd bond filed by Gabert was then returned to the county court at law of Tarrant county, in which court there was a trial of right of property as between Gabert apd the Fritz-Motor Company. And from a judgment establishing a mechanic’s lien in favor of Gabert and decreeing the same'to be superior - to the ■ mortgage lien of the Fritz Motor Company,'which was also established, the Fritz Motor Company has prosecuted this appeal. ’ .

The .trial was .before the court .upon an agreed statement of the case and of 'the facts proven,, undey the. provisions of article 2280, of' the'Revised Statutes, which agreement is shown in the record here and embodies, among others,- the’facts recited above.

In answer to. special'issues, the jury found that: (1) Prior'to the time that Gabert made repairs '.on the ear, plaintiff’s agent, Fritz, told Johnnie Pringle to go on and . have, the ear repaired and' plaintiff would extend the notes for SO days, so as to give Pringle time to pay for it; (2) 'that, when Gabert replevied •the car from the possession of the constable, its reasonable market -value was $350, and at the time' of the trial the market value of the ear was $150.. ■"

It is the settled rule of decisions in, this state that ¿ chattel mortgage, when duly filed for record, takes precedence over a subsequent mechanic’s lien, such as asserted by Gabert in this case, on personal property. American Type Founders Co. v. Nichols, 110 Tex. 4, 214 S. W. 301; Holt v. Schwarz (Tex. Civ. App.) 225 S. W. 856; Texas. Jurisprudence, Vol. 9, § 65. Gabert pleaded a waiver by the Fritz Motor Company of the right to claim 'the priority of “ the plaintiff’s mortgage lien over, the mechanic’s lien which was given to Gabert by virtue of the terms of the statute, article 5503, Revised Statutes. The pleading presenting such'waiver reads as follows:

“That prior to the doing of the work on. said automobile, Fritz Motor Company authorized Johnnie Pringle (owqer) to have said repairs made, and- that had Fritz Motor Company not authorized the said repairs to be made, he would not have made the same, and that the Fritz Motor Company,, by said authorization, waived its lien, if any it had, and that Ga-bert’s lien was in all things superior to Fritz Motor Company’s mortgage lien.”

The principal contention presented by appellant is that '.the pleading just quoted, in ■connection with the agreed facts recited above, were not sufficient to support the trial court’s finding that the Fritz Motor Company waived the priority of its lien in favor of Gabert’s lien. Many authorities are cited by appellant announcing the general rule quoted from 40 Cyc. 261, in Hines v. Jordan (Tex. Civ. App.) 228 S. W. 633, 634, as follows:

“‘Waiver’ is an- intentional abandonment of a known right. There can be no waiver unless so intended by one party and so understood by the other, or one party has so acted as to mislead the other and is estopped thereby.’ ”

Other authorities are cited announcing the further rule that one will not be held to waive a lien unless the intent be express or very plain and- clear, and that the presumption is always against it, such as 17 R. C. L. 606; 26 Cyc. 673; McBride v. Beakley (Tex. Civ. App.) 203 S. W. 1137.

However, it is also a rule of decisions that a lien may be waived by implication as well as by express words. Medlin v. Hambright (Tex. Civ. App.) 225 S. W. 577; Harding v. San Saha National Bank (Tex. Civ. App.) 13 S.W.(2d) 121; McCarthey v. North Texas Loan Co. (Tex. Civ. App.) 101 S. W. 835.

In American Surety Co. v. Bay City Cattle Co. (Tex. Civ. App.) 268 S. W. 247, 251 (writ of error refused),'it was held that the prior-ity-of á mortgage lien was waived in' favor Of a eláim for pasturing cattle on the ground of implied assént of the mortgage holder that the -lien foí pasturáge should take precedence over the mortgage lien.

The facts of that case are strikingly similar to the facts of this, and we approve the reasoning advanced, especially the quoted opinion of Judge Brewer, of the Supreme Court of Kansas, Case v. Allen, 21 Kan. 217, 30 Am. Rep. 425, reading as follows:

“Now, the lien of the agister is. not the mere creature of contract; it is' created by statute from the fact of the :keeping of the' cattle. Tli'e possession of the agistfer was rightful, and the possession being rightful, the keeping •gave rise to the lien; and such keeping was as much for the interest of the mortgagee as the mortgagor. The cattle were kept alivfe'there-by; and the principle seems to be, that where the mortgagee does not take the possession, but leaves it with the1 mortgagor, he thereby assents to the creation of a statutory lien for • any expenditure reasonably necessary for the ■preservation or ordinary repair of the thing mortgaged. Such indebtedness really inures •to his benefit. The entire value of his mortgage may rest upon the creation of such indebtedness and lien, as in the case at bar, where the thing mortgaged is live stock, and :the lien for food.”

While the Fritz Motor Company did not in express terms' agree that á lien might arise in Gabert’s 'favor for repairs, yet - it knew that the repairs to''be made-would enhance the value of the property; -it also knew that when the repairs were finished, Pringle might not be able to pay for them, and that in that event a statutory lien in favor of Ga-bert would arise. If the repairs had been made upon the order of the Fritz Motor Company, clearly, it would be in no position to deny the priority of Gabert’s lien over the mortgage lien; and we can perceive no reason why the same legal result would not follow from the plaintiff’s authorization of the repairs through Pringle.

There was no error in sustaining Gabert’s objection to the introduction of two letters written by his attorney to the Fritz Motor Company, in which it was stated that Gabert’s lien was superior to the mortgage lien by reason of the failure of the plaintiff to record the mortgage. The contention made here is that since the claim of waiver of lien was not mentioned in those letters, it tended to contradict the plea of waiver later made in the trial of the case.

There is no merit in the assignment, since the facts are all agreed to, and whether or not there was a waiver depended upon those facts, rather than upon some erroneous conclusion of law theretofore expressed by counsel.

And since the court rightfully held Ga-bert’s lien superior to the mortgage lien, the error, if any, in the action of the court in sustaining Gabert’s exception to a pleading of the Fritz Motor Company seeking to recover the value of the use of the automobile while it was in Gabert’s possession after he had replevied it was harmless.

Furthermore, the Fritz Motor Company never had title to or possession or right of possession of the car. The car "had been sequestered by it in its suit for debt and foreclosure of the chattel mortgage, but it was in custodia legis, and the foreclosure of the mortgage lien would not give the Fritz Motor Company right of possession of the car. And in the absence of possession or right of possession there could not, in any event, be a basis for recovery of the value of the use of the car as damages for being deprived of possession. Moreover, under its pleadings, the Fritz Motor Company could not recover more than its debt, with foreclosure of its lien, and court costs. Nor could there be any basis for a claim of damages against- Gabert growing out of his act in recovering from the constable possession of the ear under his claimant’s bond, since article 5503, Revised Statutes, giving him a lien on the car for repairs made by him, also expressly conferred upon him the right to retain possession of the ear until the repairs were paid for.

For the reasons noted, all assignments of .error are overruled and the judgment is affirmed.

