author: PLEASANTS, C. J.

text:
    IVEY et al. v. TEICHMAN.
    (No. 7432.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 17, 1917.
    Rehearing Denied Jan. 17, 1918.)
    1. Trusts <&wkey;371(2) — Actions —Pleading — Creation and Existence of Trusts.
    An amended petition, alleging that an attorney, who had purchased property sold for taxes, had done so to retain it for his client, -defendant, but which fails to allege defendant’s ownership and right of possession, or any consideration for the agreement, does not show an enforceable trust.
    2. Attorney and Client <&wkey;123(l) — Compensation — Dealings.
    Although an attorney orally promised to permit his client to redeem property the attorney had purchased under tax sale, out of which the attorney’s fees were to be paid, yet when the 'client, without offering to redeem, refused an offer from another for the full value of the property, the attorney’s obligation terminated.
    3. Judgment <&wkey;203 — Conclusions — Statute.
    A judgment awarding' land to claimant under tax title, and the city judgment -for taxes accruing since claimant’s purchase, and reciting that it does not affect former tax adjudications against parties other than claimant, is a final judgment, not violating the - law against rendering two judgments in a cause.
    4.Taxation <&wkey;620 — Sale under Junior Assessment-Barring Prior Tax Liens.
    The refusal of the trial court to foreclose any liens for taxes due prior to judgment for taxes under which the property was sold was correct, since a valid sale under a junior assessment cuts off all prior tax liens.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by A. R. Teichman against J. P. X. Ivey and others. Prom the judgment, defendants appeal.
    Affirmed.
    John B. Warren, of Houston, for appellants Ivey. ’ J. C. Hutcheson, Jr., and L. H. Dunn, both of Houston, for appellant city of Houston. W. G. Love and R. H. Holland, both of Houston, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellee against appellants, J. P. X. Ivey and wife, Sallie Ivey, the city of Houston, and Norman G. Kittrell, Jr., to recover title and possession of a lot or parcel of land in the city of Houston, fully described in the petition, and to clear said title from clouds cast thereon by certain judgments for taxes in favor of the city of Houston.

The defendants Ivey and wife answered by general demurrer, plea of not guilty, and pleas of limitation of three, five, and ten years, and by trial amendment further pleaded that A. O. Van Velzer, under whom appellee claims title, acting as attorney—

“for said defendants, redeemed said defendants’ interest in the property from the Houston Town Lot & Improvement Company, who claimed same under a tax title, and agreed with the defendants to hold same for their- use and benefit ; that at the time alleged in plaintiff’s petition, filed in this cause, said A. C. Van Velzer conveyed these defendants’ interest in said lands to a man named C. P. Winkler, who took the title to same, knowing that said A. C. Van Vel-zer did not own said interest in said land in fee simple or otherwise, but was simply holding the same as the attorney of these defendants, for their use and benefit, with the right on his part to get out of said interest the money he had paid out to redeem it, as above stated; that the said C. P. Winkler, at the time alleged in plaintiff’s petition, transferred said land to the plaintiff in this case, A. R. Teichman, with the full knowledge in law and fact that he did not own said land, but was holding- the same in trust for the use and benefit of these defendants, and with a charge against same for such sums of money as said A, C. Van Velzer had paid out on said land for these defendants’ use and benefit ; that the plaintiff in this cause, A. R. Teich-man, took the said transfer of said land as above mentioned with the full knowledge of these defendants’ said interest in said land, and with the full knowledge in law and equity that said 0. P. Winkler did not own said land in fee simple, and that he did not have the legal right--to sell same; to plaintiff or any one else, and with the knowledge that said Winkler was holding- this land subject to the charge' above set forth in favor of said. A. C. Van Velzer for the use and benefit of these defendants; that said A. R. Teichman now holds the said land for thp uso and benefit of these defendants, subject to the charge in favor of A. - C. Van Velzer, as above- set forth, and not as his own property; that the transfer of.said land by said A, C. Van Velzer to C. P. Winkler, 'and by C. P. Winkler to plaintiff, A. R. Tiechman, was without their knowledge and consent, and in violation of their rights.”

