author: HALL, J.

text:
    STRAIGHT et al. v. GOODWIN et al.
    (Court of Civil Appeals of Texas. Amarillo.
    May 17, 1913.)
    1. Courts (§ 62) — Teems of Court — Statutes —'Validity.
    A statute so changing the terms of the district court in a judicial district as will result in depriving any county of two terms a year, as provided by Const, art. 5, § 7, is inoperative until such time as the court by conforming to the statute may hold two terms in any county.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 207, 210; Dec. Dig. § 62.]
    2. Courts (§ 62) — Terms of Court — Statutes — Y ARIDITY.
    Acts 32d Leg. c. 107, § 7, fixing the terms of the district court in Knox county on the sixth Mondays after the first Mondays in- January and July and may continue in session six weeks, and in King county on the twelfth Mondays after the first Mondays of January and July and may continue in session two weeks, and in Cottle county on the fourteenth Mondays after the first Mondays in January and July, becoming effective March 25, 1911, after the district court had been in session in Knox county for one week under a prior statute fixing terms of court and declaring that the term shall continue for six weeks, did not require the court to adjourn and convene in King county on the following Monday under the act, but it could continue in Knox county for five weeks longer if public business demanded it, and where it continued, the court on appeal, in the absence of a showing to the contrary, would presume that the business necessarily extended the court beyond the session of one week.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 207, 210; Dec. Dig. § 62.]
    3. Judgment (§ 217) — Final Judgment — Parties.
    A judgment, adjudging that defendants shall have judgment removing a cloud from title to described real estate, and ordering that plaintiff suing to establish a deed and to remove a cloud on his title shall take nothing against defendants or either of them, rendered in a suit by an heir of a decedent against coheirs and the administrator, is a final judgment and disposes of all the parties, though it inadvertently omits the name of the administrator, which informality may be corrected and the judgment reformed.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. § 394; Dec. Dig. § 217.]
    4. Witnesses (§ 178) — Competency—Transactions with Deceased Persons — “Opposite Party.”
    In a suit by an heir against the administrator and coheirs of decedent to establish a deed alleged to have been executed by decedent to the heir, a coheir made a defendant, who claims other property of decedent under a deed alleged to have been executed at the same time, but who is not interested in the property in question, is not an “opposite party” within Sayles’ Ann. Civ. St. 1897, art. 2302, providing that in actions against administrators neither party shall be allowed to testify as to any transaction with decedent unless called to testify by the “opposite party,” the term “opposite party” meaning the party to the transaction whose right will be affected by the testimony offered.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 722-725; Dec.' Dig. § 178.

    For other definitions, see Words and Phrases, vol. 6, pp. 4999, 5000.] 1
    5. Deeds (§ 208) — Delivery — Evidence — Sufficiency.
    Evidence held to sustain a finding that a deed was not delivered by the grantor and accepted by the grantee.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 625-632; Dec. Dig. § 208.]
    6. Appeal and Error (§ 731) — Questions Reviewable — Assignments op Error.
    An assignment of error that the court erred in his finding of fact, for the reason that the same is not supported by the evidence, but is contrary to the preponderance of the evidence, and an assignment of error that the court erred in rendering the judgment for the successful party, are too general to require consideration on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.]
    Appeal from District Court, Cottle County; Jo A. P. Dicksop, Judge.
    Action by Mrs. A. F. Straight and another against J. W. Goodwin and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Whatley & Hawkins, of Paducah, for appellants. R. D. Browne, of Paducah, and O. T. Warliek, of Vernon, for appellees.

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

   HALL, J.

This suit was instituted by the appellants, plaintiffs in the court below, in the district court of Cottle county, against D. H. Goodwin, J. J. Randall and wife, L. M. Richards, administrator of the estate of E. T. Goodwin, deceased, J. W. Goodwin, B. E. Kirby, J. L. Tullís, Pearl Montgomery, W. L. Montgomery, Clinton Goodwin, and Hil-burn Goodwin, to establish a deed alleged to have been executed by E. T. Goodwin, conveying to bis daughter, Mrs. A. P. Straight, certain lots in the town of Paducah, and to remove a cloud cast upon plaintiffs’ title by reason of the mutilated condition of the deed records of Cottle county. Upon a trial before the court without a jury, there was a judgment against the plaintiffs.

By their first assignment of error, plaintiffs urge that the judgment is void because it was rendered at a time when no term of the court could be legally held. Cottle county is part of the Fiftieth judicial district. Under the act of 1905, the court should have convened in Knox county, March 20, 1911, and in King county May 1st, and in Cottle county May 15th. According to the Acts of the 32d Legislature, p. 214, amending the Acts of 1905, the court would have been held (if that act was operative) in Knox county, beginning February 13th, in King county beginning March 27th, and in Cottle county beginning April 10th. Both acts provided for a six weeks’ term in Knox county and for a two weeks’ term in King county. The amended act became effective Saturday, March 25, 1911, and under its provisions the court should have convened in King county on the following Monday, March 27th. However, court had been in session in Knox county one week, and the record does not show that the business upon the docket in Knox county had been disposed of during that week. Appellant contends it was the duty of the court to adjourn in Knox county. Although under the law the term might continue in Knox county for five weeks longer, and although it was the duty of the court to so continue if the business on hand demanded it, yet appellant contends the judge should have ended the term March 25th, and proceeded to King county and convened the spring term for that county on the 27th. We cannot assent to this contention. The constitutional provision is that the district judge “shall hold the regular terms of his court at the county seat in each county in his district at least twice in each year in such manner as may be prescribed by law,” and it has frequently been held that if the change in the time of holding the court in any district should result in depriving any county of two terms, as provided by the Constitution, the act was inoperative, until such time as the district judge, by conforming to its provisions, would be able to meet the constitutional requirements. Article 5, § 7; Ex parte Murphy, 27 Tex. App. 492, 11 S. W. 487; Prescott v. Linney, 75 Tex. 615, 12 S. W. 1128; Womack v. Womack, 17 Tex. 1; Wilson v. State, 37 Tex. Cr. R. 373, 35 S. W. 390, 38 S. W. 624, 39 S. W. 373; Pecos River R. R. Co. v. Reynolds Cattle Co., 135 S. W. 162; Smith v. State, 63 Tex. Cr. R. 183, 140 S. W. 1097; Lemons v. State, 59 Tex. Cr. R. 299, 128 S. W. 423.

If by a session of one week in Knox county all pending business had been disposed of, then probably it would have been the duty of the district judge to have convened his court in King county on the following Monday under the new law, whether or not the full term of six weeks, as provided for by the old law, had expired. In the absence of any showing in the record upon that point, we presume that the business of the court in Knox county extended beyond a session of one week, and the court did not err in acting under the old law during the first half of the year. This assignment is overruled.

By their second assignment, it is contended that the judgment is not final because it did not dispose of all the parties to the action. Reference to the judgment itself shows that the name of L. M. Richards, administrator of the estate of E. T. Goodwin, is omitted; but the judgment further recites “that the defendants shall have a judgment removing cloud from title to the following described property. * * * It is therefore ordered, adjudged, and decreed that the plaintiff Mrs. A. F. Straight take-nothing in this case against the defendants or either of them.” Construing this, judgment in the light of the entire record in the case, we think it is clear that the decree is in favor of all the defendants, and although L. M. Richards, administrator, is not designated by name therein, that it sufficiently shows plaintiffs failed in their action as to him. Richards was not sued personally, but is made a defendant in his fiduciary capacity. The remaining defendants are the heirs of E. T. Goodwin, deceased, in whom the beneficial title to the land in controversy rested. The omission of the name of Richards seems to be a clerical error, and in our opinion we would not be justified in reversing the judgment for that reason, and since from the record the informality can be corrected, the judgment will here in that particular be reformed. If judgment had been rendered in favor of plaintiffs against part of the defendants, a different question would have been presented, and the contention of appellants might have been more serious. Wilson v. Smith, 17 Tex. Civ. App. 188, 43 S. W. 1086; Smith v. Wilson, 18 Tex. Civ. App. 24, 44 S. W. 556.

