author: BLAIR, J.

text:
    HALL v. ODIORNE.
    (No. 7319.)
    Court of Civil Appeals of Texas. Austin.
    Jan. 30, 1929.
    Rehearing Denied Feb. 20, 1929.

      Collins, Jackson & Snodgrass, of San Angelo, for appellant.
    N. C. Walker, of San Saba, for appellee.
   BLAIR, J.

Appellee sued appellant for $1,-400, alleged to be due under a contract or offer, which appellee alleged he had performed in all material respects and things, and which; in material parts, reads as follows:

“In Sorell vs. J. E. Hall.
“Being desirous to settle my controversy with Mr. Sorell without any further trouble of court proceedings, I wish to secure your service's in making a settlement between us.
«⅝ * ⅞ j have • figured that $61,400.00 will pay Mr. Sorell all his money with interest. * * * Therefore * * ⅜ I make you this proposition that I will pay $61,400.-00, and if you can get Mr. Sorell to settle for less than that amount you are to have and keep the difference between $61,400.00 and the amount you settle with Mr. Sorell for. That is, I agree to pay you the difference between $61,400.00 and whatever you can settle with Mr. Sorell for.
“I am willing to make agreement that I will pay this money on or before July 1st, 1027. I will expect Mr. Sorell to make binding agreement that the suit against me will be stopped and that he will re-convey my land back to me with all notes and liens of every kind released so that I have all my 5230 acres of land and that Mr. Sorell make no further claim against it. The money I agree to pay him is to cover all I owe him on my lands and all leases due him on his ranch up to July 1st, 1927.” ■»

Appellant answered by a general denial and other special answers not necessary to set out here.

At the conclusion of the evidence, the court instructed a verdict for appellee for $1,-185, and rendered judgment accordingly; hence this appeal. -.

The first proposition is that the evidence is conflicting as to whether appellee had persuaded Sorrell to settle his suit against appellant, Hall, for $60,000, before he induced Hall to sign the contract or offer in suit, and that such issue was for the jury. We do not sustain the Contention. The rule sought to be invoked by this proposition is that, where a promise to pay for an act is made as an offer, the act must be performed in compliance with the- offer in order to create a binding contract; and that, where the act had been performed prior to the offer, no contract is created by making the offer. This may be a correct abstract proposition of law, but it is not applicable here, because the undisputed evidence shows that appellee brought about the settlement or compromise of the suit between Sorrell and Hall after Hall executed the contract or offer in suit. The mere fact that appellee knew at the time Hall executed the contract or offer that Sorrell would probably settle with Hall for about $60,000 is not material. Hall’s offer was to pay appellee for “services” rendered in actually making a settlement with Sorrell, which appellee did after the offer was made, and appellant is therefore bound by the contract so created.

The second proposition is that appellee did not perform the things required of him in accordance with the terms of the contract or offer. We do not sustain the contention. The material matters or things required of appellee were (a) to effect a settlement of Sor-rell’s pending suit against Hall (b) for not more than $61,400, to be paid in full settlement of Hall’s indebtedness to Sorrell, on or before July 1, 1927, and (c) Sorrell was to re-convey to Hall 5,230 acres of land involved in the suit and to release all liens against same. Appellee performed his contract by obtaining a written agreement which was filed in the case, and which provided: (a) That the suit had been settled by Hall agreeing to pay Sor-rell $60,000 on or before July 1, 1927, under terms stated; (b) that the amount so paid was in full settlement of Hall’s indebtedness to Sorrell; and (c) that, when the amount was paid, Sorrell would reconvey to Hall and release all liens on said 5,230 acres of land. Concerning the agreement, Hall testified as follows:

“Yes, he (meaning appellee) went on down and got Mr. Sorrell to sign this contract and brought it back and delivered it to' my attorney, and me and Mr. Sorrell settled on the terms of that 'agreement, that is what we did.”

Appellee therefore performed every material matter or thing required of him by the contract or offer in suit, and was entitled to recover as directed by the court.

«The third proposition is that the court errgd in excluding certain proffered testimony relating to the special defense pleaded that the written instrument sued upon was not executed as a contract or as evidencing any agreement, and was not delivered or accepted by appellee for sncli purposes. We do not sustain the contention, because the effect of both the pleadings and the proffered testimony was to vary by parol the written contract or offer in suit. Tire substance of the pleadings and the proffered testimony was that appellant executed the contract or offer in suit because appellee, as- assistant auditor, appointed by the court in the Sorrell-Hall suit, had examined all of appellant’s private papers, contracts, etc., in connection with that suit, and threatened to divulge, to the ruin of appellant, that information, unless appellant signed the letter or contract in suit; but with agreement made at the time that same was not a contract, and that appellant would only pay appellee $1,400 if he obtained a lease for appellant on Sorrell’s ranch.

It is clear that this was merely an attempt to assert a parol contract wholly at variance with the written contract in suit. This, of course, cannot be done.

It was not alleged that the contract sued upon was void or even voidable, because of the alleged threats or duress, nor was its cancellation sought upon that ground. The proffered, testimony of threats or duress was therefore immaterial.

Cut, if duress was alleged, the undisputed evidence shows that appellant ratified the contract and acts of appellee after the duress had been removed. All negotiations conducted by appellee leading to the final settlement of the Sorrell-Hall suit -were submitted to Hall and his attorney, and they freely consented thereto; that is, appellee obtained the written offer of Sorrell addressed to appellant’s attorney to settle with Hall for $60,000. Thereupon appellant’s attorney drew the contract which Hall willingly signed, and settled with Sorrell in accordance with same.

The law is settled that a contract made under duress is ordinarily voidable and not void, and may be ratified by the injured party after the duress has been removed. 13 O. J. 398, § 311.

Nor was it alleged or proved that the matters which appellee threatened to divulge, if he did so threaten, were matters not properly in his hands as auditor, or that they were such matters that the court could not have compelled appellee, as auditor, to produce as evidence in that case. Therefore appellant cannot complain of the fact that ap-pellee threatened to produce that which he •was required to produce, because a threat to do a thing which a person has a legal right to do cannot be the basis of duress. Kansas City Ry. Co. v. Graham (Tex. Civ. App.) 145 S. W. 632.

Appellant’s fourth and remaining proposition is not briefed, and is overruled.

We affirm the judgment of the trial court.

Affirmed.


source: Caselaw Access Project

author: O’QUINN, J.

license: Public Domain

text:
    WALSH v. SCHINGLER.
    (No. 1790.)
    Court of Civil Appeals of Texas. Beaumont.
    March 8, 1929.
    Rehearing Denied March 13, 1929.
    O. J. Todd, C. S. Pipkin, and Jack M. Moore, all of Beaumont, for appellant.
    O. A. Lord and Jno. D. McCall, both of Beaumont, for appellee.
   O’QUINN, J.

Walsh sued Schingler to recover double the amount of usurious interest alleged by him to have been paid to Schingler on money loaned him by Schingler to finance the sale of certain automobiles for which he (Walsh) was agent. Recovery in the sum of $4,762.22 was sought; said amount being double the amount of interest alleged by plaintiff to have been paid by him to defendant. The petition of plaintiff is very lengthy, with many details and alternative pleas. In view of the disposition we make of the case, we will not set them out, but say they were amply sufficient to state plaintiff’s cause of action.

Defendant, Schingler, answered by general demurrer, general denial, and specially denied that he ever loaned plaintiff any money or that there was any agreement between them that plaintiff was to pay interest on any sum ⅛f money involved in the transactions between plaintiff and defendant, denied that he ever advanced any money to plaintiff to pay any drafts covering the shipment of automobiles, but asserted, to the contrary, that he did pay for all of the automobiles in question and did pay the drafts drawn by the manufacturers covering the prices of said automobiles, and in good faith became the owner of said automobiles, taking bills of sale to same; that plaintiff had no right, title, or claim in or to said automobiles until he paid defendant the cost price of same with 5 per cent, of the cost price of each automobile, which was the agreed profit defendant was to receive. Defendant admitted making the contracts with plaintiff pleaded by plaintiff, and asserted that same were bills of sale to and absolute conveyances to him of said automobiles and not mortgages, as alleged by plaintiff. He also denied that the bills of sale were subterfuges made for the purpose of concealing the usurious nature of said contracts, but that they truly expressed the intentions of the parties in all respects, and denied that there was ever any agreement, oral or written, whereby plaintiff was to pay defendant any borrowed money or any interest, but that the money paid to defendant by plaintiff was for the purchase price of automobiles which were the property of defendant, and 5 per cent, profit on the purchase price of same.

The case was tried to a jury, and, upon the conclusion of the evidence, both plaintiff and defendant moved for an instructed verdict, which was denied, and the case submitted to the jury upon the following special issues:

“Special Issue Number One (1): Do you find from the evidence that the various contracts made by the plaintiff and the defendant were contracts for the borrowing and repayment of money?” to which the jury answered, “No.”
“Special Issue Number Two (2): Do you find from the evidence that the contracts between the plaintiff and the defendant were for the bona fide sale of the automobiles by the plaintiff to the defendant?” to which the jury answered, “Yes.”
“Special Issue Number Three (3): Do you find from the evidence that the contracts made between the plaintiff and the defendant were subterfuges intended to evade the statute against usury?” to which the jury answered, “No.”
“Special Issue Number Four (4): What amount of money was paid by the plaintiff to the defendant in excess of the amount of money paid by the defendant for the drafts and invoices for the automobiles?” to which the jury answered, “$2,371.11.”
“Special Issue Number Five (5): Was the amount mentioned in Special Issue Number Four (4), received from the plaintiff by the defendant as interest on money borrowed by the plaintiff from the defendant?” to which the jury answered, “No.”
“Special Issue No. 2 requested by plaintiff: Do you find from a preponderance of the evidence that the cars in question were conveyed to the defendant, Schingler, for the purpose of securing him in the return of the money advanced by him at the time the bills of lading were taken from the bank?” to which the jury answered. “No.”

