author: RICE, J.

text:
    WESTERN UNION TELEGRAPH CO. v. TAYLOR.
    (No. 5345.)
    (Court of Civil Appeals of Texas. Austin.
    April 15, 1914.
    Rehearing Denied May 13, 1914.)
    1. TELEGRAPHS AND TELEPHONES (§ 56) — DELAY in Delivering — Liability to Person Not Named.
    A telegraph company may be liable to one not appearing on the face of the message for her mental suffering resulting from delay in its delivery, where the company’s agent was apprised, when the message was received, of the relationship of the parties.
    [Ed. Note. — For other cases, see Telegraphs -and Telephones, Cent. Dig. § 37; Dec. Dig. § 56.]
    2. Frauds, Statute óf (§ 139) — Persons to Whom Statute is Available.
    The statute of frauds is no defense to an action for delay in delivering a telegram, because F., by whom the sender of a telegram caused it to be sent, and who contracted with the company’s agent to send it, orally guaranteed the charges, which were afterwards paid.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 334-341; Dec. Dig. § 139.]
    3. Pleading (§ 432*) — Variance—Aider by Verdict.
    The objection of variance cannot be raised after verdict.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1442-1450, 1485; Dec. Dig. § 432.]
    4. Telegraphs and Telephones (§ 54) — Delay in Delivery — Liability for Negligence-Provision on Message.
    When a telegraph company for an extra charge undertakes to deliver a message beyond its free delivery limit, it is bound to exercise reasonable diligence and ordinary care to do so, and cannot avoid liability for negligent failure in that respect by the printed provision on the back of the message that such undertaking is as agent of the sender without liability.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig. § 54.]
    5. Telegraphs and Telephones (§ 66) — Delay in Delivery — Negligence.
    A finding of negligence in not seasonably delivering a telegram in the country, beyond the free delivery limit, as had been contracted for, is authorized, where the agent merely tried to get some men near at hand and one of the two liverymen in town to do it, and the other testified that he could then have delivered it, had he been requested.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]
    6. Telegraphs and Telephones (§ 38) — Delay in Delivery — Receipt after Office Hours.
    That a telegram, sent from C. to H., did not reach H. till after ofiiee hours furnishes no excuse for failure to seasonably deliver it; the company’s agent having in fact received it when it arrived, and undertaken to deliver it.

    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.]
    7. Telegraphs and Telephones (§ 38) — Delay in .Delivery — Receipt after Office Hours.
    The transmitting agent of a telegraph company is bound to know of the rules of the office to which a message is to be sent, and, not informing the sender that the message will not reach there till after office hours, such fact furnishes no excuse for delay in its delivery.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dee. Dig. § 38.]
    8.Telegraphs and Telephones (§ 38) — Delay in Delivery — Prepayment of Charges.
    A telegraph company having undertaken to transmit a message and deliver it beyond its free delivery limits, it is immaterial, as regards liability for delay in delivery, that the charges were not prepaid, but only guaranteed.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.]
    9. Trial (§ 194) — Instructions on Weight of Evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. | 194.]
    The requested instruction, in an action for delay in delivering a telegram, announcing death and place and time of funeral of the sister of plaintiff’s wife, that the wife was presumed to know the schedule of trains which she could take and thereby seasonably reach such place is properly refused as on the weight of evidence.
    10. Telegraphs and Telephones (§ 51)— Delay in Delivery of Message — Contributory Negligence.
    There was no contributory negligence, preventing recovery for delay in delivery of a telegram, announcing a death and place and time of funeral, arriving too late to allow of the taking of the direct train to such place, because the sister of deceased did not take a train by a roundabout railroad route, of which she knew nothing, or because she did not undertake, by private conveyance, a 40-mile trip, over muddy roads, at night; it not appearing that, had she done so, she would have arrived in time for the funeral.
    LEd. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 35; Dec. Dig. § 51.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Action by W. M. Taylor against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Arch Grinnan, of Brownwood, for appellant. Langford & Chesley, of Hamilton, for appellee.

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

   RICE, J.

Mrs. Louisa Taylor was a sister of Mrs. Mary Brawn, who died at her home near Clifton, Tex., on Saturday, December 7, 1912, and Gus Isensee was a brother of both of them. On the 8th of December, Henry Isensee, another brother, caused a telegram to he sent from Clifton by Louis Fricke on' said day at 4:40 o’clock p. m. to Gus Isensee, who lived about six miles west of Hamilton, informing him of the death of Mrs. Brawn, his sister, stating that she would be buried the following Tuesday, and requesting him to come at once and to notify Gus Taylor thereof, who lived about 18 miles from him in the same county. This telegram, though received at Hamilton within an hour after its receipt by said company wa-f nevertheless not delivered to the addressee until about 12 o’clock of the next day, which it was alleged and shown was too late for him to notify his sister in time for her to have reached Clifton before the burial, which took place on the afternoon of the 10th of December. All charges necessary for the prompt delivery of said message were guaranteed by the sender, and the relationship of the parties fully explained to the company’s agent, who accepted the message, agreeing to promptly transmit and deliver same.

It was shown that William Taylor, the plaintiff, was the husband of Mrs. Louisa Taylor, and was also known as Gus Taylor, and that, if the telegram had been delivered to Gus Isensee at any time before 9 o’clock a. m. on the 9th, he by phone would have notified his sister thereof, .who could and would have taken the south-bound train from Ireland, a station on the Stephenville, North & South Texas Railroad at 1:34 o’clock that evening, and would have reached Clifton on the evening of the same day in time to have been present at the burial of her sister, and this suit is brought by William Taylor, the husband, to recover dam5 ages arising therefrom.

The defense urged was: First. Contributory negligence on the part of plaintiff and Gus Isensee. Second. That the message was not delivered because received after office hours. Third. That the contract, under which the message in question was received for transmission, was partly in writing and partly in printing, and was duly executed and signed by the sender thereof, and contained a stipulation to the effect that “messages shall be delivered free within one-half mile of the company’s office in towns of 5,000 population or less, and within one mile of such office in other cities or towns. Beyond these limits the company does not undertake to make the delivery, but will, without liability at the sender’s request as his agent, and at his expense, endeavor to contract for him for such delivery at a reasonable price. No employe of the company is authorized to vary the foregoing.” That Hamilton contained less than 5,000 people, and that neither plaintiff, his wife or the sendee, lived within the free delivery limits thereof. That Gus Isensee lived about six miles from said town, and that appellant did endeavor to contract for the delivery of said message to him and did in fact contract with one David McCullough for its' delivery to him at his home six miles from Hamilton, and said message was in fact delivered to the sendee by said McCullough. Fourth. That plaintiff’s wife could have reached Clifton on the morning of the 10th by taking the north-bound train at Ireland by way of Alexander and Morgan, and was negligent in failing so to do. And further that, after Gus Isensee learned the contents of the message in question, he could have notified plaintiff’s wife in time for her to have left by private conveyance and reached Clifton, some 40 miles distant, in time for the funeral and burial, but that on account of his negligence, and that of herself, she failed to do so.

There was a jury trial, resulting in a verdict and judgment in behalf of plaintiff, from which this appeal is prosecuted.

Notwithstanding appellant’s office hours were from 12 to 3:30 o’clock p. m. on Sunday, yet the agent was in fact at the office when the message came, and received it, whereupon he made inquiry of some men near by if they could deliver it for him. Receiving a negative reply, he phoned to a livery stable, but got no answer. This was all he did until the next morning, when the messenger boy about 9 o’clock was sent out in the country to deliver the message to Gus Isensee. A service message was sent and received a few minutes after the message in question, informing the agent that the charges were guaranteed, and there was another livery stable in the town which was not applied to by him. The liveryman testified that he could have delivered the telegram that afternoon, within an hour, if requested to do so.

It is urged by the first assignment that the court should have given a peremptory charge in favor of appellant on the following grounds: (1) That the company is not responsible to a person not appearing on the face of the telegram, nor otherwise known to it as a beneficiary; (2) that, as the contract between Fricke and the agent was in parol, it contravened the statute of frauds, and was not enforceable; (3) that there was a variance between the allegation and the proof. We think there is no merit in either of these propositions, because it appears from the evidence, so far as the .first is concerned, that the company’s agent was apprised of the relationship of the parties at the time the message was received. This had been held to be sufficient. See Telegraph Co. v. Gotcher, 93 Tex. 114, 53 S. W. 686; W. U. Telegraph Co. v. Carter, 85 Tex. 585, 22 S. W. 961, 34 Am. St. Rep. 826.

As to the second, it may be remarked that the defense of the statute of frauds is personal to the party sought to be charged, and, if he does not invoke it, the other party cannot. The undisputed evidence is that Fricke contracted with defendant’s agent at Olifton to send the message, guaranteeing the changes, which were afterwards paid. See Railway Co. v. Settegast, 79 Tex. 256, 15 S. W. 228, and Robb v. Railway Co., 82 Tex. 392, 18 S. W. 707.