The third assignment attacks the ruling of the court in excluding the testimony of the witness Mrs. J. J. Randall, with reference to an alleged conversation between witness and E. T. Goodwin. This conversation was objected to under article 2302, Sayles’ Civil Statutes. The testimony which appellant proposed to elicit from the witness was: “I am a daughter of E. T. Goodwin, deceased. I had a conversation with my father on or about the 24th day of December, 1909, and he told me he was going to deed Mrs. Straight and myself some property.” While Mrs. Randall and her husband appear upon the face of the record as defendants, she is not' an “opposite party” in the sense of the statute referred to above. It is held, in Eslava v. Mazange’s Adm’r, 8 Fed. Cas. 780-781: In the provision of the statute that “in actions against executors, administrators, or guardians, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party,” the “opposite party” meant is “that party against whom the evidence is sought to be used,” and an inter-vener whose interests are the same as that of the plaintiff is not an opposite party who may require the plaintiff to testify. It appears from this record that Mrs. Randall was also claiming certain property of her deceased father’s estate under a deed executed at the same time and under like conditions. In our opinion she was not a competent witness under our statute. It is held in Hill v. McLean, 78 Tenn. (10 Lea) 107, and in Trabue v. Turner, 57 Tenn. (10 Heisk.) 447, that it is not necessary that a witness shall be the opposite party on the record in a case in order to be incompetent as a witness against a personal representative, but he will be incompetent if his interests are antagonistic to those of the personal representatives against whom he is called. In the instant case, plaintiff had called Mrs. Randall in plaintiff’s interests and whose testimony, if admitted, would have been detrimental to appellees, who were nevertheless codefendants of Mrs. Randall. We think the term “opposite party” means the party to the transaction whose rights would be affected by the testimony offered. The fact that parties as they stand upon the record are apparently adversary parties by no means constitutes them “opposite parties” within the meaning of the statute. Dolan v. Dolan, 89 Ala. 256, 7 South. 425.

The fourth assignment raises the issue of the execution and delivery of the deed from E. T. Goodwin to plaintiffs. Under the evidence in this record, the question as to whether the deed was delivered is one of fact. Walker v. Erwin, 47 Tex. Civ. App. 637, 106 S. W. 164; Towery v. Henderson, 60 Tex. 291; Johnston v. Johnston, 67 S. W. 123; Hubbard v. Cox, 76 Tex. 239, 13 S. W. 170 ; Brown v. Brown, 61 Tex. 59. The testimony in the record bearing upon this issue is in substance as follows: J. O. Doolan, district and county clerk of Cottle county, testified: “The recording of the deed in controversy appears to have been scratched out and was not made by myself. I did not see the instrument recorded. I took the acknowledgment of the deed for E. T. Goodwin. After acknowledging it he left the deed with me to be filed when he ordered it filed or to be returned to him. He did not tell me to file it. He did not tell me he left it with me for the benefit of Mrs. Straight. He reserved the right to go back and get the instrument. He did not afterwards go back and order the instrument filed. He told me not to file it. He never did go back and tell me to file it. When he left it with me, I think I put it in a box marked ‘attention’ in the vault there in my desk. I had two boxes in there, one marked ‘attention,’ and right under this box was another marked ‘instruments filed for record.’ If I placed it in the file register it was through mistake. I wrote the word ‘error’ in red ink across the record. I know he reserved the right to go back and get the instrument.” W. B. Irons, deputy district and county clerk, testified in substance: “I think I put the instruments on the file record. Mr. Goodwin did not tell me to put them on file register. As well as I remember the deed was in a box, and I, thinking it was to be recorded, filed it.” In our opinion this evidence is sufficient to sustain the court’s finding that the deed had not been delivered by the grantor, nor accepted by the plaintiff.

The fifth and sixth assignments of error are submitted together. The ’fifth assignment is that “the court erred in his finding of fact for the reason that same is not supported by the evidence but is contrary to the preponderance of the evidence.” The sixth assignment is, “The court erred in rendering judgment for the defendants.” These assignments are manifestly too general to require consideration. By a proposition following them, appellant insists that the uncontroverted evidence shows the execution, recording, and acceptance of the deed by the grantee.

As previously stated, we think the evidence is sufficient to sustain the judgment, and the record failing to disclose any reversible error, the judgment is affirmed.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    BELLIS v. HANN & KENDALL.
    (Court of Civil Appeals of Texas. Dallas.
    May 3, 1913.
    Rehearing Denied May 31, 1913.)
    1. Brokers (§ 53) — Commissions — When Earned.
    Where a purchaser for real estate is procured through the instrumentality of a broker, such broker is, as a general rule, entitled to commissions.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. § 53.]
    2. Brokers (§ 86) — Commissions — When Earned — Evidence.
    Evidence held to support a finding that a broker employed to procure a purchaser of real estate was the efficient and procuring cause of a sale actually made by another broker, authorizing a recovery of commissions.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]

      3. Bkokees (§ 55) — Commissions — When Earned.
    The rule that a broker, employed to procure a purchaser who is the efficient and procuring cause of a sale, is entitled to his commissions, applies where the property is sold for a less sum than originally demanded by the owner, when employing the broker, though the sale is actually made to the same purchaser by another broker.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 82-84; Dec. Dig. § 55.]
    4. Brokers (§ 55) — Commissions — When . Earned.
    An owner authorizing several brokers to sell real estate for a specified price may consummate the sale through the broker first producing a customer1, but he must not interfere in favor of one broker to the disadvantage of another.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 82-84; Dee. Dig. § 55.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by Hann & Kendall against E. A. Beilis. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Spence, Knight, Baker & Harris and Alex F. Weisburg, all of Dallas, for appellant. Dabney & Townsend, of Dallas, for appel-lees.

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

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

   RASBURY, J.

Appellees sued in the court below, alleging that appellant had employed them to sell a house and lot in the city of Dallas and agreed to pay them certain commissions in the event they found a purchaser for the property, and that through their efforts the property was sold. Appellant answered the suit by general demurrer and general denial. Trial by jury resulted in verdict for appellees, followed by judgment of the court. From said proceeding this appeal is taken.

The undisputed facts in the case are, in substance, that the property of appellant, a residence in the city of Dallas, was placed in the hands of appellees and other agents to be sold; the appellant reserving the right to sell also. Appellees at all times knew that the property was listed with other agents and that appellant reserved the right to sell. The property was listed with ap-pellees in June, 1909, at the gross price to appellant of $7,250. Appellees did their best to sell the property, and, among other things, advertised it for sale for five Sundays in a newspaper between June 20, 1909, and August 1, 1909, and for four consecutive, days, beginning August 26, 1909. Julius Oppenheim was a frequent visitor at the office of appellees on matters of business, and. knowing that he and his sister were in the market for a home, appellees called his attention to appellant’s property, and some time in June or July, of 1909, appel-lees induced them to inspect same. The Op-penheims were pleased with the appearance of the property and secured the keys and made an-inspection in detail of the premises. A sale was not effected for the reason that the Oppenheims would not pay the price demanded. Appellees believed that they were interested, however, and on July 13, 1909, wrote appellant as follows: “Dear Sir: Some time ago we showed your house on Boulevard to Mr. A. F. Oppenheim and his sister, Miss Rose Oppenheim, who seemed at the time very well impressed with it. We have had the matter up with them since at different times and they are still interested but we have not yet been able to get them to finally close. It may be that they will take the matter up directly with you, or through another source, and should they do so, please be advised that they are customers of ours, and we are doing the best we can to handle them. We are making every effort to sell the property and while things are slow just now, we hope to be able to eventually report a sale to you. Yours very truly, Hann’& Kendall.” On the following day, July 14, 1909, appellant wrote appel-lees as follows: “Dear sir: Yours of the 13th to hand and note what you say in regard to Mr. Oppenheim. I have not heard from them at all and if I do I shall refer them back to you. You can rest assured of that. Am very much pleased at your taking the interest in selling the place that you are. By the way, Mr. Wertheim, the junk dealer, wrote me about the place early last spring. It might be you could interest him, being on the ground. Wishing you success in selling, I am, yours very truly, E. A. Beilis.”

Appellees, through Lawrence Miller, a member of appellees’ firm, continued to discuss the purchase of the premises with the Oppenheims until about September 14th, when Miller left the city on vacation. The record fails to show when the Oppenheims bought the property, but appellees ascertained that fact about October 7, 1909. The Oppenheims looked at many places prior to inspecting appellant’s place, but did not examine any other place after being shown appellant’s place; appellant’s place being the only one they really liked. The only reason they did not buy the place through appellees was on account of the price. Miss Rose Oppenheim left Dallas in late August, returning in September, after an absence of perhaps one month. Shortly after her return she advertised for a house, and Mrs. Sharp, one of the other agents who had the premises of appellant for sale and which fact was known to appellees, after much negotiation with both appellant and the Op-penheims, concluded a sale of the property to the Oppenheims at the price of $6,650, many agents offering her the identical place, though appellees did not renew negotiations with Miss Oppenheim after her return in September. The Oppenheims offered Mrs. Sharp $6,500, which she submitted to appellant, who agreed to accept said amount net to him. Mrs. Sharp then induced the Oppenheims to raise their offer to $6,650, and the appellant to further reduce his price to $6,400, and on that basis the trade was closed;' Mrs. Sharp receiving the difference between $6,650 and $6,400 as her fee. Before the transaction was concluded and while Mrs. Sharp was discussing the matter with appellant, she reported to him that the Oppenheims had advised her that appellees had been negotiating with them for the purchase of the same place but that all negotiations had been dropped. Appellant then stated that if the Oppenheims would make such a statement the deal might be concluded. A signed statement to such effect was made by Miss Oppenheim. The lowest price at which appellant authorized appellees to sell was $7,250. The offer made to appel-lees by the Oppenheims was $6,500. This offer was not submitted to appellant. Mrs. Beilis, wife of appellant, testified that she gave the name of the Oppenheims to both ap-pellees and Mrs. Sharp, while Miller, one of the firm, says she did not. Mrs. Sharp says that she did not know the Oppenheims wanted the place until they telephoned her in response to an advertisement she (Mrs. Sharp) had placed in a newspaper, and they went to the place, when the Oppenheims told her they had been negotiating with ap-pellees and had been unable to purchase because they would not pay the price demanded. The finding of the jury, however, would seem to resolve that disputed point in favor of the appellees.