They further, in said amended answer, offer to do equity, and ask the court to charge their interest in the property with whatever amount may be found to be due by them and for which their interest in the property can be held liable.

The defendant Norman G. Kittrell, Jr., answered by general demurrer and plea of not guilty.

The city of Houston, in addition to a general demurrer and plea of not guilty, set up the tax judgments mentioned in plaintiff’s petition, and .asked recovery thereon and a foreclosure against plaintiff of the lien established by said judgments. Said answer further pleads a cause of action against plaintiff for the taxes due the city of Houston on said property for the years 1910, 1911, 1912, and 1913, and asked judgment for the amount of said taxes, with interest, penalties, and costs, and for foreclosure of tax lien therefor on said property.

The cause was tried with a jury, and after hearing the evidence the trial court instructed the jury to return a verdict for plaintiff for the land sued for and in favor of the city of Houston for the taxes due on the property for the years 1911 to 1913, inclusive, with interest and penalties, and for foreclosure of the tax lien therefor. Upon the return of a verdict in accordance with said instructions, judgment was rendered in accordance therewith.

Elizabeth Ivey is the common source of title under which plaintiff and defendants Ivey claim. Elizabeth Ivey died intestate in 1906, and there was no administration upon her estate. Her surviving heirs were J. F. X. Ivey, R. Ivey, Theresa Brizzolari, Daisy Stacy, Will Ivey, Aurelia McGovern, and Anton Frank, Jr. On the-day of January, 1906, Aurelia McGovern, joined by her husband, for a recited consideration of $10 “and other good and valuable considerations,” conveyed to defendant J. F. T. Ivey all of her undivided interest in the property in controversy. On January 16, 1906, defendants J. F. Y. Ivey and wife conveyed to E. H. Yasmer and P. H. Briant, by deed of general warranty, an undivided one-third interest in the property in controversy. On February 12, 1906, Yasmer conveyed his one-sixth interest in the property to Briant, and on February 13, 1906, Briant conveyed the undivided one-third interest, which had been conveyed to him and Vasmer by defendant Ivey, to Norman G. Kittrell, Jr.

On January 6, 1912, in a suit brought by the city of Houston against Norman G. Kit-trell and the heirs of Elizabeth Ivey before named to recover the taxes due said city on the property for the years 1906 to 1909, inclusive, judgment was rendered for the city for the said taxes, together with interest and penalties amounting to the sum of $249.57, and foreclosing the tax lien on the property. Under an order of sale issued upon this judgment the property was sold by the sheriff of Harris county on the 5th day of March, 1912. R. W. Franklin was the purchaser at this sale and the property was conveyed to him by the sheriff by deed of date March 5, 1912. In 'September, 1912, Franklin conveyed to the Texas Town Lot & Improvement Company. This company on January 14,1914, by its president, H. Master-son, conveyed all of the property to A. O. Yan Velzer for a consideration of $1,000, $800 cash and $200 payable in six months, and secured by a vendor’s lien on the land. Van Yelzer conveyed to C. F. Winkler on March 16, 1914, and on July 3, 1914, Wink-ler conveyed to plaintiff. The deed to Winfo ler recites a consideration of $1,000, and the deed from Winkler to plaintiff $1,025.

A. B. Frank conveyed his interest to Fred R. Switzer on February 14, 1914. Said Switzer also acquired the title of R. Ivey, Mrs. Brizzolari, Mrs. Stacy, and Will Ivey by deeds of general warranty of date March 12, March 16, March 18, and April 13, 1914, respectively. On January 26, 1915, Switzer conveyed to R. E. Lewis. By deed of date May 17, 1915, R. E. Lewis conveyed all of his “right, title, and interest” in the property to plaintiff.

