author: MIDDLEBROOK, J.

text:
    GUARANTY STATE BANK v. BLAND et al.
    (No. 122.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 2, 1916.)
    1. Appeal and Error @=3773(4) — Failure to Brief — Submission on Transcript.
    Where appellant fails to file brief in the court below or the Court of Civil Appeals, and the case is submitted by the appellee on the transcript, unless there is fundamental error, the judgment must be affirmed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3109; Dec. Dig. <§=3 773(4).]
    2. Bills and Notes <$=3525 — Holder in Due Course —Fraud on Maker — Knowledge of Transferee — Sufficiency of Evidence.
    In a bank’s suit on a note, evidence held insufficient to sustain finding that the bank obtained such note with knowledge of a fraud practiced on the maker.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. @=3 525.]
    3. Banks and Banking <&wkey;127 — Deposit of Note — Sufficiency of Evidence.
    In a bank’s suit on a note, evidence held insufficient to sustain the finding that the note was ever received on deposit by the bank.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 304, 310; Dee. Dig. <&wkey;> 127.]
    4. Bills and Notes <&wkey;520 — Fraud—Sufficiency of Evidence.
    In a bank’s suit on a note, evidence held insufficient to sustain finding that a defendant obtained possession of the note sued on from another defendant by means of false and fraudulent representations of such character as to amount to a fraudulent taking of the note without consideration.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1813, 1832, 1836, 1837; Dec. Dig. &wkey;>520.]
    5. Bills and Notes <&wkey;525 — Holder in Due Course — Purchaser in Good Faith for Value — Sufficiency of -Evidence.
    In a bank’s suit on a note, evidence held to show that the bank purchased the note in suit, paying full value -before maturity, without knowledge that any fraud had been perpetrated by its' transferor upon the maker, and without any notice putting it upon inquiry.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. @=525.]
    6. Banks and Banking @=3116(4) — Notice to Cashier.
    A bank, taking a note, was not taxed with notice of facts, relative to fraud in the inception of the note, known to its cashier, whose knowledge was acquired when acting solely in his individual capacity, for himself and another concern, in which the bank had no interest.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 285; Dec. Dig. <&wkey;> 116(4).]
    Error from District Court, Orange County; A. E. Davis, Judge.
    Consolidated suits by Guy M. Bryan, Jr., and the Guaranty State Bank of Houston, Tex., against D. C. Bland and others. To review a judgment against plaintiff bank and for a defendant, and for plaintiff Bryan against three defendants, the bank brings error.
    Judgment reversed, and judgment rendered for plaintiff bank.
    John G. Tod and Mark G. Fakes, both of Houston, for plaintiff in error. Holland & Holland, of Orange, for defendants in error.
   MIDDLEBROOK, J.

This suit was brought by Guy M. Bryan, Jr., against D. C. Bland, A. M. H. Stark, C. O. Waller, Lewis R. Bryan, and Chas. C. McRay, in the district court of Harris county, Tex. The cause was dismissed in the Harris county court as to defendants Lewis R. Bryan and Chas. C. McRay, and upon pleas of privilege interposed by defendants D. C. Bland and A. M. H. Stark, the cause was transferred to the district court of Orange county, Tex. The plaintiff in error, Guaranty State Bank of Houston, Tex., filed its cause originally in the district court of Orange county, Tex., against D. 0. Bland, A. M. H. Stark and C. O. Waller. Defendants Bland and Stark answered in both cases, but the defendant Waller, though properly served, did not answer. By agre'ement of all parties, the two cases were consolidated and tried together before the court, without the assistance of the jury. Guy M. Bryan sued to recover upon two promissory notes of $500 each given by D. C. Bland and A. M. H. Stark, secured by vendor’s lien upon a certain tract of land in the city of Orange, Orange county, Tex., which notes were alleged to have been duly transferred by D. C. Bland to defendant C. C. Waller, and by him sold, transferred, and assigned to plaintiff Guy M. Bryan, before maturity, and for value. The plaintiff Guaranty State Bank brought this suit in the usual form of debt and foreclosure upon a promissory note for $500 given by the defendant D. C. Bland to the defendant Stark, and by Stark transferred to defendant C. C. Waller, and alleged to have been sold, transferred, and delivered by him to the plaintiff Guaranty State Bank for value, and before maturity. The three notes were given as part of the consideration for the execution of a deed from Stark to Bland, and secured by the same vendor’s lien contained in said deed. Bland and Stark filed answers to both suits, which were substantially the same, setting up among other defenses that the defendant O. C. Waller had by fraudulent misrepresentations obtained the possession from the defendant A. M. H. Stark the note sued on by the plaintiffs in said eases, together with other securities, stocks, etc. That the defendant Waller in these transactions was acting for himself and the plaintiff, and with their knowledge and acquiescence; that the plaintiff was a party to the transaction and knew thereof, and its nature; that no title passed from the defendant Waller to the plaintiffs in said eases. The case was tried by the district judge on the 27th day of April, 1915, without a jury, and judgment rendered against the plaintiff bank, that it take nothing upon its suit, and that the defendant A. M. H. Stark recover upon the $500 note sued on by the bank. Judgment was rendered in favor of the plaintiff Guy M. Bryan, Jr., against D. O. Bland, as principal, and A. M. H. Stark and O. 0. Waller as indorsers on the other two notes for the sum of $1,363.56, with interest at the rate of 8 per cent, per annum, and one-half the costs of court, and foreclosure of the vendor’s lien was ordered on both notes.

The plaintiff bank in due season filed its motion for a new trial, which was by the court overruled, and the case is regularly before this court upon writ of error. Findings of fact and conclusions of law were filed by the trial court on May 10, 1915, in which the court found that the three notes sued on were vendor’s lien notes, and valid obligations given by the defendant Bland to Stark, and by the defendant Stark indorsed, and held by plaintiff. The court further found that the plaintiff bank was not a purchaser for value without notice, and that, therefore, Stark was still the owner of note No. 1, which was the note sued on by said bank. The court also found that the plaintiff Guy M. Bryan acquired the two notes sued on by him, notes Nos. 2 and 3, in due course of business, before maturity, for value, and without any notice or knowledge of any defect therein, and was an innocent purchaser of the notes.

The plaintiff bank filed a petition and bond for writ of error. The defendant A. M. H. Stark filed a supersedeas bond with W. H. Stark and O. A. Stark as sureties, which bond was in proper form, and in due time approved by the clerk.

No assignments of error were filed in the court below by defendant A. M. H. Stark, other than his motion for new trial, nor has the defendant Stark filed in this court a transcript, but one has been filed by the plaintiff in error, Guaranty State Bank, which includes all the proceedings herein referred to. The transcript was applied for by the attorney for the plaintiff bank on June 4, 1915, and delivered to him on June 12, 1915, and was filed in the Court of Civil Appeals for the First Supreme Judicial District of Texas August 27, 1915, and the case was transferred to this court under the order of the Supreme Court of Texas, and filed in this court on the 6th day of September, 1915.

A. M. H. Stark, defendant in the court below, and appellant on his appeal from the judgment, has failed to file brief in the court below or in this court, and Guy M. Bryan, Jr., appellee in this appeal, as to the failure of A. M. H. Stark, submits the case on the transcript and asks the court to affirm said judgment, as it was for delay only that this appeal was made by defendant Stark, and asks the court to affirm the judgment against the appellant in favor of Guy M. Bryan, Jr., and also against the sureties on his appeal bond for the amount of said judgment, and a 10 per cent penalty for delay, etc.

It naturally follows that unless there is fundamental error, that wing of the case which disposes of the rights of Guy M. Bryan, Jr., must be affirmed, and no such error appearing, it is so ordered, and the statute so prescribing, it is further ordered that Guy M. Bryan, Jr., recover of the appellant A. M. H. Stark and his sureties on his super-sedeas bond 10 per cent, penalty, additional.

