author: HAUL, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. ROGERS.
    (No. 1283.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 23, 1918.
    Rehearing Denied March 6, 1918.)
    1. Damages <&wkey;> 134(1) — Excessive Damages-* Injury to FopT.
    A verdict of $6,000 awarded to a man 42 years of age for an injury to his foot requiring the wearing of a bandage and the use of a cane and causing great pain, and which the evidence showed might be permanent,. disabling him from following his former occupation as baker, at which he earned from $1S to $25 per week, and his occupation as wire chief and lineman, though ■ he retained his position as wire chief at the same salary, was not excessive.
    2. Appeal and Error <&wkey; 1039(13) — Harmless Error — Variance.
    In a passenger’s action for personal injury when the back of a seat gave way and his foot was caught under the front seat, any variance between an allegation that the injury was caused by the negligence of defendant’s employes in charge of the train and evidence showing that the inspection of the car seats was not duty of such employés, hut was" the duty of train inspectors, was harmless.
    3. Damages <&wkey;192 — Evidence — Mental Pain or Sueeering.
    Where serious and permanent physical injury is shown, the jury is warranted in finding that there was substantial pain, so that the submission of mental pain as an element of damages is proper.
    4. Damages &wkey;>187 — Evidence—Diminished Earning Capacity.
    In an action for personal injury, there was no error in submitting to the jury as an element of damages the plaintiff’s diminished capacity to labor and earn money, though he was then receiving the same salary from his employer, where it appeared that his ability to serve his employer was diminished, and that if he lost his present position, his disability would seriously affect his earning capacity.
    5. Carriers <&wkey;318(3) — Personal Injury-Defective Seat — Evidence.
    In a passenger’s action for personal injury when the back of a seat gave way and his foot was caught under the seat in front of him, §vi-dence held to authorize a finding of negligence in that the seats had not been properly inspected.
    Appeal from Difetrict Court, Collin County; M. I-I. Garnett, Judge.

      Action by P. G. Rogers against the Missouri, Kansas & Texas Railway Company oí Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Wallace Hughston, of McKinney, for appellant. Merritt & Merritt, of McKinney, and M. S. Church, of Dallas, for appellee.
   HAUL, J.

Appellee sued appellant, alleging that he was a passenger on the defendant’s train from Greenville, Tex., to McKinney, Tex., and that after he entered the train and went to sit down the back of the seat in which he sat suddenly gave way; that his foot was caught under the seat in front of him, and, his body having fallen backward with great force, his foot and ankle were severely injured; that such injuries were caused by the negligence of defendant in carelessly maintaining the seat; that the back of said seat was broken, loose, and out of repair.

The first assignment is that the verdict is excessive, and is not supported by the evidence. The substance of appellee’s testimony is that on the morning of December 29th he was a passenger on defendant’s line of road between Greenville and McKinney; that there were two coaches on the train for passengers ; that when he attempted to take his seat the end of the back next to the wall of the car broke from some reason, and he fell backward when the seat gave away; that his foot was caught under the seat in front of him, causing the injury complained of; that since said time he uses a cane to keep his weight off that foot on account of the fact that it pains him greatly; that he keeps the ankle bandaged up in a leather bandage worn inside his shoe; he wears this continuously, except at night; that his foot was swollen for about 16 months after the injury ; and that the swelling would come and go. The testimony shows that he had been a baker by trade, and several years before the date of the accident commenced working as lineman and wire chief for the telephone company; that his duties required him to climb telephones poles; but that since the accident he had not been able to perform his duties in that particular on account of the fact that putting on the spurs used in climbing and throwing his weight on the injured ankle caused him great pain. He admits that the doctor whom he consulted soon after the accident told him to keep his weight off of it as much as possible. He says he cannot follow his trade as a baker, which requires him to be constantly on his feet, and in his telephone work he must now depend upon other employés under him to perform the services; that he is still wire chief, but does not perform all the duties of the position since' the accident; that as such wire chief he was expected to keep the wires up, inspect the lines, string wires, set poles, wire poles, put up cables, and see that it was all done in good shape; that he could do none of these things now. He testified that doctors had been treating him at intervals ever since the accident; that his earning capacity as a baker was from $1S to $25 per week; that as lineman he was receiving $85 per month. Further testifying with reference to the extent of his injuries, he stated that he had his foot examined by his family physician shortly after he reached McKinney; that it was swollen and blue, and that it pained him; that after a year from the injury there came a sore on his foot which burst and ran, but finally healed; that he was never confined to his room by reason of the injury, and had never been able to give his foot complete rest; that after the accident' there were no abrasions; that he called no one’s attention to the broken seat. He testified that he was 42 years of age. Several physicians testified who had at various times examined appel-lee’s foot. They expressed the opinion that, if it was still paining him as described, the injury would be permanent. It appears that, although appellee is not able to perform all the duties of wire chief, the telephone company continues to pay him the same salary. The testimony is voluminous, but we believe we have given its substance, and while the verdict in the sum of $6,000 in a sense is large, we are not prepared to say that it is excessive, and there is nothing in the record tending to show that it is the result of prejudice.

Under the second assignment the proposition is urged that there is such a variance that the verdict and judgment should not stand; that plaintiff alleged that his injury was caused by the negligence of appellant’s servants and employés in charge of the train, when the evidence shows that inspection of car seats was no part of the duty of railway servants in charge of the train, but was properly the duty of other servants, known as train inspectors. The allegation of negligence is found in several paragraphs of the petition, and the charge is that the negligence was that of defendant, its servants, agents, and employes/in charge of the train, and of said coach in which plaintiff was riding. No objection was made to the evidence at the time of its introduction, and the variance is not such as would probably surprise the appellant. The error, if any, is harmless.

Appellant further contends that the court erred in refusing appellant’s special charge, to the effect that the jury should not consider as an element of damage any mental pain claimed to have been suffered by plaintiff as a result of his alleged injuries. Where serious and permanent physical injury is shown, the jury is warranted in finding that there was mental pain, and under the evidence we think the court was justified in submitting this issue. G., H. & S. A. Ry. Co. v. Averill, 136 S. W. 98; Freeman v. Johnson, 136 S. W. 275; Ft. Worth Belt Ry. Co. v. Turney, 157 S. W. 274.

The court did nor err in submitting to the jury as an element of damages the plaintiff’s diminished capacity to labor and earn money.- While it appears that he is at present receiving the same salary from his employers as heretofore, the evidence is clear that his ability to serve his employer is diminished, and in the event he should lose his present position, his disability would seriously affect his earning capacity. G., C. & S. F. Ry. Co. v. McKinnell, 171 S. W. 1091.

It was shown that the seats were old, and had been in use for many years, that their condition required constant repairing and careful inspection, and the jury was authorized to conclude that the seats in this particular car had not been properly inspected, and that such failure was an act of negligence.

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

HUFF, C. J., not sitting, being absent in Austin, sitting with committee of judges passing on applications for writs of error.
      «gr^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    HARTY v. KEOKUK SAV. BANK.
    (No. 7506.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 29, 1918.
    On Motion for Rehearing, Feb. 14, 1918.)
    1. Bills and Notes &wkey;343 — Innocent Pur-CHASEK.
    If the purchaser of a note, who had knowledge that it had been given for machinery, title to which was to remain in payee, also knew or was charged with notice that the machinery had been warranted and might wholly fail to meet warranties, he could not become an innocent purchaser.
    2. Bills and Notes &wkey;>525 — Innocent PURCHASER— SUEEICIENCY OE EVIDENCE.
    Evidence held insufficient to show that plaintiff purchaser of note knew, or was charged with notice, that dredge, for which note was given, had been warranted and might fail to meet warranties.
    3. Bills and Notes &wkey;342 — Failure oe Consideration — Evidence.
    That note stated that it was part of purchase money for a dredge, title to which was to remain in payee, would not be notice to purchaser that consideration had or would fail, where dredge was not delivered until four months later.
    4. Bills and Notes <&wkey;497(2) —Innocent Purchaser — Burden oe Proox.
    Although note stated that it was part of purchase money for a dredge, title to which was to remain in payee, the burden was on defendant to show some additional fact requiring purchaser to anticipate probable failure of dredge.
    5. Bills and Notes &wkey;489(7) — Variance.
    That petition described note as payable to iron works company and note introduced in evidence was payable to iron works did not constitute a variarce, where the parties concerned used the names interchangeably.
    Appeal from District Court, Matagorda County ; Sam’l J. Styles, Judge.
    Suit by the Keokuk Savings Bank against A. J. Harty. Judgment for plaintiff, and defer da nt appeals.
    Affirmed.
    Gaines & Corbett, of Bay City, for appellant. R. R. Lewis and J. W. Conger, both of Bay City, for appellee.
   GRAVES, J.