Upon the answers of the jury, judgment was entered for defendant. Motion for a new trial was overruled, and the case is before us on appeal.

In his charge to the jury, the court defined “interest,” “legal interest,” “conventional interest,” “usury,” and instructed the jury that “the burden of proof is upon the plaintiff to establish the- material allegations of his petition by a preponderance of the evidence.”

Plaintiff excepted to the court’s charge for various reasons not necessary to state. All his propositions urging error in the court’s not sustaining his exceptions to the form and contents - of the special issues are overruled. The issues were necessary and correctly stated.

As the case must be reversed and remanded for another trial, it would be improper for us to discuss appellant’s propositions challenging the sufficiency of the evidence to establish the jury’s findings.

Appellant’s first five propositions complain that the court erred in charging the jury, over his objections, that the burden of proof was upon the plaintiff to establish the material-allegations of his petition by a preponderance of the evidence. It is contended that this charge was error because: (a) It was a general charge on the burden of proof and therefore improper in the submission of causes on special issues; (b) that it imposed upon the jury the duty of determining what were the material allegations of plaintiff’s petition; and (c) that it was fundamentally an erroneous statement of the law on the burden of proof in such cases.

It seems to be well settled that this charge was error. The charge was clearly a general charge, and imposed upon the jury the duty of determining the material facts relied upon by the plaintiff for a recovery. Such a charge might reasonably have beefi. understood by the jury as instructing them to ascertain whether or not the plaintiff was entitled to recover under the pleadings and proof and then to answer the special issues submitted in accordance with such finding. Missouri-Kansas-Texas Railway Co. v. Thomason (Tex. Civ. App.) 3 S.W. (2d) 106 (writ refused); Morris v. Davis (Tex. Civ. App.) 3 S.W.(2d) 109; Wootton v. Jones (Tex. Civ. App.) 286 S. W. 688.

In Morris v. Davis, supra, the charge on the burden of proof is identical with the charge in the instant case. In holding the charge was error, the court said:

“One objection to this charge was that it left the jury to determine what were the material allegations in the petition. The objection should have been sustained. There are numerous decisions by the appellate courts on this question, and they all hold that where a ease is submitted on special issues, it is error to give a general charge which leaves it to the jury to find and determine whether a plaintiff lias established by a preponderance of the evidence the material allegations of his petition. These decisions are based upon two grounds or reasons: First, because it is error to impose upon the jury the duty of determining what are the material allegations of the petition; and, second, that it is in effect a general charge instructing the jury to ascertain whether plaintiff is entitled to recover under the pleadings and proof, and therefore in violation of Article 2189, R. S. 1925, which provides that where a case is submitted upon special issues only such succinct explanations and definitions as are necessary to make clear the issues submitted should be given.”

A writ of error was granted in this case, but in a very recent opinion (not yet [officially] published) by section A of the Commission of Appeals, approved by the Supreme Court [13 S.W.(2d) 63] the judgment of the Court of Civil Appeals was affirmed, in whicli the holding that the charge was error was specifically sustained.

Appellant’s proposition that the court erred in his charge in not defining the word “subterfuge” is overruled. We think the word is of such common usage and ordinary meaning that it can be readily understood by the average juror.

Because of the error discussed, the judgment is reversed, and the cause remanded.


author: WALTHALL, J.

text:
    SLATER v. STATE.
    (No. 2243.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 28, 1929.
    Rehearing Denied March 16, 1929.
    Karl A. Crowley, of Fort Worth, and Hart Johnson, of Ft. Stockton, for appellant.
    W. 0. Jackson, of Ft. Stockton, for the State.
   WALTHALL, J.

This suit was brought by the state of Texas, by the Honorable W. C. Jackson, in his official capacity as county attorney of Pecos county, Tex., against Quinby Oil Company, a Texas corporation, Olney A. Slater, and all persons owning and claiming to own an interest in and to the lands described, and as to all parties not named and having an interest in the said lands they are described as unknown, and after due diligence and inquiry their names and places of residence could not be ascertained.

The suit was filed on July 10, 1928, for the collection of taxes delinquent in payment, for the year 1927, and for penalties, interest, and costs, and to foreclose the state’s lien on the said lands in payment thereof.

Quinby Oil Company did not answer, and judgment by default was rendered against it. Olney A. Slater appeared and filed answer. The attorneys for the state and Slater filed an agreed statement of facts proven on the trial. The agreed statement was signed by the parties, and by the court examined, found to be correct, approved, and ordered filed as a part of the record in the case. The case was submitted to ahd tried by the court on the agreed statement.

The agreed statement, so far as it is necessary to state it, in view of the issue presented, reads as follows:

“That all the lots and lands owned by the defendant Olney A. Slater are unimproved. The lands owned by the defendant, Olney A. Slater consist of tracts lying within the following surveys and additions to the town of Fort Stockton: James Lamb survey; Mrs. N. U. Reisenhoover; Survey No. 14, T. & St. L. Ry. Co.; Survey 318 S. A. & M. G. Ry. Co., which are original surveys; Survey 7, Block 1, Ft. St. Irr. L. Co., which survey 7 was divided into tracts of ten (10) acres each, each tract being surveyed and marked on the ground and plat filed of record in Pecos County, Texas; Rule Addition to the town of Fort Stockton; Old Fort Addition to the town of Fort Stockton; Orient Addition to the town of Fort Stockton; Second Orient Addition to the town of Fort Stockton, all of which Additions were subdivided into Blocks and Lots and each Block and Lot subdivided and marked on the ground and plat of same, filed and recorded in Pecos County, Texas.”

The lands involved in the suit and delinquent, and not owned by Olney A. Slater are described in the agreed statement as follows:

“Part of lot 6, Block 20, Old Port Stockton Addition, in Fort Stockton, Pecos County, Texas; All lots described in the petition as being in the Government Fort Addition to the town of Fort Stockton, Texas; All lots being in the town site of Owego and Baldridge, "'Pecos County, Texas.”

The agreed statement, in addition to the above, contains a schedule of all the real estate involved in the suit, all delinquent for taxes, shown by an inventory of the lands as rendered for taxes by the then owner of the lands, Quinby Oil Company, describing the lands by the abstract, certificate, and survey numbers, number of acres, and the separate value of each, also giving the several tract numbers where the sections and blocks have been subdivided in the Irrigated Land Company’s land; and, where the lands are situated in the town of Ft. Stockton and in the above-stated several additions thereof, and in Owego and Baldridge, the several blocks and lots are each stated .severally, all of which additions were subdivided into blocks and lots and each marked on the ground, and a plat of same filed and recorded, and in the rendition the value of each, as rendered for taxation, the schedule or exhibit of such rendition covering several pages of the agreed statement. We think we need not copy the exhibit here.

It was agreed “that the total amount of State, County and Road and Special taxes, penalties and interest on the lands belonging to the defendant, Olney A. Slater, and covered by this suit, is the sum of Three Hundred Eighty-three and 98/100 ($383.98) Dollars, which sum has been tendered by the defendant to the tax collector, together with the sum of Forty-two ($42.00) Dollars additional as costs after suit was filed and court in session, which tender has been refused by the said tax collector.”

The case was tried without a jury. The court entered judgment that the state recover of defendant Quinby Oil Company the sum of $318.03, taxes, etc., on the property owned by it, and from the Quinby Oil Company and Olney A. Slater the sum of $895.49, the aggregate amount of delinquent taxes due by them with the penalty of 10 per cent, thereto added, costs, and interest thereon, at the rate of 6 per cent, per annum from date of the judgment until paid, and costs of suit. The judgment ordered a foreclosure of the state’s lien on the lands involved in the suit. The judgment gave directions as to the sale of the lands on foreclosure and as to the application of the proceeds, which we need not note.

Slater and the state each noted an exception to the judgment and gave notice of appeal. Slater prosecutes this appeal.

Opinion.

Appellant states that the facts are undisputed, and that the only issue between the parties is the amount of fees chargeable.

Appellant submits four propositions. They are substantially to the effect: That a county attorney in a suit for delinquent taxes is entitled to receive a fee of $5 for the first tract in any one suit and $1 for each additional tract involved in the same suit, and, where one suit is filed for the collection of delinquent taxes on parcels of land which are unimproved and wholly contained in five separate surveys and four additions to a town, the county attorney is entitled to collect fees on nine and only nine tracts of land. That the collector of taxes in such suit is entitled to $1 for each correct assessment of land to be sold for such delinquent taxes, and in this suit his fees would be for nine separate assessments. That the county clerk is entitled to a fee of $1 for making out and recording the data (date) of each delinquent assessment and for certifying same in the minutes of the commissioner’s court, and for all other services rendered in such suit, and $1 to be taxed as costs. The fourth proposition submits that the assessment for taxes is excessive and void because unconstitutional.

In brief, it is insisted that the fees of the county attorney, tax collector, and county clerk, depend solely upon the number of “tracts” involved in the suit, and that, in order to ascertain the compensation chargeable, it is necessary only to determine the meaning of the term “tract” as applied in delinquent tax suits, and to ascertain the number of tracts involved in the suit.