No brief is filed by A. M. H. Stark and D. C. Bland in the case of Guaranty State Bank against them, so the case is before us upon record and briefs for plaintiff in error.

The trial court found, as a matter of fact, that the Guaranty State Bank was not a purchaser in good faith of the $500 vendor’s lien note sued on by it. In his fifth finding of fact, the trial court finds that the notes sued ■ on were payable to A. M. H. Stark, and were his property, that defendant Waller obtained possession of same from defendant Stark upon false and fraudulent representations of such character and nature as to deprive him of any beneficial ownership thereof, and to amount to a fraudulent taking of the note without consideration. That the fraudulent representations and statements made by said Waller to Stark for the notes, when surrendered to him and indorsed and delivered to him, were known and acquiesced in by the plaintiff bank by its officer, R. F. Butts, such notice being acquired by him in his capacity as representative of said bank, and in furtherance of the business of said bank. In his seventh finding of fact, he' finds that the three notes were originally deposited with the Guaranty State Bank, or with Butts, its cashier, in trust, to be held by it to be used finally in payment for stock in the proposed corporation to be known as the Pan-American Trust Company, in which A. M. H. Stark was to become a stockholder to the amount of said note, in addition to other payments he had made, and in which R. F. Butts was to become a stockholder and was to act as treasurer, and the Guaranty State Bank was to be the depository, and that the corporation was to be organized under the laws of Texas, and at said time it was represented to Stark that said proposed corporation had in cash and assets at least the sum of $40,000, all of which was untrue, and said proposed corporation had no assets at said time. In the eighth finding of fact, the court says:

“Subsequent to the deposit of said notes with the Guaranty State Bank and its cashier, R. F. Butts, at the instance of said Butts said notes were indorsed by Stark and transferred to C. C. Waller, who was the organizer of the Pan-American Trust Company, and they were to be held by him as trustee, and subsequent to this time said Guaranty State Bank acquired the note held by if from Waller, to make a transfer of the lien to Butts, and Butts after-wards transferring the same to the bank, and for this note the Guaranty State Bank canceled an indebtedness it held against Waller in about the sum of $250 and paid him the difference in cash.”

The first assigned error by plaintiff in error, Guaranty State Bank, attacks the finding of fact of the court wherein the court finds that the defendant Waller obtained possession of the note in controversy from A. M. H. Stark upon false and fraudulent representations, of such character and nature as to deprive him of the beneficial ownership of them, etc., and also as to his findings of fraud in the representation and statements made by Waller to Stark, upon which said notes were surrendered to him and indorsed and delivered to him, being known and acquiesced in by the Guaranty State Bank through its officer R. F. Butts in his capacity as representative of the bank, and in furtherance of the bank’s business; claiming that the evidence does not show that the bank had any knowledge whatever of Butts’ transactions in the matter, and that whatever knowledge Butts might have had, as a stockholder and treasurer of the Pan-American Trust Company, was not as the representative and cashier of the plaintiff bank.

Briefly stated, the facts of this case show that originally Waller and Stark had under consideration the formation of the Stark-Waller Syndicate. A copy of a contract to this effect is made a part of the statement of facts. Later, it was determined by them that the Stark-Waller Syndicate could not be made go, and they changed their plans and agreed to go into the Pan-American Trust Company. Hr. Stark met a number of gentlemen in Houston, and he was made president of the Pan-American Trust Company. Prior to the negotiations by Stark and Waller with the Pan-American Trust Company, Stark had sold and transferred the $500 vendor’s lien note sued on by the bank to Waller, who was the promoter of the original company, and guaranteed the payment of the note. Waller assigned this note to Butts, who was cashier of the plaintiff bank. Shortly after the transfer of the note by Stark and Waller, Butts sold the note to the Guaranty State Bank for value, before maturity, and the evidence is that the bank bought said note in regular course of business, without any notice of Butts’ connection with any fraud perpetrated upon Stark. The evidence shows, also, that after the note was transferred by Butts to the bank, that Stark acquiesced in the proceedings of the company and its officers and stockholders, against whom he charged fraud, and accepted the presidency of said company, and issued stock to his wife and himself as such president for money he had invested in the company, and the vendor’s lien note in question in this case; The evidence shows, also, that Stark, after he had found out that the company was not in the condition he thought it was, and had found out that it did not have $40,000, as represented to him, and had further found out that though the plaintiff bank was made depository for the corporation, no funds were on deposit in said bank to the credit of such corporation, these acts before mentioned as president of said corporation were performed, and in a letter subsequent to such time, he writes Waller and tells him that he has the best proposition he ever saw; that he hadn’t time to give to it; that he had already used more time than he should have used in connection with said concern, and that his interests had suffered on account of the same; and in that letter requests Waller to return to him the note; but nowhere says anything about any fraud having been perpetrated upon him. The evidence is conclusive that Butts was acting in his individual capacity when he took the $500 note, and not as cashier of the bank, nor did the bank have any interest whatever in said note- until the purchase of the note was presented to the officials of the bank in due course of business, and by said officers purchased from Butts, and for which, according to the facts of the case and the finding of the court, the bank paid full value.

The facts are somewhat voluminous, and the plaintiff in error in his brief has quoted at length from the statement of facts, but, as affects this appeal, we deem it unnecessary to quote at length the testimony of any of the witnesses. Stark himself testified:

“I turned over these two properties over for stock in the Pan-American Trust Company, and did so upon the statements and representations as to the company’s condition which were made by Mr. Waller, Mr. Bryan, Mr. Butts, Mr. Boynton, Mr. Ramsey and Mr. Craig.”
Again, he testifies;
“He (Waller) knew I had these notes and he said he would give me stock for them. He said he would sell me stock for them in the Pan-American Trust Company, which I agreed to take, and turned the notes over to him for the stock when we got together in Mr. Butts’ office, and there is where X signed the notes and there is where I left them.”
Again he testified:
“X turned over the notes to Mr. Waller for stock in the company. The purpose of my assigning the notes was for stock in the Pan-American Trust Company. The purpose of transferring the notes to him was for stock in the company. He was the organizer, and I was to sell the balance of the stock, tie knew I had these notes, and he would give me stock for them. He said he wouldi sell me stock for them in the Pan-American Company, which I agreed to take and turned the notes over to him for stock, when he got to Mr. Butts’ office. There is where I signed the note, and there is where I left them.”

Under these facts, we fail to see wherein the trial court could find that the bank obtained such note with knowledge of fraud. Indeed, we fail to see wherein any fraud was perpetrated on Stark by Butts or any other person, and to our mind, if any fraudulent transactions were indulged, Stark had full knowledge and was a party to the fraudulent transactions. The first assignment of error is, therefore, sustained.

The second assignment of error complains of the finding of fact of the trial court, in paragraph 8, wherein the court finds that subsequent to the deposit of said note with the Guaranty State Bank, etc., claiming that there was no evidence showing that the bank ever received said note on deposit.

As we have heretofore stated in the evidence quoted from Mr. Stark’s testimony, there is no evidence in this case to show that the note was ever on deposit with ' the bank. On the contrary, so far as the record discloses, the.note became the property of the bank by actual purchase for value the first the bank, as a business concern, ever knew of it.

In the written assignment of the note made on October 28, 1912, Stark recites a consideration of $1,500, that the same has been paid by Waller, and binds himself that the notes are a first lien on the land, and that all payments, offsets, and credits have been, allowed. He further guarantees the payment of the principal and interest or any extension or renewal thereof, and waives protest, diligence, and suit on the same, the said assignments not to affect his indorsement on the back of the notes. Such being true, it would appear that the notes were never placed in trust with any person, but that a direct assignment of the notes was made, and, taken in connection with Stark’s own testimony, one is forced to the inevitable conclusion that the assignment of said notes was for stock in the Pan-American Trust Company, and more than that, that Stark himself, after the assignment, guarantee, etc., of said notes, as president of said company, issued stock to himself and his wife, for which the note was a part of the purchase price, after he had notice that said concern did not have any deposit with said bank. W|e think the undisputed evidence disputes the proposition and finding of fact by the court that the notes were ever in trust. The second assignment of error is sustained.