All assignments of error attack the sufficiency of the testimony to sustain the verdict of the jury, and hence, from our view of the case, the question narrows, under the general rules of law applicable in such cases, to whether there was sufficient testimony to. sustain the finding of the jury that appellees were the efficient or procuring cause of the sale. Generally speaking, if the purchaser is found by the broker’s efforts and through his instrumentality, he is entitled to compensation, since he is the efficient or procuring cause of the sale. Graves v. Bains, 78 Tex. 92, 14 S. W. 256. In the instant case the evidence was conflicting as to who found the customer; appellees and the Oppenheims, in effect, testifying that the place was first called to their attention by appellees’ manager, while appellant’s wife says she mentioned the Oppenheims as probable purchasers to both appellees and Mrs. Sharp, the other agent, although Mrs. Sharp states in substance that she did not know the Oppenheims were interested until she went to the place with them after they had read an advertisement Mrs. Sharp had placed in a newspaper. Whether the purchase by the Oppenheims, after declining to pay the price asked by appellees and fixed by appellant, was due to some efficient and procuring cause exercised or brought to bear by Mrs. Sharp, or was due to similar causes on the part of appellees, or was due alone to the more favorable terms made to Mrs. Sharp, we are unable to say. The Oppenheims say they were at all times pleased with the place and that the reduction in the price was what finally induced their purchase. In any event, that issue was for the decision of the jury in the light of all the facts and circumstances. Nor can we say that the facts indisputably established an abandonment by appel-lees of their efforts to sell to the Oppenheims. Appellees’ letter quoted herein conveyed to appellant not .only the fact that they had found a customer pleased with the place, but that appellees were making every effort to sell, giving the ‘name of the customer, and asking appellant to protect them against other agents who might learn the name of their customer and attempt to profit thereby. Appellees’ manager also testifies that he discussed the purchase with the Oppen-heims up. to about the middle of September, when the manager left the city on his vacation, and this is not denied by the Oppen-heims, nor any other witness. Appellant himself seems to have been of that opinion, as evidenced by his demand that the Oppen-heims furnish him a signed statement that they had “dropped” all negotiations with ap-pellees. So that it also occurs to us that the question of abandonment was for the jury.

Nor do we think the fact that the property was sold for a less sum than demanded by the owner in any respect changes the rule that the agent who is the efficient and procuring cause of the sale is entitled to his commissions. Otherwise, the owner could avail himself of the information and industry of the agent, and, by reducing the price to a sum less than the agent’s fees, receive the benefits thereof and refuse to pay the price of such services. In Graves v. Bain, supra, the court say: “Where the price or terms of the sale are fixed by the seller, in accordance with which the broker undertakes to produce a purchaser, yet if upon procurement of the broker a purchaser comes with whom the seller negotiates and thereupon voluntarily reduces the price of the thing to be sold, or the quantity, or otherwise changes the terms of sale as proposed to the broker so that the sale is consummated, or terms or conditions offered which the party proposing to buy is ready and agrees to accept, then in either' such case the broker will be entitled to his commissions.” See, also, Byrd v. Frost, 29 S. W. 46. In like manner the rule applies, although the transaction is concluded through the medium of a second broker, when it is shown that the exertions of the first broker are the procuring cause of the sale. Duval v. Moody, 24 Tex. Civ. App. 627, 60 S. W. 269; Wood v. Wells, 103 Mich. 320, 61 N. W. 503.

Nor do we think that under the evidence adduced upon the trial of this ease it can be said to come within the facts and rules announced in Edwards v. Pike, 49 Tex. Civ. App. 30, 107 S. W. 586, as ably contended by counsel for appellees. Without attempting to state the facts in that case, the point decided was that the owner of property may authorize more than one broker to sell his property, and “so long as he remains neutral” may consummate the sale through the agent who first produces a customer, and adds that the most that known competitive brokers can expect of the owner of property is “that he will not interfere in favor of the one or the other.” Was appellant neutral under the evidence in this case? Did -he not interfere in behalf of Mrs. Sharp, when he gave her a less figure on the place than that given appellees? Could Mrs. Sharp have induced the Oppenheims to buy if this advantage had been withheld? Did not appellant himself recognize the fact that he was interfering, in behalf of Mrs. Sharp, when he demanded a signed statement from the Oppenheims that they had “dropped” the purchase of the place through appellees? These were all material inquiries and clearly raised by the evidence, and of course to be determined by the jury.

As indicated, we are of opinion that the evidence was sufficient to take the ease to the jury on the question of who was the efficient and procuring cause of the sale, and, holding that opinion, we conclude there was no edror in the judgment of the court below, and it is hereby affirmed. .


author: I-IUFF, C. J.

text:
    CLARENDON WATERWORKS CO. v. CITY OF CLARENDON.
    (Court of Civil Appeals of Texas. Amarillo.
    May 24, 1913.)
    Appeal and Error (§ 339) — Appeal erom Order — Temporary Injunction — Tíme.
    Where the fiat of the judge granting a temporary injunction was indorsed on a petition filed April 24, 1913, and an appeal from the order was not filed in the Court of Civil Appeals until May 10th following, it was too late under Rev. Civ. St. 1911, art. 4644, authorizing such an appeal if taken within 15 days after the granting and filing of the order granting the injunction.
    {Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1883-1887; Dec. Dig. §

    Appeal from District Court, Donley County; J. N. Browning, Judge.
    Suit by the City of Clarendon against the Clarendon Waterworks Company. From an order granting a temporary injunction, defendant appeals.
    Dismissed.
    H. B. White and A. T. Cole, both of Clarendon, and D. W. Odell, of Ft. Worth, for appellant. Madden, Trulove & Kimbrough, of Amarillo, and E. A. Simpson, of Clarendon, for appellee.

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

   I-IUFF, C. J.

The appellant appeals from an order of the Honorable J. N. Browning, Judge of the Forty-Seventh judicial district of Texas, granting a temporary injunction against appellant, the Clarendon Waterworks Company, at the suit of appellee, the city of Clarendon. The fiat of the judge is indorsed on the petition of appellee, April 24, 1913, and the same was filed on that day with the clerk of the district court of Donley, county. The appeal was filed in this court May 10, 1913. Appellant has taken this appeal under article 4644, Revised Statutes 1911.

The appellee files its motion herein in this court to dismiss the appeal for the reason that the court has not jurisdiction; the appeal having been filed in this court more than 15 days after the granting and filing of the order of the district judge granting the order for temporary injunction. The motion must be sustained, and the appeal dismissed. Baumberger v. Allen, 101 Tex. 352, 107 S. W. 526; Jaynes v. Burch, 151 S. W. 596.

.The appeal is dismissed for want of jurisdiction.


author: HIGGINS, J.

text:
    MORROW et al. v. CONOWAY.
    (Court of Civil Appeals of Texas. El Paso.
    May 8, 1913.
    Rehearing Denied May 29, 1913.)
    1. Appear and Error (§ 1010) — Findings— Conclusiveness.
    The findings of the trial court supported by evidence, consisting of documentary testimony, are conclusive on appeal, and the court on appeal will not determine the conflict in accordance with the preponderance of the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. § 1010.]
    2. Taxation (§ 317) — Assessment—Quasi Judicial Act.
    The assessment of taxes is a quasi judicial act which the comptroller may not delegate to a clerk; and, where an assessment for taxation is made by a clerk, a tax sale is void.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §,§. 525, 526; Dec. Dig. § 317.]
    3. Adverse Possession (§i 73) — Color oe Title — Award oe State Lands.
    The inchoate right to purchase school land which one acquired by virtue of an award of the land to him by the Commissioner of the General Land Office is not title or color of title within the three years’ statute of limitation, at least until after the three years’ occupancy required by law has been completed.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 435-442; Dec. Dig. § 73.]
    4. PpBLic Lands (§ 173) — Right to Pur-cha se — Limitations—Statutes.
    Act March 16, 1905 (Acts 29th Leg. c. 29), prescribing limitation within which any person claiming the right to purchase or lease free school lands shall sue therefor, relates solely to public free school land, and has no reference to adverse claimants to school lands, and does not relate to land previously patented, and to which the free school fund had no title.
    [Ed. Note. — For other eases, see Public Lands, Cent. Dig. §§, 544-551; Dec. Dig. § 173.]
    Appeal from District Court, Midland County; 6. J. Isaacs, Judge.
    Action by A. L. Conoway against J. A. Morrow and another. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    Silliman & Neel, of Eldorado, Cornell & Wardlaw, of 'Sonora, C. E. Dubois, of San Angelo, AV. E. Allen, of Mineral Wells, and A. S. Hawkins, of Phoenix, Ariz., for appellants. P. G. Morris, of El Paso, J. M. Caldwell, of Midland, and E. M. Whitaker, of El Paso, for appellee.