It is true, as insisted by appellant, that the fees of the county attorney and the collector of taxes are determined by the number of “tracts” of land involved in the suit for delinquent taxes, and that the - number of “tracts” in the suit depends upon the construction to be given the amendment of former article 7691 by chapter 21, General Laws, as passed by the Third Galled Session of the Thirty-Eighth Legislature, page 180, and carried into the last Revised Civil Statutes, as article 7334. That article, as amended, reads:

‘Tract.’ — The term ‘tract’ shall mean all lands or lots in any survey, addition or subdivision or part thereof owned by the party being sued for delinquent taxes.”

Now, if the terms “survey” and “addition” as used in the above article are each to be taken collectively as constituting the unit of division of the land in determining the number of tracts to be counted in fixing the fees of the county attorney and the tax collector, then the contention of the appellant must be sustained, since all the acreage owned by appellant, Slater, lies within the five surveys above mentioned and constitute five separate “tracts,” and the lots, regardless of number, and regardless of the separate rendition and assessment as to value, situated in the Rule addition, constitute one “tract”; likewise all the lots in each of the three other additions constitute a “tract” — thus making in all nine “tracts” chargeable with the statutory fees in this suit for delinquent taxes. In the event the above construction is to be given to article 7334, the tax collector is entitled to.$9, being $1 for each “correct assessment, of the land to be sold,” and the county attorney, being entitled to $5 for the first “tract” and $1 each for the eight additional “tracts,” could receive a total of $13, and the county clerk could receive $1 for all services, and the district clerk $1.50, as his costs.

On the other hand, should it be considered that each separate parcel of land into which the owner has divided and subdivided his surveys and additions, as into blocks and lots, and so rendered same for taxation, constitutes a “tract” within the meaning of the statute, and the fees of collector, county attorney, and county clerk are to be fixed according to such construction of the statute, in that event the case must be affirmed.

While cases involving the construction of previous legislation on somewhat similar condition of facts are found, the exact point presented has never come before an appellate court since the term “tract” has been defined, so far as we have found, and so far as the attorneys representing the respective parties to the suit have found. The only discussion bearing upon the point presented is found in the Biennial Report of the Attorney General of this state, of date June 15, 1927, page 236, in which the Honorable H. Grady Chandler, Assistant Attorney General, advises the Honorable H. L. Faulk, county attorney, Brownsville, Tex., as to the construction placed upon article 7334 by that department, in a suit for delinquent taxes, and involving thirty separate town lots in the same addition with separate valuations for each lot, the lots situated in three several blocks, sixteen in one block, thirteen in one block and one in another block, and in which it is said in conclusion of the opinion:

“You are advised, therefore, that it is the opinion of this department, under the provisions of Article 7334, the term ‘tract’ as defined therein does not mean that all lots in any addition are considered as one tract, but that said provision is only a definition of the term ‘tract’ and has, as part of its purpose, to provide that a city lot as well as acreage property, is considered as a tract. Therefore, in the case mentioned by you, since there are thirty separate city lots, each with a separate valuation, you are entitled to receive a fee on the basis of thirty tracts.”

This suit is a statutory proceeding, and the courts of the state have adopted the-rule construing strictly those statutes prescribing fees for public officers, and against permitting such fees by' implication. No officer is permitted to collect fees or commissions unless the same are expressly provided for and the amount thereof declared by law. McCalla v. City of Rockdale, 112 Tex. 209, 246 S. W. 654; McLennan County v. Boggess, 104 Tex. 311, 137 S. W. 346; Knight v. Harper (Tex. Civ. App.) 279 S. W. 589.

The statute here does specifically and definitely prescribe the fees to be charged by the several officers, and the only doubtful feature is as to the unit of calculation by which the number of tracts is to be fixed.

In Raht v. State, 48 Tex. Civ. App. 106, 106 S. W. 900, where two or more unimproved town lots belonging to the same person and situated in the same town are included in the same suit for taxes, it was held that the costs should be taxed against the lots collectively as if they were one tract. To the same effect is Typer & Knudson v. Tom, 62 Tex. Civ. App. 288, 132 S. W. 850, in a suit brought by taxpayers for a refund of excessive fees paid. Where delinquent taxes were owing on several unimproved lots, situated in the same town, by the same person, and owned by the same person, it was said the lots should be grouped into one group and the costs taxed against them collectively, “thus limiting each officer performing a service mentioned in the statute * * * quoted to one charge for the entire group.”

In Houston Oil Co. of Texas v. State (Tex. Civ. App.) 141 S. W. 805, Judge Pleasants discusses the fees to be allowed the collector and county clerk in delinquent tax suits under article 5232i, R. C. S. 1897, holding that such officers are each entitled to a fee of $1 for each correct assessment of each tract assessed, though the delinquent taxpayer has several tracts in one rendition.

The Legislature had not at that time defined the term “tract,” and we do not consider that case in conflict with other cases herein referred to. Here the Legislature has said, as we understand it, that all lands in any survey — that is, the whole quantity — all lots in any survey, all lands or lots in any addition or subdivision or part of any addition, means, signifies, is comprehended, in the term “tract,” where the survey or addition is owned by the one party sued for the delinquent taxes. Where the Legislature has defined-the term “tract” in fixing the fees of public officers in delinquent tax suits, the courts are powerless to give any construction to the language used other than that ordinarily used in the definition given. As we view it, the definition of the term “tract” as given by the Legislature is in harmony with the holdings of the courts in the interpretation of the several uses of the term “tract” in the various articles of the statute, and we could not reasonably suppose that the Legislature intended a different meaning.

No question is made but that tbe amount of tbe taxes due as expressed in tbe judgment is tbe correct amount.

As to tbe amount of the fees due tbe several officers mentioned, tbe judgment is reformed so as to conform to tbe opinion herein expressed.


text:
    Olney A. SLATER v. STATE of Texas.
    (No. 2242.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 28, 1929.
    Rehearing Denied March 16, 1929.
    Karl A. Crowley, of Fort Worth, and Hart Johnson, of Ft. Stockton, for appellant.
    W. C. Jackson, of Ft. Stockton, for tbe State.
   WALTHALL, J.

This ease presents an appeal from a judgment rendered in tbe district court of Pecos county, in a delinquent tax suit, and the questions in controversy are in all respects identical with the cause No. 2243, styled Olney A. Slater v. State of Texas, 14 S.W.(2d) 874, this day decided by this court, except as to tbe description of tbe property and tbe amount of the taxes and costs. The same disposition is made of this case as in that.


author: BUCK, J.

text:
    GULF, C. & S. F. RY. CO. v. MARS et al.
    (No. 12077.)
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 9, 1929.
    Rehearing Denied March 9, 1929.
    Lee, Lomax & Wren, of Fort Worth, for appellant.
    Templeton & Templeton, of Fort Worth, for appellees.
   BUCK, J.

This is a suit by W. W. Mars, Bert Mars, I. K. Howell, and A. F. Hoffstef-fer, against tbe Gulf, .Colorado & Santa Fé Railway Company, for cattle claimed to be injured, and some killed, in six shipments from White’s Ranch, a station on tbe line of railway between tbe station of Boliver and tbe city of Beaumont. Mars and bis associates -bought some 400 bead of steers from White, and delivered them to tbe railroad company for shipment. Tbe first shipment was of date May 4, 1925, and tbe last shipment was on June 16,1925.

Tbe cause of action was tried in tbe Forty-Eighth judicial ^district court of Tarrant county, and tbe answers of tbe jury were favorable to tbe defendants on the second, third, fourth, and fifth shipments, but favorable to the plaintiff' on the first and sixth shipments. The bill of lading showed that the shipment of May 4th was of six ears, containing 164 head of steers, consigned to the Cassidy Southwestern Commission Company, designation Oklahoma City, and. eight cars, containing 216 steers, consigned to the Cassidy Southwestern Commission Company, designation St. Louis, Mo., and six cars, containing 162 steers, consigned to the same commission company, designation Fort Worth.

Since the plaintiffs did not perfect their appeal on the assignments directed to the judgment in the. other four shipments, we need only concern ourselves about the first and sixth shipments. Prom a judgment in favor of plaintiffs and against the defendant for $1,444.40, together with 6 per cent, interest thereon from June 20, 1925, to January 14, 1928, aggregating $1,636.76, said amount being based on the verdict of the jury to issues submitted to them in reference to shipments 1 and 6, the defendant has appealed.

Opinion.

Appellant’s contention is that the ten cars contained in the shipment to St. Louis, from Port Worth, were originally consigned to Cassidy Southwestern Commission Company, at Port Worth, and that upon delivery of said cattle to said commission company at Port Worth, the appellant had completed its contract, and was not liable for any damage done to said cattle while en route from Port AVorth to National Stockyards, Illinois.

Charles Caster, a witness for plaintiffs, testified that he worked for the appellant; that with reference to the shipment of ten cars of cattle that came over the Santa Pé from White’s Ranch on May 5, 1925, and were unloaded at Port Worth, and were subsequently reconsigned over the M., K. & T. Ry. Company to' National Stockyards, six of the cars so reconsigned were of the shipment originally shipped from White’s Ranch to the Cassidy Southwestern Commission Company, destination Fort Worth. These ears were numbers as follows: 54791; 56932; 58573; 58914; 55710; 58961. The other four-cars, making up the ten reeonsigned over the M., K. & T. Ry. Company to St. Louis, or National Stockyards, were 56095; 56326; 56690; 58118. That the cars were originally routed as shown by the bill of lading from White’s Ranch, destination Oklahoma City, but Caster testified that when they reached Port Worth the destination shown was Port Worth. They wore probably rerouted in passage from Oklahoma City to Port Worth.

