author: BOYCE, J.

text:
    EARNEST et al. v. WOODLEE et al.
    (No. 1465.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1919.
    Rehearing Denied Feb. 19, 1919.)
    1. Alteration of Instruments <§=>8 — Petitions— Material Alteration of Signature.
    Retracing with ink the pencil signatures to a petition for the organization of a county, purpose being to preserve them from obliteration, is not a material alteration.
    2. Counties <§=>21 — Organization — Petitioners — Qualification .
    There was nothing to prevent one who bp-came of age during the year 1917 to sign a petition for the organization of a county early in April, 1918, although he had not paid poll tax for 1917, and did not have an exemption certificate; Rev. St. 1911, art. 2954, not applying.
    3. Counties <§=>21 — Organization—Petition —Signatures.
    Signatures of voters to a petition for organization of a county, affixed by a third person in their presence and at their direction, were valid.
    4. Elections <§=>83 — Voters — Payment of Poll Tax.
    Under Const, art’. 6, § 2, art. 7, § 3, art. 8, § 1, Rev. St. 1911, art. 7692, poll tax becomes due on January 1st, and persons entering the state after such date need not pay such tax in order to be qualified voters.
    5. Counties <§=>21 — Organization — Petition — Sufficiency.
    A statement in a petition for organization of a county that the signers were “qualified voters of B. county” implies that they resided therein.
    6. Counties <§=>21 — Organization of County-Petition.
    A petition for organization of a county need not describe the signers as qualified, if they were qualified in fact.
    7. Statutes ' <§=>120(1) — Title—Organization of County.
    The caption of the amendment approved March 16, 1918, which reduced the number of signers required to secure organization of Bailey county, held to disclose the purpose of the act.
    8. Counties <§=>54 — Commissioners’ Court-Orders — Form.
    The commissioners’ court need not go through any particular form in passing its orders, and the suggestion by one member that certain action be taken upon a proposition, and assent by other members, in open session, is sufficient to authorize the entry of such action on the minutes.
    9. Counties <§=>21 — Organization—Form of Order.
    An order entered in the commissioners’ court reciting the presentation of a petition for organization of a county, “and the court being of the opinion that the petitioners are entitled to the relief prayed for, and that B. county should be organized,” and then proceeding to lay ofi the county into election precincts, etc., was sufficient under Rev. St. 1911, arts. 1356 and 1361.
    10. Counties <§=>21 — Organization—Election.
    Rev. St. 1911, art. 2933, relating to duties of county judge concerning elections, may be applied to an election relating to the organization of a county, in view of article 3081.
    11. Counties <§=>21 — Organization—Elections.
    Under Rev. St. 1911, arts. 1356, 1357, 1361, 1362, 2911, 2930, 2933, the county judge may order an election of officers for a newly organized county without waiting until the next general election.
    Appeal from District Court, Castro County ; R. C. Joiner, Judge.
    Suit by D. P. Earnest and others against B. D. Woodlee and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Kimbrough, Underwood & Jackson, of Amarillo, Carl Gilliland, of Hereford, and Kinder & Russell, of Plainview, for appellants.
    Williams & Martin, of Plainview, and Mark Cowsert, of Dimmitt, for appellees.
   BOYCE, J.

Prior to the 9th day of April, 1918, Railey county was unorganized, being attached to Castro county for judicial purposes. On said date the commissioners’ court of Castro county, acting on a petition purporting to have been signed by 86 qualified voters of Bailey county, entered an order organizing said Bailey county and dividing it into election precincts. Thereafter, on the same day, the county judge of Castro county ordered an election to be held in Bailey county, on the 11th day of May, 1918, for the selection of a county seat of said county and for the election of county officers thereof. This suit was brought by appellant D. P. Earnest and others, citizens and taxpayers of said Bailey county, to set aside the said order of the commissioners’ court organizing Bailey county, and to enjoin the county judge and commissioners of said Castro county from canvassing the returns and declaring the result of the election so ordered by said county judge, and also to enjoin the county officers elected at said election from qualifying and proceeding to act as officers of said county. It was alleged that the said order of the comipis-sioners’ court was void on several grounds, which we will later notice in detail, and that in consequence of the invalidity of this order the election itself was unauthorized and. void, and that it was also void because ordered to be held at a time other than at a general election. The county judge and commissioners of Castro county and the persons appearing to have been elected to offices in Bailey county were made defendants. A trial before the court resulted in judgment for the defendants, from which this appeal is taken.

By various propositions under the first assignment it is asserted that 21 of the 86 signatures attached to the petition on which the order for the organization of the county was made should be eliminated in determining whether such petition was in fact signed by 75 qualified voters of said county. It is conceded by appellees that two of the signers, to wit, Arthur Ryan, referred to in the third proposition under the first assignment, and U. S. Tabor, referred to in the ninth proposition, were not qualified signers. It will be necessary to notice in detail the facts in connection with the other 19 signers contested by appellant.

Seven of the names to the petition had been signed in pencil, and one Kuykendall, who was taking an active part in getting the petition presented to the commissioners’ court of Castro county, retraced these signatures in ink. Prior to the circulation of the petition the county judge had suggested that, as this matter might get into court, the signatures ought to be in ink, so that they would not become obliterated, and Kuyken-dall’s purpose in retracing them in ink was to preserye them from obliteration. The retracing was so done as that only slight traces of the pencil marks might be observed. Appellant contends that this constituted such alteration or obliteration of these names as destroyed them as genuine signatures, entitled to be considered in passing on the sufficiency of the petition. We do not think the retracing of these signatures, under the circumstances, was a material alteration. Reed v. Roark, 14 .Tex. 329, 65 Am. Dec. 127; Dunn v. Clements, 52 N. Cl 58; C. J. vol. 2, p. 1220. We doubt also whether an alteration made by one standing in relation to the instrument as did Kuykendall would have the effect of avoiding an instrument of this kind. We do not decide this, however.

Leon Kropff became of age during the year 1917, and was therefore not liable to the payment of a poll tax for that year. He did not have an exemption certificate issued prior to January 31, 1918, showing such fact, and it is claimed that he was not for this reason a qualified voter, authorized to sign the petition. We find no provisions of law that require the proposed voter to secure an exemption certificate under the circumstances stated. Article 2954, R. S., as it now reads, clearly does not apply to this situation. The cases of Linger v. Balfour, 149 S. W. 795, and Savage v. Umphries, 118 S. W. 901, section 3, are not authority on this proposition, because there was a material change in the language of the law as it now stands from what it was when being construed in those cases. See section 23, Acts 1905, p. 527, which was quoted in part by the decision of the court in the case of Savage v. Umphries.

The names of Carl Elrod, Roy Elrod, and Sam Lane were not signed by them in person, but were signed by a third person in their presence and at their direction, and it is claimed that for this reason they should not be counted as signers. We overrule these propositions. Fulshear v. Randon, 18 Tex. 278, 70 Am. Dec. 281; Bridges v. First National Bank, 47 Tex. Civ. App. 454, 105 S. W. 1019; La Master v. Wilkerson, 143 Ky. 226, 136 S. W. 217; Reed v. City of Cedar Rapids, 138 Iowa, 366, 116 N. W. 140; 36 Cyc. 451.

Three of the signers to the petition moved to Bailey county, Tex., from some other state in February or March, 1917, being prior thereto residents of other states, and did not pay a poll tax in Texas prior to February 1, 1918, and it is claimed that they were not qualified signers. In support of this contention appellant refers to article 7, § 3, of the Constitution, which provides that “a poll tax of one dollar on every male inhabitant of this state,'between the ages of twenty-one and sixty years, shall be set apart annually for the benefit of the public free schools”; and claims that, under the authority of Solon v. State, 54 Tex. Cr. R. 261, 114 S. W. 355, 358, this provision is self-executing, and levies the tax without legislative aid; that these persons were, under the Constitution, if not under the statutory law, due a poll tax prior to February 1,1918. If it be conceded that the Constitution does itself levy the poll tax, as intimated in the opinion referred to, several questions naturally follow: When does the annual tax thus levied become due? Shall it be paid in advance, during the year, or after the expiration thereof? It was evidently contemplated that the details of the levy, assessment, and collection of such taxes were to be provided by the Legislature. Article 8, § 1, of the Constitution, provides that “the Legislature may impose a poll tax.” And other provisions of the Constitution required that taxes be levied, assessed, and collected by general laws. In 1902 the Constitution in relation to suffrage was amended, and a provision added to the effect “that any voter who is subject to pay a poll tax under the laws of the state of Texas shall have paid said tax before he offers to vote fit any election in this state and hold a receipt showing his poll tax paid before the 1st day of February next preceding such election.” Article 6, § 2. Long prior to the adoption of this constitutional amendment the Legislature had- provided that the poll tax should be “levied and collected from every male person between the ages of twenty-one and sixty years, resident within this state on the 1st day of January of each year” (Statutes of 1895, art. 5048, now article 7354); and that collection of taxes should begin in October following the levy and assessment (article 5164, R. S. 1895, 7615, Statutes 1911), and should become delinquent if not paid prior to February 1st following (article 7692, R. S. 1911, Acts 1897). It seems perfectly clear that the constitutional amendment was adopted in view of this established method of the levy, assessment, and collection of taxes. Following its adoption, the Legislature, by article 2942, R. S., provided that “the poll tax required by the Constitution and laws in force shall be collected from every male person between the ages of twentj'-one and sixty who resided in this state on the 1st day of January preceding its levy. * * * It shall be paid at any time between the 1st day of October and the 1st day of February following.” We hold, therefore, that these persons do not come within the provisions of article 6, § 2, just quoted.