After the death of his mother, Elizabeth Ivey, all of the other heirs before named brought suit against defendant J. F. Y. Ivey to recover a six-sevenths interest in the property. On the 8th day of December, 1913, a verdict and judgment were rendered in this suit in favor of plaintiffs, awarding to each of them an undivided one-seventh interest in the property. On December 10, 1913, a written agreement was entered into, by and between the parties to said suit, by the terms of which R. E. Lewis was appointed receiver for the purpose of selling the property; 4t being incapable of partition. This agreement provided that the property should not be sold until all claims for delinquent taxes thereon had been extinguished, but that the receiver might sell it at any time within 30 days after all claims for taxes were satisfied. It was further provided in said agreement that:

“The said J. F. Y. Ivey, in consideration of the obligation of the plaintiffs to him as hereinafter set forth, hereby agrees and binds himself to settle and dispose of all outstanding claims resulting from delinquent taxes against the property and premises hereinbefore described, and to that end, if in his judgment it should be necessary to institute, prosecute, or defend any and all suits or proceedings essential to the adjudication and satisfaction of said liens or claims, he, the said J. F. Y. Ivey, agrees to prosecute or defend all such suit or suits as may in his judgment be necessary or proper in, the premises, at his own expense, and to pay such sum or sums of money as may be necessary to pay off and satisfy all such claims and free said property from all rights, liens, or demand resulting from such delinquent taxes, or from any and all sales of said property, or any part thereof, resulting from any alleged claims for delinquent taxes. It is further agreed that in case either of the plaintiffs, or their counsel, should acquire any claim for delinquent taxes against said property, or any title or lien based upon such delinquent taxes, the same shall inure to the benefit of all parties to this contract, and shall not operate to interfere with or defeat the rights of the parties as herein set forth.
“In consideration of the agreement and undertaking upon the part of the defendant J. P. Y. Ivey, as hereinbefore set forth, the plaintiffs hereby agree and contract with the defendant J. P. X. Ivey that when the property and premises hereinbefore described has been sold by the receiver as hereinbefore provided, that instead of the plaintiffs receiving six-sevenths of such purchase price, the plaintiffs It. Ivey, Daisy Stacy, Anton Prank, Jr., Theresa Brizzolari, and Will Ivey shall jointly receive of the proceeds of said sale the sum of nineteen hundred ($1,900.00) dollars, and the remainder thereof shall be paid to and become the property of the defendant J. P. Y. Ivey (it being understood that the said J. P. Y. Ivey has already acquired the interest of the plaintiff Amelia McGovern). It is further agreed that no sale of said property shall be made by said receiver for less than a sufficient sum to pay the plaintiffs entitled to said sum of $1,900.00 at least that amount, and to pay all the unpaid costs taxed against the plaintiffs and delinquent taxes;. it being understood that none of the plaintiffs who are to receive said $1,900.00 as hereinbefore set forth shall be responsible or liable for the payment of any costs, taxes, or other expenses which have been incurred or which may become due in the premises, and said sum of $.1,900.00 is to be net to them; that said J. P. Y. Ivey hereby agrees and hinds himself, as hereinbefore stated, to pay off and discharge all delinquent taxes against said property, and to adjudicate all claims_ of title to said property, by suit or otherwise, growing out of any sale of said property by virtue of any delinquent taxes, and it is hereby agreed by and between the parties hereto that said matters shall be settled and adjudicated with reasonable diligence, and that the said J. P. Y. Ivey will settle, pay off, and determine said matters with dispatch, and that if he fails to do so with reasonable diligence that the terms and conditions of the agreement shall be void.”

A. G. Van Velzer was one of the attorneys for J. P. Y. Ivey in said suit. On July 16, 1914, in a suit brought by the state of Texas against the heirs of Elizabeth Ivey, before named, and Norman G. Kittrell, Jr., to recover taxes due the state on said property, in which suit the city of Houston intervened, judgment in favor of the city of Houston was rendered against all of the defendants for the sum of $1,542.83 taxes due said city upon the property in controversy in this suit for the years 1877 to 1880, inclusive, 1882 to 1888 inclusive, 1890 to 1898, inclusive, 1901 to 1903, inclusive, 1910 to 1913, inclusive, and for foreclosure of the tax lien on the property. The testimony of the defendant J. P. Y. Ivey and Judge Harris Masterson, which appellant contends is sufficient to show that Van Velzer held the title to the land acquired by his deed from the Texas Town Lot & Improvement Company in trust for defendant Ivey, was as follows:

J. P. Y. Ivey testified:

“I have known A. O. Van Velzer a good number of years. He represented me in matters in the district court in connection with property
on which I at one time lived in Travis and Webster, described in this suit. He represented me in connection with' tax suits,' in connection with that property. I saw in the court proceedings in the papers that judgment had been gotten out against me for $349. I forgot what court it was, and I came down to his office and says: ‘What sort of business do they do around the courts? Look at this; there has been no citation ever left at my house.’ He said: ‘Just wait until the day of sale, and make a protest and statement of the case, and then I will attend to getting out the proper papers.’ And I came that day and made a statement, in which I protested, and then Mr. Van Velzer got out a petition and filed it in the court, and I signed the petition of course, and he put it on file, so he claimed. ⅜ ⅜ * One day I was there in Mr. Van Velzer’s office, and he stated to me: ‘How would it do to go around and see Judge Masterson, and I will buy that property in and hold it in trust for you until we can dispose of the property, and then you can pay me what I pay in, as well as my attorney’s fees.’ And I said: ‘All right; how much is it?’ And he said: ‘It amounts to about $1,000.’ And I went up to Judge Masterson’s office with him, and he gave him a check for $800 and a note for $200. He made that purchase to keep it in trust for me. That is what he .stated, and he stated that in Judge Masterson’s office, and said: ‘Now we have had it all bunched together, every one could get what was coming to them in regard to it;’ and so of course I had no idea -as to his other proceedings. After he made that purchase he did not tell me that he was going to sell it. He said he was going to hold it in trust. When he left the office he said: T trust you feel satisfied now; I have got the whip hand, and I will hold this until we get the whole property.’ ⅜ * ⅛ I first learned that he had transferred it by seeing it in the papers, and when I saw that he had transferred to Winkler I went down to the office and my wife went with me, and'I said: ‘What sort of business are you doing now; it looks like you are not doing right.’ He said: ‘There is a lot of technicalities in regard to it, and it is better for me transfer it over to Mr. Winkler to keep it in trust.’ And I said: ‘Have you got that in writing?’ And he said: ‘No.’ He told me that Winkler had taken it to hold in trust just as he had done. After that, several months, I saw another deal in the papers where the property had been transferred from Winkler to Teichman, and I went down to the office to see him about it, and he claimed he did not know anything about that transaction at all. Then we had a few words and he said: ‘Well, you had better get some lawyer.’ And I said: T think it is time I got a lawyer that has some honesty; you haven’t got any in you.’ And so from that we parted. That was after Mr. Teichman bought the property. I am not living on the property now; they sequestered me the 28th of last June. It was not a voluntary removal. They filed an action, and I could make no bond. They were claiming rents. * * * My brothers and sisters sued me to recover their interest in this property after my mother’s death. I employed Mr. Love in that suit. When the ease went to the Court of Civil Appeals, I employed Watkins & Jones to assist him. When the case came up in the district court, then I got Mr. Van Velzer to assist. He did not have Mr. Lewis with him then, as he had afterwards. Mr. Van Velzer took charge of the case after I got him into it. The ease went to the Court of Civil Appeals the second time after I got Mr. Van Velzer. It went to Galveston, and was transferred to San Antonio, and they reversed it. Then it came back here and there' was an agreed judgment in Judge Ashe’s court in which they were to get $1,900 for their share. After that Mr. Love had nothing to do with the matter that I know of. In that judgment over there shows that I got two-sevenths interest, and each one of my brothers and sisters got judgment for one-seventh. I was to use due diligence in disposing of the property and give them their pro rata. That agreement was in writing and we all signed it. We owed taxes for a number of years; at least the city, county, and state were claiming taxes. Mr. Lewis found a purchaser that he was willing to sell to, and recommended that I sell for the price offered; but I was unwilling to do it, for the simple reason that I was only offered $2,000 for my share. It was the understanding between me and Mr. Van Velzer, when he put up the money and bought this tax title from Masterson, that when the property was sold that there was to be paid out of the proceeds of this sale $500 to Mr. Love and $625 to Van Velzer and Lewis, and the money to pay Van Velzer back the money that he had put in it, and whatever was required, if anything, to pay any additional claims against the property, taxes, state and county, and any claims of any kind. The supposition was within the next two years we would be able to dispose of the property, and he was to help in every way in the world to sell it. It was his own proposition about buying that in. I never suggested it. Long before this suit of my brothers and sisters against _ me, I had employed Judge Vasmer and Mr. Briant to represent me in that case, and conveyed to them a one-third interest in the property as a fee. I know that Vasmer and Briant sold whatever interest they got under that deed to Norman Kitt-rell for $400, and I know that title finally went into Franklin with the tax title, and the whole thing was conveyed — whatever claim they had went into Franklin and from Franklin to the Texas Town Lot & Improvement Company. * * ⅜ I would like to make a statement about that Vasmer business: My contention' is that, when I made this trade with Vasmer and Briant to represent me in that caso, I gave them the deed; and I did that at the time when I did not know that I could find a deed that my mother had made to the property. After-wards I found that old deed that had never been recorded, and repudiated that agreement with Vasmer and Briant, and discharged them from the case, because they had agreed to take $500 for their services if I found that old deed, and I employed Mr. Love afterwards. * * * I employed Mr. Van Velzer, and he took charge of the case from that time on, representing me in whatever controversies I had with the city, county, and state over taxes.”