The Federal Statutes, 8604a, provides: “Any common carrier, railroad, or transportation company subject to the provisions of this act receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory; District of Columbia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier,”" etc. United States Compiled Statutes, 1916, Ann. vol. 8, p. 9289 (49 USCA § 20(11).

It is apparently by this act that the plaintiffs claim that they had the right to reconsign the shipment from Port Worth to St. Louis or National Stockyards and get the advantage of the reduced rates.

It will be noted that if the contention of appellant is sustainable, i. e., its duty ended and its obligations were completed upon the delivery at Port Worth to the Cassidy Southwestern Commission Company of the shipment of six cars, then this act does not apply to a reconsignment over another railway company to a point in another state.

In Bracht v. S. A. & A. P. Ry. Co., 200 Mo. App. 655, 209 S. W. 579, by the Kansas City Court of Appeals, of Missouri, it is held that where shipments were billed from a point in the state to another point in the same state, and were not intended for another state, but after the ear arrived at destination the shipper entered into a new agreement with another company to ship to another state, this, would not relate back to the origin of original shipment and change its character so as to hold the initial carrier liable for damages while in the possession of the reconsignment carrier.

In this ease the court said:

“It is conceded that whether a shipment is interstate or intrastate is not controlled by the mere fact of it being billed as one or the other,” citing eases.

Again:

“But to make a shipment interstate, it must be a shipment intended for another state; and if so intended it will not be deprived of its interstate character by being' billed to an intermediate point, in the state of its origin. The initial shipment must be the beginning of an interstate journey.. * ⅜ ⅜ A different rule would make us say that, though a shipment is billed intrastate, and is intended as intrastate, it will nevertheless become interstate, if from some subsequent consideration it is shipped into -another state. ⅜ ⅜ *

“The vegetables in this controversy were' actually shipped and billed from Ingleside to Dallas, Texas. That they were not intended to be shipped into any other state conclusively appears. After the car arrived at destination the shipper changed his mind, entered1 into a new engagement with the M., K. & T. Ry. Co., whereby he shipped the car to Kansas City, Mo. Under no consideration could this be held to relate back to the origin of the original shipment and change its character. Gulf, Colorado & Santa Fe Ry. Co. v. Texas, 204 U. S. 403, 27 S. Ct. 360, 51 L. Ed. 540; Illinois Grain to Chicago, 40 I. C. C. 124.”

Tins case was affirmed by tbe Supreme Court of tbe United States in an opinion published in the United States Supreme Court Reports, Bracht v. San Antonio & A. P. Ry. Co., 254 U. S. 489, 41 S. Ct. 150, 65 L. Ed. 366, in which the court said, quoting from the headnote: “The liability of the initial carrier of goods consigned by a shipper to himself at a point within the state, where he intended to sell them, and shipped under an intrastate bill of lading that contained no reference to diversion or reshipment, is governed solely by such bill of lading, subject to any applicable rules and regulations prescribed by state authority, although, upon arrival at destination, at a point beyond, such initial carrier’s own line, the carrier then having possession of the goods forwarded them, upon the shipper’s request, made after arrival, to a point in another state, taking up the original bill of lading, and issuing an interstate one, and such initial carrier may not be held liable by virtue of the Carmack Amendment of June 29, 1906, to the Interstate Commerce Act of February 4, 1887, for damages sustained in the course of transportation beyond the destination originally specified.”

There is no recitation or notation in the bill of lading of the six ears billed from "White’s Ranch to Fort Worth indicating any purpose of the shipper to have these cars reconsigned at Fort Worth, after reaching that point, and after testing out the market. Nor is there any evidence that the shipper had any such purpose of election in his mind at the time of shipment. The cattle are billed as “ordinary live stock,” “for immediate ■slaughter.” I. K. Howell, one of the persons who bought the cattle for shipment and the only one of the owners who was present at White’s Ranch at the time of loading, testified: “There were twenty-four or twenty-five cars of cattle in the first shipment, and they were consigned to the Cassidy Southwestern Commission Company; the cattle were intended for four different markets, Fort Worth, Oklahoma City, Kansas City, and St. Louis. The ten cars that ultimately went to National "Stockyards (otherwise designated as the St. Louis shipment), Illinois, was out of this shipment of twenty-four or five cars, but I don’t know which ten cars went there; they were loaded at the same time. * s * The agent was there and I am sure that he gave me a shipping contract for each of the shipments, but I did not keep them. * * * The contract now shown me, dated May 4, 1925, at White’s Ranch covering shipment by K. C. White to Cassidy Southwestern Commission Company, covering 162, head of steers in six cars, is one of the contracts ■covering the shipment.' ⅜ * ⅜ The contract now shown me, dated May 4, 1925, at White’s Ranch, in the name of G. C. Mays, to Cassidy' Southwestern- Commission Company, via G. C. & S. F. Ry. Co., covering six! cars of cattle, is another one of the contracts covering this shipment. The contract covers six cars loaded on May 4th, and that .is my signature. I signed Mr. May’s name to it. I recognize it because I have signed others for him. * * ⅜ The contract now shown me, dated May 4th, from White’s Ranch, in the name of K. C. White, covering 108 steers in four cars, shipped to Cassidy Southwestern Commission Company, at Oklahoma -City, covered a part of the cattle of the shipment of May 4th. As I remember, there were 24 cars loaded in the shipment of May 4th. I know that some of the cattle in the shipment of May 4th were sold at Fort Worth.”

Continuing cross-examination, the following question was asked:

Q. “In your petition in this case, you are suing on two hundred and sixty-eight head leaving White’s Ranch May 4th, which subsequently got to National Stockyards, and one hundred and sixty-three in six ears, moving to Kansas City. Those are the only two shipments involved in this case leaving there on May 4th? A. Yes, there was no claim for the cattle, I suppose, that came to Fort Worth, or that went to Oklahoma City. With reference to the two hundred and sixty-eight head of cattle, in eight cars, consigned at White’s Ranch to St. Louis, moving via the Santa Fé, I cannot say whether those cattle actually went to St. Louis or not; I billed the cattle and I was there and gathered tile cattle and shipped them out, but I did not pay any attention to the handling of the cattle after they left the ranch. Mr, Mars was here at Fort Worth and he was looking after diverting the cattle and consigning them and I did not keep up with that As to whether I advised the agent as to the destinations other than those shown in the contracts here, you know that has been three years ago and I can’t remember all those things. I know that if I had cattle going to St. Louis that I wanted to stop at Fort Worth and try them out here on the market, that I had the privilege of originally billing them to St. Louis with the privilege of the Fort Worth market. You could do that. As to whether any of the shipment of May 4th was billed that way, I will say that I knew the cattle were billed- that way and I knew that Mr. Mars was here in Fort Worth and. that he was going to divert them. In telling the agent what to put on the contracts, I think I would have told him where the stuff was going, if the contracts show some of them going to Fort Worth and some to Oklahoma City, some to Kansas City and some to St. Louis, but I don’t remember about all those things. Of course I did not communicate to the agent that it was the intention to ship the Oklahoma City cattle to St. Louis; I did not tell the agent that. I did not tell the agent that it was the intention to reconsign to St. Louis the six ears billed to Fort Worth. I did not tell the agent anything like that. I should think that, as far as the agent knew, he would think the cattle were going to the destinations shown in the contracts.”

Since the evidence tends to show, if it does not show, that the shipment of six cars of cattle from White’s Ranch, destination Fort Worth, was a complete transaction, and that upon the delivery of said cars át Fort Worth to the Cassidy Southwestern Commission Company the obligations of the carrier arising out of the contract were at an end, we do not think that a reconsignment of the cattle after they reached Forth Worth, to National Stockyards, would tend to revive or continue the obligations and duties of the original carrier, G. C. & S. F. Ry. Co.

While we are inclined to think, but do not here decide, that the other four cars originally destined for Oklahoma City, and probably reconsigned in transit, first to Fort Worth and then to National Stockyards, East St. Louis, Ill., might come within the provisions of the federal statutes, above quoted, and that the original carrier would be liable for any negligence, causing injury to or loss of any of the cattle while en route from Fort Worth to National Stockyards, yet, since there is no means of telling how many of the cattle so injured, crippled, or depreciated were in the six cars and how many were in the four cars, it will be necessary for us to reverse the judgment and remand the cause as to the entire shipment from Fort Worth to National Stockyards. An amendment to the Interstate Commerce Act, of date of July 3, 1926 (49 USCA § 20 (11), provided: “That the liability imposed by this paragraph shall also apply in the ease of property reconsigned or diverted in accordance with the applicable tariffs filed as in this Act provided.”

It cannot be made applicable to this shipment, as this shipment was made prior to the passage of the amendment. See Clark v. L. & N. Ry. Co., 216 Ala. 637, 114 So. 295; Parker-Bell Lumber Co. v. Great Northern Ry. Co., 69 Wash. 123, 124 P. 389, 41 L. R. A. (N. S.) 1064; Barrett v. Northern Pac. Ry. Co., 29 Idaho, 139, 157 P. 1016.