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

   HIGGINS, J.

Action of trespass to try title by Conoway against Morrow, involving 640 acres of land situate in Upton county known and described as section 5 in block N, patented to Thomas Roche, assignee of the Houston East & West Texas Railway Company, by virtue of certificate 100/503.

This is the second appeal of this case, former opinion appearing in 147 S. W. at page 344.

The cause was tried before the court, resulting in judgment in favor of Conoway. Findings of fact and conclusions of law were filed by the trial court as follows:

“Findings of Fact.
“I. The land in controversy was patented by the state, of Texas to Thomas Roche, as-signee of the Houston East & West Texas Railway Company, on July 1, 1881, by virtue of certificate 100/503.
“II. The administrator of the estate of Thomas and Mary Roche, his wife, deceased, sold the land in controversy to the plaintiff, A. L. Conoway, on the 6th day of July, 1910, upon order of sale made by the probate court of Tarrant county, and thereafter upon report and confirmation of said sale by order of said court, and on payment of the consideration therefor, said administrator executed and delivered his deed of conveyance to said land to plaintiff, A. L. Conoway, on the 16th day of July, 1910.
“III. The land in controversy was situated in unorganized county of Upton during and prior to 1890 and 1891, which said Upton county was attached to Midland county for judicial and all other purposes. Said land was not rendered for taxes in Midland county for the year 1890, nor was it rendered for taxes to the comptroller of public accounts of the state of Texas for the year 1S90.
“IV. There was levied by the' commissioners’ court of Midland county taxes upon Upton county property of one-fourth of 1 per cent, on the value of the property situated in said county,. for the general fund of said county, and 7% cents on the $100 valuation on the property in said county, for the payment of Upton county pro rata of the indebtedness of the parent county, which was Tom Green county, and for expenses of surveying the county boundaries.
“V. There was no assessment by the tax assessor of Midland county of any taxes against the land in controversy for the year 1890.
“VI. The chief tax clerk of the tax department of the comptroller’s office during the years 1890 and 1891 assessed the land in controversy for state taxes and for one-fourth of 1 per cent, of the value at which it was assessed for general purposes of Upton county, but made no assessment for special purposes, valuing the land at $960. This action was taken by said chief tax clerk in the name of the comptroller, and carried on the records of the comptroller’s office as the acts of the comptroller.
“VII. On the 3d day of November, 1891, said taxes assessed against said land remained unpaid, and the same was sold by D. H. Walsh, chief tax clerk of the comptroller’s office, on the 3d day of November, 1891, in front of the comptroller’s office, within regular hours, after having duly and legally published notice of said intended sale, as required by law, and the same was bid in for the state public school fund by said Walsh, clerk, as aforésaid, and a deed, sufficient on its face to convey title to said land, was executed to the state for said school fund.
“VIII. A' list of land bought by the comptroller for taxes, which list included the land in controversy, was certified by the comptroller to the Commissioner of the General Land Office, as required by law, long prior to the application and award of said land as public school land to W. O. Alexander.
“IX. After the land in controversy was certified by the comptroller to the Commissioner of the General Land Office, same was carried upon the books of the Commissioner of the General Land Office as public free school land, and on July 8, 1908, the Commissioner of the General Land Office awarded said land to W. O. Alexander, as an actual settler, upon legal application made by said Alexander, said land having been previously classified and appraised.
“X. After the award of said land to W. O. Alexander he made settlement thereon, and filed with the Commissioner of the General Land Office his affidavit of settlement, as is required by law, and continued to reside thereon and make his home thereon until July 18, 1910.
“XI. On the last above named date W. O. Alexander conveyed the land in controversy to J. A. Morrow, who assumed Alexander’s obligations to the state, and who was substituted as the purchaser of said land in the General Land Office; and the said Morrow continued to reside upon, and make his home upon, said land until after the expiration of three years from the date of the original purchase.
“XII. Alexander and Morrow, after the purchase of same by Morrow, and prior to the expiration of three years from the date of said purchase, erected on said land valuable improvements worth more than $300.
“XIII. After the expiration of said three years’ occupancy Morrow filed with the Commissioner of the General Land Office proof of said occupancy, as required by law, and the Commissioner of the General Land Office issued to said Morrow a certificate of occupancy in due form of law, on’August 16, 1911.
“XIV. The defendants J. A. Morrow and W. O. Alexander have had actual, adverse possession of the land in controversy, under said award as public school land, from the state, from the date of said award until the present time.
“XV. W. O. Alexander and J. A. Morrow made valuable improvements on said land in good faith, believing they had a right to acquire said land as public school land, which improvements when completed were of the value of $800.
“XVI. There is no evidence of their value at the time of the trial, nor any evidence as to whether or not the value of the land was increased, nor as to the value of the land with said improvements, nor is there any evidence of the value of the land without said improvements.
“XVII. J. R. Lawrence, agent for plaintiff, A. L. Conoway, on or about the 15th day of July, A. D. IOIOj offered to pay the amount of money required by law to redeem said land from the tax sale hereinbefore described, to the comptroller, but was informed by him that as the land had been sold as school land he would not accept a tender of the money necessary to redeem the same.
“From the foregoing findings' of fact I deduce the following:
“Conclusions of Law.
“That the plaintiff, A. L. Cono way, showed title which authorizes judgment for him, unless the defendant has shown title.
“The award to the land in controversy and compliance with the law by W. O. Alexander and J. A. Morrow shows sufficient title to the land in controversy in J. A. Morrow to defeat plaintiff’s recovery, if the land was public school land when it was certified by the Commissioner of the General Land Office to the comptroller.
“The law did not confer on the comptroller the power to assess county taxes on land in unorganized counties, except for the payment of a part of the parent county’s indebtedness, and in this case the comptroller’s office assessed county taxes for the general fund only, and sold the land in question, in part, for payment of taxes thus assessed.
“A sale for taxes is void if any part of the taxes for which the sale is made is illegal.
“The power vested in the comptroller to assess state taxes was a quasi judicial power, which must have been exercised by the comptroller in person, and could not have been lawfully delegated to the chief clerk of the tax department; hence the assessment of the state taxes for the payment of which the sale in question was made was void, and will not sustain the sale for state taxes.
“The Commissioner of the General Land Office was not authorized to sell the land in question as public school land, because the right of redemption was revived in the owner by relief acts, and remained in him until after the award to W. O. Alexander, and until the agent for plaintiff offered to redeem, prior to the institution of this suit.
“The award of the land in controversy by the Commissioner of the General Land Office to W. O. Alexander is not such title as will support the three-years statute of limitations.
“The attempted sale by the comptroller, not vesting title to the land in controversy in the public free school fund, Morrow could not hold same against Conoway under the one-year statute of limitation passed by the Thirtieth Legislature.
“No pleadings being filed or evidence offered that the land was increased in value to the extent of the value of the improvements sought to be recovered, and no pleadings or evidence of the value of the land without such improvements and of the value of the land with such improvements, no judgment can be rendered for the defendants for such improvements.”

In the seventh finding of fact it is stated that the land “was bid in for the state public school fund by said Walsh, as aforesaid.” The trial court inadvertently erred in this finding, as the land was bid in for the state public school fund by the comptroller instead of his chief clerk, Walsh. With this correction, we adopt the findings of fact of the trial court. There are also some unimportant clerical errors, which we have corrected.

Error is assigned to the sixth and seventh findings of fact, wherein the trial court found that the chief tax clerk, Walsh, made the assessment of the land in controversy and made the sale thereof. In support of these assignments it is urged that this court should review the findings of the trial court upon these issues, because all of the testimony bearing upon same is documentary in nature, being shown by the depositions of Walsh and by certificates of fact from the comptroller; that this being the nature of the testimony, this court is therefore in no manner bound to accept the finding of the lower court, even though the testimony should be conflicting, but should determine the conflict in accordance with the preponderance of the evidence, as this court is in as good a position to pass upon these issues of fact as the lower court. This is not a trial court,, and under the Constitution and laws of this state the decision of issues of fact is confided to the district court; and, since the’testimony supports the finding of the trial court in respect to the issues noted, we decline to review the same.

The assessment of the taxes was a quasi judicial act, which the comptroller could not delegate to a clerk, and we therefore hold the tax sale void, and that no title whatever passed to the state by virtue of the sale. 27 A. & E. Enc. of Law (2d Ed.) p. 665.