On Motion for Rehearing.

■ Our attention is called to an error in the original opinion in the statement that “the trial was before the court upon an agreed statement of the case and of the facts proven.” That statement is withdrawn; the fact being that the trial was before a jury and the agreed statement of the case and of the facts proven were filed for the purpose of enabling this court to determine whether there had been any error in the judgment, all as provided for in article 2280 of the Revised Statutes.

Appellant insists upon a ruling upon its assignment of error addressed to the charge of the court, reading as follows: “This casé-is submitted to.you upon special issues, and you will, from a preponderance of the evidence, in this case, answer, * * * ” followed by the special issues submitted, the first of which was: “Did plaintiff’s agent, Fritz, prior to the car’s repair, tell Johnny Pringle to go ahead and have the car repaired and plaintiff would extend the notes for thirty days so as to give Pringle time to pay for it?” To which the jury answered “Yes.”

The complaint made is that the preliminary instruction quoted had the effect to place the burden of proof upon the plaintiff to find the facts relied" on by the defendant as a waiver by the plaintiff of the priority of its mortgage lien to the lien claimed by Gabert.

Issue No. 1 was in exact accord with the agreed facts filed here as having been established by the evidence. ■

We did not discuss the assignment because we were unable to perceive how the charge could possibly have worked harm to appellant. However, we will now say that the error, if any, in the instruction, was harmless,* "and the assignment addressed to it is accordingly overruled.

We do not believe that our decision in the present, suit is in conflict with the case of Commercial Credit Co. v. Brown (Tex. Com. App.) 284 S. W. 911, referred to in Vol. 9, Tex. Jur. Sec. 65, and American Type Founders’ Co. v. Nichols, 110 Tex. 4, 214 S. W. 301. The distinguishing feature of this case from those authorities is the issue of waiver, which we held was conclusively established in ap-pellee’s favor by the fact found by the jury in answer to special issue No. 1. We expressly recognize the rule that in the absence of waiver the appellant’s chattel mortgage was superior to the statutory lien claimed by Ga-bert. In the agreed statement of the case and of the facts proven, signed by counsel, the following occurs:

“M. Gabert proved by competent evidence that on March 7, 1928, Johnny Pringle requested him to repair the automobile described which was wrecked. That Pringle advised Gabert that. Fritz had a mortgage upon the ear but stated that if Fritz would extend the Pringle notes he would let Gabert repair the car and he would pay for it. That Pringle ionly wanted the car repaired if Fritz would make an agreement to extend the notes and give Mm time. That in Gabert’s presence Pringle called Mr. Fritz of Fritz Motor Company and Gabert beard Pringle say:
“ ‘X have bad a wreck with my car and X will have a note due or it is due now and if you can extend the notes I can have the car' repaired and pay for it.’
“Pringle told Gabert after the conversation that Fritz said it was all right and he would extend the notes. Gabert testified that he would not have placed the repairs on the car if Pringle had not told him (Gabert) that the Fritz Motor Company had authorized him (Pringle) to have repairs put on'and that' Lie (Gabert) would not have gone ahead and put the repairs on the car if Pringle had not telephoned and had the conversation he (Pringle) had.
“Gabert repaired the automobile and the reasonable value of the parts and labor was $173.43 and has not been paid.”

The agreed statement contains this further testimony of Johnny Pringle with reference to the telephone conversation he had with Mr. Fritz:

“I told him that my wife had torn up my. car and that I wanted to get Mr. Gabert to fix it up for me, but that I did not want them to take it away from me under their mortgage before I could get it paid for, and that I wanted them to extend their notes for. thirty days. Blr. Fritz said:
“ ‘All right, go ahead and have it fixed and we will extend the notes so as to give you time to pay for it.’ ”

The Fritz Motor Company offered no testimony to contradict that copied above.

Our conclusion was that the facts found' by the jury in answer to issue No. 1 conclusively established the waiver pleaded by the defendant, as a matter of law, and we believe that conclusion to be well sustained in principle by the opinion in American Surety Company v. Bay City Cattle Co. and many other authorities there cited on the question of implied "waiver.

The motion for rehearing is overruled.


author: GRAVES, J.

text:
    GUESS et al. v. PHELPS et al.
    No. 9561.
    Court of Civil Appeals of Texas. Galveston.
    June 3, 1931.
    Rehearing Denied July 2, 1931.
    . Maurice Epstein, Alexander T. Sidman, and Conrad J. Landram, all of Houston, for appellants.
    L. B. Moody, Edgar H. Phelps, and Ed. S.1 Phelps, all of Houston, for appellees.
   GRAVES, J.

The suit, in regular form of trespass to; try! title to and for possession of lot 1 in’block) 384 on the south side of Buffalo Bayou in the! city of Houston, was by Ed. S. and Ed. H. Phelps as plaintiffs against Mollie'‘Sanfes Woods and husband, pro forma, 'as defendants; the defendants answered, among other1 things setting up (1) the continued posses-’ sion since 1867 of the property by Mollie-Woods, and those under whom she claimed;’ asserting her title thereto under all the stát-1 utes of limitation comprehended ‘within .tha'i1 long period, specially claiming through Mol-' lie Wbods’ grandmother,- Susan Mitchell, and' her mother, Julia K. Sanders, daughter of Susan Mitchell, under averments that Mollie was the lone survivor of all those specifically: named as devisees of this particular tract, under Susan Mitchell’s will, and (2) that, the' purported deed-, from defendants, conveying this lot to plaintiffs of date November 1st of> 1926 had been null and void- for the want.-of; consideration. ., , , - Sv,oi:

Connie U. Gues's, as guardian of the estates of the minor children of himself and of his deceased wife, Susie A. Guess, who had been the daughter of Julia K. Sanders and the granddaughter of Susan Mitchell, being named in the latter’s will as Susan A. Sanders, intervened, claiming the exclusive ownership of the land involved to be in his wards by virtue of the terms of Susan Mitchell’s will, asserting the invalidity of two deeds to it from Julia K. Sanders to Mollie Sanders Woods of the respective dates of February 8 and October 1 of 1926, and of the above-mentioned deed of the latter to the plaintiffs herein, of November 1 of 1926, and praying for a construction of such will, together with a judgment pursuant thereto in vindication of his averments.

At the conclusion of the evidence, the court peremptorily instructed a verdict in favor of the plaintiffs against both sets of opposing litigants, which,' being duly returned, was followed by judgment accordingly.

The defendants below have not appealed, but the interveners protest here through a number of assignments, making two contentions that may be generally stated as follows: (1) That the will of Susan Mitchell should not only have been, construed by the court below, but affirmatively interpreted as creating a series of. successive life estates to the lot involved in the testatrix’ children as named therein, Sarah, Julia, and Frank, with an ultimate vesting of the fee thereof in her two grandchildren likewise so named, Mollie and-Susie, which holding Would have resulted in a recovery by themselves; (2) in the alternative, in the event the will was properly susceptible of the construction that the testatrix’s daughter, Julia Sanders took an estate in the lot that she could convey, the evidence raised issues of fact involving the validity of the two deeds to it from the latter to her own daughter, Mollie Sanders Woods, that should have been submitted to the jury.