As to the question of variance, it is sufficient to say that no objection was made to the introduction of testimony on account thereof, and the point cannot be raised after verdict. Besides, it appears that Isensee testified that he understood who was meant by Gus Taylor, and, if tlae message bad been received in time, be would bave notified bis sister.

Tbe sixth assignment is based upon tbe third subdivision of tbe defense, to wit, that tbe company limited its liability by a provision printed on tbe back of the message to tbe effect that tbe same should be delivered free within one-balf mile of tbe company’s office in towns of 5,000 population or less, but beyond these limits it did not undertake to make delivery, but that without liability, at tbe sender’s request, as bis agent and at bis expense, would endeavor to contract for him such delivery at a reasonable price. If appellant is right in this contention, then tbe judgment should be reversed. It does not appear that Erieke's attention was called to this provision at tbe time be sent tbe message, and tbe agent of tbe company was apprised by the message itself of the fact that Isensee lived six miles in tbe country, and with this knowledge contracted with tbe sender for an extra charge to deliver tbe same. It is well settled that a telegraph company cannot relieve itself from its own negligence (Jones on Tel. & Tel. Co. § 259 et seq.; W. U. Telegraph Co. v. Louisell, 161 Ala. 231, 50 South. 87; W. U. Telegraph Co. v. Hill, 163 Ala. 18, 50 South. 248, 23 L. R. A. [N. S.] 648, 19 Ann. Cas. 1058; Strong v. W. U. Telegraph Co., 18 Idaho, 389, 109 Pac. 910, 30 L. R. A. [N. S.] 409, Ann. Cas. 1912A, 55) ; and tbe rule seems to be that such company may properly establish free delivery limits and refuse to deliver a message at an indefinite distance in tbe country, or at any point beyond such free delivery limits, unless an additional charge covering the cost of such service is prepaid or satisfactorily guaranteed. See 37 Cyc. 1678B and cases collected in tbe note thereunder. See, also, W. U. Telegraph Co. v. Taylor, 3 Tex. Civ. App. 313, 22 S. W. 532; W. U. Telegraph Co. v. Teague, 8 Tex. Civ. App. 447, 27 S. W. 958; W. U. Telegraph Co. v. Warren, 36 S. W. 316. But when they undertake, for an extra charge, to deliver a message beyond their free delivery limits, they are bound to exercise reasonable diligence and ordinary care to do so. Western Union Telegraph Co. v. Matthews, 113 Ky. 188, 67 S. W. 849, 24 Ky. Law Rep. 3. It is said in Joyce on Electric Law, § 14, that:

“Both the telegraph and telephone have become not only necessary, but are almost indispensable as a vehicle of public intelligence, and for the conduct of affairs, business, and commerce. They are both instrumentalities of a public character, though they exist for private gain. Their operations in doing a general business is in the nature of a public employment, for they are public or quasi public servants. They undertake for a consideration to transmit messages, intelligence, or communications, not exclusively for particular persons, but for all, for their lines are open alike to every one who pays their charges, subject to such contract limitations as may legally exist.”

In Jones on Telegraph & Tel. Gos. § 266, it is said:

“That they are under legal duty to accept, transmit, and deliver without error or delay all proper messages presented after they have been compensated for- such service, and any injury resulting from a failure to perform such duty will subject them to damages.”

With reference to limitation of their liability, it is said by the same author that:

“The general rule, supported by the weight of authority, is that telegraph companies cannot by any kind of a contract exempt themselves from losses caused by their own negligence or that of their servants. The rule rests upon consideration of public policy, and upon the fact that to allow companies to absolve themselves from the duty of exercising care and fidelity would be inconsistent with the very nature of their undertaking. It is the duty of every citizen, while following his daily avocation, to exercise due care and fidelity towards his fellowman, and for any negligent failure to do so, whereby the latter suffers loss, the former will be liable. These companies-have assumed public franchises, and the care and fidelity which they owe to the public is even greater than those of private citizens. In other words, these parties do not stand on equal footing with telegraph companies, but the latter have acquired in consideration of public duties assumed, certain privileges and exemptions under the articles of incorporation which are not enjoyed by the public in general. Therefore, to permit them to exempt themselves from liability caused by their negligence would in effect authorize them to abandon the most essential duties of their employment.” Id. § 367.

It is also true that limitations or restrictions in contracts of this character must be reasonable, in order to be upheld. We are inclined to believe that the limitation urged as a defense in the present instance is against public policy, and if sustained would relieve the company against its own negligence. It is held in Western Union Telegraph Co. v. Seals, 45 S. W. 964, that:

“A telegraph company cannot avoid liability for negligently failing to transmit a telegram by having a statement printed on the back of the paper on which the message is written that it is ‘the agent of the sender without liability.’ ”

See Walker v. W. U. Telegraph Co., 75 S. C. 512, 56 S. E. 38; Jones on Tel. & Tel. Cos. § 404.

In the instant case a slight effort only was made to get some other person to deliver the message. It was shown that the message would have been delivered by the liveryman on the evening it was received for $1.50, if request had been made of him, while the agent delayed until next -morning and then sent his own messenger boy, at an expense to the sender of $2.85. Believing that the provision in question, under the facts in evidence cannot be urged as a defense, this assignment is overruled.

We do not think that the failure of the telegram to reach Hamilton until after office ho"urs furnishes any excuse for failure to deliver, since the company’s agent in fact received the message when it arrived, and undertook to deliver it. This has been held to constitute a waiver of such hours. See W. U. Telegraph Co. v. Hill, 163 Ala. 18, 50 South. 248. In Western U. Telegraph Co. v. Owens, 116 S. W. 89, in an action against a telephone company for failure to notify plaintiff of a sick call, it was held that the fact that the call was received after office hours constituted no defense; it appearing that it was received without objection, and that no claim was made that the notice would not be given because received after office hours. Besides, the transmitting agent was bound to know of the rules of the office to which it was sent, and he failed to notify the sender that it would not be received after office hours. See W. U. Telegraph Co. v. Harris, 91 Ark. 602, 121 S. W. 1051, 24 L. R. A. (N. S.) 1283.

The court, among other things, charged the jury that it was the duty of the company to use ordinary care to correctly transmit and promptly deliver to the person addressed all messages accepted for transmission over its wires, whether the same is paid for at the time of transmission or not, and whether the party addressed resides within or without the free delivery limits of ,the town or city at the point of destination. This.is made the basis of the seventh assignment of error. The undisputed evidence shows that the company accepted the message, knowing that it was to be delivered six miles west of the place to which it was sent, and also shows that the company, through its own messenger, attempted to deliver it. This being true, and the facts showing that an extra charge for such delivery having been demanded and guaranteed, the charge in question was not error.

Appellant requested and the court refused to give a charge that plaintiff’s wife was presumed to know the schedule of trains which she could take and thereby reach Clifton in time for her sister’s funeral. This we think was properly refused, because the charge was upon the weight of evidence.

Plaintiff’s wife could not be expected to take a route that she knew nothing of; nor was she obliged to undertake a trip over muddy roads at night, through the country, when it does not appear that, even had she done so, she would have reached Clifton in time to have attended the funeral (see W. U. Telegraph Co. v. Downs, 49 Tex. Civ. App. 256, 119 S. W. 119), and therefore we hold that she was not guilty of contributory negligence in these respects, and overrule the fifteenth assignment of error.

The remaining assignments have all been duly considered, but are regarded without merit.

Finding no reversible error in the judgment of the trial court, the same is affirmed.

Affirmed.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    CITY OF SAN MARCOS v. INTERNATIONAL & G. N. RY. CO.
    (No. 5294.)
    (Court of Civil Appeals of Texas. Austin.
    April 8, 1914.
    Rehearing Denied May 13, 1914.)
    1. Injunction (§ 26) — Adequacy or Remedy at Law.
    A railroad company, prosecuted by a city in courts having jurisdiction for the penalties imposed by Rev. St. 1911, art. 1068, for failure to place its roadbed over a street in a proper condition for travel, has an adequate remedy at law to determine whether it is liable for penalties, and it may not sue for an injunction to restrain actions at law.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.]
    2. Justices oe the Peace (§ 36) — Jubisdiction — Title to Land.
    An action by a city against a railroad company for the penalty imposed by Rev. St. 1911, art. 1068, for failure to place its roadbed over a street in a proper condition for travel, is for a money judgment within the jurisdiction of a justice’s court, and the fact that title to land is incidentally involved does not render the action one to try title to land, or of trespass to try title, not within the jurisdiction of the justice.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 83-97; Dee. Dig. § 36.]
    3. Injunction (§ 26*) — Adequate Remedy at Law.
    A railroad company, prosecuted by a city in justice’s courts having jurisdiction for the penalty imposed by Rev. St. 1911, art. 1068, for failure to place its roadbed over a street in a.proper condition for travel, may not maintain a suit in equity to restrain the actions on the ground that they are an attack on its franchise.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.]
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Action by the International & Great Northern Railway Company against the City of San Marcos. From a judgment granting relief, defendant appeals.
    Reversed and remanded.
    R. E. McKie, of San Marcos, for appellant. Fisher & Fisher and Wilson, Dabney & King, of Houston, for appellee.

