text:
    McLANE v. PETTY.
    (Court of Civil Appeals of Texas. San Antonio.
    June 18, 1913.
    Rehearing Denied Oct. 15, 1913.)
    1.VENDOR AND PURCHASER (§ 130) — CONTRACT — Merchantable Title — Limitations.
    Where a contract for the sale of real property required the vendor to convey by deed with covenants of general warranty certain real property in controversy, and prior to completing the sale to deliver an abstract showing a good merchantable title, the vendor was bound to tender a good record title, and could not compel the vendee to accept a title good by limitations only.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 245-247; Dec. Dig. § 130.]
    2. Specific Performance (§ 59) — Conditions in Contracts — Effect.
    A contract by which the vendor agreed to convey by warranty deed certain described real property, for which the vendee agreed to pay $3,200, of which $50 had been deposited in escrow as earnest money, to be applied on the price on consummation of the sale, and if it should not be consummated to be returned to ♦the vendee, was a binding obligation, on which either of the parties might have maintained a suit for specific performance or damages; the agreement that the earnest money should be returned on failure to consummate the deal not being one for liquidated damages.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 181; Dec. Dig. § 59.]
    3. Brokers (§ 49) — Contract of Sale — Specific Performance — Risht to Commissions.
    Where a failure to consummate a sale of real property negotiated by a broker was caused solely by the vendor’s default, and his right to compel specific performance would have been complete the moment he tendered the vendee a good record title to the property, and the vendee was ready, able, and willing to buy at the price specified, the broker had completed his services and was entitled to commissions.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. § 49.]
    4. Brokers (§ 63) — Commissions—Completion of Sale — Vendor’s Default — Effect.
    Where a broker for the sale of certain real property procured a valid, enforceable contract from a purchaser able and willing to take the property on the terms specified, but the vendor refused to convey because he could only furnish a title good by limitations to a small strip of the 'property, which the vendee would not accept, that the broker had orally agreed that the vendor should not be liable for commissions unless the sale was consummated was no defense to the broker’s right to commissions.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 79, 81, 94-96; Dec. Dig. § 63.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge. .
    Action by John McLane against J. D. Petty. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    C. C. Harris, O. M. Fitzhugh, and McCol-lum Burnett, all of San Antonio, for appellant.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes,

   TALIAFERRO, J.

This was an action for commission, claimed to have been earned by appellant as a real estate broker for finding a purchaser for a piece of real estate belonging to the appellee.

Conclusions of Fact.

Appellant, who was "engaged in the real estate business in San Antonio, approached appellee with reference to the sale of the property in question and asked at wliat price lie would sell it. Appellee knew that appellant was a real estate broker, and agreed to sell the land for $3,500 if appellant found a purchaser at that price, and pay the appellant 5 per cent, commission thereon. Appellant returned to appellee a few days later, and told him that the proposed purchaser, whom he had found, would not pay $3,500, but that he had made an offer of $3,250. Appellee requested appellant to bring his purchaser around to talk to him. Soon afterward appellant introduced Mr. Gers-dorff to appellee as the proposed purchaser. The three together discussed the matter for some time, and finally the appellee agreed to sell, and Gersdorff agreed to buy, at $3,* 250 cash; Gersdorff then and there depositing with the attorney $50 earnest money. This was June 18,1912. Gersdorff then demanded a survey of the property, which was agreed to, and on the following morning, the 19th, a surveyor was employed at the joint expense of Gersdorff and appellee, and a survey made. After the survey was made the parties entered into the following written contract:

“State of Texas, County of Bexar.
“This agreement by J. D. Petty, hereinafter styled party of first part, and Chas. Gersdorff, hereinafter styled party of second part, all residents of Bexar county, Texas, witnesseth:
“1. Party of first part agrees to sell and convey to party of second part, by warranty deed with covenants of general warranty, the following described property, situated in San Antonio, Bexar county, Texas: Beginning at a stake on the east side of San Marcos street, 299 feet from the intersection of south side of Lake View avenue and the east side of San Marcos street, at corner of fence, for the N. W. corner of this lot; thence with the east side of San Marcos street in a southerly direction 78.5 feet, to corner of fence, for the S. W. corner of this lot; thence in an easterly direction 166.8 feet to stake at corner of fence, for the S. E. corner of this lot; thence in a northerly direction with fence 78.5 feet to corner of same, for the N. E. corner of this lot; thence in a westerly direction with fence 166.8 feet, to the place of beginning.
“2.. Party of the second part agrees to pay to party of first part for the above-described property the sum of $3,250, as total consideration, cash. Party of second part has this day deposited with Gilbert O. Storms the sum of $50 as earnest money to bind this trade, same to be held by said Storms in escrow. Upon consummation of this deal said $50 is to be applied as part of the purchase price above stated. Should this sale not be consummated for any reason whatever, it is agreed and understood that the $50 paid shall be returned to party of second part
“Party of first part agrees to furnish party of second part an abstract of title to-above-mentioned property, brought down to date, said abstract to be delivered within, five days from this date, and showing good, merchantable title to said above-mentioned property in party of first part. It is further agreed and understood that party of second part is to pay city taxes on said property for fiscal year beginning June 1, 1912; taxes due state and county for year 1912 to be prorated. Party of first part also agrees to furnish party of second part, within five days from date hereof, a tax statement showing condition of taxes on said property due state and county and city. Water rent on said property to be paid to date of conveyance by party of first part. Insurance on the buildings on said lot to be transferred to party of second part by party of first part and to be prorated.
“Time being the essence of this contract,, this deal is to be consummated not later than June 24, 1912.
“It is further agreed that party of first part is to pay to John McLane the sum of $150 as commission, said sum to be paid out of the purchase price above mentioned, and said John McLane hereby accepts the same as full for all commissions due him by said, party of first part by reason of said sale.
“Signed in duplicate this June 19, 1912, each of which is in all respects deemed an. original.
“[Signed] J. D. Petty,
“Party of First Part.
“[Signed] Chas. Gersdorff,
“Party of Second Part.
“[Signed] John McLane, Agent.”

At the time the survey was made Gersdorff and appellee both knew that the legal title-to nine feet of the land described in the survey was in the International & Great Northern Railway Company, but so far as the-evidence shows appellant did not know it. Gersdorff was ready, able, and willing to buy the land described in the contract of sale at the time and upon the terms specified. Appellant furnished the abstract at the time agreed,, and it was duly examined by Gersdorff’s attorney. Upon examination of the 'abstract the attorney advised appellee that the same-did not reveal a “good, merchantable title” in him for the whole lot, but showed that the record title to about nine feet thereof, fronting on San Marcos street and extending back the depth of the property, was in the-International & Great Northern Railway Company, and asked appellant to obtain a quitclaim deed from the railway company. Ap-pellee refused to get or try to get the quitclaim from the railway company. He offered, to sell the 68.5 feet, title to which was admitted to be good in him. He also offered to make a warranty deed to the whole lot. Gersdorff refused to buy less than the whole-lot, and while he admitted that appellee probably bad title to tbe nine feet by limitation, be demanded a record title under bis contract. Appellee then declared tbe sale off, and instructed tbe attorney to return tbe $50 •earnest money.

Conclusions of Law.

By tbe terms of tbe contract of sale appellee, Petty, was bound to furnish Gersdorff, tbe proposed purchaser, a good record title, and could not require him to accept -a title good by limitation only. Nicholson v. Lieber, 153 S. W. 641; McLaughlin v. Brown, 126 S. W. 292; Hamburger v. Thomas, 103 Tex. 280, 126 S. W. 561; Stillman v. Canales, 25 Tex. 313, 78 Am. Dec. 530.

Tbe contract of sale was a complete and binding obligation between tbe appellee and Gersdorff, upon which either could have maintained ¿ suit for specific performance. Tbe stipulation that tbe $50 earnest money should be returned to Gersdorff in event tbe sale should for any cause not be consummated, was not an agreement for liquidated damages, and did not deprive Gersdorff of bis right of action for a specific performance, or for damages. Hamburger & Dreyling v. Thomas, 118 S. W. 770. Tbe failure to consummate the sale was caused solely by tbe default of tbe appellee in not complying with bis contract, and bis right to compel specific performance .would have been complete tbe moment be tendered Gersdorff a good record title to the whole of tbe property covered by tbe contract.

When tbe appellant found and presented to Petty a purchaser for tbe property, who was ready, able, and willing to buy tbe same nt tbe price and upon tbe terms demanded for it,, and who bad actually entered into & binding contract in writing with Petty to purchase tbe property, be bad fully performed his contract, and was entitled to his compensation. In so far as be was concerned, tbe contract was then executed. Conkling v. Krakauer, 70 Tex. 735, 11 S. W. 117; Gillespie v. Dick, 111 S. W. 664; Hamburger & Dreyling v. Thomas, supra; Cheek v. Nicholson, 133 S. W. 707.