Nor do we think that we can determine by the record what portion of the damages assessed by the jury should be directed to the shipment already discussed and what portion should be directed to the shipment of date June 16, 1925, for which judgment was rendered for damages for the plaintiff. The court submitted the cause upon special issues submitted, covering the entire six shipments, and in the judgment the damages found were given as $1,444.40, together with interest from June 20, 1925, to January 24, 1928, amounting to $222.36. In other words, the judgment does not show the amount of damages found by the jury on the last shipment made, but is given as a whole, including the first shipment and the last shipment.

Therefore we conclude that the judgment as a whole should be reversed and remanded ; and it is so ordered. The judgment for the defendant as to the shipments 2, 3, 4, and 5, no appeal having been perfected as to this part of the judgment, is left undisturbed.

On Appellees’ Motion for Rehearing and to Certify.

We do not think the case of Gulf, Colorado & Santa Fé v. Texas Packing Co., 244 U. S. 31, 38, 37 S. Ct. 487, 61 L. Ed. 970, especially relied on by appellees in their motion for rehearing, enunciates any legal principle contrary to our holding. In the cited case it appeared that the original shipment was interstate, from Temple, Tex'., to St. Louis, Mo. After the shipment of dressed poultry had left Temple, a representative of the packing company advised the agent of the railway company that the poultry had been sold to a buyer in Chicago, and requested the railway company to so notify its agent at St. Louis, and to have the shipment reconsigned to Chicago. This was done, and the shipment was reeonsigned over the Wabash Railroad Company to Chicago. When the -shipment reached Chicago it was discovered that the shipment has been injured in transit, and the poultry was deteriorated in value, and it was sold in its deteriorated condition for the best price obtainable. The Wabash Railroad Company was made a party defendant, and the Santa Fé Railroad Company .asked for a judgment over against it for any damage to the shipment occurring to said shipment on its line of railway. The bills of lading issued by the initial carrier required that the car should be iced, and re-iced at- “all regular icing stations” en route. The evidence shows that the cars were in fact re-iced en route to St. Louis at all but one regular station, to wit, at Shawnee, Okl.; but the failure to re-ice at this point resulted in a lapse of from 28 to 50 hours without ice and salt. Upon the issues made, the jury found for the packing company against the Santa Fé Railroad Company, and upon the issue between the Santa Fé Railroad Company and Wabash Railroad Company, the verdict was in favor of the Wabash Railroad Company. In other words, the jury found that there was no negligence on the part of the Wabash Railroad Company. Hence any negligence contributing to the injury of. the shipment must have been while the shipment was on the line of the Gulf, Colorado & Santa Fé Railway Company, and in favor of the Wabash Railway Company as to the claim of the Santa Fé Railroad Company for judgment against it for any amount of damages which the facts showed occurred on the Wabash Railroad Company.

We do not find any other eases in conflict with our former holding,' nor do we think: that the ease is one calling for a certification to .the Supreme Court; and motions for rehearing and to certify are overruled.


author: CONNER, C. J.

text:
    L. E. WHITHAM & CO. v. SCHULZ.

    (No. 12057.)
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 22, 1928.
    Rehearing Denied Feb. 9, 1929.
    Millburn E. Nutt, E. R. Surles, and Carri-gan, Britain, Morgan & King, all of Wichita Falls, for appellant.
    Kilgore, Rogers & Montgomery, of Wichita Falls, for appellees.

      writ of error granted.

   CONNER, C. J.

This suit was instituted by the appellee, Clara Schulz, November 9, 1927, against L. E. Whitham and R. M. Whit-ham, doing business as L. E. Whitham & Co., and others not parties to the appeal, suing in the usual form of trespass to try title to recover lot No. 18, in block 13, of the I. Jalo-nick addition to the city of Wichita Falls. In a second count, the plaintiff alleged that on April 14, 1925, she was the owner of said lot and sold and conveyed the same to J. T. Yick by a general warranty deed and that, as part of the consideration therefore, J. T. Yick executed his promissory note for the sum of $3,200, payable in monthly installments of $50 each, to secure which the vendor’s lien was retained in the deed; that Vick made default in the payment of certain installments and the note had thereupon been declared to be due in accordance with the terms of the note. It was further alleged that L. E. Whitham & Co., and certain other defendants not parties to the appeal were ■claiming some character of interest in said land, but which claims were inferior to the rights of appellee; that the claims by the other defendants, including L. E. Whitham & Co., were of no effect, because at the time the property was purchased and at all times thereafter until the .filing of the suit the lot constituted the homestead of the said J. T. Vick, and none of the defendants had complied with the statutory provisions for creating a valid lien on the property. The plaintiff specifically alleged that the claim of L. E. Whitham & Oo. was evidenced by an instrument dated April 16, 1926, and recorded in volume 20, at page 619, of the Mechanic’s Lien Records of Wichita County, Texas, which instrument, it was alleged, created no lien against the property above described, or, at best, was second and inferior to'that of plaintiff and cast a cloud upon the title to the property, which should he removed by a decree of the court.

Plaintiff’s prayer was that she have judgment against the defendant Vick for her debt, interest, attorney’s fees, and costs of suit, together with a foreclosure of her vendor’s lien; that the said lien be declared to be superior to all others; and that the several claims of the defendants be canceled and the cloud cast upon her title to the property in question be removed, etc.

The defendants L. E. Whitham & Co., among other things, pleaded a general denial and specially pleaded the street improvement lien mentioned by plaintiff and hereinafter more particularly described.

A trial resulted in a judgment in favor of the plaintiff in accordance with the prayer of her petition, and the defendants L. E. Whitham and R. M. Whitham, constituting the partnership of L. E. Whitham & Co., have duly prosecuted this appeal.

The ease has been submitted to this court upon an agreed statement of facts, as provided for by article 2244, Rev. Statutes of 1925. In substance, so far as necessary to detail, it therein appears that the appellee, Clara Schulz, on the 14th day of April, 1925, owned the lot in question, and on that day conveyed the same by warranty deed to the defendant J. T. Yick, therein reserving a vendor’s lien to secure the payment of Vick’s note of even date for the principal sum of $3,200, payable to the order of Mrs. Clara Schulz, in monthly installments of $50 each, .and providing that upon the failure to pay any installment of principal or interest when due, at the election of the owner, the entire note might be declared due. Defendant made default in the payment of installments, whereupon Mrs. Schulz demanded the entire amount and, upon the failure to pay, placed the note in the hands of attorneys for collection, and agreed to pay them 10 per cent, upon, the principal and interest then due.

It is further agreed that J. T. Vick, one of the defendants, was the owner and holder of the premises described in plaintiff’s petition at all times set forth in the pleadings filed by the defendants L. E. Whitham & Co., holding the same by virtue of the warranty deed executed and delivered to him by the plaintiff, Clara Schulz, and that on the 5th day of July, 1926, pursuant to an ordinance of the board of aldermen of the city of Wichita Falls, Tex., R. E. Shepherd, mayor of the city, issued and delivered to L. E. Whitham & Co. an improvement certificate reciting that a special assessment- of $379.07 had been levied upon the property in question; that said assessment was made payable to L. E. Whitham & Co., in certain installments; that said assessments had been levied by virtue of ordinances and proceedings of the board of aldermen providing for the payment by the said owner of his pro rata of the cost of paving the highway in front of said premises, under a contract for such improvements, entered into* between the said city and contractor, of date the 1st day of February, 1926; that by said ordinance, contract, and proceedings said assessment, together with cost of collection and reasonable attorney’s fees, if incurred, was declared to be a first and paramount lien upon the premises (except as to lawful ad valorem taxes), and a personal liability of said owner.

The certificate also recited: “That all the proceedings with reference ito making said improvement have been regularly had in compliance with the charter and ordinances of said city and chapter 11, tit. 22, Revised Statutes of Texas 1911, and that all prerequisites to the fixing of the lien and claim of personal liability, evidenced by this certificate, have been performed. That said payment and improvement has been completed by said contractor in compliance with the terms of said contract and other proceedings, and was accepted by said City on the 5th day of July, 1926,” etc.

No complaint on this appeal is made of a want of regularity in the proceedings of the city leading up to the issuance of the improvement certificate above noted, and hence the claim and lien asserted by L. E. Whitham & Co. must be treated as in all things valid, unless invalidated by the facts hereinafter stated. In this connection, however, we should state that Dr. Vick, on the 16th day of April, 1926, executed in a form unquestioned, a mechanics’ lien in favor of L. E. Whitham & Co. upon the lot in controversy, which recites that Dr. Vick was a “single man, owner of Lot No. 18, Block No. 13, fronting on north side of 16th street in the City of Wichita Falls ⅜ ⅜ * that in consideration of the improvements including grading, excavation, paving and constructing curb upon said street, under the terms of a resolution and ordinance adopted by the Board of Aldermen of said City, and in accordance with the specifications therefor prepared by the city engineer, do promise to pay L. E. Whitham and company, a co-partnership composed. of L. E. Whitham and R. M. Whitham, or its assigns, the sum of Three Hundred seventy-nine and 07/100 dollars. * * * In consideration of said improvements Dr. J. T. Vick a single man, does hereby mortgage said premises to L. E. Whitham and company and grant it a Mechanic’s Lien thereon to secure the payment of said indebtedness. ⅜ ⅜ * Any error or invalidity in any proceedings of the city with reference to making said improvements, or assessing the cost thereof, is hereby waived. * ⅜ ⅞ recitals of any fact in the certificate issued by the said city evidencing the assessment of said premises for said improvements, shall be prima facie of such facts, and this obligation shall be cumulative of .such certificate, any payment of which shall operate as a credit hereon.”