It is claimed that one H. N. King, one of the signers to the petition, moved to Bailey county during the year 1917, having been a resident of Floyd county on January 1st of that year, and subject to the payment of the poll tax to that county, and that he did not pay any poll tax in Floyd county, but pretended to pay one in Castro county. It does appear that he resided in Floyd county on January 1, 1917, but the statement under this assignment is silent as to whether or not he paid any poll tax for 1917, and, if he did, where he paid it. It is not, therefore, shown that he was not a qualified voter in Bailey county.

We need not announce a conclusion as to the other contested signatures, to wit, those of J. M. Smith, J. M. Stokes, J. N. Jennings, A. C. Holt, and C. L. Gray, since, if we are correct in the conclusions already stated, whatever conclusion might be reached as to their qualifications would not affect the result. We therefore overrule the first assignment of error.

The petition for organization recited that the signers were “qualified voters of Bailey county,” and it is claimed that this was insufficient to give the commissioners’ court of Castro county jurisdiction to organize the county, because the law in reference to the petition on which such organization shall be made requires that the petition shall be signed by “qualified voters residing in such unorganized county.” The statement that the signers were qualified voters of Bailey county carried with it necessarily the implication that they resided therein, as the qualification to vote would require that they reside in the county. The Legislature evidently did not intend to add something to the requirement that they be voters in such county, but used the word “residing” as merely connecting the requirement that the signers be voters with the statement as to where they should be qualified to vote; that is, in the unorganized county proposing to organize rather than in some other place. We think, also, if the petitioners were qualified signers in fact, it would not be material that they did not so describe themselves in the petition. The law only expressly requires that the petition express the desire for organization. R. S. art. 1361. It would be a mistake, we think, to apply the rules of pleading in courts, which require plaintiff’s petition to affirmatively show the jurisdiction of the court, to a case of this kind.

It is also urged that the amendment approved March 16, 1918, Laws of the Fourth Called Session of the Thirty-Fifth Legislature, p. 18, which reduced the number of signers required to secure organization of such county from 150 to 75, is invalid. Appellants’ brief does not suggest on what ground this claim is made, though it was suggested in oral argument that the caption of the law is insufficient. The caption seems to fully disclose the purpose and effect of the enactment and seems to us to be sufficient.

It is also contended that the order referred to was not valid because not regularly voted upon. The basis of this assignment is the testimony of the county judge to the effect that, after the presentation of the petition and hearing thereon, a consultation was had between the county judge and the two commissioners present, when he suggested that three of the names signed to the petition be counted off, and they proceeded to organization of the county, to which suggestion the two commissioners replied, “All right, we will -do that.” Whereupon such decision was announced to those present at the hearing. The order itself was prepared by the attorney representing the proponents of the petition, and it is not shown that it was read by the judge or commissioners pri- or to the time it was spread upon the minutes. The minutes, however, were read over by the commissioners as a body, and approved by them before adjournment, and were regularly signed by the county judge. We see no reason why the order thus entered should not be held valid. There is no claim that it does not properly express the conclusion of the court, and we know of no law that requires the commissioners to go through any particular form in passing its-orders. The suggestion by one of the members of the court that certain action be taken on a proposition before the court for action, and assent expressed thereto by other members in open session, seems to us to be sufficient to authorize the entry of such action on the minutes of the court as a proceeding had by it. It is also objected that the order does not organize Bailey county. The order entered recites the presentation of the petition and continues thus: “And the court being of the opinion that the said petitioners are entitled to the relief prayed for, and that said Bailey county should be organizedand then proceeds to lay off the county into the election precincts, etc. The statute does not provide the form of order, nor even say that an order organizing the county shall be entered, but provides that upon presentation of the petition the commissioners’ court shall do the very things that this order does. R. S. arts. 1356, 1361.

Finally, it is contended that if the preliminary order of the commissioners’ court, which we have been discussing, is valid, yet the order made by the county judge for the holding of the election in Bailey county, May 11, 1918, was invalid, first, because the county judge had no authority to order such election at all; and, second, if he did have such authority, such election could only be ordered to be held at the time of the holding of a general election. Article 1361, R. S., amended as we have already stated, provides that when a petition signed by 75 qualified voters residing in such unorganized county is presented to the commissioners’ court of the county to which such unorganized county has been attached for judicial purposes, “it shall be the duty of said court to proceed without delay to the organization * * * of such county * * * in the same manner as hereinbefore provided for the organization of new counties.” No other provision is found in the statute that relates specifically to this subject, and defines any further procedure in such cases. The organization of new counties, as referred to in this article of the statute, is provided for by articles 1356 and 1357 of the Statutes. Article 1356 provides that the commissioners’ court of the county conducting the organization shall, at least one month previous to the general election of county officers next after such new county shall have been established, lay oft and divide such new county into precincts, and designate convenient places in such new county where elections shall be held. Article 3657 provides that it shall be the duty of the county judge of the county conducting such organization, at least one month xirevious to the general election of county officers next after such new county has been established, to order an election to be held in such new county on said general election day for county officers and to appoint presiding officers. It is further provided that such presiding officers shall hold the election and make returns to the county judge who ordered the election, who shall open and examine such returns and issue certificates of election. Article 1362, R. S., also provides that it shall be the duty of the county judge of the county conducting the organization of another county to issue certificates of election to the officers elected in such county, etc. It appears to us that it was the intention of. the Legislature that in both classes of organizaion — -that is, those provided by article 1356 and those provided by article 1361 — the county judge should order the elections to be held in the newly organized county, and that such is the implication of the language used by the court in the case of State v. Cook, 78 Tex. 406, 14 S. W. 997. In that case the election was ordered by, the county judge conducting the organization of the unorganized county, and ordered to be held at a time other than the general election, and these articles of the statute were being construed. It was held, in effect, that the laying off of a new county into precincts, the designation of voting places, ordering of the election by the county judge, returns of the election, and issuance of certificates of election related to the “manner” of the organization, but that the time for holding of the election did not necessarily relate to the “manner.” It was pointed out that the provision that the court should proceed without delay to the organization of such unorganized county was inconsistent with the requirement of articles 1356 and 1357, that such elections should only be held at a general election, but that such “direction to proceed without delay indicates an intention to speedily give full county organization after this is shown by the proper petition to be necessary,” and that the holding of the election was necessary to the full county organization referred to. These articles of the statute, as thus construed, were brought forward into the present statutes, and we think that the effect thereof is to authorize and direct the cbunty judge, after the preliminary work of the commissioners’ court, as provided by article 1856, has been done, to order the election without delay, which we take it would mean at as early a date as practicable, allowing time for the giving of the necessary election notices, etc. If there are other provisions of the statute that may be properly applied to such an election, and which fix the length of time and character of notice that may be required in such cases, we see no reason why the intended effect should not be given to these provisions of the statute. We find the following provisions in the statutes under the general title of “Elections,” which may be relevant in this connection. Article 2911, R. S., reads as follows: “Special elections shall be held at such times and places as may be fixed by law providing therefor.” Article 2930 reads in part as follows : “The county judge * * * shall order an election for county and precinct officers, and all other elections which under the law the county judge may be authorized to order.” Article - 2933, which is in part as follows: “The county judge * * * shall cause notice of a general election or any special election to be published by posting notice of election at each; precinct thirty days before tfte election; which notice shall state the time of holding the election, the office to be filled, or the question to be voted on, as the case may be; Provided, that in local option, stock law, and road tax elections, the notices of elections, or any other special elections specially provided for by the laws of this state, shall be given' in compliance with the requirements of laws heretofore or hereafter enacted governing said elections respectively.” Article 2911, just quoted, is the same as article 1660 of the Statutes of 1895, quoted by the Supreme Court in the case of State v. Cook, supra, except that the old law contained this additional clause following the present reading of article 2911, “or as may be fixed by the authority empowered by law to order same.” Appellant suggests that the Legislature, by the dropping out of this clause in the revision of the statutes, deprived the officer ordering a special election of any power to fix the time for holding it, but that this must be provided by the law itself authorizing such special election. If we grant that this is true, nevertheless the law, as we have construed it, provides a method for designating the place of holding the elections of the character we are considering, and in effect that such elections shall be held “without delay” in reference to the time of the presentation of the petition and action of the commissioners’ court thereon. Thus we think the law itself designates the time sufficiently. Obviously no law providing for special elections on petition would undertake to fix a definite date for the election, but would authorize that to be fixed in reference to the date of action on the petition and decision that an election was to be held.