It is immaterial whether, as contended by tbe appellee, he bad agreed with appellant that no commissions should be paid unless tbe sale was finally and actually consummated, and tbe money paid by Gersdorff. The uncontradicted evidence shows that tbe failure to consummate tbe sale was due to ' tbe default of tbe appellee, without any fault •on tbe part of appellant, and tbe appellee will not be permitted to hide behind bis own wrong and deprive appellant of tbe fruits of bis labor by pleading bis own dereliction. We expressly refrain from passing upon tbe question of whether tbe contract between appellant and appellee was so ambiguous as to require construction, or whether tbe court erred in permitting appellee to testify with reference to verbal agreements varying or explaining tbe terms of the written contract, because under no circumstances will a contract be construed so as to protect one of tbe parties in tbe perpetration of a willful wrong upon tbe rights of tbe other, unless tbe terms of tbe agreement very specifically reveal that intent. Whatever the transactions between tbe parties in this case may have been, in tbe absence of an express agreement to that effect, it will be presumed that tbe appellant did not agree that appellee should have tbe right to deprive him of bis earned compensation by bis own willful wrong or captious refusal to abide tbe plain terms of bis written agreement to sell bis land. Tbe trial court upon tbe evidence should have granted appellant’s motion for an instructed verdict.

The judgment of tbe lower court is therefore reversed, and judgment here rendered for the appellant.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    WAUGH et al. v. HUDSON et al.
    (Court of Civil Appeals of Texas. Galveston.
    June 10, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1. Logs and Logging (§ 3) — Right to Rescind — Mutual Mistake.
    Owners of land, in negotiating for the sale of standing timber' thereon, told the prospective purchasers that R., a surveyor living near the land, would show it to them. R., however, pointed out to them land owned by a third person. After inspecting this land, they agreed to buy the timber and received a deed thereto. Soon after commencing cutting, they handed their deed to R. for the purpose of ascertaining where their boundaries were and were then told that they were on such third person’s land. Disbelieving this, although without sufiicient reasons for their disbelief, they continued cutting and paid the notes given for the timber without objection and a note given to procure an extension of time in which to remove the timber. Held that, had the purchasers stopped cutting and demanded a rescission of the contract when they first received notice of the mistáke or such information as would have put a reasonably prudent person upon inquiry and which, if diligently pursued, would have led to the discovery of the mistake, they would have been entitled to a rescission for mutual mistake, even though R. unintentionally deceived them as to the locality of the land; he being the vendor’s agent.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.]
    2. Logs and Logging (§ 3) — Time for Rescission-Effect of Laches.
    Having failed to rescind upon receiving notice or information putting them on inquiry of the mistake, such purchasers lost their right to rescind and could not recover back the purchase price paid, since one seeking to rescind for fraud or mutual mistake must do so promptly on discovering the fraud or mistake; and if, after receiving information which would put a reasonably prudent person upon 'inquiry, he does anything in confirmation of the contract, he cannot thereafter rescind.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. §• 3.]

      Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Action by Emma A. Hudson against Jeff Cochran and others, in which William Waugh and others filed a cross-bill against the defendants Cochran and another. Erom a judgment denying them a recovery on their cross-bill, the cross-petitioners appeal.
    Affirmed.
    E. B. Pickett, Jr., of Liberty, for appellants. J. M. Hansbro, of Coldspring, and A. T. McKinney, of Huntsville, for appellees.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   McMEANS, J.

On April 9, 1909, Emma A. Hudson brought this suit against Jeff Cochran, W. S. Dison, E. B. Smith, and William Waugh to recover the value of timber cut and removed from a tract of 194 acres of land, part of the ¡Robert Sherman survey in Liberty county, hereinafter referred to as the Emma Hudson tract. Smith died pending the suit,'and Annie J. Smith, J. D. Langham, and Ben Campbell, his legal representatives, were made parties defendant. All the defendants answered, and the defendants William Waugh and the representatives of E. B. Smith, deceased, filed a cross-bill against the codefendants, Cochran and i Dixon, alleging that on March 22, 1906, the ' said Cochran and Dixon, by a written conveyance, sold to said Waugh and E. B. Smith all timber ten inches in diameter and upwards upon a certain tract of land in the Sherman survey; described by metes and bounds; the consideration therefor being two promissory notes of the said Waugh and Smith for $467.25 each, bearing 8 per cent, per annum interest, dated March 21, 1906, and due 9 and 21 months, respectively, after date. They in said cross-action further alleged that Cochran and Dixon, acting by their agent, J. U. Richards, proposed to show William Waugh the timber they offered him and did point out as theirs the timber growing upon the Emma Hudson tract and at the time represented that' said timber was theirs, which representation was afterwards proved wholly untrue; that on December 21, 1907, Smith and Waugh executed to Cochran and Dixon a promissory note fot $45, due 12 months after date, with interest at 8 per cent., in consideration that Cochran and Dixon would grant a 12 months’ extension for cutting the timber defendants Smith and Waugh supposed they had purchased from them, and that, at the time this $45 note was made for said purpose, Smith and Waugh Were still under the impression that .they had purchased from Cochran and Dixon the said timber growing upon the Emma Hudson tract of land and described in plaintiff’s petition; and they were under this impression “by reason of the misrepresentations made to them by said defendants Cochran and Dixon that this was the timber which they were selling to these defendants as hereinbefore alleged.” j ¡ They further alleged that they paid said $45 note, the interest, attorney’s fees, and costs thereof, making same total $58.52, also at maturity paid said two notes for $467.25 each, the interest thereon, making same total respectively $495.28 and $532.62. They tendered into court for cancellation the said conveyance of timber made them by Cochran and Dixon on March 22, 1906, and further pleaded that after they discovered Cochran and Dixon had pointed out to them on the ground timber they did not own, “and the defendants were misled by such misrepresentations to accept the deed executed to them as aforesaid, they made known to said defendants Cochran and Dixon their willingness and desire to have same rescinded and requested said Cochran and Dixon to refund the money paid on said purchase as above alleged,” which was refused. They prayed that said conveyance from Cochran and Dixon, dated March 22, 1906, be canceled and held for naught, and that they recover of Cochran and Dixon the sums paid them, as above indicated, with interest.

Upon trial without a jury judgment was rendered for plaintiff against appellants (who are William Waugh and the legal representatives of E. B. Smith, deceased) for $652.78 as damages for timber Smith and Waugh cut from the Emma Hudson tract of land; and that plaintiff take nothing from the defendants Cochran and Dixon; also that appellants take nothing on their said cross-action against Cochran and Dixon. From this judgment appellant, the said Waugh, and the representatives of said Smith have appealed.

Appellants admit that Waugh and Smith cut timber on plaintiff’s land to the amount of $508, which, with the interest added, makes the sum of $652.78, for which judgment was rendered, and admit their liability to Mrs. Hudson therefor, and this part of the judgment is not complained of, and'this appeal is only from that part of the judgment which denied them a recovery on their cross-action over against defendants Cochran and Dixon.

By their first assignment of error appellants complain of the action of the court in denying a recovery in their favor against their codefendants, Cochran and Dixon, on their cross-bill, because they claim that the undisputed evidence is that “the said defendants Jeff Cochran and W. S. Dixon pointed out to these defendants the timber which they cut, after obtaining the written conveyance from said Cochran and Dixon, dated March 22, 1906, and that the said timber was not owned by said defendants Cochran and Dixon but was afterwards discovered to belong to the plaintiff; and when said defendants so pointed out said timber they represented to these defendants that they owned the same, and these defendants relied thereon and believed that said timber was the timber they had purchased, and therefore they were so induced to accept said written contract and proceeded to cut the said timber thereunder.”

By their second assignment of error they complain of said action of the court for the reason, as they claimed, that the undisputed evidence shows that the written conveyance from the said defendants Cochran and Dixon to these defendants, dated March 22, 1906, does not describe the land from which the timber was cut, but in accepting that conveyance the vendees therein, E. B. Smith and William Waugh, from representations made to them by said Cochran and Dixon, believed that this conveyance described the timber which had been pointed out to them by said defendants Cochran and Dixon, and the same was so pointed out by them (the said Cochran and Dixon) as being their timber, and it was that timber which said Smith and Waugh agreed to purchase, and furthermore that was the timber for which they paid the said Cochran and Dixon.

In connection with these assignments, each of which is tendered as a proposition, the appellants submit the further proposition that “where a seller of timber makes a material representation relative to the condition, kind, quality, or quantity of the timber offered for sale, and such representation proves to be untrue, the buyer, if he has been misled thereby, may restore the property covered by the conveyance he has received, have the contract rescinded, and recover the purchase money paid; and in such case it is wholly immaterial whether the misrepresentations were fraudulently or innocently made.”