The third assignment of error is to the effect that the court erred in holding that the defendant Waller obtained possession of the notes sued on by means of false and fraudulent representations of such character and nature as to amount to a fraudulent taking of the notes, without consideration, and asserts that the evidence shows that the notes were transferred by the defendant A. M. H. Stark to the said Waller, for the purpose of paying for stock to be issued to said Stark in a corporation known as the Pan-American Trust Company. The disposition of the first and second assignments of error disposes of this assignment as well, and the third assignment is, therefore, sustained.

The fourth assignment of error is to the effect that the trial court erred in rendering judgment against the plaintiff, when the evidence showed that the plaintiff purchased the note, sued on by it in this suit, paying full value therefor, before its maturity, and without any knowledge on its part that any fraud had been perpetrated by C. O. Waller upon the defendant, A. M. H. Stark, and without any notice upon its part such as would put it upon inquiry, by means of which it might have learned that any such fraud had been perpetrated; claiming that the uncontroverted evidence showed that the only officer of plaintiff who could have known of such fraud was Butts, the cashier; and all the evidence showing, or tending to show that said Butts knew of the fraud having been perpetrated by Waller upon the defendant Stark, shows that such knowledge was acquired by him when such Butts was not acting in his capacity as the agent of plaintiff, but was acting in his own interest, and as the agent and in the interest of said C. O. Waller and the Pan-American Trust Company; and, therefore, no notice or knowledge received by said Butts could be charged or imputed to the plaintiff. Our disposition of the first three assigned errors disposes of the fourth assignment, and the said assignment of error is therefore sustained.

The fifth assignment of error is because the court erred in holding that this plaintiff was not entitled to judgment upon the note sued on by it in this cause on the grounds that the title and possession of said note had been obtained from the defendant Stark by means of false and fraudulent representations, and was sufficient to entitle said Waller to rescind such transfer and recover said note, and that this plaintiff had notice of such fraudulent misrepresentations; because the uncontroverted evidence showed that the only knowledge or notice that plaintiff had of the transaction between Waller and Stark, of the fraud, if any, perpetrated by Waller upon Stark was obtained through its cashier R. E. Butts, at a time and in the transaction of matters in which he had a personal interest as one of the proposed organizers, incorporators, and treasurer of the Pan-American Trust Company, and that said notes were given to him to be held in trust for said corporation, and such knowledge or notice having been obtained by him in the transaction in which he was personally interested, it was not notice or knowledge to this plaintiff of such fact, and this plaintiff is not bound thereby; and the uncontroverted evidence showing that plaintiff had purchased the note sued on for its full value, and before maturity, and without knowledge or notice other than said cashier Butts might have obtained when not acting for or on behalf of the plaintiff, but for and on behalf of the Pan-American Trust Company, and in matters in which the plaintiff had no interest, but in which the said R. P. Butts had a personal interest, judgment should, therefore, have been rendered for plaintiff.

As we understand the law, a principal is not taxed with notice of facts known to his or its agent or officer when acting in his individual capacity in matters for himself or other concerns, and in which the principal, whether person or concern, has no interest. Mr. Stark testified that he never talked with any official of the Guaranty State Bank except Mr. Butts, nor is there any evidence in the record showing that any of the bank officials other than Butts knew anything about the transactions which were taking place between Stark, Waller, Butts, et al., as to the Pan-American Trust Company, nor as to the assignment and transfer of the note in question, and, as before stated, in a regular, legal proceeding, the undisputed evidence shows that the bank acquired the note by due course of purchase, without notice, for the full value of the note. The fifth assignment of error is, therefore, sustained. Kauffman & Runge v. J. G. Robey et al., 60 Tex. 308, 48 Am. Rep. 264; Harrington v. McFarland, 1 Tex. Civ. App. 289, 21 S. W. 116; Schneider v. Sellers, 98 Tex. 380, 84 S. W. 417; Allen v. Garrison, 92 Tex. 546, 50 S. W. 335; Hawkins v. First Nat. Bk., 175 S. W. 163; Teagarden v. Godley Lbr. Co., 105 Tex. 616, 154 S. W. 973; Bank v. Cruger, 91 Tex. 446, 44 S. W. 278; Am. & Eng. Enc. of Law (2d Ed.) 1st vol. pp. 1145-6.

As we view the case, the plaintiff bank should have recovered on the $500 vendor’s lien note held by it, which was note No. 1 of the series of three, and should have been awarded a foreclosure of the vendor’s lien, and the judgment of the lower court is, therefore, reversed, and judgment is here rendered for the plaintiff, Guaranty State Bank, for the amount of said note, including interest and attorneys’ fees, and also for that half of the costs adjudged against it in the lower court.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. KIMMEY.
    (No. 137.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1916.
    Rehearing Denied Nov. 23, 1916.)
    Appeal and Error <§=31050(2) — Damages <§=> 171 — Personal Injury — Evidence—Plaintiff’s Earning Capacity.
    In a passenger’s action for personal injury, evidence that he had no other means of making a living except by hard manual labor was irrelevant and immaterial, and, where it did not clearly appear that no injury could have resulted from its admission, was reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4154; Dec. Dig. <§=>1050(2); Damages, Cent. Dig. § 49S; Dec. Dig. <§=>171.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Action by Price Kimmey against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed, and cause remanded for a new trial.
    Marsh & Mclwaine, of’ Tyler, and E. B. Perkins and Daniel Upthegrove, both of Dallas, for appellant. I. D. Fairchilds, of Luf-kin, and W. J. Townsend, Jr., of Jacksonville, for appellee.
   BROOKE, J.

This is a suit brought by appellee, Price Kimmey, against appellant, St. Louis Southwestern Railway Company of Texas, to recover damages for alleged personal injuries claimed to have been occasioned by the negligence of appellant while appel-lee was a passenger and as he was preparing to debark on one of appellant’s trains at Huntington, Tex. Appellee describes the manner of the alleged negligence causing his injury as follows:

“That on or about the 5th day of December, A. D. 1914, plaintiff was a passenger on said defendant company’s train, having purchased a ticket from said company’s agent at Lufkin, Tex., and boarded said train in the town of Luf-kin, Tex., to be carried by said defendant company to the town of Huntington, Tex.; that he was being transported from the town of Lufkin, Tex., to the town of Huntington, Tex., in a passenger coach belonging to and being operated by said defendant company, when the conductor of said defendant company’s train walked through the passenger coach and called out, ‘All out for Huntington,’ at about which time the whistle blew, the bell rang, and the train came to a complete stop. At this time, the passengers therein, relying upon the call of the conductor, began to gather up their bundles and move towards the place of exit, when, without any warning of any character, the train was caused by the operators of said train to give a sudden, quick, and violent jerk, and because of such sudden, quick, and violent jerk, plaintiff was violently and with great force hurled and thrown against the seats of said car and upon the floor of said car; and because of such fall he, the said plaintiff, was severely, painfully, and permanently injured, as will be more fully described in this petition.”

Appellant answered by general exception, general denial, and pleaded contributory negligence on the part of appellee.

Inasmuch as the case will be disposed of on iother assignments, the ' first, second, and third assignments will not be considered, as they refer to the insufficiency of the testimony to support the verdict of thé jury.