We are cited to the ease of Wallis v. Williams, 101 Tex. 395, 108 S. W. 153, as authority in support of appellant’s assertion that article 2933 cannot apply to this election because said article was a part of the Terrell Election Law of 1905, and is not applicable to special elections. The holding in said case was based on a construction of section 191 of said act, and we do not find that such section was brought forward in the revision of the statutes so that the authority is not in point. We find that article 3081, under the chapter entitled “Miscellaneous Provisions,” under the general title of “Elections,” provides that “the provisions of this title shall apply to all elections held in this state except as otherwise herein provided.” We think, therefore, that these general provisions of the statute may be applied to this election, and, when we construe the whole of the law on this subject together, we think that the election was properly ordered by the county judge without waiting until the next general election for such action.

This disposes of all the assignments presented. In our opinion, the judgment should be affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      igsoFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HU'FE, C. J.

license: Public Domain

text:
    CITY OF AMARILLO v. W. L. SLAYTON & CO.
    (No. 1463.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 5, 1919.)
    1. Municipal Corporations <&wkey;921(l) — Bid fob Bond Issues — Conditions—Approval of Attorney.
    Objection of attorney for bidder for city paving bonds to legality of issues that notice of election provided that bonds amounting to §50,-000 payable serially, one to forty years, should be issued, while two series actually were issued, one for $40,000, from one to forty years, and one for $10,000, one to ten years, held not trivial, bid having been conditional upon approval of issues by attorney.
    2. Municipal Corporations <&wkey;9l8(3) — Issuance of Bonds — Election Notice.
    If a bond election vote is cast on notice of one kind of bonds, bonds with different terms are not authorized.
    3. Municipal Corporations <&wkey;921(l) — Bids —Conditions.
    On stipulation in bid for purchase of city bonds that transcript of proceedings leading up toi issuance of bonds should be satisfactory to bidder’s attorney, where attorney’s opinion was unfavorable there was no obligation on bidder.
    4. Municipal Corporations <&wkey;921(l) — Bonds — Approval by Bidder’s Attorney.
    Where bidder for municipal bonds conditions his bid on satisfaction of attorney with transcript of proceedings leading up to issuance of bonds, and attorney’s unfavorable opinion is assailed by city as fraudulent, or mere pretense, burden is on city to prove such matter or matters of fact.
    5. Municipal Corporations <&wkey;921(l) — Bonds — Unfavorable Opinion as to Legality-Bad Faith — Sufficiency of Evidence.
    In action by bidder for city paving bonds to recover good faith money deposited, cheek having been cashed by city after bidder’s attorney reported unfavorably as to legality of issue, evidence held insufficient to justify finding that bidder’s attorney acted in bad faith.
    6. Municipal Corporations <&wkey;>921(l) — Bonds — Forfeit of Good Faith Money-Satisfaction of Attorney.
    Where satisfaction of attorney of bidder for city paving bonds with bond issue was made condition to bidder’s obligation, his good-faith money was not forfeited to city if the condition was not complied with by furnishing attorney transcript of proceedings leading up to bond issue which should satisfy him.

      7. Mandamus <&wkey;154(2) — Petition.
    Mandamus should not be granted unless the petition shows every fact necessary to entitle relator to the relief sought.
    8. Judgment <&wkey;250 — Conformity to Pleading — Monet Demand Against Citt.
    In suit against city by bidder for paving bonds to recover good-faith money obtained by city by cashing check after bidder’s attorney had reported unfavorably as to legality of issue, judgment ordering mayor, city manager, and commissioners to provide by taxation to pay sum recovered, held without support in pleadings to that extent.
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Suit by W. D. \ & Oo. against the City of Amarillo. Erom a judgment for plaintiff, defendant appeals.
    Judgment reformed, and as reformed affirmed.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellant.
    Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellee.
   HU'FE, C. J.

Prior to the 16th day of March, 1917, the city manager of the city of Amarillo published a notice that he would receive sealed bids for two separate paving bond issues, one for $10,000 and the other for $40,000, requiring the bidders to tender with their bids certified checks, one for $200 and the other for $800. Slayton & Co., of Toledo, Ohio, having learned of such notice, after considerable correspondence submitted the following proposition:

“M. C. Hardin, City Mgr., Amarillo, Texas.
“Dear Sir: Eor $10,000 paving bonds to be issued by the city of Amarillo, Texas, to bear date of March 14th, .1917, to mature as specified in the Notice to Bond Buyers, copy of which notice you have furnished us, to bear interest at the rate of 5 per cent, per annum, payable annually, both principal and interest being payable at the city depository, Amarillo, Texas, or at some bank in the City of New York, N. Y., said bonds to be in the denomination of $1,000.00 each, we will pay you when delivered to us in Toledo, Ohio, the par value of said bonds, plus accrued interest to date of delivery, plus a premium of $15.70 on each $1,-000.00, or the total premium of $157.00.
“Eor $40,000 paving bonds to be issued by the City of Amarillo, Texas, to bear date of March 15, 1917, to mature as specified in the Notice to Bond Buyers, a copy of which notice you have furnished us, to bear interest at the rate of 5 per cent, per annum, payable annually, both principal and interest being payable at the city depository, Amarillo, Texas, or some bank in the city of New York, N. X., we will pay you when delivered to us in Toledo, Ohio, the par value of said bonds plus accrued interest to date of delivery, plus a premium of $50.71 on each $1,000 of said bonds, or the total premium of $2,028.40.
“Prior to taking up and paying for said bonds, we are to be furnished with a full and complete certified transcript of the record of proceedings leading up to and culminating in their issuance and delivery to the satisfaction *of our attorneys.
“We inclose herewith resolution of award form, which kindly have adopted, and after it has been signed and sealed with the corporate seal, return to us.
“We inclose two certified checks for $200 and $800 respectively, to be held by you as a guaranty that we will carry out the terms of this bid, if it is accepted, and to be returned to us in the event of its rejection.
“In any event, kindly furnish us with a list of the bids and bidders, by means of the inclosed form.
“Very truly yours,
“W. B. Slayton & Company.”

Several other parties also placed bids with the city manager. Slayton. & Co., being the highest bidder, were awarded the issue of bonds. In compliance with his proposition he called for a transcript of the records of proceedings leading up to, and culminating in, the issues of the bonds, to be submitted to his attorney for examination and satisfaction. After some delay the transcript was procured, but was first submitted to the Attorney General’s Department of the state of Texas, who approved the issuance of the bonds, and gave his certificate to that effect, and 'the bonds were then registered with the Comptroller of the state of Texas, and the transcript, together with the certificate of the Attorney General, was forwarded to Slayton & Co., which it submitted to their attorney, I-I. E. Thurs-ton, who upon examination gave the following opinion:

“Harry E. Thurston, Attorney at Daw, Toledo, Ohio.
“April 24, 1917.
“W, D. Slayton & Co., Toledo, Ohio:
“Re $40,000 Amarillo, Texas, paving bonds.
“Re $10,000 Amarillo, Texas, paving bonds.
“Gentlemen: At your request I have examined the transcript of the record leading up to the issuance of the above bonds, one issue of $40,000 in denominations of $1,000 each, bearing interest at the rate of 5 per cent, per an-num, maturing serially one to forty years, and one issue $10,000, bearing interest at the rate of 5 per cent, per annum, in denomination of $1,000 each, maturing one to ten years. The charter of the city of Amarillo, Texas, art. 4, section 1, provides that ‘due notice of such election shall be published once each week for three consecutive weeks in one or more newspapers published in Amarillo, which said notice shall state tha nature and purpose of said election.’ Notice of the election was published in the Daily Panhandle on the 15th, 22d, and 29th day of January. Said published notice provides that bonds amounting to $50,000, payable serially from one to forty years after date, shall be voted upon. Later by ordinance the $50,000 bonds were divided into two issues, one for $40,000 maturing serially one to forty years and the other for $10,000 maturing serially one to ten years. Such notice does not identify and legally describe these two issues, and it is my opinion that such notice should have definitely described these two issues as was provided later by ordinance. One issue of bonds was voted upon with one maturity, while two issues are now provided for, with two distinct maturities. For this reason I am therefore unable'to approve these bonds.
“Your attention is also called to the statement entitled, ‘Information Relative to Bond Issues,’ dated February 16, 1917, wherein the assessed valuation is set forth as $9,000,000. The statement is signed by M. H. Hardin, City Manager. The transcript states that the assessed valuation of said city is $8,827,506.
“Regretting that it is impossible to give you my approving opinion, I am¡
“Respectfully yours.”