The evidence in the record justifies the following findings of fact: The Sherman survey has been, in part, subdivided. One subdivision, containing 194 acres, belongs to the appellee, Emma A. Hudson (now Bettis). Another subdivision, consisting of 67 acres, formerly owned by T. J. Hare, and another containing 93 acres, formerly owned by John T. Hare, both adjoining the Emma Hudson tract, were acquired by appellees Cochran and Dixon. In February, 1906, these appellees, claiming that a large amount of ash and other hardwood timber was upon their said tracts, began negotiations with Waugh and Smith for the sale of the timber to them. Waugh, who it seems was also acting for Smith, indicated a willingness to buy but expressed a desire to see the timber before making the purchase and asked appellee Cochran to give him directions for finding the land in order that he might see and judge for himself of the amount of such timber standing thereon. Cochran told Waugh that when he (Cochran) went to see the land it was muddy, and that he (Waugh) could find it by following his buggy tracks. He also told Waugh that Mr. J. U. Richards, who w'as a surveyor and lived near the land, could show it to him, and he gave Waugh a note to Richards, the contents of which was not proved. Waugh took the note to Richards, and the latter undertook to show him the land owned by Cochran and Dixon but instead of showing him the two Hare tracts owned by Cochran and Dixon, showed him the 194-acre tract of Emma A. Hudson. It appears that this tract was well timbered with ash and other hardwood, but the two Hare tracts had but little of such timber upon them. After inspecting the Emma Hudson tract, believing that it was the Hare tracts, Waugh agreed to buy the timber upon the terms proposed by Cochran and Dixon, and accordingly, on March 22, 1906, Cochran and Dixon executed to Waugh and Smith a deed conveying to them the timber on the Hare tracts, describing the tracts by metes and bounds, and Waugh and Smith executed to the grantors in payment therefor their two promissory notes for $467.25 each, dated March 21,1906, bearing interest at the rate of 8 per cent, per annum, one due 9 months after date and the other 21 months after date. By the terms of the conveyance Waugh and Smith were given two years after its date in which to cut and remove the timber, and it was provided that all timber not cut and removed within said period should revert to the grantors. Waugh and Smith began cutting the timber on the Emma Hudson tract about the 1st of October, 1906, believing that they were cutting on the Hare tracts, and some time during that month, for the purpose of ascertaining where their boundary lines were, they gave their timber deed, which described the Hare tracts by metes and bounds, to the surveyor, Richards, and was then told by him that they were not cutting on the Hare but on the Emma Hudson tract; but notwithstanding this information they continued to cut timber on the Hudson until they had taken therefrom timber of the value of $508.99, as found by the court. Waugh, in explanation of why he continued to take the timber after being informed by Richards that he was not cutting on the Hare tracts, testified that it was because he was confident he was on the right land, but he gives no sufficient reasons to justify such confidence. Notwithstanding the knowledge they had thus acquired from Richards, Waugh and Smith thereafter paid to Cochran and Dixon the notes given for the purchase money, one of which fell due December 21, 1906, and the other December 21, 1907; and, so far as the record shows no objection to paying the same was urged by Waugh and Smith, and no complaint was made on account of the mistake of Richards in showing them the wrong timber at the time Waugh went to inspect the same. On December 21, 1907, Waugh and Smith gave to Cochran and Dixon their promissory note for $45, due 12 months after date, bearing 8 per cent, per annum interest, for an extension of time in which to cut and remove the timber on the land described in the timber deed. This note was. also paid at maturity without objection. Richards made a charge against Cochran and Dixon for his services in showing the land to Waugh and the account was paid by them.

Under these facts, wtere Waugh and the ■representatives of Smith entitled to a rescission and cancellation of their contract of purchase and to a recovery of the consideration paid for the timber upon tender of a conveyance of the timber conveyed to them by ■Cochran and Dixon? We think not. It is clear from the testimony, we think, that Waugh and Smith believed that they were buying the timber on the Emma Hudson-tract, and that this belief was induced by Richards, who, for the purpose of pointing out the Hare tracts'to Waugh, was Cochran’s and Dixon’s agent. It is immaterial that Richards unintentionally deceived Waugh as to the locality of the land. Had Waugh and Smith, when they first received notice of the mistake, or when they first had such information as would have put a reasonably prudent person upon inquiry, and| which, if diligently pursued, would have led to the discovery of the mistake, stopped cutting the timber and demanded a rescission of the contract, their right of rescission, it seems, would have been undoubted. As said in Culbertson v. .Blanchard, 79 Tex. 492, 15 S. W. 701': “That a contract may be entirely rescinded upon the ground of a mutual mistake as well as for fraud is well settled. In such cases, when the parties suppose they are bargaining with reference to specific property which they have in mind, when the fact it either does not exist or is materially different from what they believed it to be, it is very evident that their minds have not met and concurred so as to constitute a contract as to the real subject-matter as it is afterwards ascertained to be, and that the conveyance to the property as it really exists, though it may be identified as therein described, does not evidence the true intention of the parties, in making the contract. Pendarvis v. Gray, 41 Tex. 326.”

But it is also well settled that, where one seeks to rescind a contract on the ground of fraud or mutual mistake, he must do so promptly on discovering the fraud or mistake; and if after such discovery, or after receiving such information as would put a reasonably prudent person upon inquiry which if pursued would lead to the discovery of the fraud or mistake, he does anything in confirmation of the contract, he cannot thereafter rescind it. 2 Pom. Eq. § 965; Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584; Crutchfield v. Stanfield, 2 Posey Unrep. Cas. 480; Grabenheimer v. Blum, 63 Tex. 369. The testimony leaves us in no doubt that Waugh and Smith were informed by Richards, the surveyor, that they were cutting timber on the Emma Hudson tract, and this was in the same month in which they began cutting. They then knew or might have learned by reasonable inquiry that the land which had .been pointed out to them by Richards was not the I-Iare tracts, but notwithstanding this they continued cutting the timber on the Hudson tract until May of the following year, and with the knowledge they then possessed, or should have possessed, paid the notes given for the purchase money of the timber when they matured. Under such circumstances, appellants lost their right of rescission and cancellation, and the court very properly, under their pleadings, refused to render judgment in their favor on their cross-bill.

We have carefully examined all the assignments presented by appellants in their brief and are of the opinion that none of them points out reversible error. The judgment of the court below is affirmed.

Affirmed.


text:
    MOORE v. MOORE et al.
    (Court of Civil Appeals of Texas. Galveston.
    June 27, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1. Appeal and Error (§ 265) — Presentation op Grounds of Review in Court below— Necessity — Exceptions.
    Though the record contains a written request to the court to file written findings of fact and conclusions of law, the court’s failure to comply cannot be taken advantage of on appeal without a bill of exceptions.
    [Ed. Note. — For other cases, see Appeal .and Error, Cent. Dig. §§ 1461, 1536-1551; Dec. Dig. § 265.]
    2. Appeal and Error (§ 293) — Motion for New Trial — Necessity.
    Under court rules 24 and 25 (142 S. W. xii), requiring the specification of errors by assignment and 71a (145 S. W. vii) requiring a motion for new trial in all cases where an appeal is desired, except where the error is fundamental, the filing of a motion for new trial is a prerequisite to the consideration of assignments of error complaining that the judgment is contrary to the law and the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1395, 1700-1703, 1705, 1706; Dec. Dig. § 293.]
    Appeal from District Court, Jefferson County; W. H. Pope, Judge.
    Action for partition by Stella Moore against Early B. Moore and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    A. W. Dycus, of Beaumont, and H. G. Robertson, of Dallas, for appellant. W. W. Cruse, of Beaumont, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   McMEANS, J.

Stella Moore, appellant, brought this suit against appellees, Early B. Moore and Ivory Moore, for the recovery of a one-half interest in a tract of land described in her petition and praying for partition. A trial before the court without a jury resulted in a judgment for appellees, and appellant appeals.

Appellant, by ber first assignment of error, complains that the court erred in failing to find and file findings of fact and conclusions of law, although requested by her in writing to do so.

We find in the record a written application signed by appellant’s counsel requesting the court to file its written findings of fact and conclusions of law, but there is nothing in the record, other than the mere filing of this request, to indicate that it was called to the attention of the court, and the point was not preserved by a bill of exceptions. It has been repeatedly held that the failure of the judge to file such conclusions would not be considered without a bill of exceptions. Cottulla v. Goggan, 77 Tex. 32, 13 S. W. 742; Landa v. Heermann, 85 Tex. 3, 19 S. W. 885. In the case first cited it is said: “It is also complained that the court erred in failing to file its conclusions of law and fact, upon the written request of appellants. The application is found in the record, but there is no bill of exceptions to the action of the court upon it. We are of opinion that this is a matter which must be brought before the court by an exception. It may frequently occur that a party who has filed his application for findings of law and fact may waive or withdraw it. Without a bill of exceptions, when the findings do not appear, we cannot know that this has been done.” The assignment is overruled.

Appellant’s second, third, and fourth assignments complain that the judgment is contrary to the law and the evidence. She did not file a motion for new trial in the district court, and under rules 24, 25 (142 S. W. xii), and 71a (145 S. W. vii) the assignments present matters which, in the absence of sucn a motion, this court has no power to revise. American Rio Grande Land & Irrigation Co. v. Mercedes P. Co., 155 S. W. 292.

There is no fundamental error apparent on the face of the record. The judgment, therefore, will be affirmed.

