text:
    HAMILTON et al. v. JOACHIM et al.
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 6, 1913.)
    1. Judgment (§ • 326) — Amendment—Nunc ■ Pro Tunc.
    The court at a subsequent term may enter a judgment nunc pro tunc, or may amend or correct a judgment theretofore entered, provided the entry or amendment extends no further than to formally record some act of the court done at the former term, but the court has no power at a subsequent term to amend a judgment nunc pro tunc so as to evidence the performance of an act which should have been, but was not, performed at the prior term.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 628; Dec. Dig. § 326.]
    2. Judgment (§ 326) — Amendment—Nunc Pro Tunc.
    Entry of a judgment nunc pro tunc is not authorized, unless there is an affirmative showing that the court actually rendered the decision at the prior term which it is sought by the nunc pro tunc entry to formally enter on the records of the court.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 628; Dec. Dig. § 326.]
    3. Appeal and Error (§ 80) — Final Judgment-Disposition op Issues.
    S., owning oil lands, leased them to plaintiff for development, after which plaintiff contracted with defendants H. & P. to furnish certain moneys to develop the land, the oil developed to be owned by the three in certain proportions. Thereafter plaintiff was induced to release to S. his rights under the lease that S. might contract direct with H. and P., in accordance with which such direct contract was made. Thereafter plaintiff sued to recover damages from H. and P., and also prayed that the contract between them and S. be set aside, and that the original contract between plaintiff and S. be reinstated. Held, that the issue as to the cancellation of the contract between S. and H. and P. and the reinstatement of plaintiff’s contract with S. was a separate and distinct one, and that a judgment awarding plaintiff damages, and dismissing the action as to S., was not final in that it would not dispose of such issue.
    [Ed. Note. — For other cases. Error, Cent. Dig. §§ 429, 432, 457, 494-509; Dec. Dig. § 80.] see Appeal and 433, 450, 456,
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Suit by S. Joachim and others against H. Hamilton and others. Judgment for plaintiffs, and defendants appeal.
    Dismissed.
    See, also, 146 S. W. 288.
    E. R. Spotts, Baker, Botts, Parker & Gar-wood, and Walter H. Walne, all of Houston, and John C. Matthews, of Lampasas, for appellants. D. H. Triplett, D. F. Rowe, and Leonard Doughty, all of Houston, for ap-pellees.

      For other oases see same topic and section NUMBER in Dee. 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

   HIGGINS, J.

This was a suit by S. Jo-achim, for himself, and as temporary administrator of the estate of his deceased wife, in which his five minor children, the heirs of the wife, were also joined as parties plaintiff, against H. Hamilton, H. Prince, and A. E. Stimson, as defendants.

The pleadings are very voluminous, and for the purposes of this opinion it is sufficient to say the petition alleged that Stimson leased certain premises in the Sour Lake oil field, in Hardin county, Tex., to S. Jo-achim for the development of oil by contract dated May 15, 1903, by the terms of which Joachim was to pay to Stimson one-fourth of the gross output of any oil developed upon the premises. It was further alleged that Joachim entered into a contract and agreement with Hamilton and Prince by which Hamilton and Prince were to furnish certain moneys for the boring of the Well upon said premises and the development of oil therein, the oil so developed to be owned by the three last-named parties in certain proportions. It was alleged that Joachim bored the well upon the premises, and developed oil, and that he was thereafter ejected from possession and control of the well and premises by Hamilton and Prince, who had failed and refused to account to him for his share of the proceeds of the oil produced by the well, and the damage by reason thereof is alleged at many thousand dollars. It was further alleged that on May 18th Hamilton and Prince, through their attorney, represented to Jo-achim that it was advisable that the contract with Stimson regarding the lands be in the name of Hamilton and Prince, and suggested to Joachim that he release to Stimson his rights under above-mentioned contract of date May 15, 1903, so that Stimson could contract direct with Hamilton and Prince. In accordance with such suggestion Joachim, on or about May 18, 1903, did release his rights to Stimson, which he acquired under the contract dated May 15th, and Stimson then contracted direct with Hamilton and Prince.

Plaintiffs, in their petition, prayed judgment for the various sums of money which they alleged they have been damaged by Hamilton and Prince by reason of the facts above stated, and also prayed that the contract between Stimson and Hamilton and Prince be set aside, annulled, and held for naught, and that the original contract between Joachim and Stimson dated May 15, 1903, be reinstated.

Upon trial the court rendered judgment in favor of plaintiffs against Hamilton and Prince for the sum of $5,951.18, but in no wise disposed of Stimson or the issue raised by the pleading praying for the cancellation of the Stimson-Hamilton-Prince contract and the reinstatement of the Stimson-Joachim contract.

This appeal was formerly before this court, and it was dismissed because the judgment was not final in that it failed to dispose of all of the parties and issues raised by the pleadings. Hamilton v. Joachim, 146 S. W. 288. After the dismissal of the former appeal, the appellees filed a motion in the lower court, in which it was prayed: First, that the original judgment rendered herein be set aside and held for naught, because it was not a final judgment, and that a final judgment be then entered; second, if the court was of the opinion that the original judgment should not be set aside, then that it be amended nunc pro tunc by the addition of an order thereto, dismissing Stimson, with his costs. In response to this motion, the court, on July 19, 1912, entered the following order: “It is therefore ordered, adjudged, and decreed by the court that the judgment of this court of date January 7, 1911, as entered, as the same appears in the minutes of this court, in volume 7, at pages 565, 566, thereof, be and the same is hereby and here now amended and made final in accordance with said motion filed herein May 20, 1912, in the following particular, to wit: That the defendant A. E. Stimson shall be and he is dismissed, and shall go hence without day as to any cause of action alleged against him in the petition of plaintiffs herein nunc pro tunc as to judgment of January 7, 1911. And said dismissal is made as of said January 7, 1911, and is now entered as for then. And in all other respects the said, judgment of January 7, 1911, remains in full force and effect as the judgment of this court in regard to all matters therein adjudicated and entered. And the final judgment of this court in this ease is as entered in said volume 7, at pages 565 and 566, of the minutes of this court, together with the further entry this day ordered as herein stated, which further entry shall he in words and figures as follows as a part of said judgment of January 7, 1911, herein. It is further ordered, adjudged, and decreed by the court that the plaintiffs take nothing as to defendant A. E. Stimson, and the cause of action of plaintiffs as to said Stimson is dismissed, and he shall go hence, with his costs against plaintiffs, and have and recover same against plaintiffs, for which let execution issue.”

Appellants have again appealed, and their appeal must he again dismissed for the reasons which will now he indicated. The right at a subsequent term to enter a judgment nunc pro tunc or to amend or correct a judgment theretofore entered is clear; but the office of such nunc pro tunc entry is to formally record some act of the court done at a former term, hut which, for some reason, was not spread upon the minutes. A judgment cannot be thus amended so as to vary the rights of the parties as fixed by the original judgment pronounced by the court, nor can it be employed to secure at a subsequent term the performance by the court of some act which should have been performed, but which was not in fact done at the term in which the judgment was rendered. The authorities are uniform upon this subject. 1 Freeman on Judgments (4th Ed.) par. 68; 23 Cyc. 866-868; Coleman v. Zapp (Sup.) 151 S. W. 1040; Ft. W. & D. City R. R. Co. v. Roberts, 98 Tex. 42, 81 S. W. 25; Burnett v. State, 14 Tex. 455, 65 Am. Dec. 131; Trammel v. Trammel, 25 Tex. Supp. 261; T. & P. Ry. Co. v. Connor, 13 Tex. Civ. App. 423, 35 S. W. 330; 23 Cyc. p. 866, par. 3; Easthan v. Sallis, 60 Tex. 580; Whittaker v. Gee, 63 Tex. 435; Railway Co. v. Haynes, 82 Tex. 448, 18 S. W. 605; Watson et al. v. Chappell et al., 19 Tex. Civ. App. 685, 48 S. W. 624; Kelly v. Belcher, 1 White & W. Civ. Cas. Ct. App. § 1126; Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39; Linn v. Arambould, 55 Tex. 611; Mills et al. v. Paul, 1 Tex. Civ. App. 419, 23 S. W. 190; Adams v. Duggan, 1 White & W. Civ. Cas. Ct. App. § 1268; Perkins v. Dunlavy, 61 Tex. 244; Gibson v. Wilson, 18 Ala. 64; Cleveland Leader Printing Co. v. Green, 52 Ohio St. 487, 40 N. E. 201, 49 Am. St. Rep. 725; Whitwell & Hoover v. Emory, 3 Mich. 89, 59 Am. Dec. 220; Harrison v. State of Missouri, 10 Mo. 686.