Upon tlie disapproval of the transcript by Thurston, Slayton & Co. notified the city of such fact, and requested, the return of their two checks, one for $200 and the other for $SOO. This the city declined to do, and proceeded to collect the same; but by notice to the bank the appellee succeeded in stopping payment on the $200 check, but failed to stop payment on the $S0CN check, which appears to have been collected by the city; and this suit is by Slayt<m & Co. to recover that sum of money, together with interest. The city, by answer, set up the fact of the advertising for bids, the acceptance of Slayton’s bid, and the issuance of the bonds, and the fact that the Attorney General had approved the bonds as valid obligations against the city, and that the opinion of the attorney that they were invalid for the reason stated by him. was not made in good faith, but that it was arbitrary and unwarranted; and the city also sought to recover the $200, evidenced by the check upon which payment was stopped; and also sought to recover the difference between the bid made by Slayton on the bonds over and above the face value of the bonds, which bonds it was alleged they were subsequently forced to sell at such face value, the amount of which they claimed to be $2,185.40. After •the introduction of the evidence the trial court instructed a verdict for appellee, Slay-ton, and upon the verdict so rendered entered judgment .for appellee for the sum of $800 and interest.

Appellee asserts that the evidence was sufficient to carry the case to the jury, and relies upon circumstances to that effect. The appellee and the attorney testified that they were acting in good faith, and that the opinion given by the attorney was given in good faith, etc. It seems from the testimony that Thurston was an attorney for Slayton & Co., and officed in the same building with that company; that he possibly prepared the proposition for Slayton, signing Slayton & Co.’s name, by himself; and that the transcript of the proceedings of the city of Amarillo, preceding the issuance of the bonds, was presented to him on one day, and on the next day he gave to the appellee his written opinion heretofore set out. It appears that, after the bid was accepted by the city, a declaration of war between this country and Germany was declared, and the market value of municipal bonds declined. The list of the other bidders for the bonds is set out in the record, and it is shown that the appellee bid a premium at least one-third more than the next highest bidder, and that after the acceptance of the bid the appellee wrote appellant for the list and the bids made by other parties ; and it is claimed also as a circumstance that, in answering the interrogatories propounded to Slayton and Thurston, Thurston read over with Slayton the interrogatories, and seems to state that he explained to him certain legal questions. This, perhaps, will be sufficient statement of the facts to understand the opinion.

The appellant assigns errors attacking the action of the court in instructing the verdict and in failing to submit an issue to the jury as to whether or not Thurston, in disapproving the transcript furnished him, acted in good faith, or whether he acted arbitrarily and fraudulently, and also attacks the verdict and the failure to submit the question as to Slayton’s good faith.

We do not find in this record a certified transcript of the record of the proceedings from the city of Amarillo leading up to the issuance of the bonds, or the one furnished by the city to Slayton & Co., or to the Attorney General, upon which his certificate was issued. The only statement with reference to what was contained in the one examined by I-I. B. Thurston, as attorney for appellee Slay-ton, is that set out in his opinion heretofore quoted. It will be perceived he states that the bond issue was one for $40,000, in denominations of $1,000 each, bearing interest at the rate of 5 per cent, per annum, maturing serially, one to forty years, and one issue of $10,000, the same rate of interest and denominations, maturing one to ten years; that the notice of election provides that bonds amounting to $50,000, payable serially, one to forty years; that later, by ordinance, the $50,000 bonds were divided into two series — one for $40,000, maturing serially, one to forty years, and the other for $10,000, maturing serially, one to ten years; that the said notice of election does not identify and legally describe these two issues. He' quotes from the city charter, art. 4, § 1, that “due notice of such election shall be published once each week for three consecutive weeks, in one or more newspapers, * * * which notice shall state the nature and purpose of said election.” Mr. Thurston gave it as his opinion that such notice should have definitely described the two issues, as was provided later by ordinance. “One issue of bonds were voted upon with one maturity while two issues are now provided for with two distinct maturities.” Section 1, art. 4, of the charter, also provides: “Before the issuance of any bonds the same shall be submitted to a vote of the qualified property tax paying voters of the city, and should a majority at such election vote in favor of issuing the boDds,” etc.; also it is provided that in the issuance of bonds that a levy of tax be made to pay the interest and create a sinking fund, and that they could not be issued for a period of time to exceed forty years. “All such bonds shall be submitted to the Attorney General of the state for his approval and the Comptroller for registration, as provided by the state law, provided that any such bonds after approval may be issued by the city, either optional or serial, or otherwise, as may be deemed advisable by the governing authority.” It is urged in this case that the opinion of the attorney for appellee was arbitrary, unreasonable, and frivolous, and that the evidence raises the issue of bad faith on his part in giving the opinion. We think if the tra'nscript submitted to the attorney showed as stated in his opinion (and this is not shown to be untrue), the question raised by him presented a serious question, and one which a cautious attorney would not treat lightly or advise his client to disregard. Whether he was correct or not, or whether the courts would finally uphold the issue of the bonds or not, the objection was not trivial or unreasonable. This court held, speaking through Mr. Justice Boyce:

“It would be dangerous to hold that the commissioners’ court could recite in its order for the election one purpose or proposition, and by some other action or order, not made a part thereof, and not referred to in the official notice of the election, inject into the proposition limitations or conditions so that the actual result of the election would be to carry a different proposition from that actually voted on according to the official record and notices of the proposition submitted.” Grayson County v. Harrell, 202 S. W. 160.

In this holding he followed the ruling of the Supreme Court of this state in the case of Moore v. Coffman, 200 S. W. 374, and the Et. Worth Court of Civil Appeals, Id., 189 S. W. 94. Our state statute with reference to giving notice to voters on bond issudd is contained in article 606, R. C. S., and is more specific than that of the charter of the city on that subject. Nevertheless) “due notice” must be given under the city charter. Under the state statute it has been held bonds payable in forty years and redeemable in ten years are unauthorized by a vote on issuing bonds payable in forty years and redeemable in five years. Simpson v. Nacogdoches, 152 S. W. 858. As we conceive it, the purpose of the notice is to inform the voter on the proposition upon which he is called to cast his ballot. If the vote cast is upon notice of one kind of bond, and the city issues another bond, with different terms, such bond is issued without having been submitted to the voters as the city charter requires. The appellant asserts that under the certificate of the- Attorney General all defects, except forgery or fraud, or the question of a bond issue in excess of the limit fixed by the Constitution, or issued contrary to the provisions of the Constitution, are cured. It should be noted that the statute, art. 625, only makes the certificate of the Attorney General as to the bonds “prima facie valid and binding obligations” in every action or suit or proceeding in which their validity is brought into question. That article also has a proviso that the only defense which can be made to them is forgery or fraud and their unconstitutionality. The articles of the statute require the certificate to be obtained before the sale of the bonds. The question, it seems to us, which would naturally suggest itself to the mind of an examiner is whether Ms client before the purchase of the bonds, and before the payment therefor, having learned that the bonds had been issued illegally, could under such ,facts claim estoppel by virtue of the statute and the Attorney General’s certificate; or whether he might not be charged with, participating in a fraud in procuring the circulation of the bonds of the municipality which had been illegally issued. Whatever the law or rule may be, or would be determined to be by the courts, under the circumstances surrounding the transcript furnished the attorney for examination, we do not think the objection so made by him trivial or unreasonable. We think, if the transcript was as Mr. Thurston stated it, that, as an honorable lawyer, his duty to his client required him to point out the defect. City of San Antonio v. Rollins, 127 S. W. 1166; Landrum v. Buford, 29 Tex. Civ. App. 62, 67 S. W. 1066.

The stipulation in the proposition or bid for the purchase of the bonds, to the effect that the transcript of the proceedings leading up to the issuance of the bonds should be satisfactory to the appellee’s attorney, was, we tMnk, a condition precedent necessary to obligate appellee to take the bonds. Such provisions as contained in this contract are usually sustained by the courts. The language used in this contract required the approval by the appellee’s attorney of the bond issue, and tMs was a condition precedent to the completion of the purchase.

“If a contract of sale of something already existing is expressly made subject to the approval of the purchaser, or of some one for Mm, and such approval involves personal judgment or opinion, the person whose judgment is required is made the sole arbiter, and his decision is conclusive, provided he really passes upon the question, and reaches a conclusion honestly, whether his conclusion is right or wrong. The parties have stipulated for his opinion, not for the decision of the judge or jury, and there is no such reason for reviewing the opinion as in a different class of cases hereinafter referred to. In fact, justice requires that the party who has sought to protect himself by such a stipulation be afforded the protection intended.” Thurman y. City of Omaha, 64 Neb. 400, 90 N. W. 233; Sanger y. Slayden, 7 Tex. Civ. App. 605, 26 S. W. 847.