Affirmed.


author: HALL, J.

text:
    CANADIAN LONG DISTANCE TELEPHONE CO. v. SEIBER et al.
    (Court of Civil Appeals of Texas. Amarillo.
    June 21, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1.Cobporations (§ 513) — Actions Against —Pleadings—Sufficiency,
    In an action against a corporation upon a note executed in its behalf by its president, allegations in the petition that the defendant corporation made, executed, and delivered to plaintiff its promissory note, which was signed by the president as such, and acting for the company, and that the corporation did, directly or indirectly, authorize the president to purchase plaintiff’s property in which transaction the note was given, sufficiently charged that the president was authorized by the board of directors to execute the note and enter into the contract.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§, 2017-2027, 2031-2034, 2036-2045; Dec. Dig. § 513.]
    2. Corporations (§ 513) — Contracts—Authority op Oppicers.
    In an action against a corporation upon a note given for the purchase price of property, allegations of the petition as to plaintiff’s knowledge of how the business was carried on and his belief that the president had authority to execute the note in question were immaterial.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2017-2027, 2031-2034, 2036-2045; Dec. Dig. § 513.]
    3. Appeal and Error (§ 1040) — Review — Harmless Error.
    In an action against a corporation upon a note, the overruling of an exception to allegations in the petition as to plaintiff’s knowledge of how the corporation’s business was carried on and his belief that the president had authority to execute the note in question, which was given for the purchase of property, is harmless, even though such allegations were immaterial,
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §,§ 4089-4105; Dec. Dig. § 1040.]
    4. Corporations (§ 513) — Action Against-Pleading— Sufficiency.
    In an action against a corporation upon a note given to plaintiff for the purchase price of property, a complaint alleging that the directors knew or could have known by the use of any sort of diligence that the corporation was preparing to take possession of plaintiff’s property, and that immediately after the delivery of such properties the corporation caused to be placed upon its books an entry showing that it had purchased the property, all of which was done with the conscious knowledge of the directors, sufficiently charges an estoppel on the part of the corporation to deny the contract.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §■§ 2017-2027, 2031-2034, 2Q36-2045; Dec. Dig. § 513.]
    5. Bills and Notes (§ 120) — Construction —Joint Promise.
    Where a note recites that “we” promise to pay, and is executed by thq president of a corporation for the company, and indorsed by him as surety, it must be treated as a joint obligation.
    [Ed. Note. — For other. cases, see Bills and Notes, Cent. Dig. § 257; Dec. Dig. § 120.]
    6. Bills and Notes (§ 489) — Pleading—Issues— Indorsement — Effect.
    In the absence of appropriate pleadings, the effect of an indorsement whereby a party guaranteed the payment of a promissory note cannot be varied by parol.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1587-1642; Dec. Dig. §, 489.]
    7. Corporations (§ 519) — Contracts—Construction.
    Where plaintiff contracted for the sale of property with the president of a corporation, who signed the contract for the corporation, and executed a note on its behalf, the payment of which he guaranteed by special indorsement, the contract was properly admitted in evidence in an action on the note; there being evidence of the authority of the president to contract, and it being the obvious intention of the parties that the contract and obligation should be that of the corporation, the contract specifically calling the corporation the party of the second part.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. 2085, 2088-2089, 2091, 2093; Dec. Dig. §• 519.]
    8. CORPORATIONS (§ 400) — CORPORATE Contracts — Validity.
    The validity of a corporate contract of purchase cannot be affected by the seller’s want of knowledge that the corporation had bylaws, or that the officer lacked authority to bind it.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 1587, 1590, 1591; Dee. Dig. § 400.]
    9. Appeal and Error (§ 1050) —Review — Harmless Error.
    In an action upon a corporate contract, the improper admission of evidence that plaintiff did not know the corporation had by-laws, or that the officer who executed the contract lacked authority to bind it, is harmless, being negative in its character, where there is abundant evidence of authority in fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    10. Corporations (§ 406)— Contract — Authority op Ofpicers.
    Where the directors own all the shares of a corporation, they may agree in their character of stockholders, and without a formal vote at directors’ meeting, to authorize an officer to purchase property for the corporation, and a contract executed in pursuance therewith will bind the corporation, where not dissented to by the majority of the directors; Rev. Civ. St. 1911, art. 1153, providing that the majority of the directors of a corporation shall constitute a quorum, and be competent to transact all its business, this being particularly true where the dissenting director stated that whatever the other two directors did would be satisfactory to him.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1611-1614; Dee. Dig. § 406.]
    11. Corporations (§ 383) — “Minute Book”— Nature.
    The minute book of a corporation is merely a record of the corporate acts, and a recor-dation of acts of the corporation is not necessary to their validity.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§, 1542-1544; Dec. Dig. § 383.] ' .
    12. Corporations (§ 400) — Acts op Corporate Agents — Eppeot on Principal.
    The rule that an agent, though violating his instructions, can bind his principal to the extent of the apparent scope of his authority applies to corporations.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1587, 1590, 1591; Dec. Dig. § 400.]
    13. Corporations (§ 432) — Corporate Acts —Ratification.
    When an unauthorized act of a corporate agent or officer is beneficial to the corporation, and it acquiesces by an acceptance of the benefit, very slight evidence of a ratification is necessary to charge the corporation with liability for the agent’s acts.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. § 432.]
    14. Corporations (§ 432) — Unauthorized Acts op Agent — Ratification—Evidence— Sufficiency.
    In an action against a corporation upon a note executed by the president in pursuance of a contract which he was not authorized to make by a formal vote of board of directors, evidence held to show a ratification.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §,§ 1717, 1718, 1724, 1726-1735, 1737,1743, 1762; Dec. Dig. § 432.]
    15. Corporations (§ 521) — Liability on Notes — Instructions.
    Where the president of a corporation purchased property in its name from plaintiff, and 'gave a note in payment thereof, which he also personally guaranteed, a requested charge to find for defendant in an action on the note, if it was found that plaintiff had stated that he was not looking to the corporation for payment but to the president, was properly refused, as there could not be a finding for defendant, unless it was found as a fact that plaintiff intended to hold the president alone and that the corporation had been in some way released.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2094-2098; Dec. Dig. § 521.]
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by C. S. Seiber against the Canadian Long Distance Telephone Company and another. From a judgment for plaintiff, the named defendant appeals.
    Affirmed.
    Hoover & Hoover and Baker & Sanders, all of Canadian, for appellant. Willis & Willis, of Canadian, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

This suit was originally instituted in the district court of Hemphill county by C. S. Seiber against appellant and one A. M. Newman to recover upon a promissory note, dated January 13, 1909, in the sum of $2,950, made payable to plaintiff. Plaintiff’s allegation is that the note was the obligation of appellant company, and that its payment was guaranteed by the said A. M. Newman. On a former appeal judgment against A. M. Newman was affirmed, and a judgment rendered upon an instructed verdict in favor of appellant herein was reversed and remanded. 151 S. W. 585. The following statement of the pleadings is taken from appellant’s brief:

“The case was tried upon plaintiff’s first amended original petition, in which plaintiff alleged in substance the execution and delivery of the note, and alleged as the only description thereof that the defendant, Canadian Long Distance Telephone Company, made, executed, and delivered to the plaintiff its certain promissory note, and further that the said note was indorsed on the back thereof, T hereby guarantee the payment of the within note when due or on demand any time after due. A. M. Newman.’ Plaintiff alleged that the note was given in payment of certain telephone property described in the petition, and that the Canadian Long Distance Telephone Company had conveyed or attempted to convey all their property to the Southwestern Telegraph & Telephone Company. Plaintiff further alleged that, if the said telephone company never authorized the purchase of said property by A. M. Newman, as its president, and to execute the note sued on by direct resolution of its board of directors, recording in its minutes, that said company did by means directly or indirectly authorize A. M. Newman to malre said purchase on account of the company, by reason of the fact that Newman organized the business of the corporation; that at the time of the purchase there were but three stockholders and directors, A. M. Newman, O. R. Newman, and H. E. Hoover, and that at the time the company was organized it was known to the incorporators that the plaintiff had telephone lines, properties, etc., and that the business was conducted in the name of A. M. Newman, who usually signed himself as president of said corporation, and that he continued all the while to own three-fourths of the capital stock of the telephone company, and was the titular manager of the said corporation, and directed every business move of the company, and that Hoover was only employed as an attorney, and only owned four shares of the company, and took no interest in the management of the company, but left the same to A. M. Newman, and that it was well known to the plaintiff and all persons generally that at the time of making the contract the telephone company was doing business in the name of A. M. Newman, and that the said A. M. Newman, with the knowledge and consent of the directors, transacted all manner of business for the corporation without being formally authorized by a meeting and vote of said directors, and that in most of their business dealings the directors had no meeting nor votes, and recorded no minutes. Plaintiff further alleged that all the property of the company up to the time of the giving of the note was acquired through A. M. Newman, with the knowledge and consent of the directors, and that the company had no available funds at that time, and that Newman furnished the funds on his own private account, with the knowledge and consent of the directors; that Newman borrowed money, joined by H. E. Hoover, from the First National Bank, for the purpose of prosecuting the business of the company by signing notes identical with the note in question. He further alleged that he, plaintiff, knew that the owners of the capital stock had been permitting Newman to conduct all of its business, and accepting the benefits therefrom; that at the time of signing the contract was told by A. M. Newman and O. R. Newman that they were purchasing said telephone properties for and on account of the Canadian Long Distance Telephone Company; that when it came to giving the note he was unwilling to accept the note of the company, and thereupon Newman guaranteed it personally. He further charged that A. M. Newman did have the express authority of all the directors and shareholders of the company in the transaction, and further charged that if there was any irregularity in the transaction that the same was ratified and confirmed in that all of the directors knew or should have known that Newman so executed the note. Plaintiff then alleged that the accounts' of the company were audited by one Hart with reference to the dealings of A. M. Newman, and that the company ratified and confirmed the purchase of the property by attempting to convey the same to the Southwestern Telegraph & Telephone Company. He further charged that he was never aware of any falsity or lack of authority in Newman to execute the note.