In order that a nunc pro tunc judgment may ever properly be entered, there should be some affirmative showing that the court actually rendered the decision which it is sought by the nunc pro tunc entry to formally enter upon the records of the court. The trial court and counsel for appellees testified upon hearing of the motion, and their testimony wholly fails to disclose that any order was ever made by the court dismissing as to the defendant Stimson, but, upon the contrary, very cleariy, if not conclusively indicates that no such order was made. Por a court, at a subsequent time, under the guise of a nunc pro tunc entry, to enter an order which was not in fact pronounced or made is wholly without warrant in law, and the order entered July 19, 1912, was unauthorized and void. As was said by Chief Justice Brown, in Reed v. Robertson (Sup.) 156 S. W. 196: “Nunc pro tunc orders are legitimate, that is, to record what actually occurred, but which was not entered of record, so as to make it disclose the truth. But this procedure reverses the rule, and places on the record what is done now as if done then, making the record speak falsely.”

It should be stated, however, that, if the evidence were sufficient to warrant the entry nunc pro tunc of an order of dismissal as to Stimson, the judgment would still be lacking in finality, because of its failure to dispose of the issue raised by the pleadings relating to the cancellation of the Stimson-Hamilton-Prince contract and the reinstatement of the Stimson-Joaehim contract. This is an issue raised by the pleadings, quite separate and distinct from the right to recover of Hamilton and Prince the personal money judgment prayed for. A dismissal of Stimson, in so far as he is concerned, would probably eliminate this issue, but not so far as concerns appellees on the one part and Hamilton and Prince on the other part. For the reasons indicated, the judgment is not final, and the appeal must be dismissed.

It is so ordered.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    HOUSTON & T. C. R. CO. v. KING.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 5, 1913.)
    1. Railkoads (§ 443) — Killing Cattle — Negligence—Evidence.
    Evidence, that cattle and horses were accustomed to graze on defendant’s railroad right of way at the place where plaintiff’s animals were struck and killed where defendant was not required to fence its track, that animals were liable to be encountered there was known to defendant’s trainmen, that there was nothing to prevent the engineer from seeing one of plaintiff’s cows for a distance of from 50 to 75 yards from the place where they were struck, and that the train passed at á rapid speed which was not checked or the whistles blown before the cows were struck, was sufficient to establish negligence on the part of the railroad company.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.]
    2. Railkoads (§ 447)—Killing Animals— Lookout.
    An instruction that defendant’s train operatives were not required to keep a lookout for stock except at road crossings was properly refused, since whether it is the duty of an engineer to keep a lookout at any particular place depends on whether under the circumstances he should anticipate that persons or stock might be on the track at such place.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. § 447.]
    3. Costs (§ 238) — Appeal from Justice's Court.
    Where plaintiff purposely refrained from proving a case in justice’s court, and requested the justice to render judgment against him, from which he appealed to the county court, where he was successful, the county court should have taxed the costs therein against him.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 908-919; Dec. Dig. § 238.]
    Appeal from Waller County Court; J. D. Harvey, Judge.
    Action by R. L. King against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and W. B. Garrett, of Austin, for appellant. Hannay & Hannay and R. E. Hannay, Jr., all of Hempstead, and J. V. Meek, of Houston, for appellee.

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

   JENKINS, J.

This is a suit to recover damages for killing two cows belonging to appellee. The evidence shows that the cows were killed by appellant’s train in the town of Waller, at a place where the appellant was not required to fence its track. Grass was growing upon the railway track, and cattle and horses were accustomed to graze upon the same, which fact was known to the trainmen operating appellant’s train. There was nothing to have prevented the engineer from seeing one of the cows, which is shown to have been upon the track when the engine was from 50 to 75 yards from her. The train was a through train, and did not stop at Waller, and was running at a rapid speed when the cows were killed. The testimony on the part of appellee shows that the engineer did not blow any whistle nor check the speed of the train before striking the cow. This testimony, we think, is sufficient to sustain the verdict and judgment of the trial court. H. & T. C. Ry. Co. v. Garrett, 160 S. W. 111, decided at the present term of this court.

Appellant assigns error upon the refusal of the court to give the following instruction: “The jury are instructed that, under the law, the employes of a train are not required to keep a lookout for stock, except at road crossings and street highways.” We do not understand such to be the law. There may be circumstances which would require the employes on the train to keep a lookout at other places than at crossings, streets, or highways. It has been so held with reference to portions of the railway track commonly used by people as a crossing, though such place was not a public crossing. Whether or not it is the duty of the engineer to keep a lookout at any particular place depends upon whether or not, under all the circumstances, he should anticipate persons or stock might be upon the track at such place.

This case originated in the justice’s court. The appellee, plaintiff in said case, put but one witness upon the stand, by whom he proved that his cows were killed within the switching limits and in the yard of the defendant at Waller station, but did not prove the value of the cows, nor any circumstances of the killing. He stated to the court that he had not proven any damages, and that the court should render judgment for the defendant, from which judgment he appealed. After judgment was entered for appellee in the county court, appellant moved the court to tax the cost of the county court against appellee, for the reason that he had purposely refrained from proving any case in the justice court, and had requested the justice’s court to render judgment against him. Said motion should have been sustained. Railway Co. v. Wheeler, 41 Tex. Civ. App. 539, 91 S. W. 234; Railway Co. v. Milliron, 53 Tex. Civ. App. 326, 115 S. W. 655.

The judgment of the trial court is here reformed, so as to adjudge all costs in the county court against appellee. In other respects said judgment is affirmed.

Reformed and affirmed.


author: HODGES, J.

text:
    PEOPLE’S STATE BANK v. FLEMING-MORTON CO. et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1913.)
    1. Bills and Notes (§ 245) — Indorsement-Surety— Contract — Consideration.
    A surety or indorser who becomes such after the delivery of the note, in the absence of a prior agreement contemplating his surety-ship or indorsement and without any additional consideration, is not liable, but one who becomes a surety or indorser at the time of the renewal of a note, or when there is an extension in consideration of such indorsement, is bound; the contract extending the time being sufficient to support the surety’s obligation to pay.
    [Ed. Note. — For other cases, 'see Bills and Notes, Cent. Dig. §§ 558, 559; Dec. Dig. § 245.]
    2. Bills and Notes (§ 226) — Indorsement by Surety — Consideration.
    Where defendant K. signed a note as surety after delivery without any new or additional consideration but thereafter, on the maturity of the note, K. consented to an extension without any new or other indorsement, and but for such consent the time would not have been extended, such extension was a sufficient consideration for his indorsement and rendered him liable thereon.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 534-541; Dec. Dig. § 226.]

      Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Action by tbe People’s State Bank against the Fleming-Morton Company and others. Judgment for defendant Giles McKinnon, and plaintiff appeals.
    Reversed and rendered.
    H. C. Howell, of Jasper, for appellant. Smith & Blackshear, of Jasper, and F. J. & C. T. Duff, of Beaumont, for appellees.

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

   HODGES, J.

The appellant sued the Fleming-Morton Company, a private corporation, on three promissory notes aggregating $3,565.-18, exclusive of interest and attorneys’ fees. R. J. Morton, J. W. Fleming, and Giles Mc-Kinnon were also made parties defendant in the suit and a recovery sought against them as indorsers or sureties on some of the notes. Judgment by default was rendered against the Fleming-Morton Company and Morton and Fleming. Judgment was sought against Giles McKinnon on only one of the notes, amounting to $700, and which was executed July 19, 1911. He answered, pleading, among other defenses, a want of consideration for his indorsement of that note. The findings of fact and conclusions of law filed by the trial court sufficiently state the case and its deposition. These are as follows:

“(1) I find that the $700 note was executed and delivered by the defendant Fleming-Morton Company, a corporation, on July 19, 1911, the day:':it bears date, to plaintiff, the People’s State Bank, to cover certain overdrafts of said Fleming-Morton Company on plaintiff bank, and I further find that said money was used and expended by said Fleming-Morton Company in the purchase and installation of machinery and fixtures in its electric light plant and planing mill at Kirbyville, Tex.
“(2) I find that said Fleming-Morton Company is the principal maker of said note, and that the defendant J. W. Fleming is a surety on said note.
“(3) I find that the defendant Giles McKin-non also indorsed said note by writing his name on the back thereof.
“(4) I find that the said Giles McKinnon indorsed said note at the request of defendant by J. W. Fleming Morton only a few days after it had been executed and delivered by said Fleming-Morton Company to plaintiff bank and before maturity thereof, but I find that said McKinnon nor Fleming-Morton Company never received any consideration or benefit for his said indorsement on said note; the time and note being completed before McKinnon indorsed it.
“(5) I find that, before the execution and delivery of said note by Fleming-Morton Company to plaintiff bank, the defendant Giles McKinnon was negotiating with said Fleming-Morton Company for the purchase of stock in said Fleming-Morton Company, and that such negotiations were pending between said parties at the time of the execution and delivery of said note by said Fleming-Morton Company to plaintiff bank, but the bank knew nothing of said negotiation.
“(6) I find that, previous to the indorsement of said note by defendant Giles McKin-non, he had acquired by purchase $500 stock in said Fleming-Morton Company and had been elected secretary of said company, and that at the time he so indorsed said note he and J. W. Fleming were in the bank, and the same he was the owner of said $500 stock, and was also the secretary of said company, and was drawing a salary of $75 per month from said company as such secretary; and I further find that the said Giles McKin-non continued as secretary of said Fleming-Morton Company until said company was placed in involuntary bankruptcy in December, 1911, and that he is still the owner of said $500 stock in said company and was entitled to participate in whatever dividends or profits earned by said company from the time he so acquired said stock and was elected secretary of said company and indorsed said note down to the time said company was placed in bankruptcy as aforesaid.
“(7) I find that the intentions and purposes of the said Fleming-Morton Company, plaintiff bank, and the said Giles McKinnon, in the indorsement of said note by him, the said Giles McKinnon, were to further secure the payment of said note.
“(8) I find that when said $700 note became due (that is to say, on October 19, 1911) the said note was at the request of said Fleming-Morton Company and by consent of-said Giles McKinnon extended by plaintiff bank for 60 days, and that said extension' would not have been granted by plaintiff bank but for the fact that said Giles McKin-non consented thereto.
“(9) I find that, from the time that the said Giles McKinnon indorsed said note down to within a few days past, he uniformly and repeatedly acknowledged and admitted his liability as a surety on said note, and that he never denied such liability until recently and after he had consulted with a lawyer, who advised him that he was not liable for the payment of said note.
“(10) I find that Fleming-Morton Company has frequently borrowed money from plaintiff bank before the defendant McKinnon was a stockholder in or officer of the corporation, and that this $700 had been secured by the Fleming-Morton Company and the note executed therefor and that after McKinnon became a stockholder in said company he gratuitously indorsed said note, intending at the time he did so to pay the same, but no consideration passed to or from him or the bank, and the loan and note given therefor was complete and had been for several days before the indorsement was made.
“Conclusion of Law.
“(1) I conclude as a matter of law that, the defendant Giles McKinnon not having indorsed said note until after it had been executed and delivered by Fleming-Morton Company to plaintiff bank and accepted by said bank, said Giles McKinnon was only a guarantor on said note; and, the evidence showing that he received no consideration or benefit from his said indorsement, he is not liable on said note in any capacity or for any amount, and he should therefore be released and discharged from liability on said note.”

The only question involved in this appeal is: Did the court commit an error under the facts found in holding that McKinnon was not 'liable on the $700 note? It seems to be well settled that a surety or indorser who becomes such after the execution and delivery of the note, in the absence of any prior agreement contemplating his suretyship nr indorsement and without any additional consideration, is not liable. The consideration passing between the original parties at the time of the execution and delivery of the note is not sufficient. Jones v. Ritter, 32 Tex. 717; Simmang v. Farnsworth, 24 S. W. 541; Baker v. Wahrmund, 5 Tex. Civ. App. 268, 23 S. W. 1023; Savage v. National Bank, 112 Ala. 508, 20 South. 398. But one who becomes a surety or indorser at the time of the renewal of the note, or when an extension of the time for its payment is given, in consideration of such renewal or extension of time, is bound. The contract renewing or extending the time is sufficient to support the obligation of the surety or indorser to pay the note at the new date agreed upon. Hannay et al. v. Moody et al., 31 Tex. Civ. App. 88, 71 S. W. 325; Armstrong-Cator Co. v. Snyder, 15 Tex. Civ. App. 394, 39 S. W. 379; Fulton v. Loughlin, 118 Ind. 286, 20 N. E. 796; Bank v. Bridgers, 98 N. C. 67, 3 S. E. 826, 2 Am. St. Rep. 317; 1 Brandt on Suretyship and Guaranty, § 25.

It is immaterial whether we regard Mc-Kinnon as an indorser or a guarantor when he wrote his name on the back of the note. In either event his right to avoid the contract for want of consideration would be the same. If, when the note matured, an extension of time for some definite period had been given either in the form of a new note or by an agreement of the parties to an extension of the present note, and had McKin-non at the time indorsed his name upon the new note, or the old note if the latter had been retained, in consideration of such extension he would be liable in whatever capacity he placed himself by such indorsement. But McKinnon did not indorse the note at the time the contract of extension was made. It may be that, when approached and asked for-his consent to an extension, he was under the impression that he was bound by his prior signature. Both parties may have been under the impression that his consent to an extension of the time was necessary, not to create a new liability, but to preserve an existing one. The question here presented is: Was McKinnon’s verbal consent to an extension of the note given at the time and under the circumstances shown by the evidence equivalent in law to an indorsement of his signature? The signature having been previously affixed, had McKinnon been fully aware of his true legal status with reference to the note, and had he desired to become liable in the future in order to secure the extension of time, it would not have been necessary for him to again sign his name. He could have adopted his former signature by agreeing to be thereafter bound by it. Certainly this would follow if McKinnon was fully aware of his true legal status at the time. There is nothing to indicate that he would have acted differently at the time the note was extended had he been apprised of the fact that he was not bound by his previous indorsement. We must therefore conclude that he would have acted as he did had he been perfectly familiar with all of his rights in the premises, and that he took the course he did for the purpose of procuring a benefit to the company with which he was connected.

The court’s finding that the note was extended with the consent of McKinnon and that it would not have been so extended without his consent is evidently based upon the testimony of Tullos, the appellant’s cashier, who contracted for the extension of the note. McKinnon disclaimed any recollection of having given his consent but would not deny that he had consented. When we go to the statement of facts we find that Tullos testified as follows on this subject: “I told McKinnon that he was an indorser on the note and asked him if it would be agreeable to extend it, and he said it was; that he was willing and anxious to do everything he possibly could to help Fleming-Morton Company out. That afternoon Mr. Morton, the treasurer of Fleming-Morton Company, paid the interest on this note in question and set it up 60 days.” Again he says: “I would not under any circumstances have consented to extend that note as I did extend it without Mr. McKinnon’s signature on it, and I did extend it in pursuance of that understanding and agreement.” It appears from other portions of the testimony, which is uncontradicted in the record, that at the time this $700 note first matured the Fleming-Morton Company was financially embarrassed, was unable to meet its obligations, and it was necessary that the company obtain an extension of time or be subject to a suit upon the note. Looking to the testimony quoted above as the only basis for the court’s finding upon this issue, we must treat his conclusions of fact as being as broad as the only legitimate inferences from this testimony would warrant. If that he correct, it follows that the extension would not' have been given without McKinnon’s signature on the note. It would be unjust to the appellant to now permit him to deny liability. If he voluntarily, with possibly as much information as to his legal rights as the bank cashier possessed, agreed that his signature might remain on the note, and that, too, for the purpose of financially aiding the company, in which he was a stockholder and of which he was an officer, we think he should be held to his obligation and that there was a consideration for his continued connection with the note. We think the court erred in holding that McKinnon was not liable.

The judgment is therefore reversed and here rendered in favor of the appellant.


author: BICE, J.