- Judge Harris Masterson testified:

“I am president of the Texas Town Lot & Improvement Company. I know about this deed of the Texas Town Lot & Improvement Company to A. C. Van Velzer, dated January 14, 1914. At the consummation of the purchase or conveyance from the Texas Town Lot & Improvement Company to Van Velzer, Mr. Ivey and Mr. Van Velzer were present, as I recollect it; came together to make and obtain deed. My recollection is that I had a conference prior to that time with Ivey and Van Velzer. I had no independent recollection that there was anything said between me and Mr. Van Velzer, or Mr. Ivey, with reference to their right to redeem that through me, though I think that was the ground of Mr. Van Velzer’s purchase. I was somewhat familiar with the property; the consideration named in the deed, $800 cash and $200 in a note, was to cover the taxes. That did not represent the value of the property. The property was worth, I suppose, $7,500. The consideration named in the deed was on the theory of the redemption to recover taxes. That is my idea of it. That was my understanding with them — the company claimed under the Franklin deed, and the Franklin deed had its origin as a tax title, so it was the tax title only that I was selling for this consideration. I understood that Van Velzer represented Mr. Ivey in that matter. It was not my understanding that there was any statement made by Mr. Ivey or Mr. Van Velzer in my presence to the effect that Van Velzer was to become the owner in his own right in this property. I know they came there to. get the tax title from mo to this property. Prior to that time Mr. Ivey or Mr. Van Velzer had been there to see me; both of them I think. * * * It was my understanding from Van Velzer that he wasn’t representing anybody, or connected with anybody in the matter, except John Ivey.”

Under the appropriate assignments of error appellants Ivey complain of the charge of the court instructing a verdict in favor of plaintiff, on the ground that the evidence was sufficient to show title in defendant Ivey to the property in controversy. Under these assignments the following propositions are submitted:

“Van Velzer and Lewis stood in a fiduciary relation with the appellants Ivey and wife at the time conveyances were made to said attorneys, respectively. Such fiduciary relation arising by reason of the fact that they were attorneys for Ivey and wife, such attorneys could not acquire an interest in the property of their clients antagonistic to such trust relation, and, if such was done, the said attorneys held the said property in trust for their clients.”
“The judgment is contrary to the law, and is without evidence to support it, 'in this: The uncontradicted evidence showed that defendant J. F. V. Ivey had the legal and equitable title to an undivided two-sevenths interest in the property in controversy, and the equitable title to the five-sevenths and was in actual possession of all of it, claiming the same as the homestead, and plaintiff had actual and constructive notice of the rights of said defendants at and prior to the time of his purported purchase, and there was no proof that plaintiff or any of his vendors, paid value, in good faith, and without notice.”