Dr. Vick testified that he purchased the lot from Mrs. Schulz, as evidenced by the deed hereinbefore referred to, and, further, that: “I was married at that time. I did not move into that house at that time. I moved into that house, in, I guess it might have been thirty days, possibly more. I did not own any other property in Wichita Falls at that time. I have not owned any other property in Wichita Falls since that time. From about thirty days after I bought the house, and moved in, I have lived in the house; I still live in it; I have one room there, my family is not there. I have had my room there since 30 days after I bought it. I was so using it ever since I moved in, and was so using it in April, on the 16th of April, 1926. I have been all the time since then.”

On cross-examination he testified: “I am the same J. T. Vick, who is named one of the defendants in this ease. I am a defendant as well as L. E. Whitham and Company. I am a married man, I am not living with my wife at. this time. It has been five years since I lived with my wife; yes, it is a Tact that I became separated from my wife about five years ago; as to whether the separation was permanent, well I suppose so, we have not gone back together. We have not had any relations as husband and wife, I take care of her is all, but I have been separated from her. I have not lived with her since that time. She has never lived with me in the property. She came to the house one time when I was in bed sick, that was either in 1926 or 1925. She stayed there about 10 minutes, came to the house — just came to the sick room a few minutes. I do not occupy the place now, other than one room. I have a lady stay there to do my cooking; as to whether I have the use of the entire house or just one room in the house — well just one room and in the dining room of course, I come to my meals. I have exclusive control over only one room in the house. I signed a mechanic’s lien contract in favor of L. E. Whitham and Company for pavement improvements. At the time I signed that my wife and I had permanently separated. I did not claim that as a homestead at that time. I have never claimed it as a homestead since .that time, nor has any part of my family resided there. I am the only member of my family that has resided there in that house at any time and I occupied it only as a single man; I have not formally gone ahead and got a divorce myself, but I have no legal connection; I am not connected with my wife, except I, am still legally married, and supporting her. My wife lives in separate property. She lives in Healton, Oklahoma, and she has never resided in any part of those premises.”

On redirect examination, he further testified: “During those years I have provided for my wife; I have taken care of her. I do not have any unmarried children. I have only two and they are both married. The housekeeper I have, I simply employ her to take care of the house for me in consideration of her services in cooking my meals,, and taking care of the house; she is working for me.”

It seems to be now well settled that a statutory or authorized charter improvement lien of a city, which in express terms is made superior to prior existing liens, is generally valid and enforceable. See Marriott v. Corder (Tex. Civ. App.) 4 S.W.(2d) 213, writ refused, and Nalle v. Eaves (Tex. Com. App.) 5 S.W.(2d) 500. This rule, of course, cannot be made to apply to lands and lots which constitute the homestead of a family unless such lien 'has been created and fixed in the manner provided in the Constitution and statutes, which both require that work and material used in construction improvements thereon must be contracted for in writing with the consent of the wife in the same manner as making a sale and conveyance of the homestead. Rev. Civ. Statutes, art. 5460; Constitution, art. 16, § 50. Hence the vital issue in this case is whether or not lot No. 18 in block No. 13 of the I. Jalonick addition to the city of Wichita Falls, constituted the homestead of 3. T. Vick and family at the time of his written contract for and the construction of the street improvement; it being undisputed that his wife did not join in the execution of the contract, or consent to the improvement.

Appellee has cited a number of cases in support of the court’s finding and judgment. The cases relating to the subject are not all apparently harmonious or easily distinguishable, but we will briefly notice those most strongly urged in support of the decree below. Generally speaking, they are cases in which it has been held that the homestead character depends more particularly upon the actual use and occupancy of the premises, and that, where the homestead character of the premises becomes thus fixed, declarations of the occupant may be disregarded (see First National Bank v. Rice-Stix Dry Goods Co. [Tex. Civ. App.] 213 S. W. 344; Ward v. Baker [Tex. Civ. App.] 135 S. W. 620); that a homestead once' fixed does not lose its character as such by the mere absence of the wife or of both husband and wife, where the intention exists to return (see Moores v. Wills, 69 Tex. 109, 5 S. W. 675); that the homestead character may exist, e^en where the wife or husband has been divorced, in cases where there yet remains children as members of the family (Hall v. Fields, 81 Tex. 553, 17 S. W. 82). See, also, Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S. W. 86, 132 Am. St. Rep. 896; Zapp v. Strohmeyer, 75 Tex. 638, 13 S. W. 9.

But it has also been held that the husband, as the head of the family-, has the right to choose the homestead and the further right to abandon it, if done in good faith and not to defraud the wife (see White v. Cowles [Tex. Civ. App.] 155 S. W. 982); that the abandonment of a homestead after it is once established is always a question of intention (Gates v. Steele, 48 Ark. 539, 4 S. W. 53); and that, after divorce, the homestead loses its character as such, where there are no remaining dependents (see Bahn v. Starcke, 89 Tex. 203, 34 S. W. 103, 59 Am. St. Rep. 40).

In the case before us, the burden of proof was undoubtedly upon appellee to prove by a preponderance of the evidence that the lot in controversy constitutes the homestead of Vick and wife, within the meaning of our Constitution, laws, and decisions relating to the 'subject. She so distinctly alleged and it was an essential element of her cause of action. To fail to so prove must inevitably result in a judgment against her, in so far as she sought to establish the superiority of her lien over the lien of appellant. See Marriott v. Corder and Nalle v. Eaves, hereinbefore cited.

The evidence is undisputed that the children of Dr. Vick and wife are all married and. no longer constituent members of the family. Dr. Vick testified that he and his wife had been permanently separated for a period of five years; that he. had never claimed the premises in controversy as his homestead, and deliberately executed a written contract, on the faith of which valuable improvements were made upon his property, and in which he declared that the premises were not his homestead. No evidence.was offered by the appellee that the wife ever claimed the property as a homestead, notwithstanding the fact that the wife’s residence in Oklahoma was given upon the trial and must have beeen well known to appellee. If she could have proven by the testimony of the wife that she was without a homestead in Oklahoma, and contemplated the possibility of a return to her husband in Wichita Falls, to claim or occupy the premises in controversy as a homestead, the burden was upon the appellee to do so. Her failure to make the effort, it seems to us, authorizes a presumption that she could -make no proof by the wife. Such presumption, under the circumstances, is well supported by the authorities, and we are the more inclined to indulge such presumption by the fact appearing in the record before us that to appellant’s motion for a rehearing on the ground, among others, of newly discovered evidence, the affidavit of Mrs. Vick is attached, in which she declares, in substance, that she was conducting a rooming house in Alabama upon property owned by her, and never claimed the property in question as a homestead and had no intention of doing so. The only time the evidence showed that Mrs. Vick manifested any interest in Dr. Vick was a visit of a few moments’ duration during his sickness, there being no accompanying statement on her part of any interest in the property. The evidence is to the further effect that Dr. Vick has been providing for his family in Oklahoma, upon property occupied by her, which at least suggests that Dr. Vick has provided for his wife a home with which there is no evidence of dissatisfaction shown.

If, in fact, the separation of Dr. Vick and wife was permanent, as he testified, we are unable to see that in principle the family status was not as effectually terminated as if the marriage relation had been dissolved by a formal decree of divorce, and we think the case before us is to he ruled by what was said by Judge Gaines in the case of Linares v. De Linares, 93 Tex. 84, 53 S. W. 579. In that case, the wife had never resided on the property sought to be claimed as a homestead. The husband had purchased it and resided thereon alone for many years. After 'his death, the wife sought'to have the property set aside to her as a homestead. Chief Justice Gaines in denying her that right, among other things, said: “The constitution protects from sale under execution ‘the homestead of a family.’ Const. art. 16, § 50. The statute, in providing for exemptions from forced sale, specifies first: ‘The homestead of the family.’ The property in controversy in this case was the homestead of the decedent, but the question arises, was it the homestead of the family? The family in this ease consisted of-Pioquinto Linares and his wife. It was his residence, hut it was not hers. She never lived, upon it. Neither did he or she at aivy time contemplate that it ever should he. .The fact that they had agreed upon and had effected a permanent separation precludes the idea that it was ever intended hy either that she should reside there. It was. clearly not in fact the homestead of a family, nor do %oe think it can he deemed so in 'construction of law. The case differs materially from that of Henderson v. Ford, 46 Tex. 627, and also from that of Clements v. Lacy, 51 Tex. 150. In each of these cases, it is true, the wife never lived upon the land in question ; but in each it clearly appears that it was intended both hy the Iwshand and the wife that she should do so as soon as 'circumstances should permit. In the former, a confederate soldier, who owned land in Texas, and lived upon it as his homestead, married in Alabama; he and his wife contemplating at the time of their marriage that it should be their home. It was held that it became their homestead, and that a subsequent conveyance by the husband, not joined in by the wife, did not pass the title. In the latter ease the court say, ‘that the mere absence of the wife from the state, when not designed as an abandonment of the husband, but with his consent, and with the intention to make his domicile here her future home, will not work a forfeiture of her homestead rights.’ The intention to make the property the lióme of the loife as well as that of the husband, lohioh existed in both of the cases 'cited, ioas absent in the present case.” (Italics ours.)