The Keokuk Savings Bank sued A. J. Harty on a note alleged to have been executed on November 2, 1912, payable to Scott-Madden Iron Works, or order, four months after date, for the sum of $3,-275, the note reciting on its face that it was in part payment of the purchase money for a certain gasoline dredge, and that the title to the property was to remain in the Scott-Madden Iron Works until the full amount of the purchase money was paid. It was further alleged that on November 15, 1912, the Scott-Madden Iron Works, for a valuable consideration, in due course of trade, and before its maturity, transferred and assigned this note to the bank. A credit of $1,600 was acknowledged, and judgment was asked for the balance due upon the note, including interest and attorney’s fees. Harty, in defense, charged that the bank had not acquired the note before maturity, and was not an innocent purchaser thereof for value, but had entered into a conspiracy with the Scott-Madden Iron Works Company to -defraud him, in this: That the dredge, for part of the purchase money on which the note was given, had been originally sold to him by the W. E. Austin Machinery Company upon agreed specifications, and under both express and implied warranties that it would be suitable for and adequate to the purposes and uses therein provided for, all of which obligations had afterwards been assumed by the Scott-Madden Iron Works Company, whereas the machinery as finally delivered to him by the latter company was not the thing agreed upon, would not do what it was sold for, and was unfit for any purpose; that the bank, well knowing these alleged facts, and though not the purchaser •for value and before maturity of the note sued upon, pretended to be such in furtherance of the plan agreed upon between it and the iron works company to wrong and defraud Harty. Other defensive matters not deemed necessary to recite were also interposed. The bank in reply denied knowledge of any contract between Harty and the Austin Machinery Company, or the Scott-Madden Iron Works Company, and reiterated its averment that it bought the note for cash on November 15, 1912, without knowledge or notice of any defenses against it. The trial being before a jury, at the close of the evidence the court peremptorily instructed them to find for the bank the balance then due on the note, which Being done, judgment in its favor against Harty was accordingly entered, and the latter has appealed. This action followed from the court’s conclusion that the bank was shown to be an innocent purchaser of the note for value without notice of any defenses appellant may have had against it.

We think the main question upon this appeal, presented in differing forms through the first four assignments of appellant, is substantially this: Did the bank at the time it acquired the note sued upon know, not only that the note' had been given in part payment for machinery, the title to which was to remain in the payee therein named until fully paid for, hut also, either actually or through notice with which it was charged, that this machinery had been sold and warranted to the maker of the note to fill certain agreed requirements, and that it had or might wholly fail to meet them? If the bank did then have such knowledge, or was charged with notice of such supposed facts, we are inclined to agree with appellant that it neither was nor could have been an innocent purchaser of the note, and, further, that if the evidence raised that issue, the court erred in excluding the testimony tendered by him in proof of such contract, warranties, and failure of the dredge delivered to meet them, and in peremptorily directing a verdict against him.

In the statements subjoined to the assignments now under consideration, it is shown that appellant offered testimony tending to prove that the W. E. Austin Machinery Company originally, and the Scott-Madden Iron Works Company as successor to the obligation, had contracted to sell him the gasoline dredge, for which the note here involved was given the latter company in part payment, under lengthy specifications and warranties as to how it was to be constructed, and what it was to be capable of doing, and that when finally delivered to him about March 1, 1913, it not only failed to meet these warranties, but was worth nothing except as junk. This proffered testimony was excluded by the court.

After a close consideration of the record, while the question is not free from doubt, we conclude that the trial court did not err in holding that no such knowledge or notice on the part of the bank was shown. The only attempt to do so was in offering the above-mentioned recitations in the face of the note, and the statement from the deposition of Mr. Scott, president of the iron works company, that he felt sure he had attached the contract concerning the dredge between his company and Mr. Harty to the note when he sold it to the bank. On cross-examination, however, Mr. Scott further said he was doubtful about the matter and was unwilling to swear that he had so attached the contract. We do not think this uncertain and wavering suggestion raised the issue of the bank’s knowledge of the contract, especially when its officials positively testified that they had never seen or known about any such contract or warranties with any one relating to the machinery mentioned in the note, but had bought and paid full face value for it in cash on the day of the purchase, November 15, 1912, after investigating and satisfying themselves of Mr Harty’s responsibility. Mr. Scott himself corroborated, them in all these statements, except in the one particular above indicated, and there is nowhere in the record any testimony to the contrary; in other words, so far as the testimony of the witnesses is concerned, the proof is undisputed that the bank was the kind of purchaser it claimed to be.

We have also searched the record iu vain for any evidence of a conspiracy, agreement, or Understanding between the bank and representatives of the iron works company by which judgment against Harty on the note was to be fraudulently obtained in the name of the bank as its pretended owner.

This, then, left the question as to notice to the bank dependent upon the recitals in the note itself, which were as follows:

“Four months after date I promise to pay'to Scott-Madden Iron Works or order thirty-two hundred & seventy-five dollars, in New York Exchange at par for value received, being part of purchase money for gasoline dredge,” etc.
“It is understood and agreed that the title to the above-described property is to remain in the said Scott-Madden Iron Works until the full amount of purchase money is paid.”

But surely these facts did not, on November 15, 1912, affect the bank with notice that the consideration for the note either had or would fail; because the undisputed evidence further shows that, while it acquired the note on that date, the dredge was not delivered to appellant until about March, 1913, prior to such delivery, as he himself testified, he neither did nor could have known that it would fail to meet the warranties in the contract. And certainly mere knowledge back on November 15, 1912, that tlfe note had, on March 2, 1912, been given for a gasoline dredge did not even tend to indicate that, when delivered nearly four months later, the dredge would prove worthless. The burden was upon appellant to show some additional fact bringing such actual notice home to appellee, and requiring it to anticipate the probable failure of the dredge. As already indicated, we do not think this was done. Daniels v. Spaeth, 168 S. W. 509; Foster v. Enid, O. & W. Ry. Co., 176 S. W. 788; Herman v. Gunter, 83 Tex. 67, 18 S. W. 428, 29 Am. St. Rep. 632; Rische v. Planters, 84 Tex. 413, 19 S. W. 610; Prouty v. Musquiz, 94 Tex. 87, 58 S. W. 721, 996; Lock v. Citizens’ National Bank, 165 S. W. 538.

From these conclusions it results that, in our opinion, the court did not err in excluding the testimony tendered for the purpose' of showing failure of consideration as against the bank, nor in holding it entitled to protection as an innocent purchaser. The first four assignments are therefore overruled.

Under assignments 6 to 10, inclusive, and 12, appellant, from different viewpoints, insists that there was a material variance between the note declared upon and that offered in evidence, in that the pleading described the note as payable to the Scott-Madden Iron Works Company and so indorsed, whereas the note offered in evidence was payable to the Scott-Madden Iron Works and indorsed by the Scott-Madden Iron Works Company, with no proof that the iron works and the iron works company constituted the same entity or individual. We think these contentions hypercritical- and devoid of merit. It is true that the note was pleaded and appeared in proof in the manner alleged in these assignments, yet the entire record shows that all parties concerned, including appellant himself, used the names Scott-Madden Iron Works and Scott-Madden Iron Works Company interchangeably as meaning and designating a corporation bearing the name as last stated. Under the proof offered, there neither was nor could have been any question that they were one and the same concern; that the note sued upon and offered in evidence by the bank was the identical one executed by the appellant for the benefit of the Scott-Madden Iron Works Company and transferred by it to the bank. Mr. Scott, president of the company, so testified, and appellant in paragraph 2 of his third amended original answer so averred in the following language:

“That the W. E. Austin Machinery Company transferred the said contract and agreement to Scott-Madden Iron Works Company, and that the note sued upon herein was given to the latter company by this defendant, changing the name of the corporation to whom he executed the note to that of the Scott-Madden Iron Works.”

The grouped assignments touching this question are accordingly overruled.

There are several further assignments, suggesting that the court erred in receiving the instructed verdict of the jury and in entering! judgment thereon, but, after considering them, we think no error is pointed out, and they are overruled without further discussion.

It has been ordered that the judgment of the court below be in all things affirmed.

Affirmed.

On Motion for Rehearing.

In the motion for rehearing, attention is ■called to the fact that on page 5 of the original opinion the date of the note in suit is given as March 2,1912. This is a typographical error, and should be November 2, 1912, as correctly appears at the beginning of the opinion.

Criticism is also made of our statement in the former opinion that assignments 7, 8, and 9, along with others named, presented the question of variance between the note sued -upon and that offered in evidence in reference to the identity of the iron works and the iron works company. Appellant now points out that these three particular assignments were not intended to and do not raise the question of identity as stated, but whether the savings bank acquired or owned the note on November 15, 1912, as is claimed. The point is well taken, and we hasten to acknowledge the inadvertence and make the correction.

But this mere erroneous grouping of some ofr the assignments relating to it does not mean that the question as to the ownership of the note on the date the bank claimed to have acquired it did not receive our careful consideration, or that it was left undetermined. Upon the contrary, it was an inherent part of appellant’s chief defense that the bank was not an innocent purchaser of the note for value before maturity without notice of his alleged defenses against it, and was necessarily determined adversely to his contention in our former conclusion that the trial court did not err in holding the bank to be such innocent purchaser. If, however, it may even technically appear that the three assignments under consideration were not specifically overruled, that is here done, and the motion for rehearing overruled.

Overruled.
      «SfejEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    PALM v. THEUMANN.
    (No. 7508.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 14, 1918.
    Rehearing Denied March 14, 1918.)
    1. Continuance <§==>26(11) — Diligence.
    An application for a continuance because of a witness’ absence held not to show due diligence where the witness lived near the courthouse, and the applicant knew his illness would prevent attendance, but made no effort to take his deposition before the trial.
    2. Appeal and Ebbob <®=>1043(6) — Habmless E'bkob — Depositions.
    The trial court’s refusal to allow an absent witness’ deposition to be taken at the close of the trial pursuant to a stipulation held harmless, where such testimony would not have affected the result either in the trial court or court of civil appeals.
    3. Appeal and Ebbob @=^742(2) — Assignments oe Ebbob— Sueeiciency.
    Assignments of error relating to distinct and different matters will not be considered when presented together with only one proposition submitted under all the assignments.
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Suit by Edward Palm against Charles Theumann. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Johnson, Matthaei & Thompson, of Bell-vil-le, for appellant. C. G. Krueger, of Bell-ville, and Mathis & Teague, of Brenham, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellant against appellee for an ae-counting and to recover title to certain lands described in the petition.