When the opinion so given is assailed as fraudulent, not in good faith, or a mere pretense, the burden is on him who assails it. Fraud is not presumed, and, though it may be inferred from circumstances, such inference must not be guesswork or conjecture, but must be a rational arid logical deduction from the circumstances found. Authorities above cited; and we also cite the following cases bearing on the question here involved, some of them almost identical with the facts in this case: U. S. Trust Co. v. Town of Guthrie Center (Iowa) 165 N. W. 18S; ..City of Great Falls v. Theis et al. (C. C.) 79 Fed. 943; Bussell, Kinnicutt & Co. v. Joint Sch. Dist. No. 1, 165 Wis. 654,163 N. W. 167; Trowbridge v. City of New.York, 24 Misc. Rep. 517, 53 N. Y. Supp. 616; Webb & Co. v. Trustee of Morganton Graded School, 143 N. C. 299, 55 S. E. 719; Church v. Shanklin, 95 Cal. 626, 30 Pac. 789,17 L. R. A. 207; Allen v. Pockwitz, 103 Cal. 85, 36 Pae. 1039, 42 Am.. St. Rep. 99; Thompson v. Dickerson, 68 Mo. App. 535; Flanagan v. Fox, 6 Misc. Rep. 132, 26 N; Y. Supp. 48.

The appellee, as a condition precedent to the purchase of the bonds, was entitled to the favorable opinion of his lawyer. The opinion being adverse to the legality of the bonds under appellee’s proposition, there could be no obligation on his part to take the bonds at the price bid, and his good-faith money should have been returned. Certainly under his contract he had not forfeited it.

In order to retain the money the burden was on appellant to show bad faith in rendering the opinion. As above seen, we do not think the grounds for the opinion unreasonable or trivial. The facts relied on to establish bad faith are that the attorney who rendered the opinion was the general attorney for appellee; that he officed in the same building with appellee; that he wrote the proposition and bid for appellant, signing the name of the company by himself; that before the opinion appellee obtained the bids by other parties on the bond issue, and that ap-pellee’s premium bid was at least one-third higher than the highest bid made by the other bidders; that after his bid, on account of the war, the market value of the bonds declined; that appellee sought to stop payment of the draft or checks deposited with appellant, and that he first asserted, after demanding the return of his check, that the bank would be liable to him for paying the check, but that he later had doubts as to its liability and sued the appellant for the money obtained on the check. From these circumstances we cannot conceive how an inference may be drawn, as the rational and logical deduction, that the opinion of the attorney was not honest, or was made in bad faith, or was a mere pretense. The jury perhaps could have bridged this hiatus on a guess or conjecture that it was the result óf a collusion to avoid the contract by appellee, but they would have to go far afield in the realm of guesswork or conjecture to construct such a bridge. We believe the court properly instructed a verdict.

It is insisted in the supplemental brief of appellant that the only stipulation for the return of the cheeks is in case the bids are rejected, and that there is no stipulation that the checks were to be returned to Slayton if Thurston rejected the transcript or bonds. As we interpret the proposition, the satisfaction of appellee’s attorney with the bond issue was made a condition to appellee’s obligation. Certainly, under this contract, his good-faith money was not forfeited if the condition precedent was not complied with. The appellant having failed to furnish such transcript as would satisfy the attorney of the condition upon which the proposition was made, of which the good-faith money was a part, the appellee was entitled to recover the money so deposited. Authorities supra; also Moore v. Price, 46 Tex. Civ. App. 304, 103 S. W. 234; Foster v. Eoff, 19 Tex. Civ. App. 405, 47 S. W. 399; Loring v. Oxford, 18 Tex. Civ. App. 415, 45 S. W. 395; Wright v. Bott, 163 S. W. 365 (14 and 15).

The thirteenth assignment is to that portion of the judgment with reference to the mayor, city manager, and commissioners, and who are ordered and commanded to proceed forthwith to provide, by required mode and manner of taxation, to pay the sum recovered. The cause of action is for money had and received and interest thereon. No mandamus was sought by the petition to compel the levy of taxes to pay the judgment recovered. That part of the judgment complained of is. as follows:

“And it is further ordered that defendants, commissioners, to wit, Lon D. Marrs, mayor, W. E. Cazzell and John R. Trollinger, commissioners, and A. D. Armstrong, city manager, and their successors in office, are hereby ordered, required, and commanded to proceed forthwith to provide by regular mode and manner of taxation, and pay said sum of money to plaintiff in course of administration of the defendant’s business.”

The pleadings did not authorize any such extraordinary mandate on the part of the court. It is not shown that a tax levy is necessary or that the general fund is not sufficient to pay the judgment. These matters were not investigated in the trial court, and in fact not an issue. There is no allegation that if the judgment is obtained the city, or its officers, would refuse to do their duty. The judgment is mandatory, and enters the domain and powers of the city, without an allegation or proof that it would not perform its duty; but the judgment assumes that it will not do so. This was not a mandamus proceeding, but the judgment rendered is as drastic as if tbe city officers had willfully refused to do their duty. Mandamus should not be granted unless the petition showed every fact necessary to entitle tire relator to the relief sought. City of Sherman v. Langham, 92 Tex. 13, 40 S. W. 140, 42 S. W. 961, 89 L. R. A. 258; Munson v. Terrell, 101 Tex. 220, 105 S. W. 1114; Ewing v. Commissioners, 83 Tex. 663, 19 S. W. 280. The judgment rendered has no support in the pleadings and there was error in so rendering it. The judgment will be here reformed so as to omit that part of it set out herein, and as reformed will be affirmed, but the costs of the appeal will be taxed against the appellee.
      <§saFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indoxcs


text:
    CHALK v. COLLIER.
    (No. 1453.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1919.
    Rehearing Denied Feb. 19, 1919.)
    1. Partnership <&wkey;101 — Joint and Several Liability of Members — Contribution.
    When partnership business was wound up, entailing loss represented by balance due on a note at bank, if one partner paid bank more than his share, he was entitled to contribution.
    2. Partnership &wkey;>101 — Assumption of Debt by One Partner — Liability of Others.
    Where one of four partners on winding up of business assumed payment of firm’s indebtedness, there was several liability on part of each of other three partners to pay him one-fourth of loss.
    3. Partnership <&wkey;101 — Assumption of Indebtedness by Member — Contribution — Insolvency.
    If any of partners liable to contribution in favor of one who had assumed entire firm indebtedness were insolvent, liability of others might be proportionately increased, but insolvent would remain liable for contribution to those paying, and might be compelled to pay them if he thereafter became able.
    4. Partnership <&wkey;101 — Assumption of Indebtedness — Contribution—Settlement.
    Liability for contribution of each of partners in firm whose entire indebtedness was assumed by one being several, assuming member of firm, entitled to contribution from others, could make such settlement of their several liabilities to him as he might see proper.
    5. Partnership <&wkey;101 — Assumption of Indebtedness-Contribution by Partners— Settlement with Two Partners — Effect on Another.
    Partner who assumed firm’s indebtedness could not make settlement with two other partners of their several liabilties to him in way of contribution, without concurrence of third partner, if settlement would increase third partner’s liability, or deprive him of any rights against other two contributing partners.
    6. Partnership <&wkey;>101 — Contribution—Settlement.
    Where a partner having right of contribution from three other partners settles without assent of third partner with other two for less than their proportionate part, third partner cannot be held liable for more than his proportionate part.
    7. Fraud <&wkey;27 — Deceit of One, Partner by Another.
    One of four partners, who, at time of settlement between him and another partner who had assumed entire firm indebtedness, was only liable for payment of fourth of loss, and was induced by fraudulent concealment and representation of facts by partner who had assumed indebtedness to pay more than he owed by way of* contribution, had a cause of action.
    8. Partnership <&wkey;242(3) — Partnership Transaction — Assumption of Firm Debt-Action — Parties. '
    Two of four partners, with whom another member of firm, who had assumed its entire indebtedness on winding up of its business, had settled his claim for contribution from them, held not necessary partie% to suit against such assuming partner by fourth partner to recover the difference between what he had paid assuming partner and amount he was legally liable to contribute.
    Appeal from District Court, Motley County ; J. H. Milam, Judge.
    Suit by R. L. Collier against J. W. Chalk. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    G. E. Hamilton, of Matador, for appellant. Bouldin & Surles, of Matador, and W. D. Wilson, of Spur, for appellee.
   BOYCE, J.

The record in support of the judgment authorized the court and jury trying this case to find the following facts: That appellant, Chalk, appellee, Collier, C. E. Klineike, and Martin Gray formed a partnership for the purchase, handling, and resale of a particular bunch of cattle. Klineike and Gray were to be silent partners, but all parties were to share equally in the profits and losses resulting from the partnership. The completed transaction resulted in a loss represented by the balance due on a note executed by Chalk and Collier, payable to a Ft. Worth bank, which balance at the time of the settlement between Chalk and Collier, later referred to, amounted to the sum of $10,702. In anticipation of his individual payment of this balance, Chalk, in the summer of 1914, secured Klineike and Gray to execute and deliver to him their respective notes, for the sum of $2,175 each, payable three years after date, and also their joint note for the sum of $600 payable in six months. When he took these notes he agreed with them that he would individually pay the partnership note due the bank, and, in effect, that the said Klineike and Gray should be released from any liability other than on the notes so executed to him. Later appellant Chalk paid the note at the bank, and in October, 1914," whether before or after such payment is not clear, met Collier, for the purpose of arranging payment of Collier’s share of such loss. At this time Chalk represented to Collier that Klineike and Gray had refused absolutely to do anything; that nothing could be made out of them, and that he and Collier would have to pay the loss equally. By such representations he induced Collier to pay him one-half of the amount of such loss, to wit, $5,351, payment being made by Collier conveying to said Chalk certain land at an agreed valuation, and the execution of his note for the balance, in consideration of which Chalk had already paid or was to thereafter, individually pay said partnership note. Some time later Collier learned of the execution of the said notes by Klineike and Gray to Chalk and the agreement under which they had been made. The $600 note had been paid, but the other two notes were not due at the time of the trial. These facts were not uncontroverted; they vrere contradicted by Chalk’s theory of the transaction and testimony in support thereof, but since the court and jury found against him on his contention it is not necessary to here state fully his version of the matter.