As will be noted from the findings of fact, Morrow is claiming the land by virtue of an award to his vendor, Alexander, made by the Commissioner of the General Land Office, who awarded the same as belonging to the school fund, upon condition of occupancy and improvement, as is required by the -laws relating to the sale of such lands. It is urged by appellant that by virtue of this award and the three years’ occupancy of the land by himself and Alexander, he has acquired title by limitation under the three-years statute of limitation. But under the decisions it is well settled that the inchoate right which he acquired by his award is not title or color of title sufficient to support the statute, at least, until after the three years’ occupancy required by law has been completed. Besson v. Richards, 24 Tex. Civ. App. 64, 58 S. W. 611; Garrison v. Arnett, 126 S. W. 611, writ of error refused by Supreme Court; Johnson v. Knippa, 127 S. W. 905; Wolffarth v. De Lay, 142 S. W. 617; McCown v. McCafferty, 14 Tex. Civ. App. 77, 36 S. W. 517; Williamson v. Brown, 49 Tex. Civ. App. 402, 109 S. W. 412.

In the case of Besson v. Richards (supra) it was said: “The inchoate right of a person whose application for the purchase of school lands has been accepted is not sufficient as title, or color of title, to support the statute of limitation of three years. Such character of title is not within the terms of the statute, and does not show an already existing right to the land. We think this right or title of a school-land purchaser, prior to the completion of his three-years term of occupancy, is no higher than the right of a pre-emptor, and it is well settled that a pre-emption claim is not such title, or color of title, as will support the statute. In the case of Buford v. Bostick, 58 Tex. 70, Judge Bonner, speaking for the court, says: ‘Title or color of title, to support a statute prescribing so short a period of limitations, 'should come within its terms, or plainly within its spirit. A pre-emption claim, until perfected, is not a title defeasible upon the nonperformance of conditions subsequent, but is a mere inchoate right, which may ripen into a perfect title upon the performance of certain conditions precedent. Neither is it an already existing and certain demand for land issued by the government upon an executed consideration, as a certificate of headlight, land warrant, or land scrip, but a mere privilege or right of possession, sufficient under the statute, as against all but those holding under a superior right or title, to maintain trespass to try title, but hot sufficient to defeat this superior right or title by limitation.’ As before stated, we can see no distinction between the character of the right or title of the pre-emptor and that of the purchaser of school land prior to the completion of the three-years term of occupancy, as up to that time such purchaser holds possession under a contract that contemplates title only upon the performance of certain conditions precedent, independent of the payment of the purchase price. The opinion in the case of Buford v. Bostick, above quoted, is sustained by the case of Sutton v. Carabajal, 26 Tex. 497, and is approved and followed in the case of Clark v. Smith, 59 Tex. 275.”

Further discussion of this question would serve no useful purpose, as the authorities cited foreclose the question against appellant’s contention.

Neither did the trial court err in holding that the one-year statute of limitation of March 16, 1905, did not apply. This act was entitled, “An act to prescribe a period of limitation within which any person claiming the right to purchase or lease public free school, state university or asylum lands heretofore sold or leased to others, shall bring his suit therefor,” and it reads as follows:

“Section 1. Be it enacted by the Legislature of the state of Texas: That hereafter all persons claiming the right to purchase or lease any public free school lands, or any lands belonging to the state university, or either of the state asylums which have been heretofore or which may be hereafter sold or leased to any other person under any provision of the law authorizing the sale or lease of any of said lands, shall bring his suit therefor within one year after this act goes into effect, or after the date of the award of such sale or lease, if such award is made after the taking effect of this act, and not thereafter.
“Sec. 2. If no suit has been instituted by any person claiming the right to purchase or lease any of said land within the period of time limited in the first section of this act, it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease of such lands have been complied with; provided that nothing in this act shall be construed to affect the state of Texas in any action or proceeding that may be brought by it in respect to any of said lands.”

See Acts of Twenty-Ninth Legislature, p, 35, -c. 29 ;• Revised Statutes 1911; arts. 5458; 5459. ...

' The land in controversy was not public free school land, and the statute just quoted does not relate to- any except such land. It had long since been patented, and to hold that one claiming title thereto by virtue of an unauthorized award from the Land Commissioner, which carried with it no right or title whatever, would vest title in the adverse claimant under the one-year statute would be to give to the. statute an interpretation in no wise supported by its language. As we construe the statute, it has reference to adverse claimants to school lands, and cannot be construed as relating to land which had previously been patented, and to which the free school fund had no title whatever.

What has been said disposes of all the assignments of error, and, finding no error, the judgment is affirmed.

McKENZIE, j., did not sit in this case.


author: RICE, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. DUNN.
    (Court of Civil Appeals of Texas. Austin.
    April 30, 1913.
    Rehearing Denied May 28, 1913.)
    1. Trial (§ 252) — Instructions — Applicability to Evibence.
    In an action against a railroad company for damages to a shipment of cattle caused by delay and rough handling, a requested charge that if the cattle were shipped on the first freight train aper being received by defendant, and the train ,vas i'un on regular schedule time, then no damages for delay could be recovered, was properly denied, where there was no evidence showing that the shipment went out on the first train after receipt. '
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    2. Carriers (§ 215) — Carriage of Live Stock — Delay.
    A carrier cannot absolve itself from liability for'injuries to a shipment of cattle caused by negligent delay by merely showing that the cattle were shipped on a freight train which proceeded on schedule -time, where it- did not appear that the train was operated upon such schedule that it would reach the destination within a reasonable time.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig.- §-215.]
    3. Trial (§ 261) — Instructions—Erroneous Request.
    Where a special charge covering a phase of the ease not dealt with by the main charge was incorrectly drawn, it may be properly refused, and the court is under no duty to prepare and give a proper special charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675; Dec. Dig. § 201.] . ,
    Appeal from McLennan County,' Court'; Sam E. Stratton, Special Judge. '
    Action by Penn G. Dunn against the Missouri, Kansas & Texas Railway Company of Texas. Begun in justice’s court and appealed by defendant to the county court, ■where -judgment was again rendered for-plaintiff, and defendant appeals.
    Affirmed;
    Alex. S. Coke, of Dallas, and J. W. Cocke and Spell & Sanford, all of Waco, for appellant.

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

   RICE, J.

This suit was brought by ap-pellee in the justice’s court against St. Louis & Southwestern Railway Company of Texas and appellant, to recover damages alleged to have been sustained to a car load of cattle shipped by him from Mt. Calm, via Waco, to Ft. Worth; the grounds of negligence alleged being delay and rough handling en route, whereby he sustained loss, as claimed. A trial in the justice’s court resulted in favor of appellee against both companies for the sum'of $185. On appeal to the county court judgment was rendered in behalf of appel-lee against appellant for the sum of $200, but in favor of the former company, from which judgment this appeal is taken.

The record shows that the shipment left Mt. Calm about 9:20 on Thursday night, the 29th of September, 1910, reaching Waco between 11 and 12 o’clock, and,was delivered by the first-named company to appellant at 1 o’clock that night, but did not leave Waco until after 5 o’clock the next morning, reaching Hillsboro about 6:15 a. m., where it was delayed for six hours, finally leaving there' at 12:30, reaching Ft. Worth at 5:45 Friday evening, too late for the market of that day. No rough handling nor appreciable delay was shown as against the St. Louis & Southwestern Railway Company, but it appeared that the cattle- were roughly handled by appellant both at Waco and Hillsboro, whereby they were bruised and injured, and that appellant was guilty of delay in failing to deliver them' at Ft. Worth in time for Friday’s market; the evidence showing on'the pdrt of appellee that from eight to ten hours is the usual and ordinary time for shipments of this character from Mt. Calm to Ft. Worth. The market being very poor on Saturday, appellee was forced to hold the cattle over until Monday, at which time they were sold for less than they would have brought had they reached Ft. Worth in time for the Friday market; that they likewise lost in weight and marketable appearance by reason of such delay and injury, and brought less by reason thereof.

The court did not err in refusing special charge No. 2, to the effect that if the cattle were forwarded from Waco by its first through 'freight train running on regular schedule time, yet if same could not have reached Ft. Worth in time for Friday’s market, then said market could not be the basis' upon which to predicate a recovery, but such basis should be the diff-rencO between - the Saturday and Monday's market, and, as Saturday’s market- was lower than that of Monday úpon which the cattle were, sold, then it was their duty to find for defendant on the issue of delay, because: First, there was no evidence showing that this shipment went out on the first freight train after its receipt by appellant; and, second, even if it had been so shown, then it would not necessarily have been absolved from negligence merely by running on schedule time, unless it be shown that a train operated upon such schedule would reach Ft. Worth within a reasonable time.

But appellant contends that, even if this charge was incorrect, it suggested a phase of the case not covered by the main charge, and therefore the court should have given a proper charge on this subject. If the special charge was incorrect as drawn, it was not the duty of the court to prepare and give a proper special charge. Unless the requested instruction be legal and correct in the very terms asked, it is not the duty of the court to give it, whether or not it is suggestive of what should have been given. Water Co. v. Cauble, 19 Tex. Civ. App. 417, 47 S. W. 538.

We think the court gave the true measure of damages in this case, and that the charge as given was not upon the weight of evidence. Nor do we think that the charge was misleading, as contended.