“The defendant’s first amended original answer, upon which the case proceeded to trial, consisted of a general demurrer, and various special exceptions, and general denial, and sworn plea of non est factum as to the execution of the instrument sued upon; also a special answer denying that the plaintiff had parted with-his property on the faith and credit of the telephone company, and further alleged that defendant knew nothing of the execution of the note or the instrument until January, 1911, at which time it promptly notified plaintiff that there was no authority to execute the note, and that it denied all liability thereon, and that they never heard from the plaintiff again until after the property had been sold; that the plaintiff permitted the matter to stand for several months thereafter without any answer to its notice until Newman became insolvent. He further set out facts and prayed for judgment over against the defendant Newman.”

A trial before a jury resulted in a verdict and judgment against the defendant company, and in favor of the plaintiff for $4,027.-37, and costs of suit, and in favor of appellant company against A. M. Newman in the same amount.

The appellee objects to that part of appellant’s statement of the pleadings wherein it is stated that appellee was unwilling to accept the notes of the company, and suggests that the allegation is that he demanded security upon the company note. The following is the allegation from the petition itself: “But plaintiff was unable and unwilling to accept said note without the said company would secure him in some way, and therefore and thereupon said officers promised and agreed with plaintiff that they would give the plaintiff the note of Canadian Long Distance Telephone Company, and secure the same by A. M. Newman’s guarantee as an individual upon the back thereof, and that the note herein sued out was executed in pursuance of the said agreement.’’

The greater part of appellant’s assignments are objected to by appellee upon various grounds. We have found many of them to be well taken; but in view of the interest involved we have decided to waive the defects, since they are formal, and pass upon the entire case.

Appellant’s first assignment is: “The court erred in overruling and in not sustaining the defendant’s third special exception contained in its first amended original answer to the plaintiff’s first amended original petition, because said petition failed to state or aver that A. M. Newman was authorized by the board of directors of the defendant company to execute the note as the act of said company.” This assignment is without merit. Plaintiff makes the following allegations: “On the 13th day of January, A. D. 1909, the defendant, the Canadian Long Distance Telephone Company, made, executed, and delivered to this plaintiff its certain promissory note,” etc. Again, plaintiff says that “said note was signed by said A. M. Newman aforesaid as president of the Canadian Long Distance Telephone Company for and as the act of said company,” etc. Again, “yet plaintiff says that said company did also by other means directly and indirectly authorize said A. M. Newman to make said purchase on account of the following facts.” Again, “Plaintiff further says that he since learned that said Newman did have the express authority of all the directors and all the shareholders of the Canadian Long Distance Telephone Company to purchase said telephone property of the plaintiff for said company.” We think these allegations, when construed in connection with the further allegations in the petition that the contract was executed by authority of the company, are sufficient to charge that Newman was authorized by the board of directors to execute the note.

The second assignment is: “The court erred in overruling and in not sustaining the defendant’s fourth special exception contained in its first amended original petition, because the petition states that a contract was entered into for the purchase of plaintiff’s telephone property by A. M. Newman and O. R. Newman, and fails to state that they were authorized to enter into the contract on the part of the company.” What has been said in disposing of the first assignment also disposes of this assignment.

The third assignment does not fairly set out the objections urged by the eleventh special exception, and we will consider only that part of it which was raised by the exception, and that is “because the statements contained in the first amended original petition, if true, as to plaintiff’s knowledge as to how the business was conducted, and that plaintiff believed that Newman was authorized to make the deal, were immaterial and irrelevant,” and that the court erred in not sustaining the exception to such allegations. We agree with appellant that upon the question of A. M. Newman’s authority to execute the note that such allegations were immaterial; but in our opinion the failure of the court to sustain the exceptions was not reversible error.

By its fourth assignment of error it is urged that the court erred in not sustaining appellant’s twelfth special exception. The exception is as follows: “This defendant excepts to all that part of said petition in which the plaintiff seeks to set up an estoppel as against this defendant, and attempts to plead that this defendant had ratified the acts of the said Newman, and says that same is insufficient, because the said petition fails to state and nowhere avers that this defend- and at any time after learning that the said Newman had purchased said property for this defendant and had executed this defendant’s obligation therefor, if he did so, this defendant as the law directs with such knowledge ratified such act or acts.” The court is sustained in its ruling by the allegations in the petition as follows: “That •during said time all the aforesaid directors knew or should have known by the use of any sort of diligence that they were themselves preparing to take charge of the Seiber telephone properties under and by virtue of the contract which ran in the name of Canadian Long Distance Telephone Company, and that with such conscious knowledge, said directors caused,” etc. Further, “Immediately after the delivery ofl said properties to said company the said company caused to be placed upon its books an entry, showing that said corporation had páid, * * * and said entries remained upon said corporation’s books with the conscious knowledge of all the directors of said company,” etc. This assignment is also overruled.

The fifth assignment calls into question the action of the court in permitting the plaintiff to read in evidence to the jury the contract entered into between defendant and the plaintiff on the 28th day of November, 1908, because it was not shown that the officers who executed the contract had any authority to execute the same on behalf of the company. The contract is as follows:

“Canadian, Texas, 11/28/08.
“Articles of agreement between Sam Sei-ber, party of the first part, and the Canadian Long Distance Telephone Company, party of the second part, witnesseth: The party of the first part agrees to sell to said party of the second part all his telephone lines and equipment in Roberts, Wheeler, Hemphill, Carson, and Gray county, Texas, owned by said party of the first part at this date, November 28, 1908, including the old Western Union poles from Miami to Pampa, Texas. Said party of the first part agrees to not again engage in the telephone business in any of the above counties or in Lipscomb or Ochiltree county, Texas. In payment for the above property the party of the second part agrees to pay the party of the first part the sum of thirty-four and fifty-four hundred ($3,454.00) dollars, to be paid as follows: Five hundred ($500.00) dollars in cash and a note for twenty nine hundred and fifty ($2,950.00) dollars, dated January 1st, 1909, due in three (3) years, at eight per cent. (8%) interest from date. Party of the first part is to turn over all of the above property to party of the second part, January 1st, 1909; but at that date party of the first part is to remain in full possession of above property, and operate and keep it in repair, and retain all the revenue from same. Party of the first part is to pay party of the second part eight per cent, interest on the $500.00 cash payment from this date until January 1st, 1909. Signed this the 28th day of November, 1908. C. S. Seiber. A. M. Newman, Pres. O. R. Newman, Mgr. & See. Witness: J. II. Long. W. H. Gassaway.”

Appellant’s sixth assignment attacks the court’s ruling in permitting the note sued upon to be introduced in evidence. The note is as follows:

“$2,950.00. Miami, Texas, Jan. 13, 1909.
“On or before three years after date we promise to pay O. S. Seiber, or order, the sum of twenty-nine hundred and • fifty and no/100 ($2,950.00) dollars, with interest thereon from date until paid at the rate of eight per centum per annum, payable annually as it accrues, both principal and interest payable at Miami, Texas, for value received. All past due interest on this note shall bear interest from maturity thereof until paid at the rate of ten per centum per annum. The makers and indorsers of this note hereby waive the presentment for payment, notice of nonpayment, protest, and notice of protest, and diligence in bringing suit against any party thereto, and each party signing this note consents that time of payment may be extended without further notice, and it is hereby especially agreed that, if this note is placed in the hands of an attorney for collection, or if collected by suit or through the probate court, then an additional amount of ten per centum on the principal and interest of this note shall be added to the same as collection fees. A. M. Newman, Pres. Canadian L. D. Tel. Co.”

Indorsed upon said note was the following: “I hereby guarantee the payment of the within note when due or on demand any time after due. [Signed] A. M. Newman.”

It is clear to us that the contract does not purport to be other than an undertaking between the appellee and the Canadian Long Distance Telephone Company. There is nothing in it which would indicate that it was the contract of A. M. Newman as an individual, and it stipulates for the execution of the identical note sued upon. Appellant insists that the note upon its face is the note of A. M. Newman alone; but we cannot assent to this contention. It recites, ‘“We promise to pay,” and is executed by A. M. Newman in his official capacity, and payment guaranteed by him as an individual. The words “We promise” create a joint obligation, and must be construed to mean that more than one party is liable for the debt. Hall v. Allcorn, Dallam, Dig. 433; Scanlan v. Keith, 102 Ill. 634, 40 Am. Rep. 624. Newman’s relation to the note is fixed and determined by the terms of his indorsement, wherein he guarantees the payment, and in the absence of proper pleadings his liability as shown thereby could not be varied by parol. First National Bank v. Powell, 149 S. W. 1096. If, as contended by appellant, this note is and was intended by the parties to be the note of A. M. Newman alone, there would have been no necessity for the written guaranty by him. If the intention of the parties is to control, the note and contract, when construed together, must be held to be the obligation of the telephone company. F. & M. Bank v. Colby et al., 64 Cal. 352, 28 Pac. 118. Since the record contains evidence tending to show express as well as implied authority on the part of Newman to execute the note and contract, and since there is further evidence tending to show ratification by the company, the court did not err in admitting both instruments in evidence. The fifth and sixth assignments are overruled.