The appellees have moved to strike from the record the statement of facts and the bills of exception, leaving nothing to be passed upon here other than whether or not fundamental error is apparent upon the face of what would remain, on the ground that none of these papers were signed by the judge who tried the cause, Hon. Roy Campbell, of the Eightieth district court, but were all signed by Hon. Ewing Boyd, who was at the time judge of the Fifty-Fifth district court.

The objection is overruled* the effect of the Supreme Court’s holding through the Commission of Appeals in Pratley v. Sherwin-Williams Co., 36 S.W.(2d) 195, is regarded as being conclusive against it; the district courts of Harris county are subject to the same statutes there applied, and; -while it is true Judge Boyd was then the encumbent of the Fifty-Fifth district bench rather than of the Eightieth, he sat for the purpose in the latter and signed all these documents as “Ewing Boyd, acting judge, 80th judicial district” ; moreover, they were each and all agreed to by the attorneys for both sides as being correct, the statement of facts being so certified also by the court stenographer, who took it down at the time in shorthand.

See, also, Shaeffer v. Smyth (Tex. Com. App.) 37 S.W.(2d) 1012.

The will involved was as follows:

“Heare in the City of Houston, County of Harris and State of Texas, this (6) Six day of March, 1900, I make this my last will and testament, as follows:
“To each and all of my children, Julia K. Sanders, Frank O. H. Keelan, and Sarah Elizziebeth Keelan, I hereby give a home as long as they live, and to my grand-children, Mollie B. Sanders and Susie A. Sanders, a home untill they are married or as long as they live and are not married, and to my daughter, Sarah Elizziebeth Keelan, Lot (1) One in Block 384, South Side Buffalo Bayou, and if she, Saral Elizziebeth Keelan, should die first, then I hereby give Lot (1) One in Block 384, South Side Buffalo Bayou, to my daughter, Julia K. Sanders, and if she, my daughter, Julia K. Sanders, should die first, then I hereby give lot one in Block - South side B. B. - 384, to my son Frank C. H. Keelan, and if my son, Frank C. H. Keelan, should die first, then I hereby give Lot (1) One in Block 384, South Side Buffalo Bayou, to my granddaughters Susie A. and Mollie B. Sanders. And if any of the above should die first, then I hereby will to those surviving herein named in the foregoing. Ánd I hereby make my son Frank C. H. Kee-lan, executor of this my will, without bond or resort to the Courts.
her
“[Signed] Susan X Mitchell mark
“1818 Caroline Street.
“Witness: Hester Botts Cargill.
“Witness: F. L. Lights.”

Under the agreed facts, when the testatrix died, all her thus-named devisees were living, dying thereafter in this order: In 1910, her daughter Sarah Elizabeth Keelan, in 1923, her granddaughter Susie A. Sanders, in 192S, her daughter Julia K. Sanders, and in 1929, her son Frank C. H. Keelan, leaving of them surviving at the time of this trial only her granddaughter Mollie B. Sanders, who had intermarried with one William Woods, and was- the defendant in interest herein.

In these circumstances, we agree with the construction thus stated by the appellees in their able brief: “The will of Susan Mitchell Created an estate in fee in Sarah Elizabeth Keelan, defeasible, however, upon the happening of the stipulated contingency, to-wit: Her death prior to Julia Sanders’, in which event the executory devise over to J ulia Sanders tdok effect, and vested the fee in Julia Sanders; defeasible, however, upon the happening of the stipulated contingency, to-wit: Her death prior to Frank O. H. Keelan’s, in which event the executory devise over to Frank 0. H. Keelan took effect, and vested the fee in him; defeasible, however, upon the happening of the stipulated contingency, to-wit: His death prior to Susan A. and Mollie B. Sanders’, in which event the executory devise over took effect, and vested the fee simple title in Mollie B. Sanders; Susie A. Sanders being dead at the time this devise over, took effect, and Mollie B. Sanders .being the survivor of these two specifically named dev-isees, she took the fee simple title.”

For supporting authorities, see Thompson on Real Property, vol. 3, §§ 2130, 2568, and Darragh v. Barmore, by the Supreme Court of Texas, 242 S. W. 714, page 717.

From this interpretation, it follows that no title ever vested in Susie A. Sanders, the mother of appellants, because she died before Frank C. H. Keelan did, wherefore none ever came into appellants themselves, the language of the last devise over being specifically confined “to my granddaughters, Susie A. and Mollie B. Sanders,” hence excluding great grandchildren such as they were. Rood on Wills, § 443, footnote 71 and cited authorities; Thompson on Real Property, vol. 3, § 2566, page 700, footnote 31-a, and cited authorities.

The earnest insistence in appellants’ brief that the concluding expression in the will immediately following the devise to the two granddaughters, “and if any of the above should die first, then I hereby will to those surviving herein named in the foregoing,” should be dislocated from that direct and more intimate connection, and made to relate back and apply to the devises made to the testatrix’ children, Sarah Elizabeth Keelan, Julia K. Sanders, and Frank O. H. Keelan, seems clearly untenable, because the contingencies as to the relative deaths ol each of these had already been specifically and plainly stated, hence it would have been a wholly useless repetition; rather, we think, must it be held to have applied only to the granddaughters, Susie A. and Mollie B. Sanders, and, since the latter became not only the survivor of these two, but of all the other dev-isees as well, to have vested the entire title to the property in her, to the exclusion of the appellants.

Further discussion is deemed unnecessary, since these conclusions determine the merits' of the appeal. The judgment of the trial court has been aóirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    HANSEN et ux. v. HOUSTON ELECTRIC CO. et al.
    No. 9559.
    Court of Civil Appeals of Texas. Galveston.
    May 27, 1931.
    Rehearing Denied July 2, 1931.
    P. Harvey, .of Houston, for appellants.
    G. G. Gannon, S. H. German, and Baker, Botts, Andrews & Wharton, all of Houston, for appellees.
   PLEASANTS, C. J.

This appeal is from a judgment of the court .below sustaining a general demurrer to the plaintiffs’ petition.