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

   Findings of Fact.

JENKINS, J.

Appellee’s railway runs through the incorporate boundaries of appellant. Appellant desired to extend one of its streets across appellee’s right of way and railway track, and, being unable to agree with appellee as to damages for same, instituted condemnation proceedings, and condemned a strip of land 40 feet wide across said right of way and railway track for street purposes, and paid the amount awarded in the condemnation proceedings. After-wards appellant gave appellee notice, as required by law (R. S. 1068) to place its roadbed and right of way over which said street ran in proper condition for the use of the traveling public. The appellee having failed to do so for more than 30 days after the service of such notice, appellant instituted a suit in justice court against appellee, and recovered a judgment for $92.85. Appellee appealed the ease to the county court of Hays county, where, upon trial de novo, a judgment for the same amount was rendered in favor of appellant. Subsequently, appellee not having complied with said notice, appellant instituted another suit against appellee in the justice court for the sum of $146.02. During the pendency of this suit, appellee filed in the district court of Hays county its petition for injunction against appellant, alleging as a ground for same that it was not liable for the penalty prescribed in said article 1068, for the reasons: (a) That it did not own and was not in possession of the alleged right of way over which said street extended; and (b) that said statute did not apply under the facts of the case, for the reason that said right of way could not be placed in a proper condition for public travel without building a bridge or culvert across the same.

Appellee alleged in its petition the recovery of the judgment against it for $92.85, the pendency of the suit for $146.62, and that appellant had threatened, and, unless restrained from doing so, would institute numerous suits against it in the justice courts for such alleged penalties; that neither the justice nor county court had any jurisdiction to try such suits, for the reason that the same involved title to land; that it had no adequate remedy at law, and would suffer irreparable injury unless such writ of injunction was granted.

The judge of the district court of Hays county granted a temporary writ of injunction in vacation, and upon the trial of the cause made the same perpetual, except as to the final judgment for $92.85, as to which the injunction was dissolved.

Opinion.

Appellant insists that no final judgment was rendered by the district court. With this contention we do not agree, but, in view of the disposition that we make of the case, we do not deem it necessary to discuss this assignment.

We sustain appellant’s assignments to the effect that its exceptions to the petition should have been sustained, for the reason that it was apparent from the allegations therein that appellee had a full and adequate remedy at law against the alleged wrongs done and threatened.

It was said in Sumner v. Crawford, 91 Tex. 132, 41 S. W. 995:

“In courts administering both law and equity, like ours, the rules denying injunction when there is a remedy at law should not be applied as rigidly as at common law, where the issuance of the writ in equity was, to a certain extent, an invasion of the jurisdiction of another tribunal.”

But in the instant case, instead of there being a reason for relaxing the rule at common law, there is a strong reason for its enforcement. It appears from the allegations of the petition that the justice’s court had original jurisdiction of the suit pending and of those threatened, and that the county, court and the Court of Civil Appeals have appellate jurisdiction of the pending suit. These are courts both of law and equity. The effect of an injunction by the district court is to invade the jurisdiction of the justice and county courts, and to deny them the right to try causes triable in said courts under the Constitution and laws of this state, and over which the district court has no jurisdiction as a matter of law. If it is true, as alleged by appellee, that appellant has no cause of action against it, by reason of the fact that it does not own the land, or that the statute does not apply by reason of its being necessary to build a bridge, or for any other reason, it is to be presumed that the justice court will allow such defense, and, if it did not, that the county court would do so. But should both the justice and the county court refuse to recognize appellee’s legal defenses, it could appeal the case to the Court of Civil Appeals. Such proceeding is frequently necessary in order for litigants to obtain their legal rights, and not only as to cases tried in justice and county courts, but also as to cases tried in district courts. Courts of Civil Appeals frequently fail to correctly administer the law, thereby necessitating an appeal to the Supreme Court of the state, and that court is sometimes reversed by the Supreme Court of the United States, where an appeal lies by reason of a federal question being involved. All courts are liable to err, but it will not be presumed that any court will intentionally fail to accord to litigants their legal rights. Until a justice or county court has done so in a ease where there is no right of appeal, or where a party has resorted to his right of appeal and established his contention, injunction will not lie to stay the proceedings of such courts. Ry. Co. v. Ellisor, 14 Tex. Civ. App. 706, 37 S. W. 972; Ry. Co. v. Kuteman, 79 Tex. 468, 14 S. W. 693; Ry. Co. v. Bacon, 3 Tex. Civ. App. 55, 21 S. W. 783; Crawford v. Wingfield, 25 Tex. 414.

As to the numerous and vexatious suits with which appellee alleges it is threatened, the statute gives appellant a cause of action for each week that it is violated by the appel-lee, if it is violated; and, while such suits may be numerous, they could not, in any proper sense, be said to be vexatious. The vexation of such suits may be avoided by ap-pellee by the simple expedient of complying with the law. If the appellee is not legally liable under the facts of this case, had it made its defenses in the pending suit, and, failing there to obtain judgment in its favor, appealed the case to the county court, or had it alleged its purpose to do so, and also to pursue its legal remedy, if necessary, by an appeal to the Court of Civil Appeals, and to the Supreme Court, as it might do under the present statute, and had it further alleged that appellant was threatening it with numerous suits during the pendency of said suit, it might have been entitled to an injunction against further suits until its legal rights were settled in the pending suit. But nothing of the kind was alleged by appellee herein.

If the justice and county courts were without jurisdiction, proceedings therein might be enjoined. But such is not the case. The suit in the justice’s court is for a moneyed judgment, and the fact that the title to land is incidentally involved does not render it a suit to try title to land, nor of trespass to try title, and does not deprive the justice’s court of jurisdiction. City of Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S. W. 681, and authorities there cited.

There is no merit in appellee’s contention that the threatened suits are an attack upon its franchise. Appellant does not seek by such suits to interfere with appellee’s operation of its railway, nor to deprive it of the possession of any property. Nothing is involved but the right to recover a moneyed judgment.

Eor the reason that the trial court should have sustained appellant’s exceptions, the judgment herein is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.


author: ICEY, C. J.

text:
    WINN et al. v. DYESS, Co. Atty., et al.
    (No. 5397.)
    (Court of Civil Appeals of Texas. Austin.
    April 22, 1914.)
    1. Appeal and Error (§ 170) — Review-Questions Presented.
    Where the petition for an injunction, restraining the county attorney and others from putting into effect the poolroom law, pending contest of an election at which it was determined not to license pool tables, did not allege the uneonstitutionality of the statute, that question need not be determined upon appeal from an order denying the injunction, particularly as, if the entire statute is unconstitutional, petitioners may interpose that defense against whatever proceedings may be brought for its enforcement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1035-1052, 1099, 1100; Dec. Dig. § 170.]
    2. Injunction (§ 105) — Criminal Prosecution-Adequate Remedy at Daw.
    The enforcement of an unconstitutional criminal statute will not be enjoined, for, if it is unconstitutional, that defense may be interposed in any proceedings to enforce it, and hence the party has an adequate remedy at law.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 178, 179; Dec. Dig. § 105.]
    3. Licenses (§ 7) — Statutes—Validity.
    The provision of the poolroom statute (Acts 33d Leg. c. 74, § 11) that, if the result of the election be in favor of prohibiting pool halls, a contest shall not suspend the enforcement of the law pending such contest, is constitutional, for, while it may work a hardship on those engaged in running poolrooms, yet if a contest suspended the enforcement of the law, the law, though validly adopted, might never go into effect, because the contest might be pending until a subsequent election when determination might be in favor of the lice'nsing of pool halls.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dee. Dig. § 7.]
    Appeal from District Court, Bell County; John D!. Robinson, Judge.
    Petition by C. E. Winn and others, for an injunction against A. D. Dyess, County Attorney, and others. From an order denying an injunction, plaintiffs appeal.
    Affirmed.
    J. F. Hair, of Belton, for appellants. Dur-rett & Dyess and Edmund Heinsohn, all of Temple, for appellees.

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

   ICEY, C. J.