We do not think that the court erred in instructing the jury that they might find against that defendant only that they believed the evidence showed was guilty either of delay or rough handling, and apportion the damages in accordance therewith, as contended by appellant in its fifteenth and sixteenth assignments. This charge, if error at all, was not prejudicial to the rights of appellant, but to those of the St. Louis & Southwestern Railway Company, since the evidence failed to show any rough handling on their part and was hardly sufficient to raise the issue of delay.

Finding no error in the proceedings of the trial court, its judgment is in all things affirmed.

Affirmed.


author: PLY, C. J.

text:
    PRESSLER v. BARREDA.
    (Court of Civil Appeals of Texas. San Antonio.
    April 30, 1913.
    Rehearing Denied June 4, 1913.)
    1.LANDLORD AND TENANT (§ 209) — LEASE— Liability for Rent — Subletting.
    Where a lease provided ' that the tenant might sublet the premises, but that bis liability for rent, should not be diminished or released thereby, and that the subtenants should also be bound to pay the rent to the landlord, and not to the lessee, and should be bound to pay the notes given to the landlord for rent, etc., such provision bound the tenant for the rent whether he sublet the premises or not.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 832-834; Dec. Dig. § 209.]
    2. Evidence (§ 441) — Written Lease — Variance by Parol.
    A provision in a written lease, authorizing the tenant to sublet the premises, but providing that the same should not affect the tenant’s liability for rent, could not be varied by any .contemporaneous parol agreement.
    [Ed. Note. — For other cases, see Evidence, . Cent. Dig. §§ 1719, 1723-1763, Í765-1845, 2030-2047; Dec. Dig. § 441.]
    3. Landlord and Tenant (§ 209) — Rent Notes —Action — Contract with Subtenants — Evidence.
    Where a lease provided that the tenant might sublet, but that such subletting should not affect the tenant’s liability for rent, the tenant’s contract with his subtenants was not material in an action by the landlord against the tenant on notes given for rent to accrue.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 832-834; Dec. Dig. § 209.]
    4. Landlord and Tenant (§ 231) — Liability for Rent — Release.
    In a lease authorizing the tenant to sublet, but providing that no subletting should affect the tenant’s liability for rent, evidence that the tenant, on informing the landlord that he was ill and wished to sublet the premises and go away and rest for six months, was told that it made no difference to the landlord who occupied the premises so long as the rent was paid, and that the tenant should go ahead and rest up, did not show a release of the tenant’s liability for rent.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. § 231.]
    5. Landlord and Tenant (§ 231) — Action for Rent — Defenses—Adjoining Premises —Unsanitary Condition — Evidence.
    Evidence of an unsanitary condition of adjoining premises belonging to a landlord, in the absence of allegation or proof that the tenant’s subtenants vacated the leased premises on account thereof, was inadmissible as a defense to an action for rent.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. § 231.]
    6. Trial (§ 170) — Question for Court or Jury — Direction of Verdict.
    In an action on rent notes, the court properly directed a verdict for plaintiff, where ’ defendant offered no valid defense thereto.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 390-394; Dec. Dig. § 170.]
    7. Landlord and Tenant (§ 195) — Action for Rent — Occupancy of Premises.
    Where defendant gave notes for rent under a lease, the fact that he did not occupy the premises for the whole term was immaterial to his liability on the notes.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 790-793; Dec. Dig. | 195.] :
    8. Landlord and Tenant (§ 209) — Sublet^ ting — Collection of Rents.
    Where a lease authorized a tenant to sublet, and made the subtenants liable to the landlord for rent, it was the duty of the tenant, and not of the landlord, to collect the rents from the subtenants.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 832-834; Dec. Dig. § 209.]
    Appeal from Cameron County Court; Jno. Bartlett, Judge.
    Action by C. P. Barreda against W. M. Pressler. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Graham, Jones, West & Dancy, of Brownsville, for appellant. J. T. Canales, of Brownsville, and Gus L. Kowalski, of Kingsville, for. appellee..

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

   PLY, C. J.

This is a suit on three promissory notes, each for .$90, due, respectively, on May 1, June 1, and July 1, 1911, instituted by appellee, the payee therein, against appellant, the maker of the notes. The notes were executed in connection with a written lease contract for certain premises in Brownsville, ' in which the property was leased by appellee to appellant, and appellant sought to evade payment on the ground that appellee had'authorized a subletting of the premises, and had released appellant from further liability. The court instructed a verdict for appellee, and on the verdict the judgment in favor of appellee was rendered, from which appellant has perfected this appeal.

The lease contract, which was executed contemporaneously with the execution of the notes, contains the following stipulation: “And said lessor hereby gives to said lessee, if necessary, the privilege of subrenting said premises providing the said sub-renting is made under the exact terms of this contract and providing further that the liability of said lessee for the rents specified in this contract are not to be in any way diminished or released by reason of said subrenting and further that such sublessee shall also be bound to pay said rents to the said lessor and not to said lessee, and further that such sublessee shall be bound to pay the aforementioned notes to lessor as hereinbefore stated and that a lien be and is hereby reserved upon the interest of said sublessee and = assigns in and to the same and the property of such sublessee upon said premises, as aforestated in favor of said' lessor, his heirs and assigns, prior and preferable to any and all other liens thereupon whatsoever.”

That stipulation binds appellant to the payment of the rent, whether he sublet the premises or not, and that provision of the contract could not be varied by any contemporaneous parol agreement.

The contract between appellant and his. subtenants could in no manner affect'his obligations to appellee, and it was properly excluded from the jury. Appellee did not sign it, and was not bound by its provisions. Appellee did not agree to release appellant from liability and accept the subtenants in his stead. The evidence of appellant fails to show his release by appellee. The latter merely recognized appellant’s right under the lease contract to sublet the premises. All that appellant testified was that he told appellee that he was sick and wanted to go off and rest for six months, and that he had sublet the premises. To that information appellee replied “that it did not make any difference to'him who occupied the premises so long as the rent was paid, and told me to go ahead and rest up.” There is nothing in the evidence tending to show a release of appellant from payment of the rent.

The eighth, ninth, tenth, fourteenth, fifteenth, and sixteenth assignments of error are in reference to testimony showing the unsanitary condition of adjoining property owned by appellee. It was not alleged or proved that appellant’s subtenants vacated the premises on account of the unsanitary condition of the premises, or that appellant was in any way hindered in his use of the rented property by such condition. The evidence had no bearing on any issue in the case, and was properly excluded.

The second assignment is in terms waived by appellant, and it is not copied into the brief, and yet two propositions, purporting to be under the second assignment of error, are urged in the brief. Of course they will not be considered. The second assignment of error in the record has no relation whatever to the two propositions in the brief.

The court did not err in instructing a verdict for appellee. Appellant offered no defense whatever to the ■ payment of the notes. The case of Mays v. Sanders, 90 Tex. 132, 37 S. W. 595, is not at all applicable or pertinent to the facts in this case.

If appellant did not occupy the premises for the whole time for which, he had leased them, that fact did not relieve him from the payment of his promissory notes, nor devolve any duty on appellee to rent the premises to some other person. The authorities cited by appellant have no relation to a case of this character. The premises’ were leased to appellant to be used by him or not as he saw proper, and appellee had no authority to lease them again when not occupied by appellant, unless, perhaps, he had been notified by appellant that he had breached the contract.

Appellee was not the guardian of appellant, and it did not devolve on him to collect rents due appellant by his subtenants. Appellee had not accepted the subtenants and released appellant, and it was the business of the latter to collect rent due him. The case of Johnson v. Bank, 29 S. W. 677, is not pertinent to the facts of this case. The law of indorsement is not involved herein:

The judgment is affirmed.


text:
    ELLIOTT v. CLARK et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 10, 1913.)
    EBAUD (§ 17) — MISREPRESENTATION—SALE.
    Where the owners of a bowling alley concealed from the purchaser of a one-half interest that the property was subject to a mortgage, representing that one of the parties had purchased the property for $425, the half interest being sold for $250, the concealment constituted a fraudulent misrepresentation giving the purchaser a right of action.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 15; Dec. Dig. § 17.]
    Appeal from Navarro County Court; J. M. Blanding, Judge.
    Action by W. F. Elliott against M. Y. Clark and another. From a judgment for defendants, plaintiff appeals.
    Reversed and, remanded.
    Jack & Jack, of Corsicana, for appellant. W. W. Ballew, of Corsicana, for appellees.

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

   RASBURY, J.