The suit was brought by appellants Hansen and wife against the appellee company and Pearl Mott to recover damages for the death of their son, which is alleged to have been caused by the negligence of the defendants. After the formal allegations naming the par-, ties, the-negligence of the appellee company upon which plaintiffs base their right of recovery against the company is thus alleged:

“That the defendant, Houston Electric Company, is ¿nd was on the dates hereinafter alleged, engaged in the.business of transporting people.for hire in street cars and motor buses operated by said defendant on tbe streets and roads in tbe Cit^-of Houston and territory adjacent thereto, one line of the said, defendant’s motor buses being operated on what is commonly called the East Montgomery Road, which road passed alongside a public school known as the Jefferson School, over which route the defendant, Houston Electric Company, operated its motor buses at short intervals, said road being a public highway over .which large numbers of other vehicles and pedestrians passed frequently.
“That on or about January 15, 1929, Joseph William Hansen, Jr., the minor son of plaintiffs, was in attendance as a pupil at th.q aforesaid school; the residence of the plaintiffs and of their said son being in the vicinity of said school, and on the opposite side of said road on which the school is located. That on or about the date last aforesaid, the plaintiffs’ said son, then about nine years old, together with a large number of other children of about his age, were in the habit of going across said East Montgomery Road to an eating place located on the opposite side of said road from said school house, for the purpose of eating their lunches, at the regular recess time of said school for lunch, which was about 12 o’clock M., which was well known to' the defehdants, their agents and servants, or could have been known to them by the' use of ordinary care. That there bad been provided for the use ¿nd benefit of said school children, a gate in the fence enclosing the school yard; -and a bridge across the ditch alongside the East Montgomery Road, directly in front of the said school house, which was for the use of and was used continuously by the children in attendance on said school’ in going across said road to the aforesaid eating place, and the said children .had used said way for' the purpose aforesaid for a long time prior to the time of'the casualty herein complained of, and the use of said way and route, by the said children was then and there well known to the defendants,’ their agents and employees, or by the use of ordinary care could and would have been known by them-. That the place or path used by said children in going from said school to the aforementioned lunch stand, was not a regular or customary stopping place for vehicles or the bhses operated by the defendant,-Houston Electric Company, but, oh the contrary, the regular stopping place for said buses was located some 200 feet distant from said gate, bridge and place where said children crossed said road, and in a southerly direction therefrom, and ¿t the intersection . of said East Montgomery /Road with Jensen street, and it was the duty of the agents and employees of the said defendant, Houston Electric Company, to stop their buses'' at the ‘said .Terisen street intersection' with said road, for' boarding and alighting' paásengers, instead of stopping said buses at the aforesaid passageway provided for pupils of said school.
“That on or about January 15, 1929, the defendant, . Houston Electric Company, its agents and servants, negligently and carelessly drove one of its buses to a point directly in front of the said gate in the said school yard fence and bridge over said ditch along the westerly side of the said East Montgomery Road, so that said bus, which was a large motor vehicle, completely obstructed the way of the school children and plaintiffs’ son in reaching the lunch stand aforesaid; and on said day the plaintiff’s son, as had been his custom and that of the other children of said school patronizing said lunch stand, came out of the aforesaid gate in the school yard fence and crossed over said bridge, and, his way being blocked by the motor bus of the defendant, Houston Electric Company, the plaintiffs’ said son, after waiting awhile for the said bus to move out of the way, and the said defendant, its agents and servants having failed and neglected to so move the said bus, he went around the rear end of said bus, with the intention of continuing on his way to his lunch, and just as he stepped from behind the rear end of said bus,- which was at the northerly end thereof (said bus being headéd towards the City of Houston), the defendant, Pearl Mott,.came driving a motor vehicle in a northerly direction along said East Montgomery Road at a high, dangerous and reckless rate of speed and ran into and over the plaintiffs’ said son and dragged him along under the wheels and parts of said automobile until he was killed.
“That the proximate cause of the death of plaintiffs’ son was the negligence of the defendant, Houston Electric Company, its agents and employees in charge of and entrusted by it with-the operation and control of said'motor bus, in stopping said motor bus at the place aforesaid and blocking the plaintiffs’ son on his way to the lunch stand here-inbefore mentioned, and thereby causing him to pass around the rear end of said bus; thereby obscuring from his view the approaching vehicle- of the said Pearl Mott, and creating, and causing their said son to be in, a dangerous situation by obstructing the view of others using said road and preventing the plaintiffs’ son from being in view of the. drivers of other vehicles using said road at said time and place, including the said Pearl Mott. That said, bus at-said time and place was so situated that it obstructed the view of the said Pearl Mott to such extent that she was thereby kept from seeing the plaintiffs’ son until he had cleared the rear end of said bus, and was in close proximity to her car; and said bus also prevented the .plaintiffs’ son' from seeing the oncoming car of the said' Pearl Mott until she was so near he could not avoid being struck by her car; that if the said bus had not been stopped and parked at the place aforesaid, the plaintiffs’ son could and would have seen the car of the said Pearl Mott in time to have gotten out of her way and avoided being struck by the same. That if the defendant, Houston Electric Company, its agents and servants, had not stopped said bus at the gate and bridge aforesaid, blocking the way as hereinbefore alleged, the plaintiffs’ son could and would have safely crossed said road before he was struck by said automobile driven by the said Pearl Mott. That if said bus had not been stopped at said place, the said Pearl Mott could have, in the exercise of ordinary care, seen the plaintiffs’ son in plenty of time to have avoided striking him, either by stopping her car, slackening its speed, or driving around plaintiffs’ son.
“That said East Montgomery Road was at said time one of the main highways leading into the City of Houston, over which road a large number of automobiles passed, and especially so at the place of said casualty, there being automobiles and other vehicles passing to and fro by said place at short intervals; that said road at said place is narrow, the part thereof used by vehicular traffic being not more than 20 or 25 feet wide; that the defendant, Houston Electric Company, its agents and employees, had operated motor buses over said road and passed said school for a long time prior to the injury to the plaintiffs’ son, and said defendant, its agents and servants, knew, or in the exercise of ordinary care could have known, said facts above alleged; that the bus which the said defendant, Houston Electric Company’s agent and employee stopped in front of said school as hereinbefore set out, was a very large and powerful motor vehicle, about 20 feet long and 8 or 9 feet wide, and when it was stopped at the place aforesaid, it occupied such a large part of said road as to obstruct the view of drivers of automobiles going in the opposite direction to such extent as to prevent the seeing of persons coming from behind the rear end of said bus until they emerged from behind the same, and the plaintiffs’ son, when he emerged from behind said bus was in immediate and great danger 6t being struck down and injured by some of the passing automobiles; all of .which was known to the defendant, Houston Eleetrjc Company, its agents and employees, or could have been known to them by the use of ordinary care. That on account of the large number of motor vehicles passing said place, the narrowness of the road, and the great bulk of said defendant’s bus, the defendant, Electric Company, its agents and employees, in the exercise of ordinary care for the safety of the children, including plaintiffs’ son, who were accustomed to use said passway as here-inbefore alleged, ought to have foreseen that the stopping of said bus immediately in front of said passway, and permitting the same to remain parked there for the length of time herein alleged, would cause the plaintiffs’ son, or some of the other children or persons in attendance at said school, in their accustomed use of said passway, to pass around said bus and come into great and immediate danger of being struck by passing automobiles when emerging from behind said bus as was done by plaintiffs’ son; said defendant, its agents and servants well knowing, or by the exercise of ordinary care would have known, that those using said passway would, on being confronted with said bus blocking said passway, endeavor to pass around the same substantially in the manner that the plaintiffs’ son did on the occasion in question, and come out from the rear of same into the line of said automobile traffic on said road at said place. That the driver of said motor bus was further negligent in that he stopped said motor bus so as to block said way as hereinbefore alleged; and kept said vehicle standing at said place for an unnecessarily long time, namely, from three to eight minutes, and long after all persons on said bus, if any, desiring to alight therefrom, had left the same, and those, if any, who were at said place to board said bus, had boarded the same; or had ample opportunity and time to do so.
“That the negligence of the defendant, Houston Electric Company, its agents and employees, in one or more of the particulars aforesaid was a direct and proximate cause of the injuries to and death of the plaintiffs’ said son.”