This is an appeal from an order made by a district judge refusing to grant a writ of injunction. The petition sought an injunction against the county attorney, the county judge, the sheriff, and the county clerk of Bell county. It alleged, in substance, that on February 9, 1914, a petition was filed asking the commissioners’ court of Bell county to order an election to determine whether or not poolrooms should be prohibited in that county; that the election was ordered and was held on the 7th day of March, 1914; and that on the 18th day of the same month, the commissioners’ court, after canvassing the returns and declaring the result, entered an order upon its minutes, declaring said election to have resulted in favor of prohibiting the running of pool halls in Bell county; that notice of intention to contest the election upon certain grounds stated in the petition had been properly served within the time prescribed by law; and that Troy Brown, one of the plaintiffs, had “on the 30th day of March, 1914, filed a petition in the district court of Bell county to contest the election for the following reasons: (a) That the petition upon which the election was ordered did not contain the signature of 10 per cent, of the qualified voters of the county; (b) because the county clerk had failed to make a return showing that notice had been posted as required by law; (c) because the officers holding the election at four of the voting boxes had failed to make any return to the commissioners’ court, but, notwithstanding such failure, the commissioners’ court had considered the vote at such boxes in passing upon the result of the election; (d) because the judges who held the election were not furnished with poll tax lists" of the voters, as the law requires. It is also alleged in the petition that each of the six plaintiffs was engaged in the operation of a pool hall in Bell county, and had invested more than $1,000 in tables, furniture, and fixtures for the purpose of conducting such business, and that the •total amount so invested by the six plaintiffs would aggregate approximately the sum of '$10-,000. It is also alleged that each of the plaintiffs had paid his occupation taxes, and had procured licenses authorizing him to pursue the occupation of running pool halls in Bell county, without stating when such licenses were issued or when they would expire, otherwise than in the general allegation that “said licenses have not expired and will not expire for some time in the future.” It was also alleged that the plaintiff’s had leased premises in which they were conducting such pool halls, and that they had an interest and estate in the premises so leased to the extent of the term of their leases, but they did not state the time covered by such leases. The petition also contained an allegation to the effect that in ordering the election the commissioners’ court acted solely upon the petition asking for the election, and did not order the election upon its own motion, and because the members of the court deemed it expedient so to do. It was also alleged that the plaintiffs had long been engaged in the business of running pool halls at their respective places of business, and had acquired a valuable good will, and that if the defendants were not restrained from the enforcement of the poolroom law enacted by the Thirty-Third Legislature (Acts 33d Leg. c. 74), pending the contest which had been inaugurated, the plaintiffs would be compelled to cease operating and conducting their business pending such contest, and would thereby suffer irreparable injury and damage ; and an injunction was asked to prevent the enforcement of the pool hall law pending the contest.

It was not charged in the petition, though it was argued by counsel for appellant in this court, that the act of the Legislature referred to, providing for local option elections in the counties and other subdivisions, to determine whether or not pool halls should be prohibited, is unconstitutional; and we do not think that this court in this proceeding is called upon to decide that question. In the recent case of Ex parte Francis, 165 S. W. 147, the Court of Criminal Appeals held that the pool hall statute does not delegate legislative power and is not unconstitutional, but is a valid law wherever it has been adopted by a majority vote of a county or other designated political subdivision. The elaborate opinion of the majority of that court was prepared by Judge Harper, and it indicates careful consideration, much ability, and great research. Judge Davidson filed a vigorous and forcible dissenting opinion, which presents the opposite view of the question as strongly as the writer has ever seen it presented by any one who has written upon that side of that controverted question. At about the same time the Court of Civil Appeals for the Fifth district in the case of Roper & Gilley v. Lumpkins, 163 S. W. 110, passed upon the same question and held that the statute was constitutional; but, as stated before, we do not deem it necessary to pass upon that question, especially as the plaintiffs did not raise it in their petition. If the entire statute is unconstitutional, appellants will have the right to interpose that defense in whatever legal proceedings may be instituted by the county officers to enforce that law in Bell county, and therefore appellants will have an adequate remedy at law; and, having such remedy, they are not entitled to relief by injunction or otherwise from a court of equity. City of San Marcos v. International & Great Northern Ry. Co., 167 S. W. 292, recently decided by this court. When the petition was prepared counsel for appellants seem to have recognized that fact, as he did not allege in the petition that the act was unconstitutional.

Assuming, then, that the Pool Hall Act is a valid law, have appellants the right to have its enforcement in Bell county suspended pending a contest instituted by them upon the ground that the provisions of the law had not been complied with in putting it into operation in that county? We think that question must be answered in the negative. It is expressly stipulated and enacted in the eleventh section of that law that, if prohibition has carried, a contest shall not suspend the enforcement of the law pending such contest. While it is not so alleged in their petition, appellants are driven to the necessity of contending that the provision of the statute referred to is unconstitutional; and, inasmuch as they have not so charged nor pointed out what constitutional provision, state or national, it contravenes, we might decline to pass upon its constitutionality. However, it seems to us that such a limitation upon the right to contest an election does not contravene any constitutional provision, either federal or state. The same provision is incorporated in the general statute of this state (and perhaps of all others), providing for contest of the election of officers, and it is also part of the statute authorizing contests of local option elections held for the purpose of prohibiting the sale of liquor, and we know of no instance in which such provisions have been declared unconstitutional. Indeed, as the result of local option elections, as well as the result of elections for most state and county offices in this state, may be changed by another election within the short period of two years, if it was the law that a contest would suspend what was officially declared to be the result of an election, the contest itself might not be determined within two years; and, although it might be decided against the contestant, the result would be that the prosecution of the contest had nullified and rendered inoperative a valid election if another election had been held which resulted differently from the first. In order to prevent such a resjilt, we think it should be held that the Legislature had the power to declare that a contest should not suspend the operation of the law, although it may result in the hardships complained of by appellants. No scheme of government has ever been devised which does not require those subject to its laws and rules to forego some natural rights; and, in some instances, such rules and laws may result incidentally in pecuniary loss to individuals. But such results in no wise' affect the validity of a law regularly enacted by the lawmaking department of a government. Hence we hold that such provisions are not unreasonable and do not exceed legislative power, although they may result in requiring individual citizens to discontinue certain pursuits and thereby sustain pecuniary losses pending a contest which may ultimately result in favor of the contestant.

Speaking for himself only, and not for the other members of the court, the writer is of the opinion that the refusal of the district judge to grant a preliminary injunction was proper, because the petition did not state a cause of action and was obnoxious to a general demurrer. The first section of the Pool Hall Act declares that the commissioners’ court of each county in this state may, when they deem it expedient, and shall, when petitioned by 10 per cent, of the qualified voters of a county, etc., order an election to be held to determine whether or not poolrooms shall be prohibited. • In this case, appellants’ petition shows that such an election was ordered ; and, while it alleges that the order was made because a petition was filed and was not made because the commissioners’ court deemed it expedient, and would not have been made but for the filing of the petition, it seems, to me that those averments are immaterial. The commissioners’ court had the right to order the election without any petition; and, while its minutes may show that it was ordered upon a petition, it is not believed that any other court should undertake to try out and. determine what the commissioners’ court would have done if no petition had been filed. Therefore, although it is alleged that the petition was not signed by the required number of voters, it is not believed that the plaintiffs’ petition shows that the court was without power to order the election. If the court had, and properly exercised, the power to order the election, then clearly the petition fails to show any cause of action, because it does not allege that the other irregularities complained of in any wise affected the result of the election, which would perhaps be necessary, in the absence of statutory requirement, but which is required by the latter part of the eleventh section of the pool hall statute, which declares, in substance, that the result declared by the commissioners’ court shall be the law—

“unless it is made affirmatively to appear by the contestant that but for the illegalities or irregularities complained of the result of the election would, in all probability, have been different.”

The petition does allege that no official returns were made from certain voting boxes, but that those boxes were considered by the commissioners’ court, but for aught that appears, all the votes that were cast' at those places may have been counted and allowed against the proposition to prohibit pool halls. Por these reasons, the writer is of the opinion that the petition failed to state any cause of action, which is a sufficient reason for any judge’s refusal to grant a preliminary injunction, even though the plaintiff may have the right to amend his petition before the case is finally tried. As to whether such right of amendment would exist in a case of this kind after the 30 days had elapsed in which the contestant is required to serve notice upon the contestee of the ground upon which he proposes to contest the election need not be decided in this case.

As having some bearing in support of the rulings we make, and the views expressed in this opinion, we cite Lindsey & Luckett, 20 Tex. 516; Wright v. Fawcett, 42 Tex. 203; Harding v. Commissioners’ Court, 95 Tex. 174, 66 S. W. 44; Greiner-Kelley Drug Co. v. Truett, 97 Tex. 377, 79 S. W. 4; Ex parte Lynn, 19 Tex. App. 293, and authorities there cited.

Our conclusion is that appellants are not entitled to a reversal, and therefore the order of the district judge is affirmed.