The petition alleges, in substance, that defendant on various dates, beginning on March 14, 1908, received from plaintiff and others for plaintiff various sums of money aggregating the sum of $10,150, of which amount defendant had paid plaintiff the sum of $6,444, leaving a balance due plaintiff of $3,706.

It further alleged that on December 3, 1909, defendant purchased for plaintiff from Heinrich Meier a tract of 33½ acres of land; that on or about September 6¡ 1917, defendant purchased for plaintiff from Charles Buerger and others a tract of 94 acres; that on the-day of-, 1909, defendant purchased for plaintiff from L. Von Roeder a tract of 93 acres of land; that on March 11, 1911,' defendant purchased for plaintiff from Charles Dittert 100 acres of land; that on April 17, 1911, defendant purchased for plaintiff a tract of 20 acres of land. Each of the above-mentioned tracts of land are fully described in the petition, and the amount paid for each is stated.

The petition further alleges that:

“All of which lands were inclosed by the pasture fence of this plaintiff, and were regulaily assessed for taxes by the defendant for this plaintiff, and that the state and county taxes were paid thereon ever since their purchase by this plaintiff.”

The prayer of the petition is as follows:

“Wherefore, premises considered, plaintiff prays issuance and service of citation, and at the hearing prays that he be quieted in the title to the above-mentioned lands; that an accounting be had, and that plaintiff have judgment against defendant for the sums of money shown to be due from defendant to plaintiff, and for such other and further relief, both in law and in equity, that he may be justly entitled to, and as in duty bound, he will ever pray.”

The defendant’s answer contains a general demurrer, several special exceptions, and a general denial except as to matters thereafter admitted in said answer. Following this is an itemized statement of amounts admitted to have been received by defendant for plaintiff and amounts claimed to have been paid by him to plaintiff, or upon plaintiff's orders and for his use and benefit. This account shows a balance due the defendant of $147, for which amount defendant prays judgment against plaintiff.

Plaintiff replied to this answer by supplemental petition containing general and special exceptions, a general denial, and special denial of the correctness of a number of the items charged against him in the account contained in defendant’s answer.

The trial in the court below without a jury resulted in a judgment in favor of defendant, that plaintiff take nothing, and in favor of plaintiff on defendant’s counterclaim.

The evidence shows that defendant for a number of years has attended to most, if not all, of plaintiff’s business affairs, and has kept and disbursed for plaintiff a large portion of plaintiff’s money. There is ample evidence to sustain the finding of the trial court that defendant has fully accounted to plaintiff for the sums of money received from him and for his account and discharged his trust with the utmost fidelity..

In regard to the purchase of the lands which plaintiff alleges were purchased for him by defendant, the evidence shows that these lands were all conveyed to the defendant, and were purchased by defendant for himself, and paid for with defendant’s own money. These lands have been in the possession of plaintiff since their purchase, and the taxes paid by him under an agreement with the defendant that plaintiff might fence and use the land for pasturage purposes in consideration of his payment of the taxes thereon.

If plaintiff’s petition can be construed as showing any cause of action for or in regard to these lands, the evidence fully sustains the finding of the trial court that he has no right, title, or interest therein.

What is designated and submitted in appellant’s brief as his first assignment of error consists of a copy of a bill of exceptions taken by plaintiff to the action of the court in failing to grant plaintiff’s motion for a continuance.

Waiving the objections to the assignments, which would authorize a refusal to give it any consideration, we think the trial court properly refused to continue the case upon plaintiff’s application. The ground of the application was the absence of J. W. Brooks, whose testimony plaintiff alleged was material to his case.

This suit was filed on December 19, 1916, and the case was called for trial on January 4, 1917. No process had been issued or applied for by plaintiff to procure the attendance of the witness upon the trial. The witness resided in Bellville, where the trial was held. The application contains the following allegations as to diligence and the materiality of the testimony of the absent witness:

“That the said J. W. Brooks is now confined to his bed from serious illness, nnder the treatment of a physician, and has been confined to his bed since December 27, 1916. before the convening of this court and the setting of this case; that Mr. J. W. Brooks is by profession a surveyor and civil engineer, and makes his office with counsel for plaintiff in this case, and has promised to attend court and be in readiness to attend the trial of this case by request of plaintiff; that no process has been issued for the attendance of said J. W. Brooks, because his con-' dition was well known to plaintiff, and he knew after the setting of this case from day to day by diligent inquiry that said J. W. Brooks would not be able to attend court if he has been duly subpoenaed.
“Plaintiff expects to prove by the said J. W. Brooks that on or about January, 1910, that said Chas. Theumann, in company with the plaintiff in this case, came to the house of said witness, and said Chas. Theumann stated to said J. W. Brooks that he wanted him to go over near Cat Springs and survey some land for Mr. Edward Palm, and that he was along with Mr. Palm simply to act as interpreter, and that the land belonged to Mr. Palm; that said Theu-mann stated that he came along to speak for Mr. Palm because he could not speak good English, and in fact the statements made by Mr. Theumann were made on behalf of Mr. Palm, as will be shown by the witness, and that Mr. Theumann was speaking in behalf of Mr. Palm, and Mr. Palm, through his said interpreter, stated to Mr. Brooks, ‘I want you to go over near Cat Springs and survey some land for me.’ So that in response to said request Mr. Brooks did thereafter go over to the lands in question, making two different trips, spending three days in making said survey, spending his time with plaintiff, Edward Palm, who accompanied him and assisted him in making said survey or survej's, and that the surveyor’s fees were paid by plaintiff, and that the deed and field notes wore handed the surveyor by Mr. Edward Palm, by which the surveys were made; that the said Olías. Theumann at no time was present during said surveys, and did not give the matter any attention whatever.”

After the application was refused by the court, and plaintiff’s exception to the ruling duly noted, the attorney for defendant and the court both suggested that the testimony of the witness might be obtained by having his testimony taken at his home before the close of the trial. This suggestion was agreed to by plaintiff, and the trial of the case proceeded. After all the testimony in ’the case had been placed before the court, I>laintiff’s attorney stated to the court that he desired to go and take the sworn statement of the absent witnessi in accordance with the agreement. The court replied that the statement of the witness of the facts alleged in the application would not affect his conclusions as to the facts of the ease, and therefore it was unnecessary to obtain such statement, and, without allowing plaintiff to obtain the testimony of the witness, proceeded to render judgment in the cause. Plaintiff excepted to this action of the court and embodies his exception in the bill.of exceptions of tbe ruling of the court refusing to grant the application for continuance.

In approving the bill the trial court makes the following statement:

“The foregoing bill of exceptions is approved with the following explanation and qualification: At the time that plaintiff presented his motion for a continuance for the testimony of the witness J. W. Brooks, plaintiff in open court stated to the court that the.y expected to prove by said witness that the plaintiff and defendant went to J. W. Brooks, a surveyor, and requested him to come and survey some land for Mr. Palm, the plaintiff in this ease; that Mr. Palm could not speak English very well, and that in the transaction Mr. Theumann acted as an interpreter, and that the substance of Mr. Brooks’ testimony would be that the said Mr. Palm stated to him, T want you to go over near Oat Springs and survey some land for me.’ It was further admitted in open court that J. W. Brooks was suffering from a sore hand, and probably would be able to attend the session of court and testify as a witness. It was further agreed by counsel, plaintiff and defendant, that in the event said witness could not attend court that the attorneys in the case with the official stenographer could take the testimony of said witness at his home and have same read before the court if it should appear to the court to be material to any issue in the ease. At the conclusion of all the evidence in the case, which was late in the evening, to have taken the testimony of said witness as agreed would have required the court to have postponed the conclusion of the case until the following morning and further delay other business of the court. It appearing from the testimony, and especially in view of the testimony of the plaintiff, Ed Palm, who admitted upon the witness stand that the stated accounts and all the offsets and credits claimed by the defendant in this suit were substantially true and correct as stated by him, the defendant, and that he, the plaintiff, had authorized the same except a few items, and with this admission from the plaintiff then the defendant did not have any money in his hands with which to purchase land for the plaintiff, and plaintiff, as a matter of law, could not claim title to property by reason of any resulting trust, and in view of all the testimony in the case, it appeared that the testimony of J. W. Brooks, as to what the defendant, Theumann, may or may not have said to him when said land was surveyed, was wholly immaterial, and in no way supported plaintiff’s claim to said land, nor in any way contradicted the rights of the defendant, as established by the evidence and the deeds_ under which the defendant claimed said land in controversy, and entertaining said opinion that the testimony of said Brooks would not change the conclusion of the court, a postponement to take his testimony was accordingly denied, and judgment was then and there rendered for the defendant.”