To this petition the appellee electric company presented a general demurrer, which was sustained by the trial court, and plaintiffs thereupon dismissed their suit against the defendant Pearl Mott and declined to amend its petition against the appellee company. The court then entered judgment in favor of both defendants, that plaintiffs take nothing by their suit.

We cannot agree with appellee company in its contention that plaintiffs’ petition alleged no cause of action against it. As against a general demurrer every reasonable intendment must be indulged in favor of the petition. It is clear that under the allegations of this petition evidence would be admissible to show that the operative of appel-lee’s bus had notice of the customary use by the children of the school, at the time the bus was stopped, of the passageway through the gate and over the culvert bridge immediately in front of the gate in going to their noonday lunching place, and that notwithstanding this knowledge the bus was unnecessarily stopped on the street in such position as to prevent the use of this customary passageway and to cause appellants’ minor son, in attempting to reach the usttal lunching place, to pass around the rear of the bus and to come in collision with a passing automo-' bile, the view 'Of the approach of which was obstructed by the standing bus. The operatives of automobiles or other vehicles along a street adjacent to a school, at a timé when they kpow or can reasonably anticipate that it will be used by children in going to or from the school, are charged with knowledge of the impetuousness, playful thoughtlessness, and lack of discretion of children, and in such qir-cumstancos ordinary care requires of such operative the use of every reasonable precaution to prevent injury to any of the children, and forbids the doing of any act which he could reasonably anticipate might cause injury to any of those children. The allegations of this petition ar.e sufficient to admit evidence that this street was frequently used by a large number of automobiles passing in both directions across this passageway of the children, and was being so used by automobiles at the time appellee’s bus was stopped thereon. We are unwilling to hold as a matter of law that upon such evidence the jury could not have found that the driver of the bus should have reasonably anticipated that stopping the bus across the children’s passageway might cavile children on their way to the lunching place to turn from their usual passageway and go behind the bus, and in coming around therefrom into the street on their way to the lunch ground, be struck by a passing automobile, the approach of which was obstructed by the unnecessary stopping of the bus. If the driver could have reasonably anticipated such result from stopping the bus at the place and time he did, such stopping of the bus would be a failure on his part to exercise ordinary care ’in its operation and would’ render the appellee liable for the result of such negligence of its driver. The negligence vel non of an act or omission not wrongful or unlawful per se must always b.e determined by the'circumstances in which it occurs, and it is no answer to appellants’ allegations of negligence contained in their petition in this case to say, that it is not negligence per se for the driver of a bus lawfully on a public street to stop the bus at any place on the street, provided he does not keep the bus standing on the street for an unreason-¿ble length of time. While the length of time during which the bus obstructed the children’s passageway might properly be considered in determining the questions of negligence in stopping it at the time and place alleged, no allegation of the extent of such time or the unreasonableness of its duration was required to show a prima facie cause of action, and it was not necessary as against a general demurrer for the petition to contain such allegations.

We think the principles of law announced in the following.cases sustain the views we have above expressed: Seale v. Gulf, G. & S. F. R. Co., 65 Tex. 274, 57 Am. Rep. 602; Texas & P. R. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Galveston, H. & S. A. R. Co. v. Bell, 110 Tex. 104, 216 S. W. 390, 391; Fort Worth Gas Co. v. Cooper (Tex. Civ. App.) 241 S. W. 282, 284; City of Dallas v. Maxwell (Tex. Com. App.) 248 S. W. 667, 670, 27 A. L. R. 927.

The judgment is reversed, and the cause remanded.

Reversed and remanded.


text:
    PALMER et al. v. GRIVAS et ux.
    No. 9555.
    Court of Civil Appeals of Texas. Galveston.
    May 14, 1931.
    Rehearing Denied June 4, 1931.
    Second Rehearing Dismissed July 22, 1931.
    S. O. Lovejoy and C. L. Bass, both of Houston, for plaintiffs in error.
    Huggins, Kayser & Liddell and Sam H. Benbow, all of Houston, for defendants in error.
   GRAVES, J.

On a record sued out under writ óf error, which contains no assignments of error and is unaccompanied by a statement of facts, the plaintiffs below complain of the trial court’s action in denying their motion for a $2,500 judgment in their favor, and instead granting that of their adversaries, the defendants, that they take nothing, upon this verdict of a jury on special issues:

“Special Issue No. 1.
“Did or did not Ruth Palmer on or before July 5, 1928, unlawfully appropriate to her own use and benefit money from the cash register of the defendant.
“She did not.
“Special Issue No. 2.
“Did or did not J. B. Grivas or London E. Roth Grivas or either of them on or about July 5, 1928, in the Cotton Hotel Coffee Shop state that Ruth Palmer was the one who had been stealing the money, that she was the one who stole it, or words to such effect.
“They did.
“Special Issue No. 3.
“Did or did not parties other than Mr. and Mrs. Grivas hear the statement made by Grivas or his wife, if you so find, to the effect that Ruth Palmer had stolen money from them.
“They did.
“Special Issue No. 4.
“If you have answered the foregoing in the affirmative and only in that event, give the name or names of the parties who overheard the statement as inquired about in the foregoing special issue.
“Miss Jones and Mr. Jones, and others.
“Special Issue No. 5.
“If you have answered No. 3 and 4 in the affirmative, then answer the following:
“Did or did not the parties who heard the said statement understand what was said at the time the same was so uttered.
“They did.
“Special Issue No. 6.
“If you have answered Special Issue No. 5 in the affirmative and only in that event, answer the following:
“Did or did not the parties who heard the said statement understand to whom it was applied at the. time the same was uttered.
“They did.
“Special Issue No. 7.
“Was or was not such statement or statements actuated by malice towards Ruth Palmer as the term malice is hereafter defined.
“It was not. -'
“Special Issue No. 8.
“What amount of actual damages, if any, do you find the plaintiff entitled to recover herein by reason of the said statement made to or about her.
“In this connection you are instructed that, you may take into consideration injuries, iff any, to the plaintiff, Ruth Palmer’s, nervous system,’embarrassment, shame and humilia-’ tion suffered by her, if any, and damages to her reputation, if any, suffered'by her as a direct and proximate result of such accusation, if any, made by the defendants herein.
“82,500.00.
“Special Issue No. 9.
“What amount of exemplary damages, if any, do you find plaintiffs are entitled to recover herein of the defendants by reason of such statements so made to and about the plaintiff, Ruth Palmer.
“In this connection you are instructed that in addition to actual da’mages you may in your discretion allow such sum as you may find as punitive damages or punishment. •
“You are directed in this case that you may allow exemplary or punitive damages against the defendant as in your discretion the case merits. Exemplary and punitive damages are awarded in the nature of punishment not to enrich the injured parties, but for the public good, and in this case you are instructed that if you believe from the evidence that the accusations of the defendant were wilful and wanton or done with intent to injure the plaintiff, Ruth Palmer, in connection therewith, you may assess such amount as exemplary damages as you may deem proper under all the circumstances in this case.
“None.”