Appellee Collier brought this suit, alleging the facts substantially as stated, seeking to recover of Chalk the sum of $2,675.50 less the balance then due on the note he had executed to Chalk, and obtained judgment as prayed for. The only assignment on this appeal complains of the refusal of the trial court to enter judgment on Chalk’s motion in favor of Collier against Chalk for an undivided one-half interest in the Klineike and Gray notes, and in favor of Chalk against Collier for the balance due on the note that had been executed by Collier to Chalk in said settlement agreement.

When the partnership business had been wound up entailing a loss represented by the balance due on the note at the Ft, Worth bank, each partner, of course, was liable, jointly and severally, to the creditor and equally among themselves for the payment thereof, and if one of them paid more than his share of the debt he was entitled to contribution from the others. Chalk’s rights against his copartners upon the assumption and payment of said indebtedness are to be determined by the application of the principles of the law of contribution. There was a liability on the part of each partner to pay him one-fourth of the loss. This liability was several and not joint. Faires v. Cockrill, 29 S. W. 672; Graves v. Smith, 4 Tex. Civ. App. 537, 23 S. W. 603. If any of those liable to contribution were insolvent the liability of the others might be proportionately increased, but the insolvent would remain liable for contribution to those paying, and might be compelled to pay to them if he thereafter became able. Since the liability for contribution of each of the partners was several, we see no reason why Chalk could not make such settlement of this several liability to him as he might see proper. He could not, of course, make a settlement with Klineike and Gray without the concurrence of Collier that would increase Collier’s liability or deprive him of any rights against Klineike and Gray. If he saw lit to settle with Klineike and Gray and accept anything less than full payment in cash of their proportionate part of their liability, without the concurrence of Collier, and at the same time agree with Klineike and Gray that what he received from them should be “in full satisfaction of what they owed on this transaction,” then the only way to protect both this contract and the rights of Collier would be to treat the settlement with Klineike and Gray as in full discharge of their entire share of the contribution, leaving the liability of Collier to be for the payment of only one-fourth of said loss, and we believe that this is the proper view to take of the matter. We find no Texas authorities that directly support this position, though it is in harmony with the general principles of the law of contribution and the specific holdings of our courts. The following authorities outside of this state are directly in point: Cummings v. May, 91 Ala. 233, 8 South. 790; Currier v. Baker, 51 N. H. 613; In re Wheeler, 1 Md. Ch. 80 — reference to which will be found in note on page 835, vol. 13, C. J.; Brandt on Suretyship & Guaranty, § 307. The following quotation from the syllabus of the decision in the Alabama case fairly states the holding of the court:

“Where a surety by agreement accepts from some of his cosureties less than their share, and pays the surety debt, releasing such sureties from further liability, he cannot deny that they were solvent and good for their full proportion; and» so a cosurety, who was not included in the agreement, can only be made to contribute such amount as he would have been liable for if the released sureties had contributed their full share.”

If we are correct in this conclusion, Collier, at the time of the settlement between him and Chalk, was only liable for the payment of one-fourth of the loss, and if he was induced, by the fraudulent concealment and Representation of the facts by Chalk, to pay more, he had a cause of action for damages for deceit and is entitled to recover the difference between what he paid and what he was legally liable to pay. We think, therefore, that the proper judgment was entered in this case. The judgment tendered by appellant would bind Collier by an agreement made with Klineike and Gray, without his'knowledge and consent, and not in accordance with what his rights would have been against such parties. It cannot be held, we think, that such an agreement would be binding because of the partnership. In these transactions the parties were dealing with each other as individuals and for their individual benefit.

We are inclined to think that the evidence would be sufficient to raise an issue of fact as to the solvency of Klineike and Gray. While Chalk testified that he investigated their financial condition and “found them absolutely insolvent,” there were some circumstances that indicated that this might not be true: for instance, they paid the $600 note when it became due, and there is some other testimony to show that they were interested in other business ventures. The jury discredited Chalk’s evidence in other particulars, and might have done so in the consideration of such an issue had it been submitted. We do not think, however, that a finding on this issue is material to a decision of the case.

It was suggested, upon the submission of the case on oral argument, that perhaps Klineike and Gray were necessary parties to this suit. The suggestion was made on the idea that the suit involved an accounting between partners, and all partners were necessary parties to such a suit. We are convinced, however, that there was no necessity for making Klineike and Gray parties. The affairs of the partnership had been wound up, and the loss, about which there was no dispute, consisted in a definite balance due on a certain note. The agreements between the parties in this case were all had on this ■theory and related to the matter of contribution. There was no necessity for an accounting under such facts. Long v. Garnett, 59 Tex. 232; Bates on Partnership, 861, 866.

We think the judgment of the lower court should be affirmed.
      c£^Fo.' other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    SNYDER v. SLAUGHTER et al.
    (No. 1455.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 15, 1919.
    On Motion to Retax Costs, Feb. 18, 1919.)
    1. Novation <&wkey;7 — Assumption of Debt-Acceptance.
    Where plaintiffs sued to recover on an agreement whereby appellant assumed a debt of another and became primarily liable, the suit itself is a sufficient acceptance by plaintiffs of the assumption. «
    2. Principal and Surety <&wkey;140 — Judgment against Surety.
    Under Rev. St. arts. 1842 and 1S97, a judgment cannot ordinarily be had against a person secondarily liable until a judgment is had against the principal obligor.
    3. Partnership <&wkey;104 — Action between Partners — Nature and Form.
    Where one partner appropriated to his individual use a sum of money which was to have been used in discharging a debt for property acquired by the other partner and delivered to the firm, the other partner cannot maintain an action of assumpsit, but should sue for an accounting.
    4. Partnership <&wkey;139 — Contracts — Entity.
    While a partnership is not recognized as an entity, yet partnership contracts and undertakings are determined and adjusted under the rules of law and equity governing that relation.
    5. Partnership <&wkey;219(l) — Actions—Judgment.
    In an action on a note given in payment for bulls-bought by first defendant and delivered to a subsequently created partnership between himself and second defendant, held that under the pleadings and evidence a judgment for plaintiff for the full amount against the first defendant and in his favor for half the amount of the note against the second defendant was improper.
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by Herring & Son against R. L. Slaughter and Marcus Snyder, in which the defendant Slaughter crpss-petitioned against the defendant Snyder. From the judgment for plaintiff against the defendant Slaughter, and in favor of such defendant over against the defendant Snyder, the latter appeals.
    Reversed and remanded.
    L. W. Sandusky, of Colorado, for appellant.
    Yeale & Lumpkin and Madden, Trulove, Ryburn & Pipkin, all of Amarillo, for appel-lees.
   HUFF, C. J.

The appellees, Herring & Son, brought suit against R. L. Slaughter and Marcus Snyder, on a note for $1,375, dated May 10, 1916, due six months after date, with a credit thereon of $275, made May 23, 1916, executed by R. L. Slaughter, with interest from date at 10 per cent, per annum, and for 10 per cent, attorney’s fees, provided for in the note. After the necessary count on the note the plaintiffs allege they had been informed by R. L. Slaughter, “and upon such information and belief thereof they charge that thereafter the said defendants, R. L. Slaughter and Marcus Snyder, made and entered into their certain contract and agreement, by which defendant 'Slaughter sold and delivered to the defendant Snyder certain bulls and cattle which the said Slaughter had bought from the plaintiffs, and as part of the consideration thereof the defendant Marcus Snyder assumed obligation and bound himself to pay to the plaintiffs the said sum of money called for in said note and to discharge said note according to the terms and provisions thereof.” That by the execution of the note R. L. Slaughter became liable to the plaintiff according to its terms, and by the assumption of its payment Snyder likewise became liable, etc. The defendant Slaughter admitted, as true, the allegations in the petition, and by cross-petition against Snyder alleged that the note sued on was executed by him for certain bulls purchased from plaintiffs, “and that soon after the execution and delivery of said note .this defendant sold said bulls and other cattle to the defendant Marcus Snyder, and as part of the consideration of such sale the said defendant Marcus Snyder agreed to assume and pay to plaintiffs herein the note mentioned and described in paragraph 3 of plaintiffs’ original petition, as is fully alleged in the fourth paragraph of plaintiffs’ said petition (above set out in quotation), and by reason of such sale and transfer the defendant Marcus Snyder became bound and obligated to pay plaintiffs said note according to its tenor, effect and reading, and by reason of the assumption and agreement to pay said note by defendant Marcus Snyder, and by reason of the fact that said defendant has failed and refused to pay same, this defendant, in case a judgment is rendered against him herein, is entitled to have and recover of and from the defendant Marcus 'Snyder a like judgment.” As to Snyder’s answer we copy from his brief:

“That he never at any time entered into any contract to purchase the cattle from defendant Slaughter, in which the note or any part thereof which is the subject of this suit was a part of the consideration, hut that he did purchase cattle by written contract, which will speak for itself; that he had long since paid the defendant Slaughter all that was due him for the purchase of the cattle, and that he was in no way bound to pay said note to plaintiff or any part thereof; that he should not be held by plaintiffs'for the reason that if he ever made any statement to plaintiffs relative to the payment of said note it was done purely as a gratuitous conditional guarantor, which was never accepted by said plaintiffs, and therefore not binding on him.”