Any application for a continuance on the ground of the absence of a witness which fails to show that due diligence was used by the applicant to procure the attendance or testimony of the absent witness may, in the discretion of the trial court, be overruled. With the knowledge on the part of plaintiff that the cause was set for trial, and that his witness, though within a short distance of the courthouse, would not be able to attend the trial because of sickness, the sickness not being such as to prevent his testimony being taken, and no effort being made by plaintiff to procure the testimony, it cannot be held that the application showed due diligence. Upon this showing the ruling of the trial court refusing the application should not be reversed by an appellate court. Railway Co. v. Wells, 142 S. W. 670; Carver Bros. v. Merrett, 155 S. W. 633.

We think the explanation of the trial judge given in his approval of the bill of exceptions is a sufficient answer to appellant’s complaint of the refusal of the court to have the testimony of the witness taken in accordance with the agreement of the parties. From this explanation it appears that the testimony would not have affected the conclusion of the court upon the fact issues in the case. This being true, if the testimony had been procured, we would not have been authorized, upon the evidence in this case, to set aside the finding of the trial court upon the issue on which the absent testimony bore. It being thus apparent that the testimony would not have affected the suit in the trial court or in this court, if there was error in the refusal of the trial court to allow appellant to obtain the testimony in accordance with the agreement such error was harmless, and cannot authorize a reversal of the judgment. Pease v. State ex rel. Sutherland, 155 S. W. 657.

Assignments of error Nos. 2 to 4, inclusive, as presented in appellant’s brief, complain respectively of the findings of the trial court upon different items of credit claimed by defendant in his answer, upon the ground that the findings are not supported by the evidence.

The evidence was sufficient to sustain the court’s findings upon each of the issues presented by these assignments, and none of them can be sustained.

Assignments 6 to 11, inclusive, are grouped and presented together; only one proposition being submitted under all of the assignments. These assignments relate to entirely distinct and different matters, and cannot under the rules be presented and considered together. Houston v. Stewart, 92 Tex. 540, 50 S. W. 333; Wells v. Houston, 29 Tex. Civ. App. 619, 69 S. W. 183.

Assignments 12 to 18, each of which relate to different matters, are grouped and presented together; only one proposition being submitted thereunder. For the reasons stated these assignments cannot be considered. Russell v. Duetschman, 100 S. W. 1164; Neal v. Railway Co., 37 Tex. Civ. App. 235, 83 S. W. 402.

As we have before stated, the judgment is amply sustained by the evidence, and no error is shown upon the trial that would authorize its reversal.

It follows that the judgment must be affirmed; and it has been so ordered.

Affirmed.
      <§=»For other oases see same topic and KB.Y-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    FARMERS’ STATE GUARANTY BANK v. PIERSON et al.
    (No. 5956.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1918.
    Rehearing Denied March 13, 1918.)
    1. Trover and Conversion ®=332(2) — Pleading — Value of Property.
    In an action for conversion of a note, an allegation of its face value is a sufficient allegation of its value.
    2. Trover and Conversion <g=»50 — Measure of Damages — Negotiable Note.
    The measure of damages for the conversion of a negotiable note is the amount prima facie due on the face of the note.
    3. Trover and Conversion <®^40(6) — Evidence — Damages and Value of Property.
    In an action for the conversion of a note, a finding that at the time of the conversion plaintiffs could have realized the face value of the note, held not contrary to the evidence.
    4. Appeal and Error <®=»1004(4) — Review— Conclusiveness of Verdict.
    Where, in an action for the conversion of a note, it appeared that plaintiffs could have exchanged the note at practically its face value for an equity in land, a finding that plaintiffs could have realized substantially the face value of the note will not be disturbed, though the evidence of the value of such equity was somewhat speculative, and perhaps might not have had much weight with the Court of Civil Appeals.
    5. Appeal and Error <§^>232(2) — Reservation of Grounds of Review — Objections.
    An appellate court can consider no ground of objection to evidence, not made when the evidence was offered.
    6. Trover and Conversion ⅜=»39 — Admissibility of Evidence — Damages.
    In an action for the conversion of a note, 'a contract between plaintiffs and a third party, under which they could have exchanged the note at its face value for an equity in land, was admissible over the objection that it was irrelevant and immaterial and served no purpose in the case.
    7. Appeal and Error ®==>981 — Review — Denial of New Trial — Newly Discovered Evidence.
    A judgment will not be reversed on the ground that it was obtained by false evidence, that gross injustice will be done by the refusal of a new trial, and that such refusal is an abuse of the trial court’s discretion, where the only evidence relied on to sustain these propositions is contained in affidavits presented on a motion for a new trial, and where no effort was made to introduce such evidence, no sufficient excuse is offered for the failure to introduce it at the proper time, no diligence is shown, and the evidence is not conclusive of the falsity of the testimony on which the judgment was based.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Suit by D. B. Pierson and another against the Farmers’ State Guaranty Bank. Fron& a judgment for plaintiffs, defendant appeals.
    Affirmed.
    J. M. Mothershead, of >San Benito, and Graham, Jones & George, of Brownsville, for appellant. George R. Whitley, of San Benito, and McCollum Burnett, of San Antonio, for appellees.
   SWEARINGEN, J.

D. B. and Selma Pier-son instituted this suit against the Farmers’ State Guaranty Bank to recover damages for‘the conversion of a promissory note for $3,011.99 and interest. Special issues were submitted to the jury, and upon the jury’s verdict judgment was rendered against the bank for $3,000.

Appellees alleged that they owned a vendor’s lien note for $3,011.99, and deposited it with appellant bank for collection, the note and proceeds to be at all times subject to appellee’s order. It was alleged that on April 27, 1914, and subsequent thereto, ap-pellees demanded the note of appellant; that appellant refused appellees’ demand and wrongfully converted the same to appellant’s use; that the amount of the note at the time of said conversion was $3,243.09.

Appellant in its first amended answer demurred to and denied the allegations of appel-lees’ first amended petition and specially answered that the said note was delivered to the bank as collateral security for an indebtedness in favor of the bank against the appel-lees. It was denied that the note was converted to the bank’s use. The answer further averred that the note was worthless on April 27, 1914.

Appellees by their second supplemental petition denied that the said note was worthless and alleged that the note had a special value of $3,000 to appellees on April 27, 1914, because appellees at that time had a contract by virtue of which they could and would have received that value for the note paid in equity in 200 acres of land in Frio county, Tex., but that appellees lost this value by reason of appellant’s wrongful conversion of the note.

The special issues submitted to the jury and their answers follow:

“(1) Was there any agreement or contract between plaintiffs and defendant, either at the time said note was placed with defendant bank by plaintiff L. B. Pierson, or prior thereto, that said bank should have a lien on said note or its proceeds, if any, or hold said note as additional collateral or security for any indebtedness that might be owing it by plaintiffs, or either of them? A. No.
“(2) Did the bank extend any credit to plaintiffs or either of them on the faith of such lien, if there was such a lien? A. No.
“(3) Could plaintiffs have realized the face value of said note on or about the 27th day of April, 1914? A. Yes.
“(4) Did the defendant bank have knowledge of the alleged trade between plaintiffs and Hatcher and his associates whereby plaintiffs were to exchange said note as part payment for certain lands in Frio county? A. Yes.
“(5) What was the face value of said note on or about the 27th day of April, 1914? A. $3,-011.99 its face value and accrued interest.
“(6) What was the value, if any, or what amount, if anything, could plaintiffs have realized on said note on or about the 27th day of April, 1914? A. $3,000.00.”

No exception was taken to any of the special issues and none other requested. All the findings of the jury are supported by the testimony.

The first proposition suggests fundamental error, in that the pleading does not allege the reasonable value of the note at the time of the alleged conversion. This is overruled because the allegation of face value of a chose in action is a sufficient allegation of the value of the note. The measure of damages for the conversion of a negotiable note is the amount prima facie due on the face of said note. Mutual Loan & Investment Co. v. Matthews, 176 S. W. 924 § 6; Arkansas Fertilizer Co. v. City National Bank, 104 Tex. 187, 135 S. W. 529; Ramsey v. Hurley, 72 Tex. 194, 12 S. W. 56; Clark v. Cullen (Tenn. Ch. App.) 44 S. W. 204; Sutherland on Damages (3d Ed.) § 1132; Randolph on Commercial Paper, § 1688.

Appellant’s first assignment is that the verdict of the jury in answer to special issue N'o. 3, hereinabove shown, is contrary to the evidence. There was a seeming conflict in the testimony of the value of the note. The president of the bank, who was a witness for the bank, testified on the trial that the note at the date of the trial was worthless. This is somewhat modified by the determination of the bank to hold onto the note. On the other hand, a letter written by the cashier of the bank, McMurray Rich-ey, contained the following statement:

“In regard to a note of $3,000.00 secured by land, San Benito, Texas, wish to say that this is a second lien; the San Benito Land & Water Co. hold a prior lien; the land which is security for this note is well worth the present incumbrance, both first and second lien, and give you some equity besides. The party owing this note is Mr. J. J. Johnson, Wahpe-ton, ,S. Dak., and we understand he is responsible for the note.”

This letter was written March 19, 1914. Furthermore, the uncontradicted testimony proved that appellees could and would have received $3,000 for the note but for the conversion, and further shows that the bank knew all the details of the offer of April 27, 1914, which their conversion of the note prevented appellees from realizing. The evidence of the value of the equity was somewhat speculative and perhaps might not have weighed a great deal with this court; hut the jury passed upon its weight in favor of appellees, and we do not feel that we are required to reverse that finding. The first assignment is overruled.