By the fourth assignment of error, the appellant assails the action of the court in permitting the appellee to testify, over the appellant’s objection, “That he had no other way of making a living except by hard manual labor,” and the fifth assignment is practically to the same effect, being that the lower court committed error in permitting the appellee to testify, over the objection of appellant’s attorneys, that he had no other means of support except by working for it.

The proposition is that the testimony was irrelevant and immaterial to any issue in the case, and that plaintiff’s financial .condition could furnish no basis for the amount which he was entitled to recover for the injury, if any, received by him.

This question was raised in Mo. Pac. Ry. Co. v. Lyde, 57 Tex. 510, and the court says:

“Whatever may be the rule in eases of slander and breach of promise of marriage, yet in this character of case, where the suit is by the party himself for injuries received, although the plaintiff may show the nature of his business and the value of his services in conducting it, as a ground for estimating damages, yet his wealth or poverty is an immaterial issue, calculated to unduly influence the verdict, in regard to which evidence was not admissible, and the special exception should have been sustained as has well been said, if the wealth of the plaintiff may be shown to increase damages, the correlative of the proposition should also be accepted, and the defendant allowed to mitigate his damage by showing his poverty” — citing Field on Damages, §§ 120 and 609; Hunt v. Railway Co., 26 Iowa, 363; Guengerech v. Smith, 34 Iowa, 348; K. P. R. Co. v. Pointer, 9 Kan. 620.

In the case of Texas Pacific Ry. Co. v. Harrington, 62 Tex. 601, the court says:

“Upon the trial, Mrs. Harrington, as a witness in her own behalf, and over the several objections of [plaintiffs’] counsel, was permitted to testify ‘that she was very poor, that they had no means of support except the labor of her husband, and that she had no means of supporting or educating her children.’ In explanation of the ruling the court said: ‘The evidence was submitted as tending to show the expectation of plaintiff’s pecuniary aid from deceased.’ It was a legal obligation resting upon Harrington to support his wife, and to support and educate his children. The law imposed the duty, and no other presumption than compliance on his part would be indulged. This is not a suit for contributions which might or might not have continued if the party had lived, but a suit for compensation for the loss of husband and father, whose duty it was to furnish support. * * * That evidence was not admissible in this case, and was calculated to prejudice the rights of appellant. I. & G. N. Ry. Co. v. Kindred, 57 Tex. 498; Pa. Ry. Co. v. Roy, 102 U. S. 451 [26 L. Ed. 141]; T. & P. Ry. Co. v. Burns [4 Tex. Law Rev. 57], supra.”

In deciding the case, the court, continuing, says:

“As this evidence was improperly admitted over the objections of appellant, properly interposed, and as it cannot be determined that appellant was not injured thereby, the judgment ought to be reversed.”

In the case of Mo., K. & T. Ry. Co. of Texas v. Hannig, 91 Tex. 347, 43 S. W. 509, the court says:

“During the progress of the trial, the plaintiff, being upon the stand as a witness in his own behalf, was asked to state whether or not he was a married man. The defendant, by counsel, objected to the question, and its objection was overruled, whereupon the witness answered that he had a wife. The witness was also permitted to answer, over the objection of the defendant, that his wife had no means of support, excepting her own labor. The ruling of the court in admitting this testimony was assigned as error in the Court of Civil Appeals, and is also assigned in this court. The Court of Civil Appeals held that the admission of the evidence was error, but concluded that the error was harmless. We concur in their ruling that so much of the testimony as merely showed that he had a wife was not injurious to the defendant, from the fact that the wife was a witness in the case, and the jury must therefore have known that the plaintiff had a wife. But we cannot agree that the mere fact that the plaintiff was a laboring man, and was earning at the time of the accident but $1 a day, showed that he had no other resources.”

The court, continuing, refers to the case of Railway Co. v. Lyde, 57 Tex. 505, and the case of Railway Co. v. Harrington, 62 Tex. 597, and says:

“There the wife and children were suing for damages for injuries resulting in the death of the husband and father. The court placed their ruling upon the ground that the husband was bound to support the wife and children, and that, therefore, the question of their wealth or poverty could not affect the amount of * * * recovery. The evidence in question in this case fhrew no light upon any issue properly involved, * * * and was calculated solely to awaken the sympathy of the jury, and thereby to swell the damages to be awarded by the verdict. Counsel for the plaintiff evidently thought it would have some effect in plaintiff’s favor, else he would not have insisted upon its admission over the objection urged on the part of the defendant. The true rule is that in such a case, in order to hold that the error does not require a reversal of the judgment, it ought clearly, to appear that no injury could have resulted from the admission of the evidence. Since it does not so appear with reference to the testimony in question, the judgment must be set aside, and a new trial awarded.”

We believe that the above rule announced by Chief Justice Gaines of the Supreme Court is a correct rule, and as said hy him in the Hannig Case, since it does not clearly appear that no injury could have resulted from the admission of the evidence in the instant ease, we are of opinion that the judgment must be set aside, and a new trial awarded.

We have refrained from passing on the other questions raised in appellant’s brief, inasmuch as the case must be tried again; and for the error above complained of the judgment is reversed, and the cause remanded for a new trial.
      ®^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOÜRSUND, J.

text:
    GRAHAM et al. v. JACKSON.
    (No. 5723.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1916.)
    1. LANDLORD AND TENANT <®=>19 — RENT—RECOVERY Against Third Person.-
    AVhere plaintiff, the lessee of land adjoining defendant’s, was about to rent his land for a certain sum, but, after talking to defendant, the prospective tenant declined to rent, and plaintiff afterwards leased to another for the same term at the same rental, plaintiff was not entitled to recover of defendant for depriving him of the rental.
    [Ed. Note.- — For other cases, see Landlord and Tenant, Dec. Dig. <S=x>19.]
    2. Landlord and Tenant <®=p19 — Rent oe Pasture — Recovery Against Third Person.
    Where plaintiff, lessee of a farm adjoining defendant’s, their pasture land being in one inclosure, contracted to lease to a third party a number of acres for pasturage, and, when the third party had turned cattle into the common inelosure, defendant stated that there were too many, considering the amount of plaintiff’s land, and proposed to see his lawyer, so that the third party decided that if he could not put in a certain number of cattle without controversy with defendant he did not care for the lease, and plaintiff agreed to cancel the lease contract, plaintiff had no cause of action against defendant.
    [Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. <§=>19.]
    3. Money Received Right oe Recovery — Peivity.
    Plaintiff, as lessee of a farm, and defendant, the owner of an adjoining farm, had their pasturage in one inclosure. A third person, who had rented pasturage from plaintiff, took out his cattle at defendant’s instance and offered to pay plaintiff for the time the cattle were in the pasture, which offer plaintiff refused to accept, whereupon the renter went to defendant and paid him an amount for pasturage which he believed he owed to some one, though defendant made no claim thereto. Held, that defendant was not liable to plaintiff for the amount received, since it was not paid for plaintiff and there was no privity between plaintiff and defendant.
    [Ed. Note. — For other cases, see Money Received, Cent. Dig. §§ 14-20; Dec. Dig. <§=>5.]
    Appeal fronl Uvalde County Court; T. M. Milam, Judge.
    Suit by J. W. Graham and others against T. J. Jackson. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    L. Old, of Uvalde, for appellants. G. B. Fenley and I. H. Burney, both of Uvalde, for appellee.
   MOÜRSUND, J.