It is to be remembered that the general right of the husband to designate the homestead and to buy, sell, and improve property purchased by Him is a right not to be ignored, and we conclude, on the whole, that the court below should have rendered a judgment establishing the validity and superiority of appellant’s lien, with all necessary orders for its enforcement, and the judgment will here be so far reversed and rendered in appellant’s favor as to so show. The judgment in other respects is left undisturbed.


author: PLY, C. J.

text:
    RUNCK et al. v. GATES.
    (No. 8144.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 6, 1929.
    Rehearing Denied March 20, 1929.
    Boone & Savage and F. A. Raymer, all of Corpus Christi, for appellants.
    B.' B. Ward and S. Bldon Dyer, both of Corpus Christi, for appellee.
   PLY, C. J.

This is a suit by appellee against John Runck and the Southwestern Guaranty Title Company for the cancellation of a deed and setting aside a sale to certain real estate in Corpus Christi, known as lot 9 in block 14 of the Bay View addition, for actual and exemplary damages, and 'that appellants be restrained from recording a certain deed signed by appellee or from interfering with the title and possession of said land.

The cause was tried by jury, and on their answers to special issues judgment was rendered that the sale be set aside, the deed canceled ; that appellee recover of John Runck the sum of $250 exemplary damages, and that the Guaranty Title Company, which held possession of the deed executed by appellee to Valentine Runck, be enjoined from delivering the said deed to any one, or recording the same.

The papers which appellee seeks to cancel are all connected with Valentine Runck. The deed executed by appellee is to Valentine Runck, and the promissory notes are signed by him alone. The name of John J. Runck nor of the title company appears on any of the papers connected with the transaction.

The action to cancel is in a court of equity, and, of course, governed by rules as old as the system of equity itself. Pomeroy states the governing motive of equity in the administration of its remedial system is to grant full relief, and to adjust in one suit the rights and duties of all parties, which really grow out of or are connected with the subject-matter of the suit. The fundamental principle concerning parties is that all persons in whose favor or against whom there might be a recovery, however insignificant, and also all persons who are interested, although indirectly in the subject-matter and relief granted, and whose rights might be affected by the decree, shall be made parties to the suit. Pom. Eq. Jur. § 114. As said by Black, Rescission and Cancellation, § 657: “In order to obtain a decree in equity for the rescission of a contract or the cancellation of a written instrument, it is necessary to bring before the court as parties to the action, all those having interest in the subject-matter, or whose rights or claims must be adjudicated and concluded in order to do complete equity in the premises.” Again, in section 658, it is said: “It is proper, if not necessary, to join as defendants in an action for rescission or cancellation all the parties who participated in the fraud which is the basis of complaint, -or who conspired or colluded together to defraud the complainant, though the several defendants may have different interests in the result of the fraud. Thus, where certain defendants fraudulently induced a third person to execute to them a deed to land which was really owned by the plaintiff, such person is a necessary party to an action to cancel the deed.” That is the unbroken rule. Appellee recognizes the rule, but claims that this is not a suit to cancel or rescind any instrument, but merely an action to restrain the delivery of a deed, but this contention is not sustained by the record. The prayer to the petition is as follows: “Wherefore, defendants having been cited and answered herein, plaintiff prays judgment of the court cancelling the alleged deed and removing the cloud cast upon the title to his property by reason thereof, and that the alleged sale be in all things rescinded, and set aside, and held for naught; * * * and that the defendants, and each of them, be restrained from recording the said deed, or in any manner interfering with the plaintiff in his title and possession to the said property. ⅞ * ⅜ >i jn conformity with that prayer the court decreed “that the alleged sale and the alleged deed to the property.in question, hereinafter described, be held for naught; that the alleged deed be cancelled and in all things set .aside.” The decree of cancellation was followed by a decree restraining appellants from delivering the deed to Valentine Runck or from recording the same.

Prima facie, the grantee in the deed was, of course, the beneficiary in the transaction, and was a necessary party in annulment proceedings. Unless Valentine Runck, the grantee in the deed, is made a party, appellee could not properly obtain a decree of cancellation of the deed. Appellee could not dispose of his prima facie interest by a mere allegation that he had no interest in the matter.

So far as the decree sought to cancel the deed and set aside the transactions connected with the purported sale to Valentine Runck, it is invalid and will be set aside, and the cause remanded that he be made a party, but that part of the decree restraining appellants from delivering or recording the deed or taking any other steps in connection with the sale of the land in any manner will be affirmed; costs to be equally divided between appellants and appellee.

Affirmed in part, reversed and remanded in part.


author: BAUGH, J.

text:
    WASCHMAN v. WETTERMAN et al.
    (No. 7311.)
    Court of Civil Appeals of Texas. Austin.
    Feb. 6, 1929.
    Richard W. Mayfield, of Glddings, for appellant.
    R. L. Henderson, of Waco, for appellees.
   BAUGH, J.

Appellee, joined by her husband, sued appellant, her brother, to recover $500, alleged to have been held by him in trust for her under an express trust agreement between them. Judgment was entered-upon a. special issue finding of a jury in ap-pellees’ favor; hence this appeal.

In his first three propositions appellant attacks the sufficiency of appellees’ pleadings, insisting that at most only a relationship of debtor and creditor was alleged, and that appellant’s demurrers should have been sustained. We do not sustain this contention.. Though inartistically drawn appellees’ petition alleged substantially the following: That appellant and-appellee were the only children of John and Caroline Waschman; that John Waschman died intestate in 1895, leaving a community estate worth about $2,000, consisting of 82 acres of land in Lee coimty and some personal property; that about three-years after his death, appellee, then single,, and her mother, Caroline Waschman, by separate deeds, conveyed their interest in the estate of John Waschman, deceased, to appellant that he might have full management and control of the place as his father would have if living; that the interest of appellee was agreed upon as being of the value of $500; that by mutual agreement between appellant and appellee this $500 was to be held in trust, by him and not demanded so long as theii-mother lived; that the purpose of said agreement and trust, and the consideration therefor, was that their mother would live with appellant the rest of her life and that he would take care of her until her death; that ever since said agreement, to wit, about 1898, their mother made her home with appellant and still does so, and he had taken care of her; that appellee soon after such agreement. married and moved away from Lee county; that during the month of June, 1927, appellant for the first time denied that lie field any money in trust for fier, at wfiicfi time sfie demanded payment to fier of same, and because of his repudiation of such trust and continued refusal to pay her sfie brought this suit.

We consider these pleadings sufficient to allege a cause of action. The rule stated in 39 Cyc. 620, is that the petition must allege “with certainty and distinctness all the facts relied upon to show the creation and existence of the trust.” See, also, Enc. of Procedure, vol. 26, p. 83; 26 R. C. L. 1366. Ap-pellee did not allege the exact manner in which the trust estate was to be used, but sfie did allege that appellant was to have complete control and management of it so long as their mother lived and fie should take care of her; and in effect that the use of it should inurfe to the benefit of their mother in that appellant was to take care of her. These matters, if proven, would impress as a trust fund the $500 consideration left with appellant for the uses alleged. Naber v. Brundage (Tex. Civ. App.) 273 S. W. 609.

The only issue submitted to the jury was, whether or not the agreement as alleged was made between appellant and appellee when she conveyed to him her interest in their father’s estate, and the jury found that it was. We have read the statement of facts and find that there is, sufficient evidence to sustain that finding.

There is no merit in appellant’s contention that such oral agreement was not admissible because it sought to vary the terms of the deed. The deed was nowhere attacked nor sought to be varied in any manner. Nor is the consideration for its execution questioned. The result would have been the same here if appellant had paid to appellee the consideration in cash, and she had thereupon returned it to him to be kept and used for the benefit of their mother until her death.

Appellant next complains of certain testimony of appellee concerning a note due their father and collected by appellant after their father’s death. Both parties testified with reference to this note. None of this testimony was pertinent to the only issue in the case, but we think it was wholly immaterial and harmless, if erroneously admitted. It is not controverted that the $500 consideration agreed upon, which appellant said he paid in cash at the time his sister, appellee, made the deed to him, and which she denied, was in full payment for her interest in her father’s estate, both real and personal. This, of course, included her interest in the note, and whether appellant collected it or not, or whether he kept the proceeds, could have no bearing on the trust agreement in question.

Binding no error, the judgment of the trial court is affirmed.

Affirmed.


text:
    BRANTON v. ROBERTSON et al.
    (No. 7328.)
    Court of Civil Appeals of Texas. Austin.
    Feb. 22, 1929.
    Webb <& Belts, of Austin, for appellant.
    Hart, Patterson &.Hart and Hardy Hollers, all of Austin, for appellees.
   BAUGH, J.

Appellee, joined pro forma by her husband, sued appellant for $5,000 actual and $5,000 exemplary damages, alleging false imprisonment and malicious prosecution. She was arrested and incarcerated upon a complaint signed by Joe Chiles, who was alleged to have been the agent of appellant in .so doing, charging her with unlawful disposition of mortgaged property The case was submitted to a jury upon special issues in response to which they found: (1) That Joe Chiles was actuated by malice in swearing out said complaint; (2) that he made such compliant without probable cause; (3) that in so doing he was acting as the agent of appellant, Branton; (4) that he was, in so doing, acting within the scope of his employment; (5) that appellee suffered damages in the sum of $500. The court thereupon rendered judgment in favor of appellee for said sum, from which this appeal is prosecuted.

Several assignments and propositions are presented, but only two material issues are raised. The first — that is, that the evidence showed conclusively that Branton had nothing to do with the filing of said complaint by Chiles — is not sustained. On that issue the testimony of Branton and Chiles was. contradicted by that of appellee and that of the justice of the peace who heard the criminal charges made by Chiles, and the jury believed the latter. Their determination of that matter is conclusive.