Under the second assignment the proposition is presented that the court erred in that it admitted in evidence, over appellant’s objection, the contract between appel-lees and one Hatcher, which proved that ap-pellees would have received the value of $3,000 for the note but for appellant’s conversion. The only objection to this evidence shown by the bill of exception is that the evidence was “irrelevant and immaterial and served no purpose in this case.” We can consider no objection not made when the evidence was offered. The evidence was relevant, material, and did serve a purpose in this case. The second assignment is overruled.

Appellant, under its third, fourth, fifth, sixth, seventh, and eighth assignments, submits the following two propositions:

“(1) Where a party knowingly by his own false evidence or that of others has obtained a judgment which gives him something which truth and justice would deny, a new trial- should be granted.
“(2) A new trial should be granted by the trial court where gross injustice would be done by its refusal and an abuse of the trial court’s discretion in this regard will be reversed on appeal.”

These assignments are overruled because there is nothing in the record to justify the assertion that appellees knowingly obtained a judgment by false evidence, which judgment, truth, and justice would deny. No evidence introduced at the trial is relied upon by appellant to sustain these propositions; but several affidavits are referred to which were attached to the amended motion for a new trial. The most that could be said in favor of these affidavits is that the substance of them, if introduced in evidence at the trial in the proper way and at the proper time, would be testimony, the truth and weight of which could have been considered by the jury. No effort was made to introduce the testimony; no sufficient excuse is offered for the failure to introduce the testimony at the proper time, and no diligence is shown. Furthermore, the statements do not in themselves conclusively show, nor very strongly tend to prove, that appellees’ testimony was untrue.

That an appellate court will not reverse a cause for the reasons stated in the propositions here considered is established by the case cited by appellees with the following remarks:

“(1) That ‘a new trial will not be granted to obtain impeaching testimony,’ as stated in Railway Co. v. Dumas, supra [149' S. W. 543]; (2) that it is too late to present the claim of surprise for the first time in a motion for new trial, the rule being, as stated in Chambers v. Ker, supra [6 Tex. Civ. App. 373, 24 S. W. 1118], ‘the appellant, if he deem that he was misled, should not only have seasonably discovered that he was surprised, but should also have seasonably made it known,’ the court holding in this case that a claim of surprise presented for the first time in a motion for new trial ‘was too late’; (3) that a new trial will not he granted on the ground of newly discovered evidence unless it is made to appear that it has come to the knowledge of applicant since the trial; (4) that a new trial will not be granted on the ground of new evidence unless it be made to appear that said evidence could not have been sooner discovered by the exercise of diligence; (5) that a new trial will not be granted on the ground of new evidence unless it be made to appear that said evidence is not merely cumulative; (6) that a new trial will not be granted on the ground of new evidence unless it be made to appear that said new evidence is not for the purpose of impeachment. The last four propositions set out are directly laid down by our Supreme Court in Conwill v. Railway Co., 85 Tex. 96 [19 S. W. 1017], and quoted as final authority by Chief Justice Rainey in Gilliland v. Ellison, supra [137 S. W.j at page 171.” Glover v. Pfeuffer, 163 S. W. 984; Railway Co. v. Dumas, 149 S. W. 543; Scott v. Jackson, 147 S. W. 336; Gilliland v. Ellison, 137 S. W. 168; Kidd v. McCracken, 63 Tex. Civ. App. 463, 134 S. W. 839; Keller v. Lindow, 133 S. W. 304; Chambers v. Ker, 6 Tex. Civ. App. 373, 24 S. W. 1118, at p. 1122.

The judgment is affirmed.
      <&=>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ROYAL INS. CO. OF LIVERPOOL, ENGLAND, v. HUMPHREY et al.
    (No. 7475.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 21, 1917.
    On Motion for Rehearing, Jan. 17, 1918.)
    1. Appeal and Error 034 — Premature Filing op Suit — Harmless Error.
    Where defendant insurer admitted actual receipt of proof of loss before suit was filed, there could be no possible injury to it from premature filing- of suit, where costs were adjudged against plaintiffs.
    2. Appeal and Error ©=1006 — Refusal to Submit Issue — Prejudicial Error.
    Refusal to submit issue whether defendant insurer waived proof of loss could not have materially affected defendant’s rights, where de-fondant admitted that proof of loss was furnished by plaintiffs before suit; there being no complaint that proof was defective.
    3. Insurance ©=60S(14) — Fire Insurance-Proof of Loss — Fraud and False Swearing — Evidence.
    That plaintiffs in their proof of loss to defendant insurer had placed the value of furniture before the fire and the amount of loss at a higher figure than found by the jury, would not show plaintiff’s fraud or false swearing in respect thereto.
    4. Evidence <®=>1S — Common Knowledge-Value of Household Goods.
    It is a matter of common knowledge that the valuation of household furniture and ladies’ wearing- apparel is, to a large extent, a matter of opinion.
    On Motion for Rehearing.
    5. Pleading ©=228 — Special Exceptions— Matters not Appearing on Face of Petition.
    Petition, not indicating on its face that suit was brought sooner than 60 days after proof of loss, contrary to provisions of fire policy, was g'ood against special exception on the ground that it appeared from the face of the petition that suit was prematurely brought.
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Suit by Julia C. Humphrey and husband against the Royal Insurance Company of Liverpool, England. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Mart H. Royston, of Galveston, for appellant. Marsene Johnson, Elmo Johnson, Roy Johnson and Marsene Johnson, Jr., all of Galveston, for appellees.
   GRAVES, J.

This suit was instituted in the court below on January 28, 1916, by Julia C. Humphreys, joined pro forma by her husband, Harry Humphrey, appellees, against the Royal Insurance Company of Liverpool, appellant, on a certain fire insurance policy for $1,500 upon her separate personal property, which consisted of furniture, furnishings, wearing apparel, kitchen utensils, etc., located in her home in Galveston. It was alleged that on January 1, 1916, while the policy was still in force and effect, the dwelling occupied by her was partially destroyed and badly damaged by fire, and that all of her wearing apparel, household and kitchen goods, and other pieces of furniture covered by the policy were totally destroyed, save and except a few chairs and other pieces, which were so badly damaged as then to be worth only the reasonable market value of $55.

The cause was submitted to the jury by the court upon two special issues as follows:

First. What was the total value of the property covered by this policy in the house at the time oí the fire? Answer in dollars and cents.

Second. What was the amount of loss ana damage by fire of the property covered by the policy? Answer in dollars and cents.

The jury answered the first question by saying $3,000, and tbe second by saying $2,-500; accordingly tbe court rendered judgment in favor of appellees against appellant for $1,250, one-half of the amount of loss found by the jury, since the $1,500 policy sued upon was for only one half the total insurance carried upon the property, there being a similar policy for a like amount in another company. Prom that judgment this appeal is prosecuted.

By the first and second assignments, it is claimed that the court committed reversible error in overruling appellant’s special exception challenging the sufficiency of appellee’s petition, and in refusing to peremptorily instruct the jury to find in its favor, upon the ground that the suit had been prematurely brought and before any right of action had accrued to appellees under the policy, in that it was filed 28 days after the fire and 1 day after proof of loss was furnished, whereas the policy provided that no cause of action should accrue until 60 days after the proof of loss had been furnished.

We think these assignments are without merit, and overrule them 'both. While it is true that the policy sued upon, which was attached to the petition, contained the provision that no suit should be brought thereon until 60 days after proof of the loss was furnished, and that it was in fact filed on the 28th day after the fife and only 1 day after furnishing of the proofs of loss, yet it further appears from the record that more than 10 months elapsed between the time of the fire and the trial of the case, and that about 9 months after the original filing of the suit appellees filed a supplemental petition, in which they attempted to plead a waiver by appellant of the 60 days requirement; appellant admitted that proofs of loss were furnished to it 1 day before the suit was filed, and the trial court adjudged the costs incurred in the ease from the time the suit was filed until the filing of the supplemental petition against appellees. Irrespective of the technical question of whether appellees, by this belated supplemental petition, could plead a waiver of the 60 days’ time, after alleging in their original petition that they had fully complied with the terms of the policy which included that requirement, the supplemental petition may be disregarded altogether and still no possible injury to appellant is shown.

Since it admitted actual receipt of the proofs of loss before the suit was filed, and made no objection thereto, the only harmful effect it could have suffered from the premature filing of the suit was in the matter of costs, and, as stated, the court averted that by adjudging these against appellees. Crescent Ins. Co. v. Camp et al., 64 Tex. 526; Hanover Ins. Co. v. Shrader, 11 Tex. Civ. App. 255, 31 S. W. 1103, 32 S. W. 344; Queen Ins. Co. v. May, 35 S. W. 832.

Under the third assignment it is claimed the court committed reversible error in refusing to submit to the jury appellant’s requested special issue as to whether it or any of its authorized agents waived the proof of loss, as required by the policy to be made by the insured; but elsewhere in its brief, as above stated, appellant repeatedly admits that proof of the loss was furnished it by appellees before the suit was brought, and, in fact, bases its fourth assignment of error upon certain questions as to the contents of and the affidavit attached to the proof of loss as so delivered to it. There is no complaint here that the proof as furnished was defective. In these circumstances, we cannot see how the failure to submit the question of whether it had waived what it expressly admits it received could have materially affected its rights. The assignment is therefore overruled.