The evidence shows substantially that Slaughter had leased four leagues of land, for which he had paid about $2,400, and on this he was ranching and holding the cows and steers; that there were negotiations between Slaughter and Snyder for some two or three weeks, which resulted in a contract between them. Slaughter sent a telegram to Snyder, which telegram has no date;

“Your offer is below cost but I want to join you so will sell half interest for thirty-five, all Mexican steers and cows, and forty for native Slaughter Company steers. Recently bought L. S. bulls at fifty-five. You will pay half at cost.”

Snyder answered by wire May 12, 1916:

“Will accept your proposition when you arrange to tally cattle. Are you coming to Dallas any time soon? If so will meet you there and straighten up our deal.”

They entered into a written contract, which is dated May 12, 1916, which recites: That Slaughter was the owner of a certain lease of four leagues of Coke county school land, which lease is dated January 1, 1916, and expires January 1, 1917, at the rate of 13 cents per acre per annum, and the owner of about 850 head of Mexican and Arizona cattle then on the land, which cattle were subject to a certain mortgage of $15,000, 8 per cent, interest given by Slaughter to the Bankers’ Trust Company of Dallas, and was also the owner of about 270 head of two year old Hereford steers on the land, which were subject to mortgage executed by Slaughter to C. C. Slaughter Cattle Company, Dallas, Tex., in the sum of $9,000, interest at the rate of 10 per cent., due December 31, 1916. That Slaughter was desirous of selling an undivided half interest in all the said property, subject to the mortgages, and Snyder was desirous of purchasing a one-half interest and assuming one-hálf of the mortgage on said property. It was therefore agreed to sell and purchase an undivided half interest in the property upon the terms and conditions following: The purchase price of all Mexican and Arizona cattle should be at the rate of $35 per head; all 1916 calves to go free. The price of the two-year old steers at the rate of $40 per head. That all of said cattle should be counted and the number determined on or before June 1, 1916, which should be the basis for the full amount to be paid by Snyder to Slaughter for the undivided half interest. From the date of the contract Snyder should be chargeable with and pay one-half of the rental on the land above mentioned, and each party should pay in equal proportion all expenses of counting the cattle, running, feeding, caring for, and marketing the same, and all incidental expenses connected with the handling of the cattle in every way, manner, shape, and form. That Snyder had that day paid $2,000 as a partial payment of the purchase price. That upon the completion of the count of the cattle as above mentioned, Snyder should make his note payable on or before six months from the date of the contract, with 8 per cent, interest. The amount of the note to be determined by the number of cattle at the price agreed upon less the $2,000 paid. That Snyder should have charge of the running, handling and marketing of the cattle, and that neither were to receive any salary or remuneration other than actual expense in connection with the handling of the cattle. It will be perceived the bulls are not mentioned in the contract which the parties reduced to writing. The note sued on was given to Herring & Son for the purchase price' of the bulls, and the note is dated May 10th, two days before the contract bears date. The evidence suggests that the purchase of the bulls and the execution of the note occurred while negotiations were in progress between Snyder and Slaughter. At the direction of Slaughter the bulls were shipped by Herring, and possibly consigned to the foreman of the C. C. 'Slaughter Company’s-ranch, but the evidence shows that Snyder got them from the foreman and placed them with the herd, one-half of which he had purchased, and for the use of that herd. On the 21st of May, after the contract, Snyder wired Slaughter that he had an offer of $40 for the cows and bulls, and later wrote, on June 15th, that he had sold the cows and bulls at $40, and suggested that, since they had lost part pf the pasture, he (Snyder) would purchase the rest of the steers at contract price, etc. In this letter he stated:

“I kept out enough money to pay for the bulls. They were from twelve to fifteen years old and one of them never did get to the ranch.”

He wrote again on the 28th of December. They had a lot of cattle on hand, and had to buy feed so that he was short of cash. “However, I will fix it with Mr. Herring. I am writing him to-day, asking him to extend the note until April 1st, and at that time I will take it up. I have also written him I would sign it also. I think this will be satisfactory with them. * * * As soon as I hear from Herring I will fix this up some way.” On the 25th of April, 1917, he again wrote, acknowledging receipt of a letter from Slaughter, stating that he could not understand Slaughter; that he had done well with the cattle, and had paid all expenses himself, and got all out of them that he could, but if Slaughter felt “that” way about it, to write what he would take in dollars for the rest and “clean up the deal.” “I would of paid Herring, but did not have the dough.” He asked Slaughter to state how many thousand dollars he wanted, and if satisfactory he would send Slaughter his check. Again, on May 6, 1917, he wrote Slaughter, stating he knew what they had up there and what they sold; that the cattle that they had left are the “tail end,” as he knew; that he had paid all the .expenses since he took charge, and if Slaughter wanted to get his money out and wind up that he would give him $7,000 and take over the cattle they had left; that they would not bring near that money; that he was just doing it to clean up the deal. 'Slaughter testified: That in about 10 days after the last letter they dissolved the partnership, and he accepted Snyder’s offer of $7,000, which was paid him. That there was nothing said at that time about Slaughter still owing the note. Snyder said everything was paid up, and no details were called for. Snyder did not account to him in any way for the price received in the sale of the bulls, “other than to put them in the business.” That the price received for the bulls made a loss, “but he was probably making some money on the rest of the cattle so that he could afford the loss.” In testifying as .to Snyder’s letters, in which he had stated that he kept out the money for the Herring note, and that he used that money for other purposes, “I suppose in the business, and later he agreed to pay Mr. Herring;” that Snyder did not offer to pay him for the bulls, but it was to go to Herring; that at the time the partnership was formed they had three obligations; and that he stood responsible on all the obligations, and Snyder was'to stand his part. By the contract Snyder was to give his note, bfit never did, and none was ever demanded. He testified that when he closed out with Snyder he believed the Herring note had been paid “because Snyder told me that.” That at the time he received the $7,000 in winding up he believed that the Herring note had been paid, else he would not have accepted the $7,000. On cross-examination Slaughter testified that at the beginning of the negotiations with Snyder for all the cattle there were no bulls and none mentioned, but whether the deal went through or not it was necessary to have these bulls, so he (Slaughter) went ahead with the bull deal which he closed in the meantime. That having talked to Snyder “the last time” he closed the bull -deal and sent the telegram, notifying him the (bulls had been purchased, and that he must take a half interest in them, which he accepted. In referring to the contract drawn between them he said:

“There is no provision in the contract with reference to the Herring bulls.” “They were a side deal, which was made after we had agreed on the contract.” “My sale of half interest in these cattle to Snyder was not based upon the proposition that Snyder was to pay me for half the bulls and then take up the Herring note in addition thereto. The Herring note was practically the same as the two notes payable in Dallas to the Bankers’ Trust Company. Snyder was not on the Dallas notes, but he paid them out of the' company fund the same as he should have paid the Herring note. I never even took Mr. Snyder’s note for any of that stuff.”

He further testified:

That Snyder did not pay him, but had to pay some one else, and, instead of paying Slaughter, Snyder was to pay up their obligations “out of our funds. We agreed there would be no division, and we would draw no profits until the obligations had all been paid. I paid $2,400 for my lease, spot cash, just previous to making the deal with Mr. Snyder, and he paid me back $2,000, and we started the deal in good faith after that, and he was to take up the obligations as they came due, these different notes, and he did take them all up except the Herring note. He postponed that after many assurances that he would take it up presently. One time he said he had the money in the bank for a while, and then later he found it was necessary to use it. We were getting along all right, and he would take it up and pay it, and if he had taken up that note everything would have been all right. All these notes went with the cattle and the horses, and everything. Notes and property all went in together, and he was to pay off everybody else before he or I, either one, used any money, and if there was any profits left we would divide it.”