Appellant’s second contention is that the trial court erred in his failure and refusal, over appellant’s written objection to the charge because of such failure, to instruct the jury on the measure of damages, in connection with special issue No. 5. In this we think appellant is correct. Special issue No. 5 reads as follows: “What sum of money, if paid in hand at this time, would fairly and justly compensate the plaintiff Sovallia Robertson for the damages (if any) sustained by her by reason of said arrest and imprisonment?”

It is contended by appellee that under this question the jury found only actual damages, and that appellee in fact abandoned her effort to recover exemplary damages. The record however fails to disclose this. Both actual and exemplary damages were alleged. In response to the issues submitted to them the jury found facts authorizing the recovery of exemplary damages. The submission of these two elements of damage in one charge had been often condemned, but where not objected. to has not, been considered ground for reversal. Heiligmann v. Rose, 81 Tex. 224, 16 S. W. 931, 13 L. R. A. 272, 26 Am. St. Rep. 804.

In the instant case they were pleaded as separate elements of damage. And not only did the trial court fail to separate them upon objection made in writing, but wholly failed to inform the jury what they were entitled to consider in assessing appellee’s damages. The jury was left without chart or compass in this respect. A proper charge, defining what elements the jury were entitled to consider, should have been given. Glasscock v. Shell, 57 Tex. 224; Hines v. Kelley (Tex. Com. App.) 252 S. W. 1036. Nor is it necessary for us to discuss here what those elements are.

Nor was it necessary for appellant to tender a charge on the matters complained of. It was not incumbent upon it to prepare and offer a proper charge presenting appellee’s side of the case, and on issues on which appellee was seeking to recover. Osceola Oil Co. v. Stewart Drilling Co. (Tex. Com. App.) 258 S. W. 809; Austin Gaslight Co. v. Anderson (Tex. Civ. App.) 262 S. W. 136. It was sufficient for him to call attention in writing to the defective charge given. It then became the duty of the court to present a proper instruction. For this reason the judgment of the trial court must be reversed, and the cause remanded for another trial.

Reversed and remanded.


author: WALKER, J.

text:
    GULF, C. &. S. F. RY. CO. v. MINTON.
    (No. 1786.)
    Court of Civil Appeals of Texas. Beaumont.
    March 5, 1929.
    Rehearing Denied March 13, 1929.

      F. J. & C. T. Duff, of Beaumont, for appellant.
    Smith & Lanier, of Jasper, and W. F. Goodrich, of Hemphill, for appellee.
   WALKER, J.

This suit was brought by ap-pellee against appellant to recover an overcharge of freight paid by him on shipments of gravel which he alleged were made from Fullerton, La., to Buna and Evadale, Tex., over appellant’s line of railway. On his: allegations, from March to August, inclusive, of 1925, he shipped 616 cars to Buna that actually weighed 28,430,014 pounds, but was forced to pay freight on 32,119,800 pounds, and 429 cars to Evadale that actually weighed 20,089,381 pounds, but was forced to pay freight on 22,296,680 pounds. He alleged that the freight on the Buna shipments was 4½' cents per hundredweight and on the Evadale shipments 5 cents per hundredweight. The total damage claimed on the Buna shipments amounted to $1,660.46, and on the Evadale shipments $1,303.65. Appellant answered by general demurrer and general denial, and by way of cross-action prayed for demurrage in the sum of $140. On trial to the court without a jury, appellee was awarded damages in the sum of $2,242.84, for which judgment was ■entered in his favor, less the $140 demurrage.

Appellant assails this judgment as being without support in the evidence. The facts are as follows:

This gravel was bought by appellee from Deer & Johnson for use on the public roads •of Jasper county, and was shipped by Deer & Johnson from their gravel pits at Deer, La., where it was weighed on their scales and billed to appellee upon their weights. Ap-pellee received and unloaded about 100 cars -of the gravel without having it reweighed, and when he spread this gravel on the roads found a big shortage on the basis of the Deer & Johnson weights. He then notified Deer & Johnson of the shortage, and made complaint to them of their weights, but got no relief. They informed him that their scales were correct. He then made complaint to appellant, and asked that it carry four or five of the cars to its yards at Silsbee, Tex., and there weigh them on its scales. This was done, with the following results: A car billed on June 23, as weighing 59,400 pounds, weighed on appellant’s scales 53,100 pounds; a car billed on June 24, as weighing 86,200 pounds, weighed ■on appellant’s scales 87,020 pounds. Another car billed on August 14, 1925, as weighing 122,600 pounds, weighed on appellant’s scales 121,200 pounds, and another car, billed on that date as weighing 126,100 pounds weighed on appellant’s scales 121,200 pounds. Appel-lee measured carefully the cubic contents of these four cars, with the following results: On appellant’s weights the gravel in one of the cars weighed 2,500 pounds per cubic yard, and in the other two cars 2,546 pounds per cubic yard, making an average weight of about 2,541 pounds. After notifying appellant of the trouble with the Deer & Johnson weights, and after appellant had weighed the first car, appellee carefully measured the cubic contents of all subsequent cars shipped to him. On the weights of Deer & Johnson, the weight of this gravel per cubic yard varied from 2,163 pounds to 4,137 pounds. Appel-lee testified that the weather conditions were about the same during all the time this gravel was being shipped, and that the percentage of metallic matter contained in the gravel was the same through all the shipments.

We have no separate conclusions of fact and law, but appellee has made the following statement, as the basis for the court’s judgment: “While the judgment does not so reflect upon its face, the court arrived at the amount of the judgment in the following manner: Taking the shipments from June 24th — the date of the weighing of the first car of gravel by the railroad, and after notice given by appellee of his dissatisfaction with Deer & Johnson’s weights — there was shipped to appellee 8,288 ¾ yards of gravel, billed as 25,547,400 pounds, but which actually weighed, figured at 2,541 pounds per cubic yard, 21,061,715 pounds, or an overcharge of 4,485,685 pounds, at 5 cents per hundredweight, or $2,242.84, less $140 demurrage charge against appellee, leaving a balance of ' $2,102.84.”

The judgment has support. Appellee raised the issue that appellant’s scales were correct, and that the Deer & Johnson scales were incorrect. He testified that appellant’s scales were inspected, and that the Deer & Johnson scales were not inspected. There was very little difference in the weight per cubic yard under appellant’s weights for the gravel in the four cars weighed by it, while the weight per cubic yard under the Deer & Johnson weights 'varied from 2,163 pounds to 4,137 pounds. That appellant’s scales showed practically the same weight per yard, and that the Deer & Johnson scales varied so widely, and that appellant’s scales were inspected and the Deer & Johnson scales were not, was sufficient to raise this issue as one of fact for the court.

What we have just said is an answer to appellant’s proposition that appellee rested under the burden of showing the incorrectness of Deer & Johnson’s scales and the correctness of its scales. On another ground that issue was raised. Appellant was required by law to keep its scales in a correct condition (Penal Code, art. 1686), and it held them out to the public as being in that condition, and' by receiving and at appellee’s request weighing* four of his,cars, so held out to him. On these facts the mere introduction of appellant’s weights raised the issue that its scales were correct. But, since public policy requires that freight charges be based upon correct weights, the prima facie case against appellant was not conclusive. If its scales were incorrect, it could show that fact.

By showing the average weight of the gravel per yard in four cars, and that the weather conditions were the same, and that the metallic content was the same for all the other shipments, appellee raised the issue that 2,541 pounds was the average weight per cubic yard of the gravel in all the cars shipped to him. As he was able to furnish the court the actual number of cubic yards subsequent to June 24th, the weight of the gravel was a matter of mathematical calculation. Appellee makes no complaint of the court’s refusal to give him judgment for the overcharges on the shipments prior to June 24th.

Appellant says that it was released from liability for this claim because of the following provisions of section 101 of the title “Transportation,” No. 49, United States Oode Annotated: “The carrier may also by inserting in the bill of lading the words ‘shipper’s weight, load and count,’ or other words of like purport indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the non-receipt or by the misdescription of the goods described in the bill of lading.”

The facts under this proposition are: Appellant had no scales at the point of origin nor at the point of destination. The weights accepted by appellant in fixing its freight charges against appellee were made by Deer & Johnson, who, for this purpose, were the agents of appellee. Appellee made no demand, written or otherwise, on appellant to weigh the shipments, except as to the four cars actually weighed. We quote the following statement from appellant’s brief: “It does not appear what notations, if any, were made on the bill of lading. In fact, it does not appear that any bill of lading other than the freight bills or way bills were issued.”

Since the facts do not invoke the provisions of this section, it could have no application. However, if we are wrong in that proposition, and if the shipment comes under the provisions of this section, it should not be given the construction insisted upon by appellant; that is, of relieving it absolutely, on the facts stated, from liability. Discussing the liability of carriers under the Transportation Act, the Interstate Commerce Commission, in the Matter of Bill of Lading, 52 I. C. C. 671, said: “Under the law it is the carrier’s duty to collect, and the shipper’s duty to pay, freight charges based upon correct, not estimated, weights. ⅞ * ⅜ The burden of proof to show what is the correct weight should depend, in a measure at least, upon which of the parties, carrier or shipper, is responsible for the accuracy of the weights.”

Under the construction placed by the Interstate Commerce Commission on this section, even where it has application, the carrier can collect from the shipper only for the actual weight of the commodity shipped. But where the shipper is responsible for the error in the weights in a suit for overcharge he rests under the burden of showing that the weights furnished by him were incorrect. Ap-pellee assumed and met this burden, and, the record not showing error, the judgment is affirmed.