Affirmed.


author: HENDRICKS, J.

text:
    ENTERPRISE TRADING CO. et al. v. BANK OF CROWELL.
    (No. 602.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 9, 1914.)
    1. CORPORATIONS (§ 123) — PLEDGES OE STOCK —Equitable Rights.
    A pledgee of corporate stock has such an interest in the assets of the corporation as entitles him to invoke equitable relief against it and those acting for it to prevent the removal of its assets from the place of its domicile and its exchange for stock of another corporation.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 481, 491, 507-512, 537, 539-546, 569, 618; Dec. Dig. § 123.]
    2. Contracts (§ 71) — Consideration—FORBEARANCE.
    A creditor’s agreement to withhold suit against his debtor, followed by actual forbearance, is a good consideration to support a third party’s promise to pay the debt, although no definite time of extension is expressly agreed on.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 295, 296, 298, 316-324; Dec. Dig. § 71.]
    3. Frauds, Statute oe (§ 33) —Promise to Pat Debt op Another — New Consideration — Forbearance against Creditor oe Third Person.
    C. and W., the latter as surety, executed a note to plaintiff bank, and, as collateral security, C. gave certain shares in a corporation, which thereafter and before the note was paid, by its directors, authorized its manager to sell its stock of goods in bulk for cash, notes, or certificates in another corporation, for the purpose of paying off its creditors. Upon the forbearance of threatened steps by the bank to prevent removal of the goods, a stockholder and director orally promised that he would pay or see that the note to the bank was paid. Held, that such forbearance was a new consideration for the promise so as to take it out of the statute of frauds.
    [Ed. Note. — -For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-53, 56; Dec. Dig. § 33.]
    4.Fbatjds, Statute of (§ 33) — Promise to Pay Debt of Another — Original or Collateral Promise.
    Such promise was an original promise of payment, irrespective of the liability of the principal debtor, and not a collateral promise to pay the debt of another, and, being supported by a good consideration, was not within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-53, 56; Dec. Dig. § 33.]
    5. Frauds, Statute of (§ 33*) — Promise to Pay Debt of Another — New Consideration.
    Where a creditor relinquishes some right upon a third person’s promise to pay the debt, springing out of some new transaction or upon some substantial ground of a personal concern to the promisor, the consideration to the promisor takes the promise out of the statute.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-53, 56; Dec. Dig. § 33.]
    6. Corporations (§ 333) — Liability of Manager-Conversion.
    Where shares of a corporation were given as collateral security for a note of a third person, and the holder, upon the promise of a stockholder and director that he would pay, or see that the note was paid, consented to removal of its stock of goods, their sale, and the application of the proceeds upon its debts, its manager was not liable for conversion.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. § 1451; Dee. Dig. § 333.]
    Appeal from District Court, Foard. County; J. A. Nabers, Judge.
    Action by the Bank of Crowell against the Enterprise Trading Company and others. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered in part and affirmed in part.
    J. R. Stubblefield, of Eastland, and Cooper Sansom, of Georgetown, for appellants. Robert Cole and G. W. Walthall, both of Crow-ell, and Crudgington & Works, of Amarillo, for appellee.

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

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

   HENDRICKS, J.

This suit was instituted by the appellee, a banking copartnership, against the Enterprise Trading Company, alleged to be a corporation, P. S. Witherspoon, S. L. Cleaves, Frank Carrothers, and W. F. Magee, the appellants herein, in the district court of Foard county, praying for a judgment against the appellants, Witherspoon, Cleaves, Carrothers, and Magee, for the amount, principal, interest, and attorney’s fees, due on a certain note executed by With-erspoon and Cleaves to plaintiff, the suit against said Carrothers and Magee having been based on an alleged verbal promise made by Carrothers to pay said note, and also allegations in the alternative against some of said appellants for the value of 10 shares of corporation stock held as collateral by plaintiff to the note above mentioned, alleging a conversion of a portion of the stock of goods by defendants Carrothers and Magee, owned by said Enterprise Trading Company.

Cleaves and Witherspoon, the latter as surety, executed the note in favor of the ap-pellee bank, and Cleaves pledged to said bank, as collateral security, 10 shares of stock in the R. N. Magee Company, a private corporation, afterwards the Enterprise Trading Company, to secure the payment of said promissory note, and the record devel-opes that in 1912, while the principal of said note was unpaid, and while the stock was still held as collateral security by said bank, the corporation, the Enterprise Trading Company, through its directors, commissioned and authorized the manager of the corporation “to make a sale of the dry goods * * * owned by it in bulk, for the sum of $11,000, or the invoice price of said goods, and to take in payment .thereof cash or notes, or certificates of stock, in such manner as may be authorized by law, for the purpose of securing and eventually paying off” the creditors of said corporation.

At this time W. F. Magee was the president of this corporation, and F. W. Carroth-ers was a stockholder and director of the same, and negotiations in that year were thereafter entered into with other parties in a different part of the state, organizing a similar corporation, for the sale of the dry goods of said Enterprise Trading Company, to said new corporation, and to take in consideration for such sale the stock in said new corporation, the Thorndale Mercantile Company, which was finally consummated for $10,000 of the par value of said stock, and a note for $908.67, executed by one Gore, and which was 80 per cent, of the inventory cost of said dry goods. Some time in 1912, we presume during the pendency of the negotiations, and at a time when the goods were boxed preparatory to shipment, it developed that the Bank of Crowell, which was the pledgee of the 10 shares of stock in said Magee corporation, or Enterprise Trading Company, as collateral to said note, was remonstrating against the shipment of said dry goods and the removal of the same from the town of Crowell, and during this condition Mr. Carrothers, the appellant herein, discussed the matter with Mr. McFarland, the manager and acting vice president of said Bank of Crowell. Mr. McFarland testified:

“I told Mr. Carrothers when he came into the bank that I was not willing for the goods to be moved from here. He * * * said that the business was not doing much good here (meaning at Crowell), and that he and Magee would take the stock of goods down to Williamson or Milam county and organize another company down there, or put it in another concern down there, and if they would be permit-led to move the goods, and if I would not object to them moving them, they would pay me my money within 60 or 90 days. I told Mr. Carrothers the situation we were in with regard to this note with the stock attached, and told him that I would take legal steps to protect my rights.”

Mr. McFarland agreed to forbear the institution of .any suit in regard to the removal of the goods, and Mr. Carrothers promised that he would pay, or see that it was paid, the note executed by Cleaves and Wither-spoon to the bank. The bank, in consideration of Carrothers’ promise, did not institute the suit; the goods were shipped to a different paft of the state, and transferred to the new corporation at 80 cents upon the dollar, and for which $10,000 of stock was issued by the new corporation and handled by Magee, the president of the company, who seemed in this matter to have acted principally as managing trustee for the Enterprise Trading Company, with the Gore note, as additional consideration, as stated. The jury found, in answer to a question submitted by the court, as upon special issues, that Carrothers promised to pay Sandifer, meaning, of course, the bank, the Cleaves-Witherspoon note, or see that Sandifer got his money within 60 or 90 days, in consideration that Sandifer would not object to the removal of the stock of dry goods from Crowell; and the judgment of the court against Carrothers upon this finding is earnestly challenged upon the ground that the promise is to answer for the debt of another, the enforcement of which is prevented by the statute of frauds, which, as we view it, is the only question worthy of serious consideration in this record.

One of appellants’ subdivisional propositions is that, the bank “having no legal right to prevent the removal of the assets of the Enterprise Trading Company from Crowell, its agreement to forbear taking steps to institute legal proceedings upon any promise of Carrothers would not constitute an agreement- upon which a valuable consideration could be predicated.”

In what manner the “Magee Company,” a corporation, became the Enterprise Trading Company, a corporation, is not exhibited, hut the identity of the same is so treated in this record by all parties, likewise by the trial court in the proceeding below, as to preclude any doubt, but that the pledgee of the stock of the first-named corporation is entitled to the same rights against the Enterprise Trading Company which in some manner is the successor of the other.

We believe that the law is well settled that a pledgee of corporate stock has such an interest in the assets of a corporation as in this instance would have entitled the bank to have invoked equitable relief against the corporation and those acting for it, to have prevented the removal of its assets from the place of its domicile, and the transmutation ■of its property into corporation stock of another corporation, which Carrothers informed Sandifer they contemplated doing, and with reference to which, as well as the removal of sáme, the goods having already been boxed for that purpose, Sandifer objected. Thompson says (volume 4, § 4241, Corporations):

“The pledgee had a right equal with the pledgor to appear and protect in the courts his interest in the stock and prevent a dissipation of corporate assets.”

The appellant, however, says that if the pledgee had the right to prevent the removal of the assets and the conversion of the same, the exercise of that right should be based upon the precedent condition of an appeal, first to the corporation to prevent the contemplated illegal move. The Supreme Court of Georgia, in a well-considered case, Andrews Co. v. National Bank, 129 Ga. 53, 58 S. E. 633, 121 Am. St. Rep. 186, 12 Ann. Cas. 616, said:

“It is also contended by the defendant’s counsel that the plaintiffs have no standing in court, because a stockholder, as such, could not sustain an action of this kind. * * * What the stockholders may compel the association to do, they [meaning the pledgees] cannot compel it to do. They cannot therefore be required to act through the association, but may bring an action on their own account, and in their own names, to protect their rights and interests as pledgees.”