J. W. Graham, by lease from the owners, had the right of possession to 320 acres of land, fronting on the bank of the Leona river; said land having a width of one-quarter mile and running back two miles. Seventy acres of said land, lying across the front, was in cultivation, leaving 250 acres of pasture land. Just south of Graham’s land, T. J. Jackson owned 1,280 acres of land, also fronting on the Leona river, and having a width of one mile, and running back two miles. He had in cultivation 250 acres fronting on the river and adjoining Graham’s cultivated land. The remainder of Jackson’s land, 1,030 acres, was pasture land. He had about three-fourtlis of a mile river frontage in his pasture. The cultivated land of each was fenced separately, there being a lane between the farms, which was in dispute between Jackson and the owners of the land held by Graham, and a separate suit was pending with reference to the boundary line between the two surveys, which involved this land. Back of the farms there was no division fence, all the pasture land being in one inclosure. Graham and Jackson never made any agreement with regard to the number of head of stock each was to keep in the pasture, and certain differences and controversies arose, which led to ■the institution of this suit by Graham. He alleged that, although each had the right to make .reasonable use of the pasture by grazing same with a reasonable number of animals, Jackson had willfully, wrongfully, and arbitrarily seized and held possession of said land for two years. He then undertakes to describe the manner in which Jackson seized and held possession, in substance, as follows: (1) That for the year 1913 he rented his interest in said pasture to Albert Finley, who contracted to pay $75 as rent for nine months of said year, and that Jackson wrongfully and willfully seized possession of said land and refused to allow Finley to pasture same, whereby plaintiff was damaged to the extent of said sum of $75, and also to the extent of $25, the reasonable rental value for the remainder of the year 1913. (2) That for the year 1914 he made a contract with Dolph Briscoe, by which Briscoe was to lease the pasture and pay| therefor certain personal property, of which we omit description, which plaintiff accepted at the agreed price of $300; that defendant again wrongfully seized possession of said pasture, refused to let Briscoe pasture the same, and refused to' allow his cattle to get water at the river, and by intimidation and threats compelled him to remove his cattle, and plaintiff was compelled to return said personal property received for the lease, to his damage in the sum of $300. (3) In the alternative he pleaded that the rental value of the pasture for the year 1914 was $300, and by reason of the wrongful seizure of same by defendant, and on account of his refusal to allow Briscoe to pasture same and compelling Briscoe to remove his cattle, plaintiff has been deprived of the said rental valué of said pasture for the year 1914. (4) Again, in the alternative, he pleaded that the rental value of his 250 acres for the year 1914 was $300, and the market value of the personal property delivered to him by Briscoe was $300; that under his contract with Briscoe the latter was to turn into the pasture a reasonable number of stock, that is, such a number as the 250 acres would reasonably keep up; that Bris-coe decided to turn in 50 head of yearlings, which was a reasonable number, but defendant wrongfully and arbitrarily refused to allow him to keep 50 yearlings in the pasture, and limited him to 25 head, and by reason of such wrongful acts and demands of defendants Briscoe removed all of his cattle from the pasture and canceled the lease contract, requiring plaintiff to return the $300 worth of property given for the lease, and therefore plaintiff was deprived of the rental value of said land for the year 1914 in the sum of $300. (5) Again, in the alternative, if he is not entitled to recover under the preceding plea, then that Briscoe did turn into the pasture about 50 head of yearlings, and they remained therein for about one month, and defendant collected from Briscoe the pasturage on same, for said time, amounting to $27, and converted the same to his own use and benefit.; that plaintiff is entitled to recover said pasturage, or at least such proportion thereof as his 250 acres bears to the entire acreage in the pasture.

Defendant answered by general demurrer, special exceptions, and a general denial.

The court instructed a verdict for defendant, and error is assigned upon such ruling. As to the item for rent for the year 1913, we find the’ following facts proven: Plaintiff was about to rent his land to Albert Finley for the balance of the year, about nine months, for $75; but, after talking to Jackson, Finley declined to enter into the contract. It will be unnecessary to state what occurred between Jackson and Finley, for plaintiff admits that he afterwards leased his land for the balance of the year 1913 to Joe Evans for $75. It is clear he was not entitled to recover on this count in his petition.

The evidence relating to the Briscoe matter, viewed most favorable to plaintiff, is as follows: In March, 1914, plaintiff made a contract with Briscoe to lease him his 250 acres. Plaintiff first testified the lease was to be for the balance of the year. Later he said it was to be for a year, and that the reasonable rental value of the pasture was $75 but Briscoe was to pay him in farm machinery which was of the market value of about $300; that Briscoe was to turn in such number of cattle as plaintiff’s land would reasonably “carry”; that 50 head of calves and yearlings would be a reasonable number, and the land would probably “carry” 65. Plaintiff testified Briscoe turned the cattle in and a day or ' so afterwards told plaintiff he was going to take them out, and did so, and that plaintiff received no lease money for that year. Briscoe testified he only intended to put 50 head of cattle in the pasture, but he failed to get a pasture for others, and actually put in 107 head, and the first time he saw Jackson afterwards he told Jackson how many he had put in, explaining that he had leased the pasture from Graham and would reduce the number to 50 in a few days; that Jackson cursed and said Graham had nothing to do with the pasture, and that Briscoe would have to take out all the cattle except 25 head; that Briscoe insisted he had the right to leave in 50 head, but Jackson was just as insistent that all be taken out except 25 head, contending that even that number was too many, considering the amount of land leased by Briscoe, and told Briscoe he would consult his attorney and see what he could do about it; that Jackson threatened him with a suit and said he would absolutely not allow more than 25 head to go in the pasture, so Briscoe decided that he would have to take them out; that he told Graham of Jackson’s objections, and that he could not take the place unless he could run at least 50 head of cattle there, and offered to pay Graham on the lease for the time the cattle had been in the pasture, but Graham would not take it and said Briscoe did not owe him anything; that by mutual agreement the contract was canceled. On cross-examination he testified that he knew 107 head was too many for him to turn in the pasture; that Jackson did not turn any of his cattle out, nor bother them in any way.

This testimony shows nothing more than a controversy between Jackson and Briscoe with regard to the proper number of cattle to be placed in the pasture by Briscoe. Jackson proposed to see his lawyer for the purpose of sustaining his opinion in a legal manner if he could. Briscoe feared a suit, and decided, if he could not put in 50 head of cattle without a controversy which would probably end in a suit, he did not care for the lease. Graham agreed to cancel the contract. We find nothing in this upon which plaintiff can base a cause of action.

As to the item of $27 received by Jackson from Briscoe, we find the following facts: After Briscoe had offered to pay Graham pasturage for the time his cattle were in the pasture, and Graham had refused to accept it, stating that Briscoe owed him nothing, Briscoe went to Jackson and voluntarily paid him $27. He figured what would be right and tendered a check for the sum to Jackson, who accepted it. Jackson testified he told Briscoe that he did not want any pay for Briscoe’s cattle being in the pasture, but Briscoe did not remember whether such statement was made. He testified he knew he owed somebody for pasturage and wanted to protect himself, and so paid Jackson.

We fail to see upon what theory Jackson would be liable to Graham. Briscoe did not pay Jackson any money for Graham. There was no privity between Jackson and Graham, and if Briscoe owed Graham for pasturage he still owes it, for the payment to Jackson would not release him. In fact, however, Graham, in the agreement canceling the lease contract, agreed not to charge Briscoe pasturage for the time the cattle were in the pasture.

We conclude that the court did not err in instructing a verdict for defendant.

Judgment affirmed.
      <Ste»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ^=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    SHALLER v. JOHNSON-McQUIDDY CATTLE CO.
    (No. 1057.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 8, 1916.)
    1. Bbokees <@=»80^-Actions—Defenses.
    The owner of cattle, who had agreed to pay a fixed commission, cannot defeat an action by the broker for the agreed commission, less a credit allowed the owner on the commission due for expenses incurred in arranging the sale; the owner not being injured by allowance of the credit or because suit was for the lesser sum.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. § 100; Dec. Dig. <@=^80.]