text:
    STEPHENVILLE N. & S. T. RY. CO. v. WALTON.
    (Court of Civil Appeals of Texas. Austin.
    Oct. 15, 1913.
    Rehearing Denied Nov. 12, 1913.)
    1. WATERS AND WATER COURSES (§ 178)— Culverts — Negligent Construction — Drainage — Flowage of Land — Damages.
    In an action against a railroad company fo.r overflowing plaintiff’s land by failing to •construct necessary culverts, ditches, and sluices, the measure of damages is the market value of the land immediately before and immediately after the particular overflow.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 251-255; Dec. Dig. § 178.]
    2. Appeal and Error (§ 1068) — Disposition oe Cause — Harmless Error.
    Under Court of Appeals Bule 62a (149 S. W. x), providing that judgments shall not be reversed for error of law unless the court is of opinion that the error amounted to a denial of the appellant’s rights and probably caused the rendition of an improper judgment, error in refusing a proper charge as to the measure of damages was harmless, where the defendant was plainly negligent and the damages recovered were less than the amount proved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §,§ 4225-4228, 4230; Dec. Dig. § 1068.]
    3. Waters and Water Courses (§ 179)— Culverts — Negligent Construction — Overflow op Land.
    An instruction requiring the jury to find the failure on the part of defendant railroad company to properly construct such sluices, culverts, etc., as the natural lay of the land required before they could return a verdict for plaintiff for alleged injury to adjoining land resulting from overflow was equivalent to an instruction that, unless the jury believed defendant was guilty of negligence in that respect, they could not find for plaintiff.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 244-250, 256-259, 263, 264; Dec. Dig. § 179.]
    4. Trial (§ 256) — Instructions—Sufficiency — Duty to Request.
    In an action against a railroad company for failure to provide proper culverts, sluices, etc., an instruction that if the jury found plaintiff’s crops were injured or destroyed, and that he had been damaged thereby,' they should find for. him. the value of such crops at the time of their injury or destruction, and in the condition they were then in, was correct so far as it went, and if defendant desired a further charge it was its duty to request it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    5. Appeal and Error (§ 1067) — Bequest to Charge — Befusal—Prejudice.
    Where, in an action against a railroad company for injuries to land by the alleged negligence of defendant railroad company in failing to construct proper culverts, sluices, etc., the petition only claimed damages up to the time of the trial, and plaintiff at the trial’disclaimed the right to recover prospective damages, and the proof showed that he was entitled to recover an amount greater than was awarded for present damages, defendant was not prejudiced by the court’s refusal to charge that the jury should not consider any evidence of damages to the land that might occur in the future but should confine themselves to damages already accrued.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §, 4229; Dec. Dig. § 1067.]
    Appeal from Hamilton County Court; J. L. Lewis, Judge:
    Action by W. T. Walton against the Stephenville North & South Texas Baiiway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Marshall Ferguson, of Stephenville, for appellant. Eidson & Eidson, of Hamilton, for appellee.

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

   BICE, J.

This suit was instituted by ap-pellee against appellant to recover damages to his land and crops, suffered by reason of overflow on account of its alleged failure to construct the necessary culverts, ditches, and sluices as the natural lay of the land required for its necessary drainage, as well as for a mandatory writ of injunction requiring appellant to construct such culverts and sluiceways as would prevent future damage from overflows. There was a jury trial, resulting in a verdict and judgment for appellee, awarding damages for injury to land and crops, and- likewise awarding injunction, as prayed for, from which this appeal is prosecuted.

The evidence amply supports the verdict of the jury,' and appellant relies for reversal on alleged errors in the charge of the court, as well as the refusal to give special charges requested.. The first assignment complains of the eighth paragraph of the court’s charge upon the measure of damages, wherein. the court uses the following language: “If, under instructions herein given you, you find that plaintiff’s land was overflowed and washed, and that he has been damaged thereby, you will find for him the difference in the value of the land immediately before such overflow and washing, if any, and its value at this time.” And the court refused a special instruction requested by appellant to the effect that, in the event the jury should find the plaintiff was entitled to recover, then he was only entitled to recover the difference between the actual cash market value of his land immediately before and immediately after the overflow, which action of the court is made the basis of the first and sixth assignments. It is insisted that said eighth paragraph is error, and that said special charge should have been given.

It is true that the measure of damages is the market value of the land immediately before and immediately after the particular overflow; but in the present case we conclude that the ruling of the court, if error, is harmless, for the reason that the undisputed evidence shows that the company was guilty of negligence in failing to construct such sluices and culverts and ditches as the natural lay of the land required for the drainage thereof, and that the damages in the present case exceeded the amount recovered, so that, if a new trial were granted, we could not say that a different result would be reached. Rule 62a (149 S. W. x) for the government of this court provides that: “No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court had committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the ease, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court.” For which reason these assignments are overruled.

We do not think there is any merit in the second assignment, because the jury were expressly required to find a failure on the part of defendant to properly construct such sluices, etc., as the natural lay of the land required before they could return a verdict for plaintiff, which was equivalent to telling them that, unless they believed defendant was guilty of negligence in this respect, they could not find in behalf of plaintiff.

The court instructed the jury that if they should find that the plaintiff’s crops were injured or destroyed, and that he had been damaged thereby, they would find for him the value of such crop or crops at the time of their injury or destruction and in the condition such crop or crops were then in. This charge was correct so far as it went, and if the appellant desired a further charge it should have requested same.

The fifth assignment complains of the failure of the court to give appellant’s special charge to the effect that the jury should not consider any evidence of damages to the land that may occur in the future, but that they should confine themselves to such damages as had already accrued. We think it would have been well for the court to have given this charge; still á failure to do so, under the record as presented, does not constitute error, because the petition only claimed damages up to the time of the trial, and the plaintiff in his testimony stated that he was not claiming any prospective damages but only such damages as had occurred up to the time of trial. Besides this, the court had in effect restricted the consideration of the jury, so far as future damages were concerned, to the issue raised by plaintiff’s pleading for a mandatory injunction; and appellee testified in this regard that he was not asking for prospective damages but only for damages up to the time of the trial, and that the court should compel the company to correct the evil, so that it would not occur again. And the proof showed that appellee was entitled to recover a greater amount than was in fact awarded to him by the jury for the present damages. It is evident, therefore, that no future injuries were considered by them. Hence they could not have been misled by the failure of the court to give the charge requested.

There is no merit in the remaining assignments, for which reason they are overruled.

The record failing to show reversible error, the judgment of the trial court is affirmed.

Affirmed.


author: HARPER, C. J.

text:
    CORRIGAN v. GOSS et al.
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 6, 1913.
    Rehearing Denied Nov. 26, 1913.)
    1. Husband and Wife (§ 271) — Separation Deed — 'Validity.
    Where a husband and wife have separated, or have agreed to separate, a deed of separation, including partition of community property, executed by them will be sustained if just and made without coercion or undue influence.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 989-1002; Dec. Dig. § 271.]
    2. Appeal and Error (§ 1010) — Findings— Conclusiveness.
    The findings of the trial court will be sustained if there is any evidence to support them.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. § 1010.]
    On Rehearing.
    3. Husband and Wife (§ 271) — Separation —After-Acquired Property.
    Where an agreement of separation between husband and wife provides for an equitable division of the community property, property subsequently acquired by either spouse was his or her separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 989-1002; Dee. Dig. § 271.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

      Action by Martha J. Corrigan against T. V. Goss, executor, and others. From judgment for defendants, plaintiff appeals.
    Affirmed.
    W. J. Howard, of Houston, for appellant. J. W. Lockett, of Houston, for appellees.

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

   HARPER, C. J.

Plaintiff alleges that she is the surviving wife of Patrick F. Cor-rigan, deceased, and that the property described in her petition was community property of herself and her said husband, and that as the surviving wife of her said husband, she is lawfully entitled to one-half thereof, and that at his death he left a certain sum of money and household furniture, that her said husband was seised and possessed of a certain house and lots, having inherited the same from a former wife, and that same, by reason of occupancy as such, became her homestead, and was such at the time of the death of the said Corrigan, and asks that same be set aside as her homestead, but if it cannot be partitioned, then that she have her allowance of $5,000 in lieu thereof, as provided by statute, and further asks for an allowance of $1,000 for one year’s support. Defendants plead general denial; deny that any of the property sued for is community estate, but that same was the separate property of said Patrick F. Corri-gan, deceased, that said property was acquired after a separation and a partition agreement between plaintiff and the deceased of date 1906, whereby there was conveyed to and accepted by plaintiff certain property then allotted to her, which did not include any of the property sued for, and that she accepted same in full settlement of her interest in the separate and community estate, and waived, canceled, and released any and all rights which she might have to any property which he should thereafter acquire; that said partition and settlement was fair and equitable, and plaintiff thereby received all and more than she was entitled to; that in respect to that part of plaintiff’s petition wherein.she seeks to recover $1,000 as an allowance for one year’s support, and asks for homestead or allowance in lieu thereof, allege that a fair settlement was made between plaintiff and deceased, and that they lived separate and apart, and that during said time she had and enjoyed the rents and revenues of the property so set apart to her by the agreement and partition, and was sufficient for her maintenance; that they did not constitute a family at the time of the death of Patrick T. Corrigan; therefore plaintiff is not within the meaning of the law the surviving widow of deceased. Plaintiff by supplemental petition pleaded general demurrer, general denial, and further that it became necessary for her to leave deceased at the time they separated because of his cruel and inhuman treatment; that after being so driven away she was without means of support, and that deceased took advantage of her condition by his cruel treatment, threats, and duress, she yielded to the condition, and executed the papers; that she at all times recognized the marriage relations, and was ready to resume her duties as his wife at any time that he would cease hi§ conduct aforesaid, but that he refused; tendered into court all the property in her name, and asked that all the property acquired during the marriage be declared to be community property and partitioned as the law directs. Trial was had before the court, and judgment for defendants for all property acquired by Patrick Corrigan after the settlement between himself and wife.