Reverting to the main proposition, Circuit Justice Goff said:

“We think it beyond question that the pledgee of stock has such an equitable interest in it as will entitle him to be heard in a court of equity concerning its preservation, and the protection of his interests therein, to the same extent, at least, as the stockholders pledging it would have.” Gorman-Wright Co. et al. v. Wright, 134 Fed. 363, 67 C. C. A. 345.

The matter of an appeal to the governing body of the corporation as a prerequisite to the maintenance of the suit was not involved in that cause. See, also, on this question, Green v. Hedenberg, 159 Ill. 489, 48 N. E. 851, 50 Am. St. Rep. 178.

Upon the proposition of a forbearance to sue, constituting a consideration, in this instance a detriment to the promisee, we quote Elliott on Contracts, vol. 1, § 235:

.< « * * An agreement by a creditor to withhold suit against his debtor is a good consideration to support a promise by a third party to pay the debt, although no fixed and definite time of extension is expressly agreed on; and * * * if followed by actual forbearance for a reasonable time, this is a good consideration for a promise to pay the debt by a person other than the debtor.”

See, also, Page on Contracts, vol. 1, p. 430, § 289.

In this cause there is not an agreement of forbearance directly in favor of the debtors, owing the note to the bank, though the effect of the agreement operated to that extent; the agreement is to forbear the exercise of legal rights against a third person, a corporation, and its representatives interested therein. If the promise is collateral, and the original debt continues, and such promise is not one based upon some new consid-eratíon to the promisor as to except it from the statute, of course it must be in writing. If there is no consideration for the promise, whether it is original or collateral, you are not troubled with the statute of frauds — it is nudum pactum.

The simple illustrations are as follows: If A. promises B. that if the latter will furnish goods to C. he, A., will guarantee the debt, the concurrent consideration constituted by furnishing the goods is of course sufficient, but the promise is collateral, and, if not in writing, is unenforceable. Again, if B. has already furnished the goods to C. subsequently to the creation of the debt, and subsequent to the delivery of the goods to C., A. guarantees that he will pay the antecedent debt if the latter will continue to furnish goods to C. — while here there is a new consideration and a new promise, and though a new contract, the effect is the same —it is still a promise to pay another’s debt and must be in writing. Again, if B. sold and furnished to O. the goods, concurrently with the creation of the debt, but A., however, has not participated, but subsequently thereto, if C. is about to remove his goods from the state, and B. on that account is about to attach the same, with good grounds for that purpose, and A. were to promise B., if the latter would forbear the attachment, that he, A., would guarantee the debt, and B. forbears, the consideration is the same as in the other eases, but if not in writing, the statute of frauds again interferes. The first illustration is a concurrent promise upon a consideration when the debt is created; the second and third are those where the promises are upon a consideration and made subsequently, but the statute points to no distinction between a debt created at the time when the collateral promise is made and one made subsequently to the creation of the debt; the inquiry always is, not when the relation was created, but whether there is a debtor and surety with the primary and main purpose to pay the debt of another, with no independent consideration to the promisor; where there is a change in the form of the consideration, or a difference in the nature of the detriment to the promisee, whether it is by a sale of the goods, or a forbearance to sue, constituting the consideration to support the contract, as long as it is a collateral promise, and not in writing, with the main object for the benefit of the debtor, the statute prevents the enforcement.

There is considerable loose language upon the question of a new contract taking a case out of the statute of frauds, because forsooth it is based upon a subsequent contract and a new consideration. Though the promise is new and original — original in the sense it had no original connection with the debt — does not take the case out of the statute; neither because you vary the form of the consideration to the promisee, though created subsequently, does it make the promise new and original, in the sense of taking it out of the statute, as long as the principal object in view is to stand good for another’s debt. “To say that it was new and original expresses no idea of any importance. Every promise is new and original that was never made before.” Mallory v. Gillett, 21 N. Y. 415. The law does not discriminate between different promises according as the consideration may differ in the particular nature or kind. Same case, supra.

As stated, though you get by the question of the consideration to the promisee, which is always necessary to support any contract, and which in this character of case is generally some detriment to him, you still have left the question, What is the character of the contract between a creditor and a subsequent promisor, with reference to the payment of an antecedent debt, as that the promise is original, based upon a new contract, in the sense that an additional consideration, having due regard for the nature of the transaction, takes the obligation out of the statute where the original debt is intact, and the original debtor remains liable? “ * * * Where 'the primary debt subsists, and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the prom-isor and beneficial to him, and such that the promisor thereby, comes under an independent duty of payment, irrespective of the liability of the principal debtor.” White v. Rintoul, 108 N. Y. 222, 15 N. E. 320.

Was the promise of Carrothers such a collateral promise to pay the debt of another which, if not in writing, is within the statute of frauds? Or, was his promise such an independent agreement, blended with a purported benefit to himself, and made for the benefit of a third person, the corporation, as that the promise to pay the note was an independent obligation, not in the purview of the statute?

W. F. Magee, the president of the corporation, testified that Carrothers and himself were the trustees for the sale of the goods, and had the management of the assets of the corporation for that purpose. Negotiations between Mr. Magee and the representative of the new corporation organized, or to be organized, in South Texas, had developed to the point that Magee, and presumably Carrothers, had accepted a bid of about SO cents on the dollar for all the dry goods constituting the bulk of the mercantile stock of the company, and they had been boxed preparatory to shipment for the purpose of delivery and the consummation of this trade. Carrothers, of course, was' equitably interested to the extent of his stock in. the corporate property, and necessarily interested as a stockholder in the successful ending of the corporation, in paying its debts, and, for aught this record shows, was entitled to reasonable compensation for his services as a managing trustee; and evidently, when he made the promise to Sandifer to pay tlie debt, he viewed the matter of the removal of the goods and the conversion of the same into the stock of the new corporation as a benefit to himself, and we are constrained to construe it as an act, subserving his own purpose. Viewed from .another angle, it was a consideration to the corporation, for the directors had authorized, as we view the record, Magee and Carrothers to perform the acts which Sandifer was strenuously objecting to being made final. The charter of the corporation designated Crowell, Foard county, Tex., as the situs of the business of the corporation. The jury, upon special verdict, finds that the stock of the corporation was worth $90 per share about the time that Carrothers made the promise to Sandifer, not based upon the book value, considering the debts of the corporation at the time the goods were removed and converted, but upon a popular conception of the value prior to that time, and based to some extent upon a prior sale of some of the stock. We are, however,.convinced from the record that prior to the conditions which created the objections of Sandifer and the promise of Carrothers, there was a value to the stock, though probably more value was attached to it than of intrinsic worth, and there are reasonable grounds in good faith for a maintenance of a suit by a dissenting minority stockholder, or a pledgee of the stock, and a successful prosecution of the same, to prevent the removal of the goods, and the conversion of the same into other stock of another corporation; and such reasonable grounds, with the right based upon the same, if forborne, is a sufficient consideration to the promisee to sustain that side of the contract.

Where the promisee has relinquished some right in consideration of the other’s promise, and the consideration springs out of some new transaction, or upon some substantial ground of a personal concern to the promisor, the trend of the authorities is to regard the same as sufficient consideration to the promisor, as that the promise is independent of the statute. The forbearance by the creditor of some legal right, in the usual ease against the debtor, or in this ease against the corporation, as well as against the representatives, who would necessarily have been included in the suit, is a sufficient consideration regarded as a detriment to the promisee; and we are rather impressed with the idea that a third person, in this instance the corporation and Carrothers himself, who as the representative of the corporation was about to remove the goods, when exempted from suit, would be a sufficient consideration stamping it as a new contract, however not necessary to decide, for the reason that the testimony shows, we think on a proper conception, that Carrothers, was not only sub-serving a purpose of the corporation, but was subserving a personal purpose and a personal matter of his own,, and the same was the main purpose of the transaction actuating him in the promise, though the debt existed and would have been satisfied if the promise had been complied with. An analysis of this evidence clearly shows that Carrothers was not interested in paying Cleaves and Wither-spoon’s debt, imbued in any sense by a spirit of accommodation to them. The authorities announcing this rule are so numerous it is unnecessary to cite them.

There is another phase of the case which may be attempted to be relied upon by appellant, and that is the manner of the submission, and the answer of the jury on the special issues indicated by us in the foregoing part of the opinion. Sandifer testified that Carrothers said that if he, Sandifer, would forbear, he, Carrothers, would pay the debt within 60 or 90 days; and Thacher, who claimed to have overheard the conversation, testified that Carrothers “told Mr. Sandifer that if the goods were released he would see that he (Sandifer) got his money in 60 or 90 days.” This latter testimony, on account of the variation in form of the promise, is evidently what actuated the trial court in submitting the matter in the manner he did; however, this language, under the peculiar status of the circumstances, considering the attitude of Carrothers to the corporation, and his personal interest involved and to be subserved, does not detract from his primary responsibility in adopting the debt of Cleaves and Witherspoon to the bank as his own debt; according to the conditions here, Car-rothers did not mean, whatever the form in which he expressed it, that he would see that Witherspoon and Cleaves would pay the debt; he meant that he would pay it.