The suit was for damages for the alleged slander of plaintiff, Ruth Palmer, employed at the time as cashier for the defendants in their coffee shop in the Cotton Hotel at Houston, upon averments that on or about July 1-5, 1928, they had at such place, in the presence and hearing of Doris Haws, Fred Lee Cooper, Howard Pickett, John McKinnon, and “a great many other people the exact number and names of whom plaintiff does not know,” falsely accused her of- having stolen money from their cash register, and, on authority of Perry Bros. v. Layton (Tex. Com. App.) 25 S.W.(2d) 310, this judgment below is claimed to have involved-fundamental error, apparent from the face of the record, hence cognizable without an assignment, in that the jury found on what must on appeal be assumed to have been the facts that these slanderous statements had been made “in a Coffee Shop open to the public, in the presence and hearing of persons having no interest in the subject-matter of the accusations, and present upon the implied invitation of the defendants.”

We think, however, that this contention cannot be sustained, because it assumes the contrary of what here appears. The defendants had fully pleaded the qualifiedly privileged character of such statements as they were found to have made, averring that the same had been made as an incident to and in the course of the employment of Ruth Palmer by themselves, about a matter respecting their mutual business affairs in which both were interested, and in the performance of their duties as such employers, that her co-employees, in the discharge of their several duties and service, had advised defendants that she had been wrongfully taking and keeping money from the cash register, and that, in the circumstances, they had reasonably probable grounds for believing and did believe the truth thereof, wherefore such statements had been, at least qualifiedly privileged and in effect invited by Ruth Palmer herself.

The question of qualified privilege having been thus raised,'and the jury having found not only that there was no malice on defendants’ part in making the statements they did but also that they were not overheard by any of the persons the plaintiffs charged had heard them, in deference to the judgment in favor of defendants, there being before us neither a statement of facts, nor any intimation in the record that has come up that thoSe who may have heard the utterances were not fellow employees of the plaintiff, we conclude that it must on the appeal be presumed that the trial court properly found the claimed statements to have been qualifiedly privileged.

This view is so well stated in the able brief for defendants in error that this much of it is adopted as our own opinion upon the subject: “In the Perry Bros. v. Layton Case, the Commission of Appeals upon the advise of the Supreme Court held that where the slanderous utterance charges the commission of a crime, malice is presumed in the absence of the utterance being qualifiedly privileged. It further held that the qualified privilege had been destroyed by the fact that the utterance was made in the hearing of two strangers, casual customers of the store, who had no interest in the subject matter. The fact that the slanderous utterance was overheard by the two strangers who had no interest in the subject matter was conclusively shown by the appellate record, as the complete statement of facts was before the appellate court and the question was covered by proper assignments of error, but in this ease now under consideration, the parties named by the jury as having overheard the alleged slanderous utterance were none of the parties alleged by name in plaintiffs’ pleadings as having heard the statements, and the record before this court nowhere shows or intimates that the parties named were not employees, or other parties interested in the subject matter covered by the alleged slanderous utterance. To make' this distinction clear, we quote the following from the opinion of the Commission of Appeals in the Layton Case: ‘The precise question to be determined here is whether or not the fact that the utterances of Barr, imputing the crime of theft to Mrs. Layton, were made in the presence and hearing of the two women customers who had no interest in the subject matter of the communication, and whose presence was casual and not by design of Barr, renders the communication unprivileged. In conference with the Supreme Court, we have been instructed to hold that the defamatory statements of Barr lost their privileged character by reason of the fact that same were made in a store open to the géneral public and in the presence and hearing of customers who were there on the implied invitation of appellant, and who had no interest in the subject matter of the statements.’ Foley Bros. v. McClain [Tex. Civ. App.] 231 S. W. 459; Railway Co. v. Richmond, 73 Tex. 568 [11 S. W. 555, 4 L. R. A. 280, 15 Am. St. Rep. 794]; Newell on Libel and Slander (4th Ed.) p. 416; Vacicek et ux. v. Trojack (Galveston Court of Civil Appeals), 226 S. W. 505.”

It follows that an affirmance should enter; it will be so ordered.

Affirmed.


author: SMITH, J.

text:
    HORNSBY et al. v. CRYSTAL BEACH PARK et al.
    No. 8591.
    Court of Civil Appeals of Texas. San Antonio.
    April 29, 1931.
    Rehearing Denied July 15, 1931.
    John W. Hornsby and Stanley C. Hornsby, both of Austin, for appellants.

      John C. North, of Corpus Christi, for ap-pellees.
   SMITH, J.

C. C. Hornsby, J. 0. Hornsby, and T. B. Templeton, appellants herein, each own and' operate a group of tourist cottages along the North Beach adjoining the city of Corpus Christi, and each resides with his family in one of these cottages. The North Beach section of the city is devoted exclusively to the housing and entertainment of tourists who seek the delightful climate of this favored Texas coast city.

In the spring of 1930 the Crystal Beach Park Company, incorporated for that and related purposes, and its assignees, appellees herein, constructed a roller-coaster and merry-go-round on a large block of ground purchased by them for that purpose on the water front in the center of activities along North Beach. These amusement devices cost the promoters $85,000. After those amusements were put in operation, appellants brought this action against appellees to restrain that operation in toto and for damages. This relief was denied appellants.

The trial court found, in the absence of a jury:

“1. I find that plaintiffs own nineteen houses within either Block 1, 2 or 3 of Beach Hotel addition to the city of Corpus Christi, representing a total investment of about $60,000.00; that plaintiffs, C. C. Hornsby and wife, occupy two of such houses as their residences ; that other than - such two, plaintiffs keep such houses for rent to tourists, that said blocks extend about 300 feet from east to west and are all bordered by Corpus Christi Bay on the East; that defendant operates the Crystal Beach Park, which is located on the eastern part of said blocks and are part thereof nearest Corpus Christi Bay, consisting in part of a roller coaster and merry-go-round ;' that said roller coaster is built from North to South so as to traverse all three of such blocks and is situated at one point 11 feet from one of the houses belonging to J. C. Hornsby, 95 feet from one of the houses belonging to C. C. Hornsby and 62 feet from one of the houses belonging to T. B. Templeton.
“2. That said merry-go-round in its operation is accompanied by music of a loud and harsh nature; that said roller coaster in its operation creates loud and unusual noises and that persons riding same yell, shriek and halloo; that said noises disturb the rest and sleep of plaintiffs, C. C. Hornsby and wife and J. C. Hornsby and wife, and prevent them from enjoying the quiet and peace of their homes; that same are operated at night until from ten o’clock till midnight and sometimes later. . '
“3. That there are numerous other houses within said blocks and within from 30 to 300 feet distant from said roller coaster and merry-go-round, and that the noises emanating from the operation of same are not objectionable to the owners thereof; save to plaintiffs.
“4. That said Crystal Beach Park, blocks, houses and' residences are-on North Beach, outside the city limits of, but adjoining the city of Corpus Christi; that the city of Corpus Christi is a tourist center; that North Beach is bordered by Corpus Christi Bay affording the best bathing beach available to the city of Corpus Christi and is devoted to the housing and entertainment of tourists; that property owners on North Beach, other than plaintiffs, regard said amusement park as a benefit.
“5. That the construction of Crystal Beach Park, including said roller coaster and merry-go-round, began in May, 1930, and was finished in July, 1930, at a cost of $85,000.00; that plaintiffs owned said houses and resided therein during the time of the construction thereof and made no protest against such construction; that there is lien indebtedness against said park amounting to $55,000.00.
“6. That said roller coaster and merry-go-round are the chief sources of revenue to defendant in the operation of said park; that same are fit for no use other than that to which they are npw devoted; that plaintiffs’ property is fit for the use to which same has been devoted except to the extent impaired 'by the noises emanating from the operation of said roller coaster and merry-go-round.”

Prom these findings of fact the court concluded as matters of law:

“1. That the residences of plaintiffs, C. C. Hornsby and wife, and J. C. Hornsby and wife, being situated on North Beach, which is devoted to the housing and amusement of tourists, and the plaintiff T. B. Templeton having stood by without objection during the construction of said park, at the considerable cost named, plaintiffs are not now entitled to the injunctive relief, as prayed, on account of the noises emanating from operation of said roller coaster and merry-go-round.
“2. That the relative injury to plaintiffs by a continuance of the disagreeable noises emanating from operation of said roller coaster and merry-go-round, complained of by them, will be much • less than that injury which would be inflicted upon defendant by granting and enforcing an injunction restraining the operation of same.
“3. That plaintiffs have an adequate remedy at law.”

It must be conceded that the operation of the devices objected to by appellants is a lawful business, and does not constitute a nuisance per' se, although it is perhaps a matter of common knowledge that such operation is always and apparently necessarily accompanied by loud noises peculiar thereto. It would not be difficult for a court to find those devices to be nuisances when operated in otherwise quiet residential districts, where, obviously, they have no proper place, and in such case their operation would be restrained by a court of equity. The usual place of their operation is in fairgrounds, amusement parks, and like pleasure resorts, such as the court found in this case.

The trial court found, and this court should perhaps take judicial notice of the well-known fact, that Corpus Christi, besides its other natural advantages, is distinctly a pleasure resort, at least through the summer months, and that thousands of people annually flock to the city and its environs to enjoy the sea breezes and surf and all the other wholesome and delightful pleasures common to such resorts. The trial court found that North Beach affords the better advantages for the enjoyment of these attributes of the city, and that the facilities for housing and entertaining those seeking such advantages are centered upon and adjacent to North Beach, which is devoted exclusively to those purposes, and upon a large scale. The devices complained of by appellants are located in the center of those activities, where abound other devices, besides them, which are equally noisy and confusing to nonpartieipants in their use.

It is true that- appellants’ numerous cottages, one of which is occupied by each of them, respectively, in their groups, and the remainder of which are rented out to tourists seeking the pleasures of the resort, are all located within 300 feet of appellees’ property. But many other property owners are similarly situated in all respects, and reside in and own and rent out cottages within the same proximity to appellees’ amusement devices. On the other hand, they regard those devices and the operation of them as beneficial to the neighborhood and to their property and business, and the court found as a fact that such benefits exist. It is significant that the court' found, in effect, that, among all the residents and property owners of North Beach, in the midst of which appellees’ amusements are operated, only appellants O. O. Hornsby and J. O. Hornsby, and not even appellant Temple-ton, object to and are disturbed by the operation of those amusements. The court properly considered all the facts and circumstances recited herein in determining the matter of in-junctive relief, and concluded from them that it would be inequitable to totally prohibit such operation and thereby destroy the value of the very substantial improvements appel-lees had constructed upon their property with the full knowledge of appellants, who made no complaint thereat until those improvements had been completed and put in lawful operation. It should be kept in mind that there is no contention that appellees’ devices were negligently constructed or operated in such manner as to create more noise or confusion than is usual or necessary in the operation of such devices. Gose v. Coryell, 59 Tex. Civ. App. 504, 126 S. W. 1164; Oliver v. Cotton, etc. Co. (Tex. Civ. App.) 226 S. W. 1094; Strieber v. Ward (Tex. Civ. App.) 196 S. W. 720; Boren v. Pet. Co. (Tex. Civ. App.) 266 S. W. 623; Royalty v. Strange (Tex. Civ. App.) 220 S. W. 421; Iford v. Nickel (Tex. Civ. App.) 1 S.W.(2d) 751; Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S. W. 119, 27 L. R. A. (N. S.) 237.

We conclude that the appeal rests upon issues of fact which were resolved by the trial court against appellants upon sufficient evidence, and that the judgment denying in-junctive relief should be affirmed; without prejudice, however, to any right, if any, to recover damages which may have accrued, or may accrue in the future, to appellants, by reason of any unlawful operation of appellees’ amusement devices.

Affirmed.

On Motion for Rehearing.

Appellants have presented an able and earnest motion for rehearing, and in deference thereto we have thoroughly and painstakingly reconsidered the case, and are prompted thereby to modify some of the findings of fact set out in the original opinion.

It was stated in the original opinion' that appellees “purchased” the land now covered by their improvements, for the purpose of operating their amusement devices thereon. The record does not warrant the statement that the land was “purchased” by those now operating those devices. It is sufficient to find, therefore, that they are “occupying” the land for that purpose. It is obvious that this modification cannot affect the merits of the case, however.

Appellants also complain of the finding that the trial judge found as a fact that the operation of appellees’ devices was beneficial to the neighborhood and the business and property located therein. It is true that the trial judge made no such express finding, but such finding will be implied in support of the judgment, and was warranted by the evidence.

It may be said, further, that one of the plaintiffs, Templeton, did not reside at the North Beach, although owning and operating tourist cottages in the immediate vicinity of the amusement devices complained of. And while it is true that he made some objection to the operation of those devices, he does not complain here of the judgment denying him relief in the trial court.

With these modifications of the original opinion, appellants’ motion for rehearing will be overruled.


author: FLY, C. J.

text:
    BEXAR COUNTY et al. v. STEWART.
    No. 8698.
    Court of Civil Appeals of Texas. San Antonio.
    June 24, 1931.
    Rehearing Denied July 22, 1931.
    D. E. Davis, Grover C. Morris, and Arthur Y. Wright, all of San Antonio, for appellants.
    Walter Stout, of San Antonio, for appellee.
   FLY, C. J.