Contention is made through the fourth assignment that the court erred in confining the fact issues to the two submitted, and should have submitted appellant’s requested issue as to whether or not the proofs of loss, inventory, and affidavit attached, as furnished by appellees, contained false statements concerning the value of the property insured and the extent of the loss; but, after a careful review of the evidence, we conclude that it did not require the submission of the question thus presented, and that the charge as given fairly covered the matters properly in issue touching the value of the property and the amount of the loss thereon. The assignment is overruled.

In the final assignment it is contended that the jury’s finding of some lower amounts as the value of the property before the fire and the extent of the loss thereon than those given by appellees in their proofs of loss established their fraud and false swearing in respect thereto, and that, as a matter of law consequent thereupon, the court should have declared the entiré policy sued upon void and entered judgment for appellant.

We do not think this position tenable. In the state of the evidence, no such effect, we think, may legitimately be given the jury’s findings. Indeed, as already indicated in disposing of the preceding assignment, there was no sufficient evidence to make this suggestion of fraudulent misrepresentation a proper issue for the jury. It is true that the witnesses differed in their estimates as to the worth of the furniture and the amount of damage suffered, and that the appellees had put both at some higher figures than those found by the jury, but this did not even tend to establish as a fact that they had fraudulently done so, since as a matter of common knowledge the valuation of household furniture and ladies’ wearing apparel is, to a large extent, a matter of opinion. German Ins. Co. v. Jansen, 18 Tex. Civ. App. 190-192, 45 S. W. 220, affirmed in 93 Tex. 729, no opinion; Pelican Ins. Co. v. Schwartz (Sup.) 19 S. W. 374; Phoenix Ins. Co. v. Shearman, 17 Tex. Civ. App. 456, 43 S. W. 930.

Finding no reversible error in tlie record, the judgment is affirmed.

On Motion for Rehearing.

By motion for rehearing it is insisted that this court’s former judgment affirming the judgment below in this cause was error, and that the first and second assignments of error presented in appellant’s brief should have been sustained. But we think these assignments were properly overruled, and for this additional reason: As stated in the original opinion, the complaint thereby made was against the trial court’s action in not sustaining a special exception to appellees’ petition and in refusing a requested peremptory instruction to find in favor of the insurance company, upon the alleged ground that it appeared from the face of the petition that the terms of the policy sued upon had not been complied with, in that suit thereon had been brought sooner than 60 days after the furnishing of proofs of loss, contrary to its express provisions. A complete answer to this contention is that the petition did not so show; upon the contrary, after declaring upon the policy, alleging the loss by fire, and attaching an inventory of the destroyed property, the pleading continued:

“Plaintiff further alleges that in due time after said fire occurred she furnished defendant proof of her said loss by said fire and demanded payment of said sum of $1,500 due her by and under the terms and conditions of said policy, and that the defendant has wholly failed to pay the same or any other amount, to her total damage in the sum of $1,500.”

Nor was there elsewhere in the face of the petition any indication whatever that it was prematurely filed. It was therefore good as against the special exception leveled at it. If appellant had sought dismissal through plea in abatement properly raising the issue of premature bringing of the suit, a different situation would have been presented.

The motion for rehearing is accordingly overruled.
      (JteoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J. HARPER, O. J.

text:
    SOUTHERN PAC. CO. v. DE LA CRUZ.
    (No. 786.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 21, 1918.
    Rehearing Denied March 7, 1918.)
    1. Master and Servant @=3276(3) — Injury— Defective Trip Hammer — Sufficiency op Evidence.
    Evidence in servant’s action for injury from •fall of trip hammer while not being operated, held sufficient to raise the issue of it being broken or worn.
    2. Master and Servant @=>203(1) — Injury-Assumption op Risk — Contributory Negligence.
    The issue raised by evidence of an employe choosing an unsafe way of doing work, when a safe, suitable, and convenient way is available, is only that of contributory negligence, and not of assumption of risk.
    Harper, C. J., dissenting.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action, by Robert de la Cruz against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Beall, Kemp & Nagle, of El Paso, for appellant. Geo. E. Wallace and W. S. Berkshire, both of El Paso, for appellee.
   HIGGINS, J.

Cruz brought this suit to recover damages on account of personal injuries alleged to have been. sustained while working in the employ of appellant as a blacksmith helper in its shops at Tucson, Ariz. Plaintiff alleged that he was ordered and directed by one of defendant’s employes wh'o had authority to direct him to do a certain piece of work, and in order to perform the said work he was directed to use what is known as a “trip” or steam hammer, and in the exercise of due care for his own safety, while attempting to put the material which he was then using in a position to be struck by the hammer, by reason of the fact that the hammer was out of order, unsafe, and dangerous, same suddenly fell or gave way in such manner that his hands were caught by same and injured so that it became necessary to amputate one of his thumbs and the other thumb was mashed and injured; that the hammer, or some part or portion thereof, or some appliance there'of, was either broken, worn, or out of order to such an extent as to render the hammer and the use thereof unsafe, and thereby caused and permitted the hammer to move and fall voluntarily and without the application of the appliances which were used to move and control the hammer; that defendant was negligent in using and operating the hammer in such defective, unsafe, and dangerous condition, and in ordering and directing plaintiff to use the same when it was not reasonably safe.

Defendant answered by general denial, plea of assumed risk, and specially alleged that at the time plaintiff ivas injured he was in the employ of defendant, which was then and there an interstate railr'oad, and plaintiff was engaged in work directly connected with interstate commerce, and upon an instrumentality which was being used in such commerce, and in fact was engaged in such commerce, and that the Federal Employers’ Liability Act (Act Cong. April 22,1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) applied, and thereunder plaintiff assumed the risks and dangers occasioning his injuries. It further alleged that his injuries were due to his own negligence and not to the negligence 'of defendant.

By supplementary petition plaintiff alleged that on more than one occasion prior to the date of his injury, as well as immediately prior thereto, he informed the foreman of defendant in charge of the shops where he was working that the hammer and its appliances were defective and dangerous, and that the foreman promised to repair same, and relying on such promise he continued at work ivith said defective machinery. It was agreed that the Federal Employers’ Liability Act applied in the case.

The court instructed the jury to find for the plaintiff if they found that the hammer or some appliance thereof was broken, worn, or out of order so that it permitted the same to move or fall without the application of other appliances used to control the hammer, ■and that the defendant was guilty of negligence in so using the same, and such negligence was a proximate cause of the injury; and to find for defendant if it found that it used ordinary care to have and keep the hammer in a reasonably safe condition, or if plaintiff was negligent himself in using said hammer in the way that he used the same or placed his hands thereunder, and his own negligence, if any, was the only and sole cause of his injuries, or if defendant was negligent, hut that the negligence 'of the defendant was not a proximate cause of plaintiff’s injury, or if defendant was not negligent in the way substantially as alleged by plaintiff, or if the hammer was not defective or out of order. The jury was instructed, further, that though they might find that the hammer was defective, that under the law of assumed risks plaintiff could not recover, as he admitted that he knew of the defective condition of the hammer, unless they found that plaintiff reported the defect to the defendant or its foreman, and that the -foreman promised or agreed to repair the hammer, and that plaintiff was thereby induced to continue the use ■of the same. The jury was instructed that in that event plaintiff w’ould not assume the risk of using the hammer unless the danger was such that an ordinarily prudent person, ■situated as plaintiff was, wh-uld not have undertaken the risk.

Verdict was returned, and judgment rendered for $3,000. Plaintiff filed a remittitur ■of $600.

It is first assigned as error that there was no evidence that the hammer was broken or worn, for which reason such issue ■should not have been submitted to the jury. The hammer was operated by a lever and is sustained by steam pressure. The testimony ■shows that the hammer had been raised and the lever set; that under such circumstances, if in good condition, it will not fall if, after being raised, it has stood for five minutes, and if it does do so there is some defect therein. There is testimony that it had been raised a few minutes before the accident, and that it then suddenly fell and struck plaintiff’s hands. The plaintiff testified that the cylinder was clogged and caused it to stick. Under this state of facts the issue was raised .and was properly submitted. Southern Pac. Co. v. Evans, 183 S. W. 117; Railway Co. v. Hayden, 29 Tex. Civ. App. 280, 68 S. W. 530.

At the time of the accident plaintiff was holding with his hands a piece of steel upon the base of the hammer. Defendant offered evidence to show that tongs were provided to use in holding same upon the base, and if he had used the same his hands would not have been injured. Upon this state of the evidence defendant contends that the court erred in its charge upon assumed risk for the reas'on that when an employer has provided safe, suitable, and convenient ways of doing the work, and the employs, knowing and appreciating the danger of doing the work in an unsafe way, selects such unsafe way and is injured ⅛ consequence thereof, he assumes the risks incident to doing the work in such unsafe way. It is apparent that the proposition advanced is not at all germane to the charge upon assumed risk as given by the court. The plaintiff’s testimony showed that he had reported to defendant’s foreman that the hammer was out of order, and that the foreman promised to repair the same, and directed him to continue his work with the same.