We do not see any possible ground to hold Magee on the question of conversion; the bank consented to the removal of the goods and the transmutation of the same into the stock of the new corporation, in consideration of Carrothers’ promise to pay the debt; the sale of the stock in the new corporation by Magee and Carrothers and the application of the proceeds of said sale upon the debts of the old corporation, notwithstanding a part of it was applied by Magee on debts of the latter corporation for which he was surety, could not, in the condition of this record, constitute a liability against Ma-gee. The judgment against the corporation is practically admitted to be erroneous in the condition of the pleading; and we think is equally erroneous upon the evidence, without any legal principle applicable to the facts, and making it responsible under the cause of action alleged against it. The judgment is reversed and rendered as to W. F. Magee and the Enterprise Trading Company, and affirmed as to Carrothers, ■Cleaves, and Witherspoon, with the further order that the costs of this appeal be divided between Carrothers and the bank.

Reversed and rendered in part and affirmed in part.


author: FLY, C. J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. RUCKER.
    (No. 5287.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 28, 1914.)
    1. Railroads (§ 348) — Accidents at Crossings — Actions—Sufficiency of Evidence.
    Evidence, in an action for injuries to an automobile in turning to avoid a railroad locomotive at a crossing, held to show that the negligence of the driver in approaching at an excessive speed, in violation of Ben. Code 1911, art. 815, limiting the speed to 18 miles per hour in the built-up portion of a city, concurred with the negligence, if any, of the railroad company in causing the accident.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.]
    2. Railroads (§ 324) — Accidents at Crossings — Contributory Negligence.
    The driver of an automobile which was injured in turning to avoid a railroad locomotive at a crossing was guilty of negligence per se in approaching at from 15 to 25 miles per hour, in violation of IJen. Code 1911. art. 815, limiting the speed to 18 miles per hour in the built-up portion of a city, in the absence of any showing that a greater speed was permitted by ordinance ; and no recovery could be had from the railroad.
    [Ed. Note. — For other cases, -see Railroads, Cent. Dig. §§ 1020-1025; Dec. Dig. § 324.]
    3. Negligence (§ 82) — Contributory Negligence-Violation of Law.
    When his violation of a law proximately contributes to his injury, a plaintiff is precluded from recovering damages.
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 112-114; Dec. Dig. § 82.]
    Appeal from Harris County Court at Law; Clark C. Wren, Judge.
    Action by W. J. Rucker against the Houston Belt & Terminal Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Andrews, Streetman, Burns & Logue, W. L. Cook, and M. E. ICurth, all of Houston, for appellant. Woods, Harris & King, of Houston, for appellee.

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

   FLY, C. J.

This is a suit for damages, in the sum of $255, to an automobile, instituted by appellee against appellant. A trial by the court, without a jury, resulted in a judgment in favor of appellee for $145.40.

This is a fact case, and the seven assignments of error taken together amount to a contention that the accident to the automobile was not caused through the lack of a watchman at the crossing where the car was injured, nor through any failure- on the part of appellant’s engineer to stop the engine when t^e peril of the car was discovered, or to ring the bell and blow the whistle. Those were the grounds of negligence alleged in the petition. This necessitates a review of the testimony.

On the night of June 15, 1912, an automobile, driven by D. C. Rucker, a son of appellee, and containing five other persons, approached a street crossing in the city of Houston at a speed of 15 to 25 miles an hour, and the driver, seeing an engine and car about to cross the street at a distance of 50 or 75 feet ahead, turned the automobile so as to run into another street, and one of the rear wheels went off the bridge it was on, and the automobile was wrecked. The automobile was coming into Houston on Preston avenue when the engine was approaching the crossing of the avenue. The driver of the car did not put on the emergency brake when he saw the engine. An automobile going at the rate of 20 miles an hour can be stopped in 50 feet. There was a house that somewhat obstructed the view of the track from Preston avenue. The bridge was on Hutch-ins street, and the automobile had turned on it when it went over the bridge. The automobile was going at such a rate of speed that when it jumped off the bridge it went clear across the ditches alongside the bridge. The locomotive was running at the rate of 3 or 4 miles an hour. There was testimony that there were harsh words between the parties in the automobile after the wreck, and cursing and swearing in the presence of the women. The party in the automobile had taken beer while they were out, and one of them was admittedly intoxicated.

If appellant was guilty of negligence in not stopping the engine, or in not keeping a watchman at the crossing, the driver of the automobile was guilty of driving at a rate of speed ranging from 15 to 30 miles an hour in a city, and when approaching a railroad crossing, as well as a street crossing. If the automobile was running at the rate of only 15 miles an hour, as testified by the driver, when he approached the crossing, he could, under the testimony, have stopped the car in less than 50 feet, which would not have taken the automobile to the engine. If the house was 83 feet by actual measurement from the railroad track, the driver should have seen the engine before it reached the street. The driver said:

“I can stop the car in a space of from 25 to 35 feet when going at the rate of 15 miles.”

If his brakes were not in first-class condition, he should not have gone at a street and railroad crossing at the rate he was moving. The driver was not sure that he had on the brakes when the automobile went off the bridge. He did not testify to making any effort to stop the automobile. It was in testimony that the emergency brake should have been put on when the driver attempted to turn into the side street. The facts indicate reckless driving and a disregard of the rules of safety by a party at a late hour of the night, and after drinking beer and whisky. No one denied that the men were intoxicated, except the driver, and the cursing and swearing in the presence of his female companions aftet the accident did not tend to corroborate his testimony. The evidence showed that the driver saw the engine more than 50 feet off, because it was more than 50 feet to where the automobile began to turn into Hutchins street. He could have seen it for a distance of 120 feet. The distance from the east side of Hutchins street, where the driver sought to make the turn, to where the engine was standing was 76 feet by actual measurement. The evidence clearly 'shows that the negligence of the driver concurred with the negligence, if any, of appellant in causing the wreck.

The court concluded that the automobile was not running at a high rate of speed, in the face of physical facts indicating that a different conclusion should have been reached, and based his conclusion on the fact that none of the occupants of the automobile was injured. This is not an infallible test, because so many escapes ’ from danger, caused by reckless driving seem almost miraculous, sustaining the view that a kind Providence tenderly cares for certain people under certain conditions.

The court found that the bell was ringing when the locomotive approached the crossing, and that the accident occurred through the negligence of appellant in not having a watchman at the crossing, and in the engineer failing to stop the locomotive before it reached the crossing, although he had been informed by a switchman that an automobile was approaching. Plow a watchman could have prevented the automobile from approaching the crossing as it did does not appear from the testimony. The engine went only about one-third of the way across the street before it stopped, leaving two-thirds of the street open.

The driver saw the locomotive at such distance that he could have stopped before reaching the engine, and, if he could not have done so, there was ample space for him to have passed in front of the engine which had stopped.,

The evidence showed without contradiction that the automobile was being propelled at a greater rate of speed than 18 miles an hour along a street in the built-up portion of a city, and the court finds that it was running from 15 to 25 miles an hour. Such rate of speed was a direct violation of article 815, Penal Code, and the driver of the automobile was guilty of negligence per se in driving it at the rate of speed at which he admitted he was going. If by ordinance of the city of Houston a greater rate of speed than 18 miles an hour was permitted, appellee should have shown it in order to meet the demand of the statute. Railway v. Harris, 103 Tex. 422, 128 S. W. 897; Railway v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538. The overturning of the automobile was directly attributable to the violation of the statute, and the owner of the car cannot recover. When the violation of a law proximately contributes to his own damage, a plaintiff is precluded from recovering damages. Railway v. Cocke, 64 Tex. 151; Railway v. Carter, 98 Tex. 196, 82 S. W. 782, 107 Am. St. Rep. 626. All of the testimony clearly and indisputably shows that, if the automobile had been running at the rate of 8 miles or even 18 miles an hour, it could have been stopped without difficulty, and the trouble avoided, for it shows that, if any care had been exercised, the automobile could have been stopped before reaching the railroad track, if the speed had not been greater than 15 miles an hour. The testimony justified the finding of the court that it was probably .going at the rate of more than 18 miles an hour, the maximum speed fixed by the Penal Code in city and county. If punished in no other way, a violation of the statute should preclude a recovery for damages, to person or property, when it is the proximate cause of the accident.