      2. Evidence &wkey;471(l) — Conclusions of Witnesses — Admissibility.
    Ordinarily the , conclusion of a witness or his understanding of the facts is not admissible, but he should be restricted to testifying as to the facts.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2149, 2160, 2163; Dec. Dig. &wkey; 471(1); Witnesses, Cent. Dig. § 833.]
    3. Appeal and Error &wkey;>742(4) — Briefs — Examination — Cross-Examination.
    In an action for commissions earned by a broker in selling cattle, the broker’s agent, after testifying as to the facts, on cross-examination stated that he took it for granted that the owner accepted his proposition to make a deduction on the commission. The bill of exceptions was not set out in substance in the brief, and the statement did not show, under what conditions or what circumstances the witness answered. Held, that the statement by the witness of his conclusions, in violation of the general rule, was not error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;> 742(4).]
    4. Trial <&wkey;-203(3) — Jury Question — Submission.
    'In an action for commissions for selling cattle, where the owner contended that the contract did not contemplate commissions if the sale was to one of his old customers, and that the sale was to such old customer, the owner is entitled to have such issue affirmatively submitted, notwithstanding the buyer testified he was induced to look at the cattle by the broker.-
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 478, 479; Dec. Dig. &wkey;203(3).]
    5. Trial <&wkey;260(9) — Submission of Issues to Jury — Sufficiency.
    In such case, the failure of the court to affirmatively submit the issue of defense could not be justified because of a charge to find for the broker if he effected the sale upon the terms agreed upon with the owner; this not authorizing the jury to find whether there was a' condition in the contract, and whether the sale fell under such condition.
    [Ed. Note. — For other cases, gee Trial, Cent. Dig. § 658; Dec. Dig. <s^260(9).]
    6. Trial <&wkey;256(3) — Instructions—Duty to Request.
    Where an instruction was correct so far as it went, defendant, who did not request a proper charge submitting a defense, cannot complain that the charge omitted it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 630; Dee. Dig. &wkey;250(3).]
    7. Brokers <&wkey;69 — Compensation — Right TO.
    A cattle broker, who effected a sale for a less sum than the list price, is, under appropriate pleadings, entitled to recover reasonable compensation for his services.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 55; Dec. Dig. &wkey;>69.]
    8. Appeal and Error <&wkey;757(4)— Briefs — Assignments of Error.
    An assignment of error relating to the charge is not properly briefed where the charges requested were not set out.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. <&wkey;>757(4).]
    Error from Hemphill County Court; J. L. Jennings, Judge.
    Action by the Johnson-McQuiddy Cattle Company against C. H. Shaller. ' There was a judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    J. W, Sanders and C. O. Shaller, both of Canadian, for plaintiff in error. Hoover & Dial, of Canadian, for defendant in error.
   HUFF, C. J.

This is an appeal from a judgment of the county court to this court, which judgment was rendered in favor of the appellee Johnson-McQuiddy Cattle Company against the appellant, G. H. Shaller. The cause was first instituted in the justice court, and from a judgment in favor of appellant in that court was appealed to the county court.

The appellee alleged that the appellant was due him $200 commission on a sale of 958 head of two year old steers, which the appellant agreed to pay for securing the sale of the cattle. Appellees also pleaded that appellant agreed to pay a commission of 50 cents per head for procuring a purchaser; that they did procure such purchaser, who bought the cattle; that after the cattle were sold and some other negotiations the appellees agreed to take and accept as their compensation or commission the sum of $200. The appellant denied generally these allegations, and alleged specially that the listing of cattle with appellee for sale was conditional. That the conditions stipulated were as follows: (1) That defendants agreed to pay a commission to plaintiffs if plaintiffs would find a purchaser for the cattle, who would pay the defendant $60 per head; (2) that defendants would not pay a commission to plaintiffs if the cattle were sold to a buyer with whom defendant was already in trading relations, or with whom the defendant was negotiating for the sale of the cattle; (3)' that defendant was not to pay a commission to plaintiff if the cattle were sold to an old customer of defendant; and further alleged that these cattle were not sold for $60 per head, and Kelly was an old customer of theirs with whom they were in trading relations, and with whom defendant had been negotiating for the sale of the cattle, and that they were not therefore liable for the commissions sued for.

The evidence of appellee will warrant the finding that appellant listed with them over 1,000 head of two year old steers some time in the early spring of 1914 for early spring delivery; that the commissions agreed upon at that time was 50 cents per head. After the first listing there were several conversations between the parties and the cattle were finally sold to Mr. C. B. Kelly, in the fall of that year; that the cattle were listed with the appellee for fall delivery in May or June, at $60 per head. Kelly looked at the cattle in July or August, 1914, and after considerable negotiations a trade was closed -at $55 per head. Appellee notified appellant the price Kelly was willing to pay. The appellant objected to selling at that price if lie should be compelled to pay the 50 cents per head commission. Whereupon appellees informed him they would charge him 25 cents per head, and that that was all they intended to charge. The appellant replied that it looked reasonable. It is shown by the evidence that 958 head were sold and delivered Kelly. The testimony further indicates that the commission under the contract would have been about $250, but that Shaller was compelled to go to Kansas City to close the trade with Kelly, and while there he and a representative of appellee met; that the representative agreed to allow Shaller $50 out of the commission due to pay his expenses to Kansas City. The amount sued for is the amount to which appellees claim under the agreement at 25 cents per head, less the expenses, which were agreed to be allowed.

The first assignment is that the court should have sustained appellant’s motion for an instructed verdict because there was no evidence showing the contract to pay $200 commission. We believe the court properly overruled this motion. If the appellee’s testimony was found to be true by the jury, it authorized the finding that appellant agreed to take $55 per head, for his cattle, and to pay 25 cents per head commission on the sale. The mere fact that afterwards appellee allowed Shaller $50 on his expense account Would not defeat the contract. 'The appellant is not injured by such credit or by reason of the suit being less than for the amount due under the contract.

The second assignment is overruled for the reasons above given.

The third assignment is overruled. The witness on cross-examination stated:

“I took it for granted he [Shaller] accepted my proposition to take $200 commission. I understood he would pay me $200. I understood I had a contract with him to pay me $200.”

The bill of exception is not such as to show error. Ordinarily, a witness’ understanding is not admissible. He should detail the facts. In this case the witness had given the facts on direct examination, and from the context in the cross-examination ■it would appear that the questions were so presented by appellant as to call upon the witness to give his understanding of those facts; at any rate, we do not think the bill of exceptions shows any material injury. The bill of exceptions is not set out in substance in the brief. The quotations given by us are embodied only in the assignment. The statement does not pretend to show under what conditions or under what circumstances the witness answered as set up and we are unable to determine that either was error.

The fourth assignment should be sustained. The appellee requested the court to instruct the jury to the effect that if the appellant sold the cattle to one of appellee’s old customers, and if they should find that when the property was listed it was made the condition of the contract that no commission should be paid if sold to such customer, to' find for the defendant. The appellant pleaded there was such a condition of the contract, and he testified to such stipulation in the contract; that he told appel-lee he had old customers which he had been selling year after year, and did not want to pay commission to somebody else to help him sell to them; that he had been selling to Kelly, and in fact he and his son testified that they had spoken to Kelly themselves about these cattle some time previous to the listing contract, and after the cattle were listed. The fact that Kelly testified appellee induced him to look at the cattle would not defeat appellant’s right to have the issue submitted to the jury affirmatively. It is contended by appellee that because the court submitted in his charge to the jury that if they found the appellee effected the sale to Kelly, upon the terms agreed upon between plaintiff and defendant, by reason of the agency, to find for plaintiff. This did not authorize the jury to find whether there was a condition in the contract, and whether the sale to Kelly fell under the condition.. It was not even a negative submission of that issue. The appellant had the right to have this defense submitted affirmatively, and the refusal to do so is error, which will reverse the case. Railway Co. v. Foth, 101 Tex. 133, 100 S. W. 171, 105 S. W. 322; Yellow Pine Oil Co. v. Noble, 101 Tex. 125, 105 S. W. 318; Railway Co. v. Johnson, 98 Tex. 76, 81 S. W. 4.