By its seventh assignment appellant urges that the court erred in permitting the plaintiff to testify that at the time he entered into the contract with A. M. Newman, the president, for the sale of his telephone lines he did not have any knowledge that the telephone company had any by-laws, which was objected to for the reason that plaintiff’s want of knowledge would not excuse his failure to examine the by-laws to see whether or not the parties executing the contract had authority to do so. And under the eighth assignment it is contended that the court should not have permitted plaintiff to testify that he did not know and had no knowledge from any source that A. M. Newman or O. R. Newman had any lack of authority to do the things they did prior to the time he turned his property over to the company, because the question of authority or lack of authority, when measured by his knowledge, would not bind the defendant by the note and contract, if in truth and in fact no authority to execute the company note existed. As abstract propositions, we think appellant’s contention is correct; but, since there is sufficient evidence to warrant the jury in finding both express and implied authority, the errors assigned become harmless. The testimony is negative in its nature, and could not have prejudiced appellant’s rights with the jury.

Appellant’s ninth, nineteenth, and twentieth assignments question the sufficiency of the evidence to show the authority of Newman to execute the note and the contract, or that he was acting within the scope of his employment in so doing. The statement of facts shows that the capital stock of the company was divided into 400 shares, of which H. E. Hoover owned 54 shares, O. R. Newman 96 shares, and A. M. Newman 250 shares, and that these three parties were the only shareholders, and were at the same time the directors of the company. O. R. Newman testified: “I cannot say the month when I discussed the deal with Mr. Hoover. I talked about it there in Mr. Hoover’s office. It was along in the middle part of the forenoon, and Mr. Hoover was expecting to go on a train. He had his suit case or grip in the office, and we talked about the purchase of the Seiber property. When we first mentioned it, Mr. Hoover raised the objection whether it was advisable to compete or buy the lines from Seiber. By competing he meant to build straight in (to Miami and Pampa). We talked about the local conditions at Miami and Pampa, and we talked about the local conditions in Canadian. The final thing along that line was we told Mr. Hoover Seiber was coming down to see us, and he did not come. And we did not know what the final outcome would be, and Mr. Hoover said, ‘Let’s go easy; do not be too anxious, or he will hold us up.’ He said, ‘Don’t be too anxious; leave him alone, and he .will come to our terms.’ We talked a few minutes, and Mr. Hoover said, T am busy; I have a lot of things to do;’ and he said ‘Whatever you fellows do about this thing will be satisfactory to me; you have more time to devote to it,’ and mentioned that my father was more interested in it than he was, and devoted more time to it. * * * After making this contract, myself and Mr. Hoover did not talk in regard to having bought the Seiber lines; only we had taken the lines over.”

In reference to this conversation, H. E. I-Ioover testified: “I remember a conversation with Dr. A. M. Newman and O. R. Newman some time about the Seiber lines. I cannot remember the exact date. Some time in December, 1908, I think. My recollection is that the conversation took place in December, which would be after the execution of the contract which has been introduced in evidence-; but I would not be positive as to that. The conversation in substance was the question came up of acquiring the Seiber property. I objected to the acquiring of the Seiber property; possibly in the conversation it was agreed that the Seiber property might be acquired — might be left to Dr. Newman as to whether he would buy the Seiber property, or whether or not we would build through and compete with him. I remember the reason why we had the conversation. The conversation, as I remember it now, being some time past and possibly indistinct, the question first came up on the question of the power of the company to acquire the property, just informal conversation. That was not a meeting of the board of directors of that company by any means. It was just an informal meeting, and was not a director’s meeting of the Canadian Long Distance Telephone Company. It was just Dr. Newman and Ross Newman and myself talking. In substance, what took place was I advised Dr. Newman I objected to the acquisition of the Seiber lines by any means. I cannot say just what the conversation was; but in all probability I stated to Dr. Newman that if it was his judgment they ought to be acquired, inasmuch as he was financing the company, and was larger interested in it than I, I would defer to his judgment as to the advisability of acquiring the Seiber lines. I know nothing about Dr. Newman’s having a contract with Mr. Sei-ber ; never heard of the contract until after this suit was brought. There was not a word said at that meeting about the contract.”

The record further shows that the $500 cash paid at the time of the execution of the contract was advanced by A. M. Newman on his personal check; but it was charged to the company upon the books, and appellee’s property also appears to be listed on the invoice books, and the note hereinbefore set out appears upon the books of the company as bills payable by appellant.

After the execution of the contract, appel-lee returned to Miami, prepared the note, mailed it to Canadian Long Distance Telephone Company at Canadian, and by due course of mail it was returned to him, executed. About three months from this date passed, during which time the appellant completed its line into Miami, made physical connection with appellee’s switchboard, and about the date of the note the appellee, under the direction of O. R. Newman, delivered his switchboard to appellant’s operators, and from that time on to the date of the trial appellant received the tolls and income from the property purchased from appellee. No effort was made to continue its line beyond Miami to Pampa. O. R. Newman testified: “I was manager and director of the company at the time of making this note, and my father had my consent, as one of the directors, to purchase those properties of Mr. Seiber, because I signed the contract. We conferred together with regard to the purchase. Mr. Hoover, who was the other director, never made any objection outside of the first objection in the meeting where he first discussed the advisability of running a competing line until 1910, after the purchase. Outside of the first objection that I named, he made no objection to our acquiring the lines of C. S. Seiber prior to the making of the contract. My father (A. M. Newman) ■did not receive any of the rents, revenues, and tolls personally. I have no knowledge of my fattier making a bill of sale of tbis property to the company.” He further testified that A. M. Newman purchased the exchanges at Higgins and Canadian for the company.

The tenth, eleventh, twelfth, sixteenth, seventeenth, and eighteenth assignments of error, in a different method, raise the same question, and may all be disposed of as one assignment. As bearing upon the question here discussed, we think the record contains sufficient evidence to warrant the jury in finding that the company was bound by the acts of A. M. Newman in the execution of the contract and of the note. In Aransas Pass Harbor Co. v. L. H. Hanning, 94 Tex. 558, 63 S. W. 627, it is said: “ ‘If, then, the ultimate determination of corporate affairs rests with the stockholders, it is quite absurd to say that their acts are not to be deemed valid unless assented to by their agents, the directors. If, as we shall see, informal acts of the directors and the corporate officers may be ratified and made good by the subsequent conduct or acquiescence of the stockholders, whose agents the former are, why can they not, at least by unanimous consent,, do a valid corporate act without the formality of a resolution by their servants, the directors? The sound answer is that they can. On this ground, it was well held that, where the directors own all the shares, they may agree among themselves — not in their character of directors, but rather in their character of stockholders - — to authorize the president to sell all the property of the corporation, and that this authorization will be none the less valid because not given at a regular directors’ meeting. Other decisions tend to the conclusion that whilst, in theory of law, the corporation and its shareholders are distinct persons, and the latter have no agency for the former, yet equity, which looks to the substance of things, may, in an appropriate case, and for the purposes of justice, treat a debtor corporation and an individual owner of all its shares as identical.’ 7 Thompson, Corporations, § 8043.”

A. M, Newman, O. R. Newman and H. E. Hoover owned the entire stock of the appellant company; H. E. Hoover owning a fraction over one-eighth. In our judgment when he said to A. M. and O. R. Newman, “Whatever you fellows do about this thing will be satisfactory to me,” and this authority was followed by the joint act of A. M. and O. R. Newman purchasing the property, by executing the contract and note, Hoover cannot be heard to challenge the authority of A. M. Newman, even though his acts may have been to some extent informal, irregular, and not exactly in accordance with the ideas of H. E. Hoover, the minority stockholder. In Ft. Worth Publishing Co. v. Hitson, 80 Tex. 228, 14 S. W. 846, the Commission of Appeals, in an opinion approved by Stayton, Chief Justice, said: “It does not appear from the proof that any shareholder or officer in the publishing company dissented from the action of Loving, the manager. As far as we can determine from the record, it was assented to by all and done with their knowledge. Conceding that there was no formal transfer of the property under the corporate seal, the case then calls for the application of principles independent of contracts of sale, and, under the application of such rules, we can see no good reason why a corporation may not be bound by acts of acquiescence in a transaction which may be irregular on its face, if not prohibited, or which may be in excess of the officer’s power acting for the corporation. In this case there was a transfer and delivery of the property to the defendant in attachment by Loving, the manager of the publishing company, and the stockholders collectively. This may have been in excess of their power. The act, however, was not illegal, and they believed they had the authority. The Investment Company, Limited, received the property, expended the money on it, managed it, and, it is to be presumed, was preparing in the conduct of its business to liquidate the indebtedness of the claimant company and the old investment company, which it had assumed in the manner before explained.” And from the same case, as bearing upon one contention of appellant under these assignments, it is said: “The acts of a private corporation may be shown by other testimony than a record or minutes of its proceedings, unless the statute declares to the contrary. Its acts may' be proved by direct evidence, or may be inferred from circumstances.”