Following are the trial court’s findings of fact:

“From the testimony in this case, I deduce the following findings of fact:
“(1) I will try to make them as brief as possible. The deceased, Corrigan, was possessed of considerable property when he married the plaintiff, and during their coverture he accumulated considerable more property.
“(2) Domestic infelicity arose, which seems to have been brought about by some singular and revolting attachment for or association in some degree with a negro woman on’the part of the husband, Corrigan. The parties separated, and the wife says she was compelled to leave, and I find that she would have been justified in getting a divorce, and there was such a suit brought by the plaintiff, and there was a cross-action by the defendant, the wife, but no divorce was entered, the wife having dismissed her suit, and divorce was refused her husband.
“(3) I find that they finally agreed to separate permanently and divide the property, though the wife, I conclude, was reluctant to make the division, yet she acquiesced' therein. She testified that her husband told her she would have to make the division or leave without anything, and she also testified that he beat her on one occasion because she refused to sign the division papers. The husband being dead, this evidence was undisputed, and was not supported by any other testimony. However this may have been, I do not find that at the time of the partition — that is the actual execution of the papers- — that there was any such conduct on the part of the husband as to amount to legal duress.
“(4) I find that the division of the property made was equal and fair, and that the wife took the part assigned to her and has kept the real estate ever since, and has been in the use and enjoyment of it.
“(5) The officer, in taking her acknowledgment to the partition and division of the property, failed to put into it the words: ‘And that she does not wish to retract it,’ but parol proof was introduced, over the objection of plaintiff, to prove that she did so state upon privy examination, and I find that she properly acknowledged the instrument.
“(6) The plaintiff in this ease, the wife, had the advise of competent counsel, and the instrument of partition and division was made under his advice, and if I mistake not, in his presence, and, as I have said, both parties took the properties according to the division, and the husband held his until his death, and ’the wife still holds hers. The then attorney for Mrs. Corrigan advised her to make the settlement because he considered that it was the best she could do under the circumstances, as Corrigan, the husband, had control of the property, and. he did not think she could sue for the property without suing for divorce.
“(7) I find that the wife has ample property for her homestead, and that no such condition of affairs exist as would justify setting apart to her a homestead,
“(8) I find that after the separation and partition, the husband Corrigan purchased the two pieces of real estate in Houston Heights and the Kirby addition involved in this controversy, and that it was paid for in part with the money which had been allotted to him in the said partition. I also find that by »the partition and division made between the husband and the wife it was intended that such estate as the wife should thereafter acquire should be her separate estate, and that such estate as the husband should thereafter acquire should be his separate estate, and it was intended by the partition to divide, not only the property then on hand, but such as should thereafter be acquired, so that such as was thereafter acquired by each should be their respective estates, which I believe was fair; and X find that all of the property acquired by the husband after the separation was purchased and acquired by him as his separate estate.
“(9) X find that the homestead occupied by Corrigan'and wife at the time of the separation, to wit, lots 5 and 6, block 31, of the Noble addition to the city of Houston, was the community property of Corrigan and his first wife, and same has since been partitioned, and lot 6 set aside to the estate of Patrick Corrigan and lot 5 set aside to the dev-isees of the first Mrs. Corrigan.”

Many of appellant’s assignments are not in compliance with the rules, but a sufficient number of them can be considered to raise the only questiofas of importance, viz.: First. Under the uncontradicted evidence, has appellant any community interest in the property acquired by Corrigan after the separation? Second. Was the partition or division of the community property made by them by their writing dated - such an one as will be enforced under the rules of law and equity?

It is well settled that where husband and wife have already separated, or have determined upon a separation and are in the act of executing it, a deed of separation, including partition of community property, will be upheld, provided that they have been entered into without coercion or other undue influence, and the provisions are just and equitable. Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324.

The assignments of error complain that the uneontradicted evidence shows that there was no intention to abandon on the part of the wife, and that she signed the instruments under duress, and under a misapprehension of the facts, and that the partition was not just and equitable. After carefully reading the entire record, we are of the opinion that the assignments are not well taken, but that, on the other hand, the evidence is sufficient to support the judgment and the findings of fact of the trial court. And so long as there is any evidence in support of the findings ot the trial court, we cannot hold otherwise.

We do not quote the evidence from the record, which in our judgment supports the-court’s findings, because it could in this case-serve no good purpose.

Affirmed.

On Rehearing.

The appellant in his motion for rehearing-urges with so much zeal the propositions that the trial court erred in finding as a fact that there was no duress and undue influence-which brought about the execution of the agreement to separate between Corrigan and his wife, and the execution of the partition deed, and further insists that there was no definite finding to that effect, and further urges that the case of Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324, does not support this court in its opinion; and, for fear that the-opinion as rendered does hot clearly reveal the full scope of the propositions of law therein decided, we add:

The effect of the finding of facts in subdivision 3, quoted in full in the original opinion, is that, notwithstanding the threats and, the personal violence testified to, there was no duress which was the moving cause of the agreements entered into, or else he did not believe the testimony, so in either event the trial court’s finding is binding upon us where there is any evidence in the record to support it, and this court holds that there is such, evidence.

The cases cited by appellant hold that, as between the parties and as to third parties interested, the husband and wife cannot, by mere agreement, transfer their separate or community property one to the other, and thereby change the class of estate which, the law fixes in each. Cox v. Miller, 54 Tex. 27; Green v. Ferguson, 62 Tex. 529; Kellett v. Trice, 95 Tex. 165, 66 S. W. 51. While Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324, settles the law in this state to be that deeds of separation, made after the separation or when in the act of separating, are valid, so-far as they settle the rights of property between the husband and wife, if made without coercion or undue influence, and the provisions of the partition deed are just and equitable. As said above, the trial court having found against appellant upon all these propositions, the deed becomes valid.

It is clear that this agreement and partition deed were not intended to convey property by one spouse to another, but an equitable division in view of final separation; that is, in view of no longer acting together in the acquisition of .property, which the law fixes as community, or separate, according to its manner of acquisition, but each to take in the future such property as he may acquire as his own, unincumbered by the marital relation.

Hence it follows that property acquired by either spouse after separation, brought about by such an agreement, becomes the separate property of the one who acquired it, free from the claims of the other, because they are no longer, in law, acting together in their legal capacity of husband and wife. And this partition deed being valid and binding, it settled all property rights between the parties, including the homestead rights of appellant.

The original opinion is adhered to, and the motion overruled.


author: WILLSON, C. J.

text:
    NEWMAN v. NEWMAN et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1913.)
    Partition (§ 73*) — Judgment—Statutes.
    Under the express provisions of Rev. Civ. St. 1911, arts. 6101, 6111, the court in partition must determine in the first instance whether the land was susceptible of partition, before judgment is entered and before commissioners are appointed; and hence the leaving of that question for the commissioners’ determination was error.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 196-208; Dec. Dig. § 73.]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Partition by A. J. Newman and others against G. B. Newman and others. From an order^ approving the report of a commissioner, and ordering a sale of the land, G. B. Newman appeals.
    Affirmed.
    Plaintiff in error was one of several defendants in a suit brought by defendant in error A. J. Newman and others, to partition a tract of 220 acres of land in Jasper county and certain personal property, alleged to belong to them in common. It seems that at the December term, 1911, of the court, a judgment was rendered, but as a copy of it was not made a part of the record on this appeal, we are not advised, except inferentially, as to what was determined by it. At the next succeeding term of the court all the parties, in a motion filed by them, alleged that the land in question had been improperly described in that judgment, and prayed that same be set aside, and that a judgment be then entered describing the land as set out in the motion. With reference to this motion the court on June 28, 1912, made an order in part as follows: “This day came on to be heard the foregoing motion, and, it appearing to the court that same should be granted, it is therefore ordered, adjudged, and decreed that the judgment formerly entered in this cause at the December term of this court, 1911, be amended as prayed for in the foregoing motion, and the following judgment be entered in its stead.” The court by the judgment he then rendered determined that the personal property in question belonged to appellant, and adjudged same to him. He further determined that 25 of the 220 acres of land belonged in severalty to G. W. Newman, one of the defendants, and adjudged same to him. He then determined that the remainder of the tract belonged in common to plaintiff in error, and certain of the defendants in error, and after declaring that same should be so partitioned as to set apart to each of them the share he owned, which he determined, appointed commissioners to make the partition, directing them “to make a fair, equal, just, and impartial partition of said land * * * and report same in writing and under oath to this term of court,” and further directed them, if in their opinion such a partition could not be made, “to report the fact to the court, in writing under oath, at this term stating their reasons for such opinion.” On June 29, 1912, the commissioners named by the court filed a report in which they stated it to be their opinion that it was not practicable to make a partition of the land, and in which they recommended that same be sold and the proceeds of the sale distributed among the owners of the land. On the day this report was filed plaintiff in error filed exceptions to it and prayed the court to reject it. On the same day the court made an order, in which, after reciting that he had examined the report, heard the objections and exceptions to it, and evidence in favor of and against it, he declared it to be his opinion that the land was “incapable of profitable partition, and that a division thereof would be detrimental to the estate,” and by which he approved the report and directed that the land be sold as under execution, and that the proceeds of the sale, after paying costs, be distributed among the owners of the land. So far as the record shows to the contrary, this action of the court was not then excepted to by plaintiff in error.
    Roi Blake, of Jasper, for appellant. Smith & Blaekshear, of Jasper, for appellees.