The judgment is reversed, and judgment here rendered that appellee take nothing by his suit, and pay all costs in this behalf expended.


author: MOURSUND, J.

text:
    WITT v. TEAT.
    (No. 5276.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 6, 1914.
    Rehearing Denied June 10, 1914.)
    1. Homestead (§ 77) — Exemption — Nature op Exemption.
    Where the owner of a homestead traded it for another tract of land upon which he never resided, such land is exempt from attachment or garnishment for a period of six months, for Rev. St. 1911, art. 3787, declaring that the proceeds of the voluntary sale of a homestead shall not be subject to garnishment or forced sale within six months after sale, apply, not only to the proceeds where a homestead is sold for cash, but to where it is exchanged for other lands.
    [Ed. Note. — Por other cases, see Homestead, Cent. Dig. § 109; Dec. Dig. § 77.]
    2. Pkaudulent Conveyances (§ 52) — What Constitutes Fraudulent Conveyance — Sale op Land Taken in Exchange pob Homestead.
    Land taken in exchange for a homestead is exempt from attachment for a period of six months, and the owner’s conveyance within that period, although made with the intent of defrauding his creditors, passes good title ; hence, in an action between the owner’s grantee and a purchaser at a sale under a judgment had against the owner, evidence of an attachment levied upon the land before the expiration of six months is inadmissible as showing notice to a purchaser that the conveyance was fraudulent.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 118-127; Dee. Dig. § 52.]
    3. Husband and Wipe (§§ 254, 267) — Community Peopebty — Land Taken in Exchange pob Homestead — Conveyance.
    Where a husband and wife exchanged their homestead for other land upon which they never resided, such land becomes jjart of the community estaté, and may be disposed of by the husband alone, without the consent of his wife.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896-899, 929-938; Dec. Dig. §§ 254, 267.]

      4. FRAUDULENT CONVEYANCES (§ 286) — CONVEYANCE in Trust for Debtor — Evidence.
    Where plaintiff claimed under a conveyance of land which a debtor received in exchange for his homestead, made within six months after exchange, and defendant claimed by purchase at sale under a judgment against the debtor, plaintiff may be interrogated as to whether he holds the land for the debtor.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 822-825, 827-834, 863-866; Dec. Dig. § 286.]
    5. Appeal and Error (§ 1170) — Review-Harmless .Error.
    Under court rule 62a (149 S. W. x), providing that no judgment shall be reversed, unless the error complained of was calculated to cause the • rendition of an improper judgment, the improper exclusion of testimony is not reversible error, where it could not have changed the result.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from District Court, Wharton County; Sam’l J. Styles, Judge.
    Action by George L. Teat against J. H. Witt. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. A. Cline, of Wharton, and Witt & Saunders, of Waco, for appellant. Geo. L. Teat, of Kosciusko, Miss., and Williams & Hartman, of San Antonio, for appellee.

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

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

   MOURSUND, J.

J. Homer Gaddy and wife, for several years prior to February 23, 1909, owned, as community property, and resided upon a certain lot on Baylor street in the city of Waco, which, during said time, was their homestead, and was such homestead when the/ sold and conveyed same to J. R. Bondurant, on February 23, 1909. Bon-durant, in consideration of such conveyance, on the same day conveyed to said J. Homer Gaddy the survey of land in Wharton county in controversy in this suit. Prior to the expiration of six months from February 23, 1909, to wit, on August 10, 1909, J. Homer Gaddy, by deed of that date, sold and conveyed to Geo. L. Teat the said survey of land in controversy. This suit was brought by Geo. L. Teat to recover said land from J. H. Witt, who claims title thereto under a sheriff’s deed executed by virtue of a levy and sale under an order of sale issued upon a judgment in favor of the First National Bank v. J. Homer Gaddy. In the suit in which said judgment was rendered, an attachment was issued on July 30, 1909, and levy was made upon the land in controversy on August 2,1909. The attachment, with the return thereon, was filed and recorded August 2, 1909. Another attachment was issued and levied upon the land on March 24, 1910. On August 20, 1912, an order of sale was issued in said suit, reciting that a judgment had been obtained by plaintiff on June 8, 1910, for $1,491.04, and for foreclosure of an attachment lien as it existed on March 24, 1910, upon said land, which order of sale was executed by the sheriff selling said land on October 1, 1912, to J. H. Witt for $1,250; the deed being executed and delivered upon the same day. The court declined to permit Witt .to introduce said attachment- writs, order of sale, and sheriff’s deed, and rendered judgment for plaintiff. Findings of fact and conclusions of law were filed.

Appellant’s first contention is that, as J. Homer Gaddy and wife never used the property in controversy as a homestead, and never intended to use same as a homestead, it was not exempt from forced sale. The findings of fact contain no finding that Gaddy and wife did not use or intend to use the land in controversy as a homestead, and it does not appear that any request was made for an additional finding covering such point; but, if we concede the facts to correspond with appellant’s statement of them, nevertheless the court did not err in holding said land exempt. Article 3787 (Revised Statutes of 1911) reads as follows:

“The proceeds of the voluntary sale of the homestead shall not be subject to garnishment or forced sale within six months after such sale.”

If it had been the intention of the Legislature to restrict the exemption to money received for a homestead, it could easily have said so. The words used plainly show that the exemption applies to property received, as well as to money, and, if land is received in payment for a homestead, it is not necessary that it should become the homestead itself. The law grants six months in which it may be applied to the purchase of a homestead, and, until that time expires, it is exempt from levy of attachment or execution. Speer on Married Women, § 268.

The second contention is that the writ of attachment levied upon the property on August 2, 1909, should have been admitted in evidence as notice to any purchaser of J. Homer Gaddy’s lands in Wharton county of his fraudulent purpose in selling the same. There is no merit in such contention. As the land was exempt from seizure by levy of an attachment writ, it could be sold at any time within the six months, and a sale during such time carried good title no matter what the motive was which actuated Gaddy in making the sale. Holt v. Abby, 141 S. W. 173; Gaar, Scott & Co. v. Burge, 49 Tex. Civ. App. 599, 110 S. W. 181; Lewis v. Bank, 36 Tex. Civ. App. 437, 81 S. W. 797; Thompson v. Railway, 45 Tex. Civ. App. 285, 100 S. W. 197.

The next contention is that the deed from Gaddy to Teat should not have been admitted in evidence, because not signed and acknowledged by Mrs. Gaddy. The land was not a homestead, and was community property, which could be sold by Gaddy alone, just as he could have disposed of money had the homestead been sold for money. Alvord National Bank v. Ferguson, 126 S. W. 622.

The fourth, fifth, and sixth assignments are submitted together, and the proposition thereunder is to the effect that when a conveyance is simulated, and not intended to pass title, but merely to enable the grantee to hold the title for grantor, the creditors are entitled to show such facts, and to have the property declared to be that of the grantor. Briefly stated, appellant wanted to show that, when the second writ of attachment was levied upon the property on March 24, 1910, the same was still the property of Gad-dy, although a deed thereto was held by ap-pellee. The court apparently viewed appellant’s efforts as an attempt to show that the sale was made for the purpose of defrauding creditors, hence excluded the testimony. The proposition is germane to only one of the assignments, and that assignment is too general. The statement indicates that complaint is sought to be made because of the exclusion of the affidavit and bond in attachment, the writ of attachment levied March 24, 1910, the order of sale, and the sheriff’s deed to Witt, as well as Teat’s testimony. The documentary evidence could not become material, unless it was shown that the land still belonged to Gaddy on March 24, 1910. The bill of exceptions taken upon the exclusion of Teat’s testimony recites that such testimony was offered in connection with other testimony and circumstances to show that the purported conveyance to Teat was in fact no conveyance, and that the court refused to permit the introduction of any evidence offered for that purpose. We fail to see why the court refused to permit appellant to propound questions to Teat or any other witness in an effort to show that Gaddy still owned the land when the second attachment was levied thereon; and we are also at a loss to understand how appellee can contend that all the testimony was before the trial court, when it is not contained in the statement of facts, and the bills of exception show it was excluded. We cannot reverse the judgment, however, merely because of the court’s error, if such error is one which, under rule 62a (149 S. W. x) for the Courts of Civil Appeals, does not justify a reversal. Appellant cannot rely upon a general statement that the court refused to hear his testimony, but must go further and show that- the testimony was material. He shows that he offered Teat’s testimony, but does not show that he-offered that of any other person. A perusal of Teat’s testimony, as set out in the bill of exceptions, indicates that the court permitted him to question Teat, and then excluded the testimony. Such testimony, while admissible, wholly fails to show that Teat did not purchase the land, and contains no facts or circumstances which are sufficient to raise an issue as to whether he actually purchased the land. His motive in buying and Gaddy’s motive in selling are immaterial; the only question being: Did he actually buy? We conclude that, had such testimony been admitted, the judgment must necessarily have been the same, and that therefore we should not reverse the judgment below.

The assignments are overruled, and the judgment affirmed.