The fifth assignment is overruled. As we read the record, the evidence did not call for the charge here requested.

The sixth assignment presents an objection to' the court’s charge because it failed to instruct the jury if they should find that appellant listed the cattle with the stipulation that he would pay a commission only in the event appellee procured a purchaser for $60 per head. The charge was not erroneous as far as it went with reference to this matter. It only failed to submit an issue appellant contends was raised by the evidence. He should have requested a proper charge. If the broker found a purchaser to whom-the employer sold for a less sum than the cattle were listed, this would not, necessarily, defeat a recovery. The brokers would at least be entitled to reasonable compensation for their services if the pleadings will warrant such a recovery. Schultz v. Zelman, 111 S. W. 776; Haile v. Keler, 163 S. W. 393.

The contract, however, relied upon in this case, was, as we understand the appellee, that if the trade was made for $55 per head, that the appellants would take 25 cents per head instead of 50 cents. If the appellant desired his theory presented, that is, that he was to pay nothing if the cattle sold for less than $60, lie should have reguested a proper charge.

The seventh assignment of error is not properly briefed, as the charges requested are not set out. If the charges were properly drawn the issues there sought to be presented were raised by the pleadings and the evidence, and it would be error to refuse to submit the issue, as pointed out under the fourth assignment.

The eighth assignment is overruled. The charge of the court is not objectionable on the grounds here lodged against it.

The ninth assignment we do not think presents reversible error.

The tenth assignment is overruled.

For the reasons above given, the case will be reversed and remanded.
      <S=AFor other easts see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§z=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DANE, J.

text:
    SCHAEFER et al. v. FIRST NAT. BANK, BAY CITY.
    (No. 7403.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 31, 1916.)
    1. Affidavits <&wkey;5 — Authority of Notary-Disqualification.
    Under Rev. St. 1911, art. 10, providing that all oaths, affidavits, or affirmations necessary or required by law may be administered by any notary public within the state, in a suit for injunction, the affidavit of the president of plaintiff bank in support of the petition was not void because made before a notary public who was cashier of the bank at the time the affidavit was made.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. <&wkey;5.]
    2. Judgment <&wkey;533 — Construction — Title to Growing Crops.
    Where a decree, in a proceeding to recover title and possession, decreed the title and possession of a designated part to plaintiff, an unmatured growing crop thereon was a part of the realty and passed by the decree absolutely.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 978, 983; Dec. Dig. <&wkey;533.]
    3. Judgment &wkey;>713(2) — Matters Concluded — Equities Not Raised in Former Suit.
    The decree between plaintiff and defendants was an adjudication of the rights of all the parties to the suit and a bar in a subsequent suit to any equities of defendants in growing crops on land adjudicated to plaintiff which were not set up in the prior suit.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1241; Dee. Dig. <S — >713(2).]
    4. Appeal and Error <&wkey;1074(2) — Review— Harmless Error.
    Error in granting a writ of possession to plaintiff under a decree by which title and possession of the land was decreed in said bank was harmless, where plaintiff was placed in possession with defendants’ consent.
    [Ed. Note. — For other cases, see Appeal, and Error, Cent. Dig. §§ 4250, 4251; Dec. Dig. <&wkey;> 1074(2).]
    5. Property <&wkey; 10 — Possession — Growing Crops.
    Possession of land by virtue of a decree and writ of possession was possession of the growing crops on the land.
    [Ed. Note. — For other cases, see Property, Dec. Dig. &wkey;>10.]
    6.Injunction <&wkey;35(2) — Property—Possession to Support Suit.
    A decree, in a proceeding to recover title, by which title and possession of land was decreed and ordered in plaintiff bank, gave the bank constructive possession of the land, justifying the granting of an injunction restraining defendants from trespassing on the premises and harvesting growing crops.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 77; Dec. Dig. <&wkey;35(2).]
    Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.
    Suit for injunction by the First National Bank, Bay City, Tex., against Joseph C. Schaefer and others. From an order granting an injunction, defendants appeal.
    Affirmed.
   DANE, J.

For a clear understanding of this opinion we make the following statement:

On the 17th day of March, 1915, the First National Bank, Bay City, Tex., filed a suit in the district court of Matagorda county against Joseph C. Schaefer and wife, Mary Schaefer, to recover the title and possession to 228.7 acres of land situated in said county. Said suit is hereinafter referred to as cause No. 3931. Judgment was entered in said cause on the 29th day of June, 1916, by which it was ordered, adjudged, and decreed by the court that Joseph C. and Mary Schaefer were the owners of 200 acres out of said 228.7-acre tract, and that they should within ten days after the date of said judgment designate and set apart, as required by articles 3794 and 3795 of the Revised Civil Statutes of Texas of 1911, 200 acres out of said 228.7-acre tract as their homestead so as to include their improvements thereon, and it was further adjudged and decreed by said judgment that the title to the remainder of said tract of 228.7 acres, after said designation and deduction of said 200 acres, should be vested in the First National Bank, Bay City, Tex. Said judgment also contained a recital as follows:-

“The title and possession of said plaintiff bank (to said 28.7 acres) against the defendants herein is now ordered and decreed.”

No appeal was taken from this judgment and it became final.

On the 6th day of July, 1916, seven days after the rendition of said judgment, Joseph C. and Mary Schaefer made designation of the 200 acres of said land adjudged to them, describing the same by metes and bounds, and left remaining of said 228.7 acres a tract of 28.7 acres not embraced within the boundaries of said 200-acre designation.

The First National Bank was placed in possession of the said 28.7 acres of land not embraced in said 200-acre designation, by virtue of a writ of possession issued in said cause No. 3931, Joseph C. Schaefer and wife, Mary Schaefer, assenting thereto, but at said time they denied the ownership of the said bank to the rice crop growing thereon, and claimed the same as their own, subject only to the payment of the rental value of said land.

On the 5th day of September, 1916, appel-lee, the First National Bank, Bay City, Tex., filed its petition in this case, and as against Joseph and Mary Schaefer, husband and wife, and John IV. Gaines and John M. Corbett, it alleges, in substance, that it was at the time of filing said petition the owner of the 28.7 acres of land set aside to it in said cause No. 3981, and the crop of rice growing thereon, and was in possession thereof and had been such owner and had such possession since July 6,1915; that the defendants Joseph and Mary Schaefer were falsely claiming to be tenants of the plaintiff and as such entitled to the possession of the crop of rice growing on said 28.7 acres of land; that defendants Gaines and Corbett were also claiming an interest in said crop, by virtue of a mortgage executed to them by defendants Schaefer; that said growing crop of rice would be ready for harvest within a few days and was of the value of $900; that all of the defendants are threatening to enter upon said 28.7 acres of land and harvest said rice crop and convert the same to théir own use and benefit, in violation of plaintiff’s rights; and that they were also threatening to keep'plaintiff from harvesting the same. Irreparable injury is alleged in the event defendants are not restrained in their purpose to harvest and convert to their use said rice crop. Prayer is.made for an injunction to restrain defendants from carrying out their said threats.