Appellant instituted this suit in the court below against appellees to recover $250, alleging that,in March, 1912, he purchased from appellees a half interest in a bowling alley and certain equipments and fixtures situated in Corsicana, paying therefor $250 cash and for which appellees claimed to have paid $425; that at the time he purchased same appellees claimed title thereto free of liens or incumbrances; but that after his purchase of same it developed that one J. F. Massey had a mortgage thereon to secure payment of 12 notes aggregating $300, executed by appellee Clark, which was known to appellees when appellant purchased the property; but that appellees fraudulently concealed and misrepresented the existence of said mortgage for the purpose of deceiving him and inducing him to purchase said property; and that he was so deceived and induced to purchase same. It was further • shown that the said Massey, owner of said notes and mortgage, had sued thereon, sequestrated the property, and aft-erwards foreclosed his lien and bought in the property, etc. Appellant urged that because of said facts the title to said property had failed, and he prayed judgment for the amount. Appellees, in answer to the suit, alleged that appellant bought the property from appellee White, who had bought from appellee Clark, and expressly agreed to pay the Massey notes, etc. It was also charged by the answer that appellant colluded with Massey, the owner of said notes, by refusing to pay the notes as they matured, and procured him to sue on said notes and foreclose said mortgage lien resulting in a judgment, etc., against appellee Clark, which would not have resulted if appellant had observed his contract and paid said mortgage debt. Judgment was asked against appellant for amount of the Massey judgment against Clark and that appellant take nothing by his suit against either appellee. The case was tried without jury and judgment was against appellant. No disposition is made of appellees’ cross-action by the judgment. From said judgment this appeal is taken.

There is no statement of facts, but upon request of appellant the court filed conclusions of fact and law; the conclusions of fact material to the disposition of the appeal being that on March 14, 1912, appellee White sold a one-half interest in the property to appellant for $250 cash, retaining the remaining one-half interest in himself, but surrendering the business and its management to appellant; that appellee White made no representations to appellant as to any incumbrance on the property, nor did he warrant the title, but did say at that time that he let appellee Clark have $425 with which to purchase the property; that appel-lee White before the sale informed appellant that the monthly expense of the business was $55, but that a part of the building in which the business was conducted rented for $10 per month, which would reduce the expense to. $45; that at the date of the sale there was a registered chattel mortgage against the property securing payment of 12 notes of $25 each, maturing monthly and given by Clark, from whom appellee White purchased the property, to said Massey; that the rent of the building in which said business was conducted was $30 per month, and that sum with the Massey notes falling due each month made up the $55 of expense, and which was reduced to $45 by subletting a part of the building at $10 per month; that appellant took possession of the business and conducted it until the first of the following month, when he, for the first time, learned of the debt and mortgage; appellant paid the first note after going into possession of the business, but refused thereafter to do so; appellee White also refused to pay the Massey notes, whereupon Massey sued, sequestrated, foreclosed his lien, and bought the property under sheriff’s sale.

In the manner in which the record in this cause is presented we think it our duty to reverse the judgment of the court below. The court concludes from his findings of facts that same do not in law constitute misrepresentations of the title to the property. In so concluding we think the court erred. It occurs to us that the concealment of a fact so material as the mortgage upon the property is such an act or omission as constitutes fraud or deceit, and ought to go to the jury or be considered by the court along with such other facts and circumstances as may have been properly admitted in testimony under appellant’s claim that he was deceived by appellees in relation to the title to the property. The court finds as matter of fact that “no representations” were made concerning the mortgage, which by analysis means lie withheld from appellant a fact material to the title to the property purchased by appellant. Concealment of a material fact, by which an undue advantage is secured, is obviously as much calculated to injure as affirmatively misrepresenting the true status.

Further, the' court finds that appellee White told appellant that he gave appellee Clark $425 with which to purchase the property. The effect of this statement was clearly calculated to mislead appellant into the belief that there was no lien upon the property, particularly, so since the court also found that the half interest was sold for $250, and from which the presumption would arise that the value of the property was fixed at $500, and that; appellant would not have purchased same under conditions which would have involved paying the full value 9f same. Generally, each party to a contract is bound in every case to communicate to the other his knowledge of all material facts, provided he knows the other to be ignorant of them and they be not open and naked or equally within reach of his observation. Elevator & Compress Co. v. Mitchell, 7 Tex. Civ. App. 231, 28 S. W. 45.

' In accordance with the views expressed, and since it does not appear that the court below had in mind the rule just stated, the judgment of the court below is reversed, and the cause remanded.


author: CONNER, C. J.

text:
    MISSOURI, K. & T. RY. CO. et al. v. WATSON et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 29, 1913.
    Rehearing Denied May 3, 1913.)
    1. CARRIERS (§ 58) — Carriage or Goods — Bill oe Lading — Rights op Transferee.
    Under a bill of lading providing .that the carrier would not be liable for any fault of the shipper or discrepancy in weight, it was not liable to the transferee of the shipper’s draft with, bill of lading attached, for the amount overpaid on account of such discrepancy.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. § 58.]
    2. Carriers (§ 69) — Carriage of Goods — Bill of Lading — Action by Transferee-Evidence.
    Evidence, in an action against a carrier for the amount overpaid by plaintiff upon a draft with bill of lading attached, showing a shipment of 62,000 pounds of corn when in fact the car contained but 46,000 pounds, held to show that the bill of lading truly indicated the amount delivered for carriage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 217-219, 222, 228, 230, 232-239; Dec. Dig. § 69.]
    3. Carriers (§ 69) — Carriage of Goods— Action by Transferee of Bill of Lading —Effect of Shipment.
    In an action against a carrier for the amount overpaid by plaintiff upon a draft with bill of lading attached showing a shipment of 62,000 pounds of corn when in fact the car when unloaded contained but 46,000 pounds, tried' before the court without a jury and without any finding of fact, a judgment generally for plaintiff was not a finding that but 46,000 pounds were originally delivered to plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 217-219, 222, 228, 230, 232-239: Dec. Dig. § 69.]
    4.Appeal and Error (§ 934) — Review — Presumptions, in Aid of Judgment.
    On appeal in an action tried without a jury and without any finding of fact, every reasonable intendment of the evidence must be indulged in aid of the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. Í 934.]
    Appeal from Young County Court; E. W. Fry, Judge.
    Action by A. C. Watson and others against the Missouri, Kansas & Texas Railway Company and . others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Spoonts, Thompson & Barwise, of Ft. Worth, and Arnold & Arnold, of Graham, for appellants. J. E. Simpson, of Graham, Theo. Mack, of Ft. Worth, and C. W. Johnson, of Graham, for appellees.

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

   CONNER, C. J.

On appeal from a justice court, appellees recovered a judgment against appellants for the sum of $150.90; this sum being the amount overpaid by them upon a draft with bill of lading attached showing a shipment of 61,890 pounds of corn from Rentisville, Old., via the Missouri, Kansas, 6, Texas Railway Company to Wichita Falls, Tex., and from Wichita Falls over the Wichita Falls & Southern Railway to New Castle, Young county, Tex. When' the car of corn in question was unloaded at New Castle, it was found to contain but 45,900 pounds, instead of 61,890 pounds as shown by the bill of lading. It appears that the shippers in Oklahoma upon receipt of the affidavit of the New Castle agent as to the actual number of pounds of corn received by him acknowledged that the original bill was incorrect, and they thereupon refunded a proportionate part of the purchase price to their immediate ven-dees, and the railway company in turn refunded to the shipiiers a proportionate part of the freight that had been charged and collected, and the main contention now made by appellants is that they are not liable for the discrepancy in weight; it being insisted that the undisputed evidence shows that bul 45,900 liounds of corn was ever delivered in the first instance to the Missouri, Kansas, & Texas Railway Company.

In view of the fact that the bill of lading attached to the draft and paid by appel-lees contained a provision to the effect that the railway company would not be held liable for any fault of the shippers or discrepancy in weights, we wo.uld have no hesitation in supporting the view of the law presented by appellant. See Hutchinson on Carriers, §§ 122, 125a; Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998; Friedlander v. T. & P. Ry. Co., 130 U. S. 423, 9 Sup. Ct. 570, 32 L. Ed. 991; Cohen Bros, v. M., K. & T. Ry. Co., 44 Tex. Civ. App. 381, 98 S. W. 437; Bath v. H. & T. C. Ry. Co., 34 Tex. Civ. App. 234, 78 S. W. 993.

The difficulty, however, is that we feel unable to say that the evidence is undisputed that but 45,900 pounds were originally delivered for shipment. An employs of the shippers in Oklahoma, who bought and loaded the corn in question, made an affidavit which accompanied the bill of lading that the ear contained 61,890 pounds, and he testified upon the trial by deposition that he bought and weighed the corn in question from farmers’ wagons in Oklahoma and placed it in the car; that the weights as given by him were correct to his best knowledge; that he was without any interest in the matter and could give no explanation of the discrepancy suggested. It further appeared that Bentisville, where the car was loaded, was a nonageney station, and that the bill of lading was issued at Muskogee. While the ear upon arrival at New Castle was found in good condition, with seals undisturbed, appellant failed to show by the evidence just when those seals were attached or by whom attached. The conductor of the appellant Missouri, Kansas, & Texas Railway Company testified that he received the car at Gainsville, Tex., and that the seals were then intact, and that the car was duly transported to Wichita Falls without disr turbance. The conductor of the other railway company also testified that he received the car at Wichita Falls in good condition and that the same had been transported to New Castle without disturbance. No proof was offered, however, of the care of the car of corn from the time it was loaded by the servant of the shippers until the sealing of the car, nor, ás stated, when, where, or by whom the car was sealed; nor were the circumstances of the transportation from the shipping point in Oklahoma to Gainsville shown.