Article 1153, Revised Statutes 1911, provides that “A majority of the directors or trustees” of a corporation “shall constitute a quorum, and be competent to * * * transact all business of the corporation.” Immediately preceding this transaction, the appellant company had been absorbing other telephone lines in that section of the state, and from the language used by Hoover and the Newmans it is patent that they intended to either take over the appellee’s property or establish a competing line.

The minute book of the company was a meager affair, and contained only a record of the first called meeting, the annual meetings for the election of officers, and providing for the increase of . the capital stock, and fixing the officers’ salaries. It is held in Watts v. Gordon (Tenn.) 153 S. W. 483, citing Thompson on Corporations, that recordation in the minutes of the company does not make a corporate act valid, but simply preserves evidence of it, and is not essential unless the charter or a statute requires it. If the failure of appellant’s minute book to show the authority of Newman to purchase appellee’s property for and on behalf of the company could be taken advantage of by appellant, then it could refuse to pay for any other lines which it had absorbed, and for which payment had not been made, although purchased by Newman and used to the pecuniary advantage of appellant. Appellee’s insistence that Newman had no authority to purchase the lines, and that he purchased the property for himself, is inconsistent with other facts as well as with our ideas of the equity of this case. It is affirmatively shown that Newman has never made a transfer, either verbal or written, of ap-pellee’s property to appellant, and yet from the very hour in which appellant insists Newman acquired the property in his individual capacity appellant has assumed control and has been appropriating to its own benefit the income and revenues derived therefrom. As said in Cold Storage Co. v. Crawford, 18 Tex. Civ. App. 176, 44 S. W. 875: “It is contended by appellant that Daw-ley & Myriek derived their authorities solely from the by-laws, and that acts done by them not within the scope of the same were not binding upon the company. * * * An affirmance of the judgment does not necessarily depend upon the conclusion heretofore reached that Dawley & Myriek acted within the scope of the authority delegated to them by virtue of the by-laws. The rule invoked by appellees, we think, is the correct one. It is expressed in the following language by M!r. Meckem, in his excellent work on Agency (section 207): ‘It is lawful for the principal to confer as much or as little authority as he sees fit. He may impose all such lawful restrictions and limitations on it as he thinks desirable, and these restrictions will be binding and conclusive upon third persons who have notice of them, provided the principal has done nothing to waive or nullify them. * * * Although the agent violates his instructions or exceeds the limitations as to his authority, he will yet bind his principal to such third persons, if his acts are within the scope of authority which the principal has caused or permitted him to appear to possess.’ This principle applies to private corporations as well as to individuals.” Knox City Milling Co. v. Warren, 141 S. W. 1007; Toyaho Creek Irrigation Co. v. Hutchins, 21 Tex. Civ. App. 274, 52 S. W. 101. These assignments are overruled.

The fourteenth, twenty-first, twenty-second, twenty-third, twenty-fourth, and twenty-fifth assignments all raise the issues of ratification, and acquiescence, and the sufficiency of the evidence-to show knowledge on the part of the company of what had been done by Newman. From what has already been said, it is shown that the two stockholders owning almost seven-eighths of the capital stock of the company participated in the execution of the contract, which provided for the execution of the note, and it must have been known to O. R. Newman that the note was subsequently executed by his father. H. E. Hoover appears to be the contending stockholder in this litigation, and so far as this suit is concerned he represents the corporation. Having given A. M. & O. R. Newman carte blanche to acquire appellee’s property, he must be held to have known how they had exercised the authority given them by him. It seems reasonable to infer that he knew of the physical connection which appellant had made with appellee’s switchboard, and the further fact that appellant’s operator had taken charge of appellee’s property under the direction of O. R. Newman, who was the manager and secretary of appellant company, and that appellant company was receiving the tolls and revenues. As further bearing upon the question of ratification and knowledge on the part of the stockholders, it appears from the statement of facts that on December 8, 1908, the $500 paid appellee was charged as a disbursement on the appellant’s cashbook, and on the 13th of January, 1909, being the date of the note sued upon, an entry was made in appellant’s cashbook, describing the purchase of Seiber’s line, the price, and the note given therefor. On January 11, 1910, appellee received a check for the first year’s interest upon his note signed by A. M. Newman, as treasurer of the appellant company, and on the same date the amount of said cheek, $236, was charged against appellant company on its cashbook, under “Order No. 1013,” and following this entry the note sued upon is' listed upon appellant company’s invoice book under the head of “Bills Payable.” On January 1, 1910, A. M. Newman, as treasurer, tendered his report to appellant, which was accepted, showing all receipts from the exchanges at Miami and Pampa as receipts of appellant company. On January 29, 1910, appellant company decided to employ an auditor to audit the books and appraise the equipment of appellant company, and his report thereafter filed listed appellee’s property as “Tolls, line, bgt. of O. S. Seiber, $3,450.00,” which was the contract price of appellant’s property. All of these entries flatly contradict appellant’s contention that it had no knowledge of the nature of the transaction through which Seiber’s lines were acquired, and are not in tuneful accord with the theory that nothing has been done to ratify the purchase. In the case of Elk Valley Coal Co. v. Thompson, 150 Ky. 614, 150 S. W. 817, it is said: “The general rule is that, where there has been no formal ratification or approval by the board of directors at a regular meeting of an unauthorized act of any agent, the question whether individual acquiescence or failure to disaffirm will amount to ratification or approval, as in many instances it may, depends on the facts of each case. Where the unauthorized act is beneficial to the corporation, and the directors have individual knowledge of it, slight evidence will be sufficient to establish ratification by acquiescence or failure to repudiate, and this upon the theory that a party who accepts benefits will be deemed to have done so with a knowledge of the conditions and circumstances surrounding the transaction out of which the act creating the benefit arose, and must take the burdens of- the benefits.” Ft. Worth Publishing Co. v. Hitson, supra, and Kincheloe Irr. Co. v. Hahn Bros. (Sup.) 146 S. W. 1187, are authority for this doctrine: “If the contract entered into was for a business not authorized by defendant’s charter and therefore ultra vires, a plea setting up such defense is unavailing, if as matter of fact the corporation received benefits under such agreement. It may be stated as a rule of law that an action for damages for breach of contract will not be avoided by plea of ultra vires, when the corporation has received benefits under the alleged illegal contract. In such a case, and under such circumstances, the corporation is estopped from denying its power to make the contract” — citing, amongst other authorities, Steger et al. v. Davis et al., 8 Tex. Civ. App. 23, 27 S. W. 1068.

Appellant further complains of the refusal of the court to give its eleventh special charge, to the effect that if the jury should find and believe from the evidence that the defendant disavowed the note, and notified plaintiff to that effect, and the plaintiff then declared to the defendant or any of its directors that he was looking to Newman for the payment of the note, and that he had sold his property to Newman, and was not looking to the defendant company for payment, then to find for the defendant. This special charge is manifestly error. Before the jury could find for the defendant, they must not only find that plaintiff had declared that he was looking to Newman alone for payment, but they must further find as a fact that he was looking alone to him for payment, and that appellant had been released in some way from its obligation to pay.

The fifteenth assignment is without merit, and is overruled.

We think the charge of the court, taken as a whole, was a full and fair presentation of all the issues raised by the pleadings and the evidence. Finding no reversible error in the record, the judgment is affirmed.


author: PLEASANTS, C. J.

text:
    LANE, Comptroller, v. CHAPPELL.
    (Court of Civil Appeals of Texas. Galveston.
    June 18, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1. Intoxicating Liquors (§ 106) — License— FORFEITURE — ACTION TO REINSTATE — STATUTES — Construction — Procedure — “Cause of Action.”
    Rev. Civ. St. 1911, art. 7443, provides that any person feeling himself aggrieved by the comptroller's action in annulling a liquor license may bring suit in the district court of the county of his residence to reinstate it, and, if the comptroller’s order is set aside, then the licensee shall be entitled to pursue his occupation under the license without paying additional tax, etc. Held, that a suit under such section was a “cause of action,” within Const, art. 5, § 8, as amended in 1891, authorizing the Legislature to confer jurisdiction thereof on the district court; and hence the statute was not invalid for failure to provide the procedure for the trial thereof, the procedure prescribed for the trial of ordinary actions being applicable.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 113, 115; Dec. Dig. § 106.