It is well settled that certain assurances given by the master to a servant, when relied upon by the latter, will render the doctrine of assumed risk unavailable to the master. The instruction given by the court upon assumed risk was up'on that phase of the case, and had no relation to the consequence to the servant of adopting an unsafe way of doing his work when a safe way was available. If there was any err'or in the charge upon assumed risk, it was not in the particular .urged by appellant. The proposition presented as showing error in such charge relates rather to the refusal of defendant’s special instruction No. 2, the refusal of which is made the basis of the 3d, 4th, 5th, and 6th assignments. This charge reads:

“You are instructed that if you believe from the evidence that the defendant had provided for plaintiff’s use tongs or pick-ups for the purpose of placing the iron in question under the hammer, and that such tongs or pick-ups were convenient to the plaintiff and suitable for use, and that had he used the same it would have been safe and no injury could or would have resulted to him in consequence thereof, but that he chose to place said iron in question under the hammer with his hands, and that same was an unsafe way to so place said iron under said hammer, and the danger of placing said iron-under the hammer with his hands was open and apparent and such as he knew of or must necessarily have known of, then in such event, if you so find, you are instructed that plaintiff assumed the risk of so placing said iron under said hammer with his hands instead of using the tongs or pick-ups, and, in the event you so find, you will return a verdict in favor of the defendant, regardless of what you may think as to whether he did or did not make complaint to the foreman.”

It is contended that this charge should have been given because the evidence presented the issue as to whether plaintiff chose an unsafe way of doing his work when a safe, suitable, and convenient way was available, and if be did so be assumed tbe risk. Tbe bill of exception taken to tbe refusal of this charge was thus qualified by tbe court:•

“After the evidence was closed, and before the court had prepared its charge, as well as at the time special charge No. 2 was -presented to the court, counsel for the defendant stated that they did not want the issue of contributory negligence submitted to the jury, and by reason of this statement of defendant’s counsel the court did not submit to the jury the issue of contributory negligence.”

Our courts in a number of cases have said that where there are two ways in which a servant may perform bis work, one safe and tbe other hazardous, and be chooses that which was dangero-us, from which choice his injury results, that in so choosing he assumes any risk of injury which may result from the performance of his work in the way chosen. Railway Co. v. Hynson, 101 Tex. 543, 109 S. W. 929; Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530; Worden v. Kroeger, 184 S. W. 583. On the other hand they have frequently referred to such conduct as constituting contributory negligence. Railway Co. v. Matthews, 100 Tex. 63, 93 S. W. 1068; Railway Co. v. Wall, 102 Tex. 365, 116 S. W. 1140; Railway Co. v. Samuels, 103 Tex. 59, 121 S. W. 121; Lewis v. Railway Co., 57 Tex. Civ. App. 585, 122 S. W. 605.

The citations given show that our courts sometimes have simply employed the phrase “assumed the risk” to express the conception o-f contributory negligence. The courts of many other states have done likewise; but, as is pointed out in 3 Labatt’s M. & S. (2d Ed.) §§ 1219 to 1225, it is merely a matter of incorrect terminology. See, also, 2 Bailey on Personal Injuries (2d Ed.) §§ 354, 357, 366," 443, 459, 461, 469. Assumed risk and contributory negligence are distinct defenses, the doctrine of the former being founded upon contract, tbe latter being solely a matter of conduct. While these defenses have frequently been referred to and discussed without making any discrimination between them, since the enactment of the state and federal comparative negligence statutes, such discrimination frequently becomes very necessary. Carter v. Railway Co., 155 S. W. 643. In the case at bar, if plaintiff voluntarily chose the dangerous! way of placing the iron upon the base of tbe hammer with his hands instead of using tongs or pick-ups, then he was simply guilty of imprudent conduct, which constituted contributory negligence rather than an assumption of the risk. Since defendant stated to the court that it did not wish the issue 0¾9 contributory negligence submitted, the court properly refused the requested instruction. Such instruction would have authorized a verdict for defendant based upon evidence which convicted plaintiff of contributory negligence, and as to such negligence the doctrine of comparative negligence was applicable.

The remaining assignments question the sufficiency of the evidence to support the verdict and judgment; also that the verdict and judgment is excessive. They are regarded as being without merit.

Affirmed.

On Rehearing.

Appellant is under the impression that its assignment complaining of the charge upon assumed risk was overruled because the subjoined proposition was not germane. Tbe charge upon assumed risk was upon that phase of the case presented by the evidence showing that plaintiff knew of the defective condition of the hammer, but had reported the same to the foreman and had continued to use the-same upon the foreman’-s promise to repair same. This phase of the case is distinct from, and has no relation to, the consequence resulting, from an employe doing his work in a unsafe way when a safe way was available, but the assignment was not overruled upon the technical ground that the proposition was not germane, but upon the ground, as -stated, that the charge upon assumed risk was no.t subject to- the objection which appellant urged. If there is any confusion in the opinion in that respect, we now hold that the assignment is overruled, because the particular principle of law which it announces is not altered or affected by the fact that the servant in doing his work has selected an unsafe way when a safe way was available. This latter fact is controlled by an independent rule of law, regardless of whether the issue it presents relates to the question of assumed risk or contributory negligence.

This opinion is written to prevent any misapprehension arising that the court has disposed of the assignment indicated upon technical grounds rather than its merits.

HARPER, O. J.

(dissenting).

The objections to the charge upon assumed risk, as urged in the second assignment, are good, and the assignment should here be sustained for the reasons given. The special charge upon assumed risk requested and refused should have been given. The proof is paramount that a safe way to do the work was provided; tongs with which to handle the iron to be placed under the hammer. Appellee by his own testimony admits it. He further admits that he knew that the alleged defect in the hammer had not been repaired, because he testifies that he was working with the hammer at 7:30 a. m., and then notified the foreman of the defect, and again he notified him at about 11 a. in. and he worked on continuously with the hammer until hurt. Thus he admits that Ee knew that it had not been repaired, so greater is the reason for using the tongs instead of his hands.

The facts in this case are sufficient to be the basis of both assumed risk and of con-tributary negligence, so the trial court was not excused, from giving the requested charge upon assumed risk because defendant suggested that it did not care for a charge upon contributory negligence, nor was the defect in the main charge cured thereby. I therefore enter my dissent.
      @=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KING, J.

text:
    TURNER-CUMMINGS HARDWOOD CO. et al v. PHILLIP A. RYAN LUMBER CO. et al.
    (No. 304.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1918.)
    1. Judgment <⅝=250(5) — Conformity to Veb-diot — Parties.
    Judgment not conforming to the verdict, as required by Rev. St. art. 1994, in respect to the parties, was erroneous.
    2. Judgment <@=525S(1)--Coneormity to Verdict.
    Judgment should be in conformity with the verdict, whether it be correct or not, and whether the error therein, if any, arose from erroneous instructions or from misinterpretation of the evidence by the jury, for the act of the judge in entering judgment upon the verdict is merely ministerial, and the court cannot pass on any issue of fact on which-the jury has failed to return a verdict or finding, no matter bow conclusive the evidence may be.
    3. Logs and Logging @=58(5) — -Action eor Breach oe Logging Contract — Question eor Jury.
    In an action for breach of contract to pay for logs hauled, where evidence was conflicting as to which party breached the contract, the court erred in peremptorily instructing for defendant.
    4. Contracts <@=5313(2) — Anticipatory Breach.
    The mere notice of an intention to breach a contract in the future, at a time when the contract is in the course of performance, and is actually being performed, is not sufficient to justify the other party to the contract to declare the contract breached.
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Action by C. N. Cummings and. another, a partnership known as the Turner-Cummings Hardwood Company, against the Phillip A. Ryan Lumber Company, in which C. H. Harrell and John P. Renfro were brought into the case by plaintiffs. Brom a judgment, plaintiff and Renfro appeal.
    Reversed and remanded.
    Denman & Thomas, of Lufkin, for appellants. Mantooth & Collins, of Lufkin, for appellees.
   KING, J.

This suit was brought on December 18, 1916, by C. N. Cummings and P. B. Turner, who composed the partnership firm of Turner-Cummings Hardwood Company, hereinafter referred to as the “hardwood company,” against Phillip A. Ryan Lumber Company, hereinafter referred to as “lumber company,” a private corporation, John P. Renfro and C. H. Harrell, seeking to recover the sum of $2,500 for logs delivered under the contract, and damages against Phillip A. Ryan Lumber Company arising from its alleged breach- of the contract between the hardwood company and the lumber company, by the terms of which the hardwood company agreed to deliver to the lumber company’s sawmill 1,500,000 feet of timber, at a stipulated price per thousand, and the lumber company obligated itself to pay, on the 10th of each month, for the logs hauled by the hardwood company during the previous month. There were other stipulations in the contract, which is quite lengthy, but they are not material to the disposition of this case.

The hardwood company alleged that it delivered about 1,085,000 feet, when it was prevented from delivering the balance of said timber on account of the breach of the contract upon the part of the lumber company, in that, among other things, the lumber company did not pay, on the 10th of the month, as it had contracted to do, the hardwood company claiming $1,242.38 damages as reasonable profits that they would have realized had they been permitted to have delivered the rest of the timber under the contract, and for the sum of $2,500 alleged to have been due and withheld by the lumber company for logs already delivered.