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

   WILLSON, C. J.

(after stating the facts as above). Prior to 1905 the statute applicable in suits like the one resulting in the judgment appealed from was as follows: “The court shall enter a decree directing the partition of such real estate, describing the same, to be made in accordance with the respective shares or interests of the parties entitled thereto, specifying in such decree the share or interest of each party, and shall appoint three or more competent and disinterested persons as commissioners to make such partition in accordance with such decree and the law, a majority of which commissioners may act. Should the commissioners be of opinion that a fair and equitable division of the real estate, or of any part thereof, cannot be made, they shall report the fact to the court in writing under oath, stating their reasons for such opinion, and if the court should be satisfied that the report of the commissioners is correct, it shall order a sale of so much of such real estate as is incapable of partition, which sale shall be for cash, or upon such terms as the court may direct, and shall be made as under execution, and the proceeds thereof shall be returned into court and partitioned by the court between the persons entitled thereto, according to their respective interests therein.” Sayles’ Stat. arts. 3611, 3621. By the act of 1905 (Laws 1905, c. 68) the statute was so amended as to read: “The court shall determine before entering the decree of partition whether the property or any part thereof is susceptible of partition and if the court determines that the whole of such property or any part thereof is susceptible of partition then the court for that part of such property held to be susceptible of partition shall enter a decree directing the partition of such real estate, describing the same to be made in accordance with the respective shares or interests of each of the parties entitled thereto, specifying in such decree the share or interest of each party, and shall appoint three or more competent and disinterested persons as commissioners to make such partition in accordance with such decree and the law; a majority of which commissioners may act. Should the court be of opinion that a fair and equitable division of the real estate or any part thereof cannot be made, it shall order a sale of so much of such real estate as is incapable of partition, which sale shall be for cash or upon such other terms as the court may direct, and shall be made as under execution, or by private sale, through a receiver, if the court so order, and the proceeds thereof shall be returned into court and be partitioned, among the persons entitled thereto according to their respective interests.” Arts. 6101, 6111, Revised Statutes 1911.

It will be noted that under the statute, before it was amended, the commissioners were to determine, in the first instance, whether the land was susceptible of partition or not, and that the effect of the amendment is to make it the 'duty of the court to determine that question, before the judgment is entered, and before commissioners are appointed. It is insisted here that the court by his judgment, entered before the report of the commissioners was filed, determined that the land was susceptible of partition, and thereafterwards was without power to order a sale of it. We do not know from the record before us whether the court by the judgment he rendered at the December term did that or not, for, as before stated, that judgment was not copied into the record before us. Whether he so determined or not probably is of no importance, in view of the fact that that judgment, at the instance of all the parties concerned, was set aside at the June term of the court. The power of the court to set it aside at that term and render the judgment he then rendered is not questioned by any of the assignments. As to the judgment rendered June 28, 1912, it is clear, we think, the court did not determine that the land was susceptible of partition. Instead, disregarding the requirement of the statute, he left the determination of that question, in the first instance, to the commissioners. This, of course, was error, but it is not assigned as such. On the contrary, as we have seen, plaintiff in error’s insistence is that the court before entering the judgment determined that the land was susceptible of partition, and that, having done so, he was without power thereafterwards to order a sale thereof. In making this contention plaintiff in error ignores the fact that the court in his judgment directed the commissioners to report to him if in their opinion a partition could not be made. Such instruction to the commissioners is not consistent with the claim made that the court determined before the judgment was entered that the land was susceptible of partition, but indicates that the court intended to leave, and did leave, the question as to its susceptibility to partition to the commissioners. It is clear from the whole record that the fact that the statute had been amended as stated was overlooked by tlie court, for the proceedings were all in accordance with the requirements of the statute as it was before it was so amended. As before stated, no complaint is made of this.

No reversible error having been assigned, the judgment is affirmed.


text:
    GULF, C. & S. F. RY. CO. v. CURRIE et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1913.)
    1. Akpeal and Error (§ 738) — Assisnments of Error — Multifariousness.
    An assignment of error in the admission of testimony of three witnesses over objection on different grounds, set out in three different bills of exception, was objectionable as multifarious.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3033; Dec. Dig. | 738.]

      2. Appeal and Error (§ 931) — Presumptions — Trial to Court.
    Where a case was submitted to the court without a jury, it will be presumed that the judgment was based on that portion of the testimony which was admissible and competent.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dee. Dig. § 931.]
    Appeal from Jasper County Court; W. R. Blackshear, Judge.
    Action by L. W. Currie and others against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills, A. H. Culwell, and Jno. G. Gregg, all of Galveston, for appellant. Garland Smith, of Jasper, for appel-lees.

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

   HODGES, J.

This suit was instituted by the appellees against the appellant to recover damages for injuries to a shipment of cattle. The cattle were delivered to the appellant at Jasper and destined to Ft. Worth. The case was tried before the court without a jury, and a judgment rendered in favor of the appellees for the sum of $190.65. The evidence shows that there was considerable rough handling in transit, and a delay of 24 hours. A number of the cattle were killed as a consequence of the rough handling and by being trampled upon by others, and the court finds that the live cattle were considerably damaged by the delay.

Appellant’s first assignment of error complains of the action of the court in admitting over its objection the testimony of three witnesses, upon different grounds set out in three different bills of exception. The testimony objected to was offered for the purpose of showing the weight of the cattle when shipped, as a basis for computing the loss resulting from the negligence charged. All three of the witnesses gave their opinions as to what the cattle weighed when delivered to the carrier. They also testified that the cattle were not weighed, because there were at the point of shipment no facilities for weighing them. The principal ground of the different objections seems to be that none of the witnesses had shown the necessary qualifications to give their opinions or estimates of the weight of the cattle. All of those objections being embraced in one assignment renders it multifarious. It may be that one of those whose testimony was objected to had not shown the proper qualifications to authorize the court to consider his opinion on that subject, but this cannot be said of both of the others. These facts are sufficient to justify us in not considering this assignment, or, if considered, would require, us to overrule it.

The case having been submitted to the court without a jury, it will be presumed that he based his judgment upon that portion of the testimony which was admissible and competent. The remaining assignments of error complain of the action of the court in refusing to give a new trial, because of the insufficiency of the evidence to support the conclusions upon which the judgment was based. It is unnecessary to enter into a detailed statement of the testimony adduced upon the trial.

We are unable to say as a matter of law that it was insufficient to support the conclusions reached, and the judgment is therefore affirmed.


author: FLY, C. J.

text:
    NEWMAN et al. v. BUFFALO PITTS CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 29, 1913.
    On Motion for Rehearing, Nov. 26, 1913.)
    1. Venue (§ 7) — Actions on Contract — Place of Payment.
    An action on notes payable in G. county, where the makers resided, but providing that if they were not paid at maturity they should become due and payable at the payee’s office in H. county, was properly brought in H. county.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 13-16; Dec. Dig. § 7.]
    2. Bills and Notes (§ 489) — Evidence Admissible under Pleadings.
    In an action on notes, where defendants filed only a plea .of privilege which did not allege fraud, accident, or mistake, fraud or misrepresentation in obtaining the execution of the note could not be proved or considered.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1587-1642; Dec. Dig. § 489.]
    On Motion for Rehearing.
    3. Bills and Notes (§ 103) — Validity — Fraud.
    Where notes were payable at P. but further provided that, if they were not paid at maturity, they should become payable at the payee’s office at H., a statement of the payee’s agent that they were payable at P., with no effort to conceal the provision as to their payment at H., did not constitute fraud in obtaining the execution of the notes.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 233-240; Dec. Dig. § 103.]
    4. Judgment (§ 251) — Conformity to Pleadings.
    In an action on notes, where there was no plea of fraud or misrepresentation, evidence thereof, erroneously admitted, could not form the basis for a judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.]
    Appeal from District Court, Harris County; Charles E. Ashe, Judge.
    Action by the Buffalo Pitts Company against John Newman and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    H. E. Hoover, of Canadian, and J. H. Davenport, of Houston, for appellants. Hunt, Myer & Teagle, of Houston, for appellee.

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

   FLY, C. J.