    For other definitions, see Words and Phrases, vol. 2, pp. 1015-1019; vol. 8, p. 7598.]
    2. Intoxicating Liquors (§ 106) — License — Revocation by Comptroller — Suit to Reinstate — Trial.
    Since plaintiff, in a suit to reinstate a liquor dealer’s license forfeited by the comptroller, under Rev. Civ. St. 1911, art. 7443, providing that any person feeling himself aggrieved by the comptroller’s action may sue in the district court to reinstate the license, is entitled to a trial de novo, and not merely to a review of the comptroller’s action, the jurisdiction of the district court is not limited to a determination of the question whether the action of the comptroller was arbitrary; but the court must determine from all the evidence whether plaintiff violated the conditions of his bond, and in so doing is not bound by the rule which requires an appellate court to sustain the judgment of the trial court, if there is evidence sufficient to support the judgment.
    [Ed..Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §ij 113, 115; Dec. Dig. § 106.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Action by R. L. Chappell against W. P. Lane, Comptroller, to reinstate plaintiff’s retail liquor dealer’s license. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    B. F. Looney and W. A. Keeling, both of Austin, for appellant.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This suit was brought by appellee against appellant for reinstatement of his license as a retail liquor dealer, which had been forfeited by appellant under the provisions of articles 7436 to 7442, inclusive, of the Revised Statutes of this state. Upon the trial in the court below the evidence taken by deposition under the commission issued by the appellant comptroller, and upon which he acted in adjudging the forfeiture of the license, was by agreement of the parties introduced in evidence, and was the only evidence introduced on the trial. This evidence is conflicting, but was amply sufficient to sustain the finding of the comptroller that appellee had violated the law and the conditions of his liquor dealer’s bond by selling liquor to persons under the age of 21 years. The case was tried in the court below without a jury, and judgment rendered in favor of plaintiff reinstating the license theretofore forfeited by the appellant.

By his first assignment of error appellant complains of the ruling of the trial court in not sustaining his special exception to plaintiff’s petition, challenging the jurisdiction of the court on the ground “that this is a special proceeding, not addressed to the general jurisdiction of the court, and no proper procedure has been prescribed by law to enable the court to exercise its jurisdiction.”

Article 7443 of the Revised Statutes, under which this suit was brought, is as follows : “Any person feeling himself aggrieved by the action of the comptroller in vacating, annulling and rescinding such license under this law, may bring suit in the district court of the county of his residence in Texas against the comptroller to reinstate such license, but the business conducted under such license shall be suspended during the pendency of such suit, and shall not be reopened, unless the order of the comptroller shall be set aside by final judgment of the proper court; but, if such order shall be by a final judgment set aside, then such licensee shall have the right to pursue such occupation under such license without paying any additional tax for a period to be added to the time of the license equal to the time his right to do business was suspended.”

We think it clear that the suit authorized by this article of the statute is a civil action or cause, and that the Legislature was authorized, under section 8 of article 5 of the Constitution as amended in 1891, to confer upon the district court jurisdiction to hear and determine such cause. Being a “cause of action,” as that term is used in the section of the Constitution above cited, the procedure provided for the trial of civil actions in the district court would be applicable, and it was not necessary for the Legislature, in authorizing the suit, to make any special .provision as to the method of procedure in such suit. If the suit be regarded as a special proceeding, the article before quoted expressly confers upon the district court jurisdiction of the subject-matter of the suit and of the parties, and if the procedure provided for the trial of ordinary causes of action was not applicable, or sufficient for this proceeding, the district court would be authorized to adopt such rules of procedure, not inconsistent with the Constitution and statutes of this state, as might be necessary to properly try and determine the issues raised by the suit. Ashford v. Goodwin, 103 Tex. 491, 131 S. W. 635, Ann. Cas. 1913A, 699.

Under his second and third assignments of error appellant contends that the judgment of the court below should be reversed, because the evidence upon which appellant acted in revoking appellee’s license was sufficient to sustain the finding that appellee had violated the law and the conditions of his bond as charged, and the proceedings conducted by appellant in investigating the charge having been in all respects regular, and there being nothing in the record showing that appellant had abused his [ discretion in forfeiting said license, the trial I court was not authorized to reinstate it. This contention is, in substance, that the proceeding in the district court should be regarded merely as a review of the'action of the comptroller in revoking the license, and not a trial de novo for the purpose of determining whether the plaintiff in the suit has violated the conditions of his bond as found by the comptroller.

We do not think the statute should be so construed. It gives a cause of action to the person whose license has been forfeited by the comptroller, not a right of appeal or review by the district court. It confers upon the district court jurisdiction to try the suit brought to reinstate the license, and in such trial its authority is not limited to a determination of the question of whether the action of the comptroller was arbitrary; but the court should determine, from all the evidence adduced, whether the plaintiff has violated the conditions of his bond, and in deciding this question is not bound by the rule which requires an appellate court to sustain the judgment of the lower court, if there is evidence sufficient to support such judgment. In the case of Lane v. Hewgley, 156 S. W. 911, the Court of Civil Appeals for the Fourth District holds that, upon the trial of a suit of this kind in the district court, evidence other than that upon which the comptroller acted might be heard and considered by the court. If this holding is correct, it necessarily follows .that the trial in the district court is not confined to a determination of whether the evidence heard by the comptroller was sufficient to sustain his findings; but the district court must determine for itself from all the evidence whether the plaintiff’s license was properly forfeited. If, instead of authorizing a suit by the liquor dealer against the comptroller to have his license reinstated, the statute had provided for a revision of the action of the comptroller by direct api>eal to the district court, or by a writ of certiorari issued by that court, the court, upon such review of the proceedings by the comptroller, would be only authorized to determine whether the comptroller acted within his jurisdiction and in accordance with the provisions of the statute authorizing him to revoke the license.

Appellant cites a number of cases from other states which hold that, upon a review by a court of the action of an administrative officer or of a special tribunal authorized by law to revoke the license of a liquor dealer for violation of the law regulating the sale of liquor, the only question for the court to determine is whether the special tribunal acted within its jurisdiction and its proceedings were regular; but, under the construction we place upon the statute above quoted, none of these cases are applicable. We think it clear that the Legislature intended by this statute to give the liquor dealer, who might be dissatisfied with the action of the comptroller in forfeiting his license, the right to a trial in the district court of the question of whether he had forfeited his license by a violation of the law regulating the sale of liquor, and that such trial is governed by the same rules that are applicable to the trial of civil actions in the district court.

The rule which obtains in this state in a suit brought by a railroad to set aside a regulation or rate fixed by the Railroad Commission is not applicable to this case, for the reason that the statute which authorizes the bringing of such suits expressly provides that in such suits the plaintiff must show by clear and satisfactory evidence that the rate regulations, orders, classifications, acts, or charges complained. of are unreasonable or unjust. Article 6685, Revised Statutes.

In the view we take of this ease, the only ground upon which we could disturb the judgment of the district court upon the facts would be that the judgment is not supported by the evidence, or is so against the great preponderance of the evidence that it is clearly wrong. There is no assignment attacking the judgment upon this ground, and the question of the sufficiency of the evidence to sustain the judgment is not presented.

It follows, from these conclusions, that the judgment should be affirmed; and it has been so ordered.

Affirmed.


text:
    LANE, Comptroller, v. HIGGINS.
    (Court of Civil Appeals of Texas. Galveston.
    June 18, 1913.
    Rehearing Denied Oct. 9, 1913.)
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Action by J. E. Higgins against W. P. Lane, Comptroller, tó reinstate a liquor license. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    B. E. Looney and W. A. Keeling, both of Austin, for appellant.
   PLEASANTS, C. J.

This suit was brought by appellee against the appellant for reinstatement of his liquor dealer’s license, which had been adjudged forfeited by the appellant in proceedings instituted by him under the provisions of articles 7436 to 7442, inclusive, of the Revised Statutes of this state.

By agreement of parties the evidence taken by deposition under the commission issued by the comptroller, and upon which he acted in revoking appellee’s license, was introduced in evidence on the trial of this case, and was the only evidence introduced on the trial. This evidence is conflicting, but is amply sufficient to sustain the finding of the comptroller that ap-pellee had violated the conditions of his liquor dealer’s bond by selling liquor to persons under 21 years of age. The trial in the court below without a jury resulted in a judgment in favor of plaintiff reinstating his license.

Appellant attacks the judgment upon three grounds:

First. It is contended that the trial court was without jurisdiction to hear and determine the suit, because this is a special proceeding, and, no method of procedure having been provided by the statute for such proceedings, the court was unable to exercise the jurisdiction sought to be conferred upon it.

The second and third grounds are thus stated in the propositions submitted in the brief:

“Since the evidence obtained by the comptroller and introduced upon the trial of this cause in the district court shows that the comptroller was fully warranted in concluding that plaintiff had knowingly sold intoxicating liquors to minors, and had permitted minors to enter and remain in his place of business, the trial court was not authorized to enter judgment reinstating appellee’s license. Especially would this be true since no evidence was introduced in the trial of the case showing that the comptroller abused the discretion lodged in him by law to cancel and annul the liquor license.

“When the evidence introduced in special proceedings to reinstate liquor dealer’s license is ample to sustain the findings made by the comptroller, and does not show that the comptroller abused his discretion, the trial court is not authorized to reinstate the license.”

Each of the questions presented by this appeal is discussed and decided in the companion case of Lane v. Chappell, 159 S. W. 905, this day decided, and the opinion in that case is referred to for our views upon said questions. For the reasons stated in that opinion, all of appellant’s assignments are overruled, and the judgment of the court below is affirmed.

Affirmed.