C. H. Harrell and John P. Renfro were brought into the case by plaintiffs in the nature of an impleader that they might be adjudged to recover the sums of money due them growing out of the contract in question for timber which had been delivered; Renfro being the owner of the timber which the hardwood company were delivering, the hardwood company having bought the timber from Renfro some time previously. Renfro retained a lien upon the timber for its payment, but by virtue of a stipulation in tbe contract between the hardwood company and the lumber company, to the effect that the lumber company should settle with him on the 10th of each month, as specified in the contract between the lumber company and the hardwood company, for the value of the timber cut, instead of paying said amount to the hardwood company. G. H. Harrell actually hauled the timber under a contract with the hardwood company, and in the contract between the lumber company and the hardwood company, it was provided that he should be paid direct by the lumber company instead of by the hardwood company on the 10th of each month, as specified in the contract between the lumber company and the hardwood company. Harrell did not have a contract with the hardwood company to deliver the 1,500,000 feet, but only about 100,000 feet of same, and he in all things complied with his contract with the hardwood company, and quit delivering logs on the 14th day of November, 1916.

The lumber company filed its answer, in which it admits the contract sét out by the hardwood company and X P. Renfro, but for avoidance it pleaded that the hardwood company and Renfro, long prior to November 10th, gave notice to it that they would, at a future date, cease to deliver logs, and further said that the hardwood company and Renfro did actually fail to deliver 500,000 feet, and thereby became liable to it in the sum of $2,500, as liquidated damages, as provided in a bond executed by the hardwood company to the lumber company, with O. N. Cummings, one of the members of the company, and John P. Renfro, as sureties, the provisions of which bond guaranteed the faithful performance of the contract by the hardwood company. In other words, the effect of the pleadings is that the hardwood company claimed that they could not deliver the balance of the logs, because the lumber company had breached its contract with reference to payments, rendering it unable to further deliver logs, while the lumber company claimed that on account of the failure of the hardwood company to deliver the logs according to the contract, that it withheld the sums of money claimed by the hardwood company as liquidated damages. The lumber company also charged that the hardwood company and Renfro fraudulently and willfully conspired to breach the contract, for the reason that they were not willing to pay the additional cost which would have been incurred in delivering the balance of the timber.

Harrell admitted the contract between the hardwood company and himself, but insisted that he had complied with the same, and that there was due him $1,464.07, which he insisted that the lumber company had no right to withhold from him, but that under the bond from the hardwood company to tire lumber company it was protected. He asked judgment against the hardwood company, and asserted a lien.

Renfro answered and admitted the contract as pleaded by the hardwood company, and declared that it was due him $1,225.35 on the contract; that he released his lien upon the timber with the distinct understanding that he was to be paid his stumpage promptly, and charged that the lumber company hindered and delayed the hardwood company and Harrell in carrying out the contract; that the mill was not operated to its full capacity by the lumber company according to the contract, and that it did not meet the payments of the purchase price of the timber as it had agreed, and but for such all the timber would have been delivered long before the institution of the suit. He pleaded that he was solvent and could be made to respond as surety on the hardwood company’s bond to the lumber company for any breach by the hardwood company, and he prayed for the recovery of $1,225.35 against the lumber company, or such other sum as may be found to be due for said timber, with interest, and that he have judgment over and against the hardwood company for such amount as the lumber company should recover against him.

Upon a peremptory instruction by the court, the jury returned the following verdict:

“We, the jury, find for the defendant Phillip A. Ryan Lumber Company for the sum of twenty-five hundred dollars against Tumer-Cum-mings Hardwood Company and against John P. Renfro; and we find in favor of the defendant C. H. Harrell for the sum of fourteen hundred and sixty-four 'dollars and seventy cents against Phillip A. Ryan Lumber Company and against Turner-Cummings Hardwood Company.”

Upon this verdict, the following judgment was entered by the court:

“It is therefore ordered, adjudged and decreed by the court that Phillip A. Ryan Lumber Company do have and recover judgment against the said plaintiffs P. B. Turner and C. N. Cummings, partners, composing the copartnership firm of Turner-Cummings Hardwood Company, and C. N. Cummings and John E. Renfro as-sureties for the sum of $2,500. * * * That C. H. Harrell do have and recover of and from the plaintiff P. B. Turner and C. N. Cummings Hardwood Company, and each of them, for the sum of $1,464.70. * * * It is ordered that Phillip A. Ryan Lumber Company pay over to. C. H. Harrell the $1,464.70, and that the bond be credited with $1,035.30'. * * * That John E. Renfro do have.and recover judgment over against the said P. B. Turner and C. N. Cummings, plaintiffs, principals on said bond tlie sum of $2,500, and the amount of $1,464.70 to be paid to Harrell whenever that amount is collected from plaintiffs and Renfro, * * * and it appearing to the court that it is agreed hereby between Phillip A. Ryan Lumber Company and C. H. Harrell that, if for any reason the judgment rendered against plaintiffs herein, and John E. Renfro in favor of Phillip A. Ryan Lumber Company for $2,500 shall be vacated or sot aside, that then this judgment for the sum of $1,464.70 to be paid to said C. H. Harrell shall be likewise set aside and vacated.”

Appellant assigns as error the action of the court in rendering this judgment, claiming that it is not in conformity with the verdict, in that the verdict finds for the defendant Phillip A. Ryan Lumber Company for $2,500' against Turner-Cummings Hardwood Company and John E. Renfro, while the judgment is against P. B. Turner and O. N. Cummings, composing the firm of Turner-Oom-mings Hardwood Company, and against C. N. Cummings and John F. Renfro as sureties, and also because the verdict finds for defendant C. I-I. Harrell for the sum of $1,464.70 against Phillip A. Ryan Lumoer Company and Turner-Cummings Hardwood Company,, while the judgment is against P. B. Turner and C. N. Cummings, composing the firm of Turner-Cummings Hardwood Company, and each of them, and not against the Phillip-A. Ryan Lumber Company at all, and because the verdict finds for the defendant Phillip A. Ryan Lumber Company, for the sum of $2,-500 against Turner-Cummings Hardwood Company, while the judgment decrees that the defendant Phillip A. Ryan Lumber Company recover against P. B. Turner and C. N. Cummings as plaintiffs and John F. Ren-fro and C. N. Cummings as sureties on the bond, and because the verdict finds in favor of C. H. Harrell for the sum of $1,464.70 against Phillip A. Ryan Lumber Company and Turner-Cummings Hardwood Company, while the judgment, contrary to same, and without the support of anything in the record, decrees if a judgment for $2,500 in favor of Phillip A. Ryan Lumber Company against plaintiffs and Renfro be vacated, it shall set aside the judgment in favor of Plarrell for $1,464.70, insisting that if such agreement was entered into between Harrell and the lumber company, the court did not have the right to disregard the plaintiffs and Renfro, who are interested in this part of the judgment, and are included therein, and who were not parties to any such agreement; and because the court decreed that John P. Ren-fro recover judgment over and against P. B. Turner and C. N. Cummings, plaintiffs, for the sum of $2,500, in default of said plaintiffs paj-ing to the Phillip A. Ryan Lumber Company the $2,500, because such judgment was not in conformity with the verdict, and has no verdict as a basis therefor.- Appellant Renfro does not join in this last complaint.

We sustain this assignment of error. The judgment of the court should conform to the pleadings, the nature of the case proved, and the verdict, giving the parties all the relief to which they may be entitled in law or in equity. R. S. art. 1994.

It is the duty of the court to enter its judgment in conformity with the verdict, whether it be correct or not, whether the error in the verdict, if there be error, arose from erroneous instructions of the court, or from misinterpretation of the evidence by the jury. The act of the judge in entering judgment upon the verdict is merely ministerial, and he cannot disregard the verdict. Furthermore, the court cannot pass on any issue of fact on which the jury' has failed to return a verdict or finding, no matter how conclusive the evidence may be. Railway Co. v. Strycharski, 92 Tex. 10, 37 S. W. 415; Smith v. Pitts, 57 Tex. Civ. App. 97, 122 S. W. 46.

Appellant also assigns as error the action of the trial court in instructing a verdict for the lumber company. We have carefully examined the evidence in this case, which is voluminous, and we have arrived at the conclusion that the court erred in peremptorily instructing the jury, in that the evidence was conflicting as to whether the lumber company breached the contract, by failing to pay on the 10th of the month, as specified in the contract, and withholding money due on the 10th of November, and thereby prevented the hardwood company from complying with their contract, or whether the hardwood company breached the contract first, and by reason thereof the lumber company withheld payment of the $2,500 and other sums due on the 10th day of November.

Reasonable minds might reach different conclusions from the 'evidence from that which the court instructed the jury. We do not deem it necessary to quote the evidence to sustain this holding, as the trial court will have no difficulty in giving appropriate instructions to the jury as to this issue. Wte call attention also to the lumber company’s answer in paragraphs 4, 5, and 6, where it alleged that long prior to November 16th, the last logs having been delivered on November 14, 1916, that the hardwood company and John P. Renfro together, jointly and severally, each for himself and each for both, notified the lumber company that they nor either of them would, on and after NovemDer 16th, deliver any more logs under said contract for certain reasons, and that by virtue of said notice from plaintiff and Renfro of their intention to default in the terms and conditions of said contract, that they and each of them breached the contract, and thereby became liable to it for $2,500, as liquidated damages provided in their bond.

The mere notice of an intention to breach á contract in the future, at a time when the contract is in the course of performance, and is actually being performed, is not sufficient to justify the other party to the contract to declare the contract breached. Kilgore v. N. W. T. Baptist Editors’ Ass’n, 90 Tex. 143, 37 S. W. 598.

Por the reasons assigned, the judgment of the trial court is reversed and remanded.
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