This is an appeal from an interlocutory order granting a temporary injunction against Bexar county, D. F. Davis, county attorney, W. A. Wurzbach, county judge, and E. H. Talbert, justice of the peace of precinct No. 6, Bexar county. It is alleged in the petition of appellee that the county had filed an action of forcible entry and detainer as to a certain parcel of land and that such suit was now pending before the justice of the peace of precinct No. 6. Appellee prayed that the county attorney and justice of the peace “be restrained from holding a proceeding of forcible entry and detainer in the justice’s court and in any other manner disturbing plaintiff in his peaceful possession.”

The action of forcible entry and detainer is statutory and fully defined. It gives a full hearing before the justice of the peace and provides for appeals to higher courts. An ample remedy at law is provided, and appel-lee failed to show any legal right of which he was being deprived. The doctrine as to interference with a legal action through an equitable -writ is forcibly stated by Pomeroy, §§ 1361 and 2059, Equity Jurisprudence, as follows: “The principle is well established, and is universal in its application, that when a cause belongs to the jurisdiction of the law courts, equity will never interfere to restrain the prosecution of the action, nor to stay proceedings on the judgment or execution, upon any mere legal grounds, although it may be demonstrated that the complainant in equity (generally the defendant at law) had a valid legal defense, which was not made available either through the error of the court in determining the law or the facts, or the omissions of himself or his counsel in presenting it, or in obtaining the evidence by which it could have been supported.”

A bill in equity must state in clear and unmistakable terms the grounds for equitable relief. The petition shows a lawful action entered against appellee and the law provides for a defense to it. The justice of the peace has jurisdiction of the cause, and if dissatisfied with his judgment appellee can-appeal to another court. A recent case involving similar facts was decided by this court'through an opinion by Associate Justice Smith, and had it been followed the writ of injunction would not' have issued to interfere with the orderly administration of law in a court of competent jurisdiction. Lipscomb v. Butler (Tex. Civ. App.) 35 S.W.(2d) 742.

No question of title was involved in the trial of the action of forcible entry and de-tainer, except as it might be inextricably mixed with the right of possession. The petition of appellee showed no right or title to the land, and no effort to violate any law was alleged. The allegations, on the other hand, tended to show that appellee was in unlawful possession of the land.

The writ of injunction would become a destructive force if it be used to deprive courts of their legal authority and jurisdiction and lose its distinctive trait of a remedial writ, issued only to meet emergencies and grant relief from wrong and oppression. When the law provides machinery for the enforcing of rights and preventing wrongs and such machinery is being operated without wrong or oppression in the orderly manner prescribed, a court of equity will not interfere. If a case of forcible entry and detainer can be rendered nugatory and ineffective, without any wrong being alleged or proved, any case in any court can be rendered useless and ineffective by the loose unwarranted issuance of writs of injunction. Equity has grown to its present splendid perfection out of the soil of human necessity, and to hold its honorable position must be used as a means of preservation and not as an impediment to the enforcement of a righteous law.

The judgment will be reversed, the injunction dissolved and set aside, and the cause dismissed.

On Motion for Rehearing.

The case of Gibbons v. Ross (Tex. Civ. App.) 167 S. W. 17, in which the opinion was rendered by tbe Galveston Court of Civil Appeals, is easy to distinguish from the ease now under consideration. The case of forcible entry and detainer had been tried in the justice’s court and had been appealed to and decided in the county court against a party who had an action of trespass to try title to the land pending, and his opponent had no property and could not respond in damages. No action of trespass to try title is pending in connection with the land to be affected by a judgment in the justice’s court. No judgment has been rendered in that court. We cannot anticipate that it will be against appellee. There are no circumstances tending to show that appellee’s rights are imperiled. He may not be ousted from his land and he is not seeking to enforce the title to his land. The title is not involved. The county of Bexar is not insolvent, and appellee has no claim against it. The ills against which appellee seeks to guard himself in a court of equity are purely speculative and imaginary. The facts of the Galveston case do not fit this case, nor is any fact alleged tending to show that they will ever fit it.

The motion for rehearing is overruled.


author: ELY, C. J.

text:
    PASCHEN v. ALEXANDER.
    No. 8637.
    Court of Civil Appeals of Texas. San Antonio.
    June 17, 1931.
    Rehearing Denied July 15, 1931.
    See, also, 29 S.W.(2d) 430.
    Bliss & Daffan, of San Antonio, for appellant.
    Kelley, Looney & Norvell and J. E. Carl, all of Edinburg, for appellee.
   ELY, C. J.

This Suit was instituted by appellee against appellant to recover of him the sum of $2,-200, alleged to be due by virtue of a certain written contract executed by appellant and appellee. The court submitted the cause to a jury on special issues, and on the answers rendered a judgment in favor of appellee for §1,300.

Appellee was a tenant of appellant, being a lessee for approximately 100 acres of land. On March 6, 1929, a written contract was entered into between the parties, by which it was agreed that, if appellant sold the land, or any part thereof, appellee would, on being notified, relinquish the whole or any part of the land, as the case might be, and appellant would pay appellee at the rate of $20 per acre for the number of acres so relinquished before September, 1929. March 15, 1929, ap-pellee relinquished possession of 65 acres of the land to Farris, the purchaser of the same. Appellant refused to pay anything to appel-lee. The evidence is ample to sustain the verdict and judgment.

The cause is not briefed according to the rules in effect before the Act of the 42d Legislature (chapter 45 [Vernon’s Ann. Civ. St. arts. 1757, 1846]) went into effect, on April 9, 1931, and, if that act prescribes any method for briefing, it has not been followed. What is denominated the first proposition is merely an argument against the sufficiency of the evidence to sustain the finding of the jury that appellee delivered possession of 65 acres of the land on request of appellant. There is no proposition of law involved in the argument.

The second proposition assails the verdict and judgment on the ground that there was no testimony justifying a finding that part of the land was relinquished or that any such action was contemplated. Provision is made in the contract for relinquishing part of the land, and, if the testimony of appellee showed abandonment of the whole 10!) acres, the verdict injured appellee and not appellant.

' The third proposition is without merit and is overruled. No rent was due by appellee to appellant for the year 1929.

There ,-is no error shown, fundamental or. otherwise, in the court rendering judgment for ,§1,300. Under the answers of the .jury it necessarily followed that appellee should, under the contract, recover for 65 acres at $20 an acre. , • .

The court did not err in refusing to grant a new trial on .the ground of newly discovered testimony. Farris, from whom the newly ■discovered testimony was to be obtaihed, was on the stand during the trial, and, although the facts to which he was expected to testify were obtained by him in the presence of appellant, who must have known of the presence of Farris and the importance of his tés-timony, appellant did not ask any questions to bring out the testimony. Farris was expected to testify to a conversation which occurred between appellant and appellee. It is too great a strain on credulity to believe that Farris heard any such conversation, but, if he did, appellant knew it at the trial and yet made no effort to elicit that testimony from the witness.

The judgment will be affirmed.