Snyder testified, in substance: That at the time of entering into the contract with Slaughter he (Slaughter) owed the two notes mentioned in the contract, $15,000 and $9,000, respectively. After closing the deal he sold 328 head of cattle for $40 a head. The bulls were included in the number, and that he paid the Bank & Trust Company, and later he shipped some steers to Ft. Worth and sold them and took up all of Slaughter’s paper and cleaned up the debts. After paying these debts and the running expenses there was not a nickle left of the proceeds which had been received from the sales up to that time. That he carried the expense account himself for a long time until he sold the cattle, and that he deducted the proceeds from what he had been out, and there was no money coming after the two notes were paid. That after the above sales they had 231 cut-back steers, which he afterwards bought from Slaughter at $7,000. At the time he bought Slaughter’s interest he asked Slaughter if he paid the Herring note, and he said it was all clear, and there were no debts at all. That he knew there were no debts if the Herring note had been paid, because he had cleared all others. He also stated with reference to his statement in the letters that he would hold out the money to pay the Herring note. “I will say I tried to hold it out, and the Bankers Trust Company would not let me.” That he bought the remainder of the cattle from Slaughter for $7,000, and he told me at that time that the Herring note and all were settled, and that there was no indebtedness whatever on the cattle. He admitted writing a letter to Herring that he would pay the note and asking for time, and in doing that he thought he was accommodating Herring, that he was trying to help Herring work the money out of the cattle, and that he was trying also to accommodate Slaughter and to work the money out of the cattle to pay for the bulls for Slaughter. Slaughter was recalled, and testified:

“I absolutely did not tell Mr. Snyder at ■Colorado City on the Sunday I had my negotiations with him that I had paid the Herring note.”

On the 28th of December, 1910, Snyder wrote Herring that:

He was in, receipt of a letter from Slaughter in regard to the note held by Herring against him for some bulls. “I told Mr. Slaughter I would take this note up. I had to sell my calves last fall on credit, the 1st of April, and it has put me short on cash, so I am going to ask you to extend this note until April 1st, and I will indorse it and see that it is paid at that time.”

Herring shows he received the letter and afterwards wrote Snyder to the effect that if he expected to pay the note, it was due, and he would like to have him 'do so; that he knew nothing about the transaction between Slaughter and Snyder, except as was written in the letter. The testimony shows that, in order to ascertain the amount of money due Slaughter for sale of a half interest in the cattle, no count was ever made of the cattle, except as they were afterwards sold by Snyder and no demand was made for a note or for a count of the cattle, as provided for in the contract.

The case was submitted to the jury upon but one issue: “Did R. L. Slaughter at the time he sold his interest in the ranch and cattle, owned by Slaughtér and Snyder as partners, represent or state to the defendant Snyder that the note in the suit had already been paid by defendant R. L. Slaughter?” The* jury answered, “No.” The court rendered a judgment in favor of Herring & Son for the principal, interest, and attorney’s fees due on the note, $1,448.62, against R. L. Slaughter alone, and adjudged that R. L. Slaughter recover judgment against Snyder for one-half of the recovery, $724.31.

Snyder appeals from the judgment. His first assignment is based on the refusal of an instructed verdict in his favor. His proposition substantially is that there were no pleadings or evidence upon which to base a verdict and judgment against him.

The second assignment asserts error in the action of the court in submitting the issue he did for the reason that there was only one issue under the pleadings. That is: “At the time defendant Snyder purchased a one-half interest in the cattle from Slaughter as part of the consideration therefor, did Slaughter assume payment of the note in controversy?” Third the court erred in rendering judgment in favor of Slaughter against Snyder for one-half of the judgment rendered for plaintiffs against Slaughter, because the court evidently rendered judgment on the theory that the note was a partnership debt when there was no allegation, either in the original petition or cross-action of Slaughter, that Slaughter was a partner with Snyder. Both Herring & Son and Slaughter present cross-assignments, based on a request for an instructed verdict in their favor, and 'Slaughter also reguested, the submission of an issue as to whether Snyder assumed payment of the note as part of the consideration in the sale and purchase of the cattle.

The pleadings of Herring and Slaughter set up the individual liability of Snyder to pay the note in suit; that is by assumption he became the primary obligor and Slaughter secondarily liable thereon. Herring & Son, by accepting the contract of assumption, agreed to accept Snyder as the principal obligor and to look to him as the principal, so that as to all parties in the suit, under the pleadings, the relation of principal and surety existed between Snyder and Slaughter. This would not be true as to Herring & Son, if they did not accept the assumption, even though they may have had notice. This suit, however, being based on the assumption, perhaps would be sufficient as to an acceptance on their part. Shapleigh v. Wells, 90 Tex. 110, 37 S. W. 411, 59 Am. St. Rep. 783; Abernathy v. McDougle, 187 6. W. 503; Newby v. Harbison, 185 S. W. 642; Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 R. R. A. (N. S.) 672.

In considering what judgment this court would be authorized to render or whether we could affirm in part and reverse in part, it has occurred to us that if Herring’s contention be true, as is insisted on by them in this court, that is, that Snyder is t the principal obligor, then under the pleadings possibly we would not be authorized to render judgment for them against Slaughter alone, for under the pleadings he is only a surety. A judgment cannot be had ordinarily against a person secondarily liable until a judgment is had against the principal obli-gor. R. C. S. arts. 1842 and 1897.

This being the state of the pleadings, could the court, under the evidence showing a partnership debt by assumption, make Snyder liablé for one-half of the debt to Slaughter? Just how the court reached this conclusion we are not advised, but, as we conceive it, he must have determined either that it was a partnership debt or that it was not a partnership debt, and that by agreement Snyder assumed to pay one-half of the obligation, which in either event there were no pleadings authorizing the judgment. If the pleadings and evidence established either of such deductions, Herring & Son should have had judgment, if it was a partnership debt against both Snyder and Slaughter for the entire debt; but if it was nothing but an undertaking on the part of Snyder to pay one-half of the debt, then Herring & Son should have had judgment against Slaughter for all the debt and against Snyder for one-half, with the right of Slaughter to recover half against Snyder should Slaughter pay all. If the partnership was existing at the time the suit was filed, and the note was a partnership debt, Slaughter could not sue his partner Snyder thereon. The pleadings do not allege any fact upon which the rights of the partners may be adjusted. The evidence clearly raises the issue that the debt was a partnership obligation; and, while the letters of Snyder to Herring & Son and to Slaughter state he had held out of partnership funds sufficient to pay.the debt, or possibly had or would pay it, there is no allegation or proof as to the matter further than that he did not pay it; that he appropriated the same to his individual use. If he appropriated it to his individual use during the partnership Slaughter would have no action in assumpsit for the money so appropriated, but his remedy would be a suit for an accounting whereby 'Slaughter might have charged Snyder with the funds so appropriated. Clearly the pleadings did not authorize an accounting. If the partnership was settled without taking into account the note, this would not relieve the partners of liability to pay the debt to Herring. The evidence indicates the note was not taken into consideration when Snyder bought out Slaughter’s interest in the remnant of the cattle for $7,000; each of the parties contending that the other had represented that he had paid the note, and that it was not outstanding. Under the issue submitted to and found by the jury Slaughter did not represent that he had paid the note, but the jury were not called upon to answer whether Snyder induced Slaughter to make the settlement and accept the sum paid for the remnant. There is no pleading raising such an issue; neither were there any pleadings raising the issues submitted and answered. It is manifest the evidence presents the issue of a partnership indebtedness and a partnership liability. The pleadings in no way suggest such an issue. While it is true that in this state a partnership, as an entity, is not recognized in suing the partnership, that is the members of the partnership must be sued individually, and in suing the partnership must sue as by the individual members (Frank v. Tatum, 87 Tex. 204, 25 S. W. 409), yet partnership contracts and undertakings are nevertheless determined and adjusted under the rules of law and equity governing that relationship. The evidence is not conclusive as asserted by both the appellees that Snyder assumed to pay the note, and thereby made it his obligation. It is strongly suggested that it was made a partnership debt by the acts and agreements of Snyder and Slaughter. The evidence also suggests that under the terms of the written contract Snyder agreed to pay one-half of the debt; that is, by reading the contract in connection with some of Slaughter’s testimony. But the evidence is not conclusive by any means that 'Snyder assumed to make the debt his debt. His letters that he would pay, had paid, intended to pay, or had reserved out of the sale of cattle funds sufficient to pay are not conclusive that it was or is an individual obligation of his by assumption; especially is this true in the light of the testimony of both Slaughter and Snyder. Neither does the evidence conclusively establish that when Slaughter sold his interest in the remnant for the sum of $7,000 to Snyder, that he (Snyder) then assumed as part of the consideration thereof the note in question.

The pleadings did not authorize the judgment rendered; neither did it authorize an instructed verdict for the appellees or either of them. As we have conceived it, under the record in this court, the best interests of all parties require that the cause be reversed and remanded, and it is accordingly so ordered. The costs of this appeal will be taxed against the appellees equally.

On Motion to Retax Costs.

The motion of Herring & Son to retax costs will be sustained. Upon consideration we believe that the equities are with the motion, and the costs of this appeal will be taxed alone against the appellee R. L. Slaughter.
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