Appellee sued John Newman, Earl Talley, A. E. Arnold, J. O. McKinney, O. Vollmeft,' and M. S. Arnold in Harris county on certain promissory notes alleging that they resided in Gray county, Tex.; that the notes were jointly and severally executed by appellant; and that a chattel mortgage on certain property was given by them to secure the payment of the notes. Appellants pleaded their privilege to be sued in Gray county. The court rendered judgment for appellee for the amount of the promissory notes and foreclosed the mortgage lien on the personal property.

Appellants admitted in their testimony the execution of the three notes, in each of which notes it was provided that it should be paid in Gray county, but, “if this note is not paid at maturity, then it shall’ become due and payable at the office of the Buffalo Pitts Company at Houston, Harris county, T&x.” The notes were not paid at maturity. The venue was properly laid in Harris county, and the court correctly overruled the plea of privilege.

Appellants are in no condition to claim fraud, accident, or mistake, because they filed no pleadings upon which' to base such claim. Their only pleading was their plea of privilege, and they should not have been permitted to introduce any testimony whatever, except in support of that plea.

The case of Stacy v. Ross, 27 Tex. 3, 84 Am. Dec. 604, does not sustain the contention of appellants that, under a statutory plea of privilege, fraud in obtaining the execution of the instrument upon which the suit is founded can .be proved. Fraud, accident, or mistake is not mentioned in their plea of privilege. In the case cited there was a distinct allegation that fraud and misrepresentation were used to obtain the execution of the note. Fraud cannot be proved or considered unless it is charged in the pleadings. No case can be produced in which fraud in obtaining the execution of a note was allowed to be shown under a plea of-privilege. The assignments of error raise ho other questions, and they are overruled.

The judgment is affirmed.

On Motion for Rehearing.

We are of the opinion that the court erred in admitting the evidence of fraud and misrepresentation but properly refused to allow it to influence his judgment.. The, evidence, if it ha,d been- admissible under the pleas of privilege, which it was not, was not sufficient to indicate any fraud upon the part of the agent of appellee. If he stated that the notes were payable in Pampa, Tex., he stated a fact, and there was no effort on his part to conceal the fact that the penalty for a failure to pay at maturity was -that the notes should then be payable at Houston, Tex; The evidence does not show fraud upon the part of appellee but indicates gross carelessness, if their testimony be true, upon the part of appellants. They should not be permitted to evade their contract by showing' their carelessness.

There being no plea of fraud or misrepresentation, evidence of such fraud or misrepresentation cannot form the basis for a decision by the trial court or this court. The allegations must be broad enough to permit proof, and evidence not based upon allegations cannot sustain a judgment. This rule is uniform and has been given strict adherence. Young v. Lewis, 9 Tex. 77; Denison v. League, 16 Tex. 400; Loving v. Dixon, 56 Tex. 75; Laredo v. Russell, 56 Tex. 398; Railway v. Anderson, 76 Tex. 244, 13 S. W. 196; Farenthold v. Tell, 52 Tex. Civ. App. 110, 113 S. W. 635. So it does not matter whether appellee is properly in this court on its cross-assignment of error or not.

The motion for rehearing is overruled.


text:
    COTTON v. SANDERSON.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 22, 1913.
    Rehearing Denied Nov. 26, 1913.)
    1. ÜSURT (§ 102)— RECOVERY— CONTRACT OF Release—Validity.
    An agreement between the debtor and usurer, reciting that an accounting had been stated between the parties, and all demands of each against the other included therein, and this agreement executed in full satisfaction of all claims of each against the other, would not estop the debtor from recovering usurious interest in the absence of a showing that the claim therefor was included within the settlement; it being necessary that a contract releasing the right to recover usurious interest distinctly so state, and be on a valid consideration.
    [Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 197, 241, 242, 244-258; Dec. Dig. § 102.]
    2. Appeal and Erkoe (§ 910)—Time of Filing Action—Presumption.
    Where, in an action for usurious interest paid, the record does not show when the petition was filed, but shows the answer was filed September 5, 1911, and that practically all of the interest was paid in less than two years before the answer was filed, the appellate court will presume that the petition was’filed within two years subsequent to payment of the usurious interest.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3679-3681; Dec. Dig. ⅜ 910.]
    Appeal from Harris County Court; C. C. Wren, Judge.
    Action by L. Sanderson against Almon Cotton. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. Y. Meek, of Houston, for appellant. Barkley & Green, of Houston, for appellee.

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

   FLY, C. J.

This is a suit instituted by appellee to recover the statutory penalty prescribed for the collection of usurious interest. A trial resulted in a judgment for ap-pellee in the sum of $371.

The following contract or agreement was placed In evidence: “Houston, Tex., Jan. 17, 1911. An accounting lias this day-been stated between the New York Loan Company, Almon Cotton, sole proprietor, and L. Sanderson; all claims and demands of all kinds or character which each has against the other has been included in said statement of account, and a full and complete settlement of same had, the balance due the New York Loan Company, Almon Cotton, sole proprietor, by L. Sanderson. This mutual receipt has been executed by each of us in full settlement, accord, and satisfaction of all claims and demands which each has against the other to this date of whatever character.” The agreement was signed by appellee, and it is contended that it estops appellee from claiming the penalty for the usurious interest paid by him. The facts disclose that an iniquitous business was operated by appellant, through which laborers were loaned money upon transfers of their wages, and charged a rate of interest that would put a Shylock to shame, and the agreement was doubtless arranged by appellant to protect him against his illegal acts. His acts, however, were an offense against law, morals, justice, and society, and the public is so vitally interested in the punishment and suppression of such vice and crime that while recognizing the right of the individual to release his claim to the penalty prescribed by law, it will be required that it clearly appear from the agreement, and the circumstances surrounding its execution, that the injured party fully and clearly intended to part with all of the rights arising out of the payment of the usurious interest. The agreement was based upon an accounting between the parties, and it is not'pretended that the penalty was included in the accounting, and the testimony of appellee shows that he did not have a release of the penalty in contemplation when he signed the agreement. The agreement had no reference to a penalty for usury, but to the items of an account existing between the parties, and there was no consideration whatever for a release of the penalty.

It has been held in this state that the right to sue for usurious interest may be the subject of adjustment or release; but it was in a case in which the right to sue was released in distinct terms, and on a consideration held to be valid. Stout v. Bank, 69 Tex. 384. It is regrettable that the more enlightened view, held in other courts, that an agreement not to sue for a penalty for the exaction of usurious interest cannot be enforced, has not been adopted m Texas. The protection of the poor and helpless from the tyranny and oppression of usurers and loan sharks would be advanced by that view of such agreements.

The Court of Civil Appeals of the First Supreme Judicial District has passed upon the same kind of agreement as that copied herein, and it was held: “No consideration, valid in law, was paid plaintiff for its execution, and the usury in former transactions was not purged, and we think we are justified in saying that appellant’s only object in securing the execution of the instrument was to create an estoppel against plaintiff from ever suing to recover the money illegally collected from him as interest. We think that under the facts stated the release referred to did not estop plaintiff to sue for a recovery of the amount illegally collected from him as interest, and that it was not necessary for plaintiff to allege and prove that the release was signed by him as the result of accident, fraud, or mistake.” Cotton v. Thompson, 159 S. W. 455. The first assignment of error is overruled.

There is ample testimony to show a flagrant disregard of the laws of the state in regard to usury, and an utter contempt for the rights of others. The subterfuges used to conceal the usury are so transparent as to be farcical. There is no excess in the judgment.

The third assignment of error complains • of the action of the trial court in overruling a special exception to appellee’s petition, on the ground that it appeared from the petition that portions of the usurious interest were paid more than two years before the filing of the suit. The record fails to indicate when the original petition was filed; but the answer of appellant was filed on September 5, 1911, and the petition must necessarily have been filed prior to that time. The itemized account shows that all of the usurious interest was paid in less than two years before the answer was filed, except 20 cents paid on August 17, 1909, and, in the absence of anything to the contrary, we will presume that the petition was filed within two years subsequent to that date.

The judgment is affirmed.