Defendants Joseph and Mary Schaefer, two of the appellants herein, answered denying all the allegations of plaintiff’s petition except such as are specially admitted, and say: (1) That the injunction prayed for by plaintiff should not be granted because the affidavit in support of the petition was made by the president of plaintiff bank, a corporation, before J. C. Lewis, who was at that time cashier of said bank, and that said affidavit was and is void because not verified as required by law. (2) That while plaintiff is the owner of said 28.7 acres of land, by virtue of the decree entered in said cause No. 3981, and was placed in possession thereof about the 3d day of July, 1916, said plaintiff was not and is not now the owner of the growing crop of rice thereon and was not placed in possession thereof by the sheriff who placed plaintiff in possession of said land, but that defendants are still the owners of said crop and have never been dispossessed thereof. (3) That since said 3d day of July, 1916, they have recognized plaintiff as owner of said land and as their landlord and stood ready to account to it for the rental value of said land. They say, however, that as there was no order for writ of possession contained in said judgment in said ■cause No. 3931, the writ issued, and under which the officer placed plaintiff in possession of said land,’ was and is void, and therefore appellee was not and is not now in legal possession of said land and crop growing thereon. (4) That, prior to the rendition of the judgment and partition made in said cause No. 3981, plaintiff and defendants Joseph and Mary Schaefer stood in the relationship of cotenants and joint owners of said -228.7 acres of land, and that long prior to said partition defendants at a considerable expense and labor and in good faith planted a rice crop on said land, a part of which was at the time of said partition growing upon said 28.7-acre tract, and that under the law they were, as cotenants, the owners of said crop and were liable to plaintiff only for the rental value of said 28.7 acres, and that the decree in said cause No. 3931 did not pass the title to said crop to plaintiff bank, and these defendants are still the owners of said crop. (5) That long prior to the entry of the decree in said cause No. 3931 they had mortgaged. the crop growing on the entire tract of 228.7 acres to other parties to secure water to make said crop and for other things necessary to make the same, and that said lienholders now have an interest in said crop, including that growing on said 28.7 acres.

Defendants Gaines and Corbett answered adopting the answer of defendants Schaefer, and further asserted a mortgage lien on said crop, which was given by the defendants Schaefer prior to the said partition suit.

The rights of the plaintiff to the injunction prayed for was heard by the trial court in chambers, at Angleton in Brazoria county, practically upon the petition and answers, and on the 12th day of September, 1916, the court entered the following order:

“In the above numbered and entitled cause on this day came on for hearing plaintiff’s petition for injunction, and plaintiff appearing by its attorneys, and each and all of the defendants having filed their answers and appearing by their attorneys, first came on to be heard the demurrers and exceptions of defendants and each of them to plaintiff’s petition, each of which were overruled by the court, and to which action of the court the defendants and each of them excepted and reserved their bills of exception, and the pleadings and evidence having been submitted to me by plaintiff and defendants, and upon consideration of said pleadings and testimony, I am of the opinion that the prayer of said plaintiff contained in its said petition ought to be granted, and, upon the execution of a bond in the sum of $1,500 by said plaintiff in the manner and form conditioned as required by law to be approved by the clerk of the district court of Matagorda county, the said clerk of the district court of Matagorda county, Tex., is ordered and directed to issue the writ of injunction as prayed for by plaintiff restraining and enjoining the defendants and each of them from in any manner interfering or diminishing the full and complete possession by said plaintiff of said 28.7 acres of land and with the crop of rice growing thereon,- and restraining said defendants and each of them from doing any other act or thing having for its object or purpose the cutting, harvesting, or gaining possession of said crop of rice growing on said 28.7 acres of land, or the conversion thereof by them, and that said defendants and each of them be further restrained and enjoined from in any manner interfering with said plaintiff in the harvesting of said crop of growing rice on said 28.7 acres of land with plaintiff’s full possession and ownership thereof.”

A writ of injunction, was, accordingly, issued by the clerk of the district court of Matagorda county and properly served on appellants. Appellants have appealed from the order granting said injunction.

The legal rights of those alleged to be owners and holders of mortgage liens upon the crop in question js not before this court by virtue of this appeal or otherwise, and will not be discussed or considered. The only question presented for our decision is: Did the trial court err in granting the injunction prayed for? In answering this question, we shall take up and discuss the matters and things alleged and relied upon by appellants as a reason why the trial court should have refused to grant the injunction in the order hereinbefore stated.

1. Was the affidavit of Thompson, president of plaintiff bank, void or voidable because made before Lewis, a notary public, who was cashier of said bank at the time said affidavit was made?

, It is provided by article 10 of the Revised Civil Statutes of this state that:

“All oaths, affidavits or affirmations necessary or required by law may be administered, and a certificate of the fact given * * * by any notary public, within this state.”

We know of no law, either statutory or otherwise, which disqualifies one who is a notary public in this state from administering an oath or affidavit to the president of a banking corporation on the grounds that said notary at the time of administering said oath was the cashier of such corporation.

The case of Fair v. Bank, 70 Kan. 612, 79 Pac. 144, 67 L. R. A. 851, is one in which the question as to whether or not an affidavit made by the cashier of the bank, as an officer thereof, before a notary public who was at the time assistant cashier and a stockholder of the same banking corporation, was void. In passing on this question the Supreme Court of Kansas held that such affidavit was sworn to before an officer.authorized by law to administer oaths, that it stated the facts required by law to be stated, and was sufficient in all respects for the purpose intended, and, continuing, say:

“In this case the notary public simply administered the oath and certified to that fact. He determined nothing. His act was purely ministerial, and at most only voidable by reason of his interest, and we do not decide that it was voidable even.”

In Ruling Case Law, vol. 1, § 5, p. 763, it is said:

“As the administration of an oath is a ministerial act and not judicial, the mere fact that a notary is connected in business with the af-fiant does not disqualify him from taking the latter’s affidavit.”

We think the affidavit to appellee’s petition for injunction was sufficient.

2. Was the plaintiff bank the owner of the 28.7 acres of land and entitled to possession thereof, together with the crop thereon, by virtue of the decree in said cause No. 3931?

The decree rendered in said cause No. 3931, by which the said tract of land of 228.7 acres involved in that suit was partitioned between defendants Schaefer and plaintiff bank, decreed the title and possession to the said 28.7 acres of land in question in this suit to said bank, and at the time said decree was entered the crop of rice in question was an unmatured growing crop on said 28.7 acres, and was a part of the realty and passed to said bank by said decree, as such, absolutely. Said decree was an adjudication of all the rights of the parties to that suit in and to the subject-matter thereof, including improvements, growing crops, etc. The defendants Schaefer and wife set up no equities in said 28.7 acres of land, or to any crop or improvements thereon, and they are therefore now barred from setting up such claim in this suit. Sarro v. Bell, 59 Tex. Civ. App. 152, 126 S. W. 24; Ivy v. Ivy, 128 S. W. 682. Any rights that may have been theirs by es-toppel, by reason of expenditures of defendants Schaefer with plaintiff’s knowledge and acquiescence in watering the crop after said partition, are not presented, and therefore not passed upon on this appeal.

3. Was plaintiff bank wrongfully in possession of the said land and crop thereon at the time of the issuance of the injunction granted by the trial court, and, if so, was the injunction erroneously issued?

We think the decree in said cause No. 3931, by the terms of which the title and possession to said 28.7 acres of land was decreed and ordered to be in said plaintiff bank, was sufficient authority for the issuance of the writ of possession hereinafter mentioned. Ryan v. Raley, 48 Tex. Civ. App. 187, 106 S. W. 750. But, if we are in error in so holding, such error cannot in any manner injure appellants, as it is conceded that appellee was placed in possession of said land with appellants’ consent, and we hold that the possession of the land was a possession of the growing crop thereon. Besides, if it be conceded that appellee was not legally placed in possession of said 28.7 acres and the crop thereon, by virtue of said writ of possession, still it was in constructive possession thereof by virtue of the decree rendered in said cause No. 3931, and therefore the trial court was justified in granting an injunction restraining defendants from trespassing upon said premises and harvesting the growing crop thereon, or from interfering with appel-lee in harvesting the same.

What has already been said disposes of all the matters presented by this appeal, and it is clear therefrom that we have reached the conclusion that the trial court did not err in granting the injunction prayed for by appellee. Having so concluded, thé judgment of the trial court is affirmed.

Affirmed.
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