The case was tried before the court without a jury, and there are no findings of fact on the part of the court; the .judgment being generally for the appellees upon the facts as presented in the transcript before üs. We cannot, therefore, say that the court found that but 45,900 pounds of corn, was originally delivered to the appellant Missouri, Kansas, & Texas Kailway Company. On the contrary, we think every reasonable intendment of the evidence must be indulged in aid of the judgment, and that it is sufficient to support a finding . by the court that the bill of lading truly specified the number of pounds of corn actually delivered for transportation. It follows that the transporting companies were undeniably liable for the deficiency in weight;

The judgment is, accordingly, affirmed.


text:
    RITER et al. v. NEATHERLY.
    (Court of Civil Appeals of Texas. Ft. Worth
    April 19, 1913.)
    1. Municipal Corporations (§ 183) — City Marshal — Liability on Bond — Assault While Making Arrest.
    The sureties on the official bond of a city marshal are liable for an assault committed by him while making an arrest for disturbing the peace, where he assumed to act in his official capacity, even though in fact no offense had been committed by, the person arrested, since it devolved upon him to determine whether, under the facts, an offense had been committed.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 472-481; Dec. Dig. § 183.]
    2. Municipal Corporations (§ 183) — City Marshal — Arrest Without Warrant — Liability on Bond.
    Under Code Or. Proe. 1911, art. 259, providing that a peace offi.cer may arrest without warrant for an offense against the peace, committed in his presence, and article 43, including marshals among peace officers, the court and jury in an action against the sureties of a marshal are warranted in concluding that an alleged offense was within the view of a marshal, who was attracted to an office by singing, and upon entering looked over a low partition at the parties, and that the acts of the parties were' construed by him to be a breach of the peace.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 472-481; Dec. Dig. 1 183.]
    3. Municipal Corporations (§ 183) — Marshal— Arrest Without. Warrant — Bond-Evidence.
    Evidence held sufficient to show. that a-mai’shal in making an arrest without warrant was acting in his official capacity.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 472-481; Dee. Dig. § 183.] ■
    4. Municipal Corporations (§ 183) — Marshal — Action on Bond — Presumption.
    Where the evidence in an action against a marshal and his sureties for assault while making an arrest does not indicate that there was any private grudge or unfriendly relation between him'and the person arrested, the court will presume that he was acting as an official merely.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. 472-481; Dec. Dig. § 183.]
    5. Appeal and Error (§ 743) — Assignments of Error — Beference to" Motion for New Trial — Bules.
    Bule 25 of the Court of Civil Appeals (142 S. W. xii), requiring assignments of error to refer to that portion of the motion for new trial in' which the error is complained of, is sometimes ignored by the court, but it is a rule to facilitate the dispatch of business, and will be enforced in accordance with its spirit in all cases where no sufficient excuse appears or is implied.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dee. Dig. §' 743.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Action by S. N. Neatherly against L. N. Biter and another as sureties, and J. J. Bozeman, as city marshal for false arrest. Judgment for plaintiff, and defendant sureties appeal.
    Affirmed.
    J. B. McMahan, of Belton, for appellants. T. S. Whiteley, of Hamlin, and Chapman & Ooombes, of Anson, for appellee.

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

   CONNER, C. J.

Appellee recovered a Judgment in the district court of Jones county for the sum of $950 against J. J. Bozeman, city marshal of Hamlin, and against B. N. Riter and J. M. Terrell, the sureties upon his official bond, as damages for personal injuries inflicted by J. J. Bozeman at the time of and during an alleged unlawful arrest and detention of appellee. The said sureties Riter and Terrell alone appeal.

It is urged, under appellants’ first assignment of error, that appellee’s petition was insufficient, for the reason that it appeared therefrom that appellants are sued as sureties on the official bond of J. J. Bozeman, and that the arrest and acts of the marshal complained of had been committed without warrant, and that no offense on the part of appellee appears to have been committed in the presence of the said marshal. Appellee alleged, in substance, that at the time laid in his petition he was in his private office about 9 o’clock at night with certain of his friends, who were in a small room opening into and adjoining the office; that his said friends were singing certain “ragtime” songs, when J. J. Bozeman, then the duly acting and qualified city marshal of Hamlin, entered the building, looked over a partition wall, observed the parties named, came around into the office and arrested appellee, immediately carrying him before a magistrate, and soon thereafter filed complaint, charging appellee with the offense of “disturbing the pence.” It was further charged that at the time of the arrest, and while taking appellee before the magistrate, he was vigorously assaulted by the marshal, and thus injured as complained of.

Appellee’s petition was evidently not framed with the design of charging that he together with his friends were in fact guilty of any violation of the law, but we think, when the petition is considered as a whole, it sufficiently appears that the said Bozeman in making the arrest as he did was acting in an official capacity, and with the purpose of preventing a disturbance of the peace. In order to constitute the act of Bozeman an official one it was not necessary that an offense in fact had been committed either by appellee or any of his friends. It was only necessary that Bozeman from the facts and circumstances observed by him at the time had so determined. The question has been so carefully and clearly discussed in the opinion of Judge Brown in King v. Brown, 100 Tex. 109, 94 S. W. 329, that we need to add but little in answer to the contentions stated. If Bozeman was marshal as he was alleged to be, and if at the time he assumed to act in his official capacity, as is undoubtedly alleged, then according to the authority cited, it devolved upon him to determine from the facts presented whether the offense of disturbing the peace had been committed, and also to decide whether appellee was guilty of the offense. In making this decision Boze-man acted in his official capacity, and the arrest of appellee was an official act, as was also the assault committed while he was so officially acting, the assault being merely an abuse of the official authority, for which appellants as his sureties are undoubtedly liable. The evidence relating to the subject is fully as sufficient, if not more so, than the averments of the petition, and we hence conclude .that the demurrer to the petition was properly overruled, and that the court correctly refused to give a peremptory instruction. and to sustain the motion for new trial, as complained of in other assignments raising the same question.

On the right of arrest without warrant the authorities seem equally clear. Article 259 of the Code of Criminal Procedure expressly provides that a peace officer, or any other person, may without warrant arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace. And by article 43 of the same Code it will be found that marshals are expressly included as among “peace officers,” and the facts alleged by the plaintiff in his petition, and as developed by the evidence, were construed by the marshal whose acts are now under consideration as a violation of article 470 of the Penal Code, defining a disturbance of the peace. So that we think it cánnot be doubted that if the circumstances in this case.warranted the conclusion that what occurred was within the view of the officer, as specified in C. C. P. art. 259, he was authorized to arrest even though he was without warrant, which both the allegation and proof in this case show to have been the case. It was alleged and shown that the parties in appellee’s office who were singing the ragtime music had attracted the attention of the officer from the street, and that he entered the building and secured an elevated position, from which he looked over a low partition wall and both saw and heard the parties supposed to have been disturbing the peace. 1-Ie thereupon immediately walked around and entered the door of the room where the parties were, and made the arrest complained of. We have no doubt but that these circumstances authorized the conclusion at which the jury and court below arrived that the supposed offense was committed within the view of the officer. See King v. Brown, 100 Tex. 109, 94 S. W. 329, herein-before referred to. There was therefore no error in the court’s charge as complained of in the second, third, fourth, and fifth assignments, nor in refusing to give the peremptory instruction quoted in the sixth assignment.

The only remaining assignment of error complains of the action of the court in overruling appellant’s motion for a new trial, based on the contentions that the unconlradicted evidence shows that no offense was committed by any of the parties at the time of the arrest, and that the arrest was made without warrant. But, as before indicated, we think the evidence fully supported the allegations of appellee’s petition. In fact it went beyond those allegations. The evidence tended to show that while appellee himself was not engaged in the performance, nevertheless he was with his friends, in substantially the same room, who had more or less whisky and “sang one song over and over — most of the time it was E’Valine or O’Valine or something of the kind — and sang that over and over.” The evidence fails to show that appellee attempted to restrain his friends. On the contrary their joy seemed to be “unconfined,” and while doubtless from the viewpoint of the performers the entertainment was entirely innocent, the officer, it is quite clear, thought otherwise.

There is nothing in the evidence to indicate that there was any private grudge or unfriendly relation between the marshal and appellee, and we must assume that the marshal was acting as an official merely, and hence that appellants, as the sureties of his official bond, were responsible for the marshal’s acts, even though, as the evidence indicates, he exceeded the bounds of his authority.

Mr. Associate Justice SPEER concurs in the foregoing conclusions, but thinks the assignments of error should have been wholly disregarded because of their failure to refer “to that portion of the motion for a new trial in which the error is complained of,” as provided by Rule 25 (142 S. W. xii). As to the departure from the rule stated, the majority wish to merely say that, while for reasons satisfactory to them, they ignored in this case, as well also as in several others, the formal objections stated, they want it to be understood that they think the rule referred to facilitates the dispatch of business, and hence expect to enforce it in accordance with its spirit in all cases where no sufficient excuse for its nonobservance appears or is to be implied.

Judgment affirmed.