       8 S. W. 808.


author: TALBOT, J.

text:
    TEXAS SEED & FLORAL CO. v. WATSON et al.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 8, 1913.)
    1. Sales (§ 418) — Breach of Contract — Buyer’s Measure oe Damages — Sale of Seed.
    One who purchases seed represented by the seller to be good seed of a certain kind may, upon breach of the contract by furnishing seed of an inferior and different kind, recover.4he difference between the value of the crop produced from the seed delivered and the value of that which would have been produced from the seed ordered.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.].
    2. Sales (§ 411) — Breach of Contract — Actions — Sufficiency of Petition — Itemizing Damages.
    The petition, in an action for damages resulting from the delivery of cheat seed, instead of oat seed' as ordered, which alleged that the ’ reasonable value of the time and labor required to remove the cheat from the soil and prevent it from interfering with other crops was a certain amount, was not defective for not itemizing the time and labor required.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 1161-1164; Dec. Dig. § 411.]
    3. Sales (§ 417) — Actions eor Breach— SUFFICIENCY' OF EVIDENCE — PARTIES TO Contract.
    Evidence, in an action for damages from the delivery of cheat seed, instead of oat seed as ordered, held to show that the seed was ordered by plaintiff from defendant seed company through the person named, and not ordered directly from such person.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. § 1173; Dec. Dig. § 417.]
    4. Principal and Agent (§ 132) — Diability of Principai^Scope of Agency.
    A principal is entitled to the benefits and subject to the burdens of all acts and contracts by the agent within'the scope of his authority, so that a seed company was liable as principal for damages from furnishing defective seed ordered by its agent for plaintiff, though defendant did not know for whom the seed was ordered.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 459, 467-471; Dec. Dig. § 132.]
    Error from Hunt County Court; Geo. B. Hall, Judge.
    Action by M. N. Watson against the Texas Seed & Floral Company and others. Judgment for plaintiff, and defendant named brings error.
    Affirmed.
    Thompson & Manning, of Greenville, and Short & Eeild, of Dallas, for plaintiff in error. Clark & Leddy and B. F. Vaughan, all of Greenville, for defendants in error.

      For other oases 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. Key-No. Series & Rep’r Indexes

   TALBOT, J.

M. N. Watson brought this suit against the Texas Seed & Floral Company and I. Jacobs to recover damages alleged to have resulted to him from the sale of spurious seed, which he charges he purchased from the said company through the said Jacobs. The petition alleges, in substance, that plaintiff is a farmer and owns and operates a farm in Hunt county, upon which he resides; that the defendant Texas Seed & Floral Company is engaged in the seed and floral business in the city of Dallas; that plaintiff desired to plant six acres of his farm in turf oats, which he declares to be of á superior kind; that they are planted in the fall and pastured throughout the winter, and will grow a good crop of oats for harvest early in the season; that he applied to the defendant I. Jacobs, who was a merchant in Wolfe City, to purchase the seed he desired, and was informed that he did not handle turf oat seed, but that he could procure the same from the defendant Texas Seed & Floral Company; that at the request of the plaintiff the defendant Jacobs ordered for the plaintiff, and to be delivered to the plaintiff, the seed for planting; that seed were delivered, which both defendants stated to be turf oat seed; that plaintiff purchased eight bushels at $1.50 per bushel, relying upon the good faith of defendants and their representations in respect to said seed, and, believing that he was buying turf oat seed, paid the price charged therefor; that he prepared the ground, embracing six acres, and planted them; that had the seed been turf oats in fact he would have grown 70 bushels per acre, of the value of $1 per bushel, and the same would have been harvested the 1st of June, 1912; that instead of selling and delivering oat seed defendants, without the knowledge or consent of plaintiff, delivered cheat seed, a worthless grass or vegetation which seriously damages land wherever it; is grown, and is worthless for any purpose; that it crowds out other vegetation, renders the land foul and difficult to cultivate, and requires much labor to remove and eradicate it from the land when it once gets a foothold thereon; that instead of producing a valuable oat crop, the land prepared and planted produced a heavy crop of cheat, rendering it necessary for the plaintiff to spend much time and labor in the future to eliminate the spurious growth from the soil and keep it from interfering with other crops to be grown thereon; that defendants knew, or could have known, the character of seed they delivered, and the damage it would do the land, and that the seed delivered was not oats but cheat. Plaintiff alleges that he has been damaged in the value of the oat crop which his land would have produced, amounting to $420, and that he was further damaged in the sum of $75, the reasonable value of the time and labor required to eliminate from the land the cheat which had grown thereon, and that the land had been damaged to the extent of $75, and judgment is prayed accordingly. The defendant Texas Seed & Floral Company answered by general and special exceptions to plaintiff’s petition and a general denial. The demurrers to the petition were overruled, and a trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff against the Texas Seed & Floral Company, for $175, and in favor of the defendant Jacobs. From the judgment rendered against it the Texas Seed & Floral Company prosecute this writ of error.

The first and second assignments of error are grouped in the brief, and complain, respectively, of the trial court’s action in overruling defendant’s general and special exceptions to plaintiff’s petition. These assignments assert, in effect, that the value of the crop which might have been raised, had the seed been such as plaintiff ordered, and which he avers would have been $420, is remote and speculative and not recoverable; that the damage which the plaintiff might have recovered, if the allegations of his petition are true, is the original cost of the oat seed which he purchased for sowing, with interest thereon, the reasonable value of the rent of his land, and the value of his labor in sowing and cultivating his crop. We think the court did not err in overruling the demurrers.

It seems to be the settled law of this state, supported by the weight of authority in other jurisdictions, that the injured party in a case of this character may recover the difference between the value of the crop produced from the seed delivered and the value of the crop that would have been produced from the seed actually ordered. Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; American Warehouse Co. v. Ray, 150 S. W. 763; Brooks v. Davis, 148 S. W. 1107. According to the allegations of plaintiff’s petition the damages he sustained by reason of the breach of the contract alleged was practically the full value of the crop that would have been grown had turf oat seed and not cheat seed been delivered, together with the reasonable value of the time and labor required to eliminate from the land the cheat which had grown thereon. The allegations are to the effect that the crop of cheat produced from the seed delivered was practically of no value, and that had turf oat seed been delivered he would have grown on the land sown about 70 bushels of oats to the acre of the value of $1 per bushel. Thus, according to the averments of the petition, the difference between the value of the crop produced and the value of the crop that would have been produced had turf oat seed been delivered instead of the cheat, seed is practically the value of the crop that would have been grown from the oat seed had such seed been furnished in accordance with the contract of purchase. The allegations, however, do not present a case where no crop was planted or no crop whatever produced. The cheat seed delivered were sown and a crop of cheat was grown on the land and harvested.

Nor do we think plaintiff’s petition was obnoxious to defendant’s special exception .No. 3. That part of the petition in which it is charged that time and labor would be required to eliminate from the land the cheat grown thereon was not defective because not itemized. It was sufficient for the petition, in alleging damages to the land, to state that the reasonable value of the time and labor to remove the cheat from the soil, and to prevent it from interfering with other crops to be grown was $75. These allegations, it occurs to us, sufficiently apprised the defendant of this branch of the plaintiff’s case to enable it to know the nature thereof and to prepare to meet the same.

The fourth assignment is to the effect that the court erred in overruling defendant’s motion to instruct the jury to return a verdict in his favor, because the undisputed evidence showed that the defendant Texas Seed & Floral Company had sold the seed involved in this suit to the defendant I. Jacobs, and that Jacobs had in turn sold the seed to plaintiff; that no contract was made between Texas Seed & Floral Company and the plaintiff, either directly or indirectly, and therefore it was not liable to plaintiff for any alleged breach thereof or warranty embraced therein. We think there was no error in this action of the court. The evidence, as we understand it, was sufficient to show that the seed were ordered by plaintiff from the defendant Texas Seed & Floral Company through I. Jacobs. The seed, it is true, were ordered in the name of Jacobs and billed to him, but Jacobs swore that he explained to the Texas Seed & Floral Company at the time the seed were ordered that he was ordering them for a customer. Plaintiff in error’s manager swore that his company was engaged in handling seed for planting purposes only, and that it always knew when an order came that the seed ordered were wanted for planting purposes. In a letter to I. Jacobs, dated June 5, 1912, the president of defendant Texas Seed & Floral Company used the following language concerning this case: “After giving the matter careful consideration we believe that the man had a good feed crop, and he will find a good many oats in his field, and when we sold the oats to him the cheat was in the oats.”

It is shown without dispute that the seed in question were ordered for the plaintiff Watson by the defendant Jacobs as the agent of Watson, and that the defendant Texas Seed & Floral Company knew he was ordering the seed for a customer. It it clear that Jacobs was acting as the agent of the plaintiff in error in ordering the seed, and if it be admitted that plaintiff in error did not in fact know for whom the seed were ordered, yet the law is well settled, as we understand it, that if “one person is the agent of another, the latter, as to all matters falling within the scope of the agency, is entitled to the benefits and subject to the burdens of the act done and contracts made by the agent.” Treating defendant as an undisclosed principal in the transaction involved in this suit, he was entitled, under the facts, to recover, and the motion for an instructed verdict in favor of the plaintiff in error was properly overruled.

What we have said disposes of the other assignments of error adversely to the contentions of the plaintiff in error.

The evidence supports the verdict; and, no reversible error being found in the record, the judgment is affirmed.