We agree with the trial judge that neither the defendants’ pleading nor the evidence above set out shows any enforceable trust in favor of Ivey against Van Velzer. All that is alleged in the amended petition above set out is that Van Velzer agreed, when he bought the property, that he would hold it for the use and benefit of defendant Ivey, and that Winkler and plaintiff, Teichman, bought with knowledge of this agreement. The amendment does not allege that defendant was the o-wner of the property, or entitled to possession, but only sets up an agreement on the part of Van Velzer to hold the title for defendants’ use and benefit. No consideration for the agreement is alleged, nor are its terms shown. That this petition shows no right in Ivey to recover the property against the holder of the legal title is, we think, clear. Ins. Co. v. Davis, 45 S. W. 604; Jones v. Jones, 49 Tex. 689; Gloeckner v. Kittlaus, 192 Mo. 477, 91 S. W. 130.

The requisites of a petition sufficient to entitle a complainant to enforce specific performance of an agreement of this kind are thus stated in 36 Cyc. 773 et seep:

“The bill, complaint, or petition, in an action for specific performance, must state clearly and fully all the facts necessary to entitle plaintiff to the relief sought. * * * It must state facts which show that plaintiff has not a plain, complete, and adequate remedy at law. * * * The complaint must properly allege the execution or making oí the contract, and the essential terms of the contract must be alleged with distinctness and certainty, and not left to inference. * * * The defendant’s failure or refusal to perform must clearly appear from the bill or complaint. * * * The bill or complaint must show that plaintiff has performed, or offered to perform, all the stipulations of the contract on his part, or must show a sufficient excuse for failure to. do so, and aver his readiness and willingness to perform.”

The evidence does not show that Ivey ever made any offer to repay Van Velzer or plaintiff any portion of the money paid by them lor the property, nor that he made any effort to comply with his. contract with his brothers and sisters to clear the property from tax liens, or to assist Lewis in finding a purchaser; but it is shown that Lewis found a purchaser, and Ivey refused to sell because he would only receive $2,000 for his interest. The only evidence as to the value of the property .is the statement of Masterson that it was worth $7,500. This being its value, the price which Ivey declined to accept must have been as much as the property was worth to have given him $2,000 for his interest, after paying the sum due the other heirs, and the other charges, and attorney’s fees, which Ivey admitted were to be paid out of the proceeds of the sale. When Ivey refused to accept this price, the obligations of Van Velzer.ter-minated.

The first assignment presented in the brief for the city of Houston is as follows:

“The judgment of the court below is void, in that it was rendered in violation of the provisions of the statutes; that only one final judgment can be rendered in any cause, and said judgment did not in any manner dispose of the defendants to the cross-bill of the city of Houston, except the sole defendant, A. R. Teichman, or any of the issues raised by the city on its cross-bill as against any of said defendants.”

There is no merit in this assignment. The judgment expressly recites:

“The claim of the city of Houston for taxes under judgment for taxes upon ■ said land and premises, as in other suits adjudicated against the parties in such other 'suits, other than Teichman, is not in any wise affected by this decree.”

The recital was a sufficient disposition of the claim of the city of Houston on its tax judgments against defendants Ivey and others, and the judgment must be held to be a final judgment.

The judgment of the trial court, refusing to foreclose any tax liens upon the property for taxes due prior to judgment for taxes under which the property was sold and purchased by plaintiff’s vendor, was correct. It is well settled that a valid sale under a junior assessment cuts off all prior tax liens. City of Houston v. Bartlett, 29 Tex. Civ. App. 27, 68 S. W. 730; Law v. People, 116 Ill. 244, 4 N. E. 845; Wassv. Smith, 34 Minn. 304, 25 N. W. 605; Knox v. Leidgen, 23 Wis. 293; Preston v. Van Gorder, 31 Iowa, 251.

None of the assignments of error presented by the appellants can be sustained. It follows that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed,
      cg^jFor other caso -j see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    OAK CLIFF STATE BANK & TRUST CO. et al. v. CONROY et al.
    (No. 7877.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 2, 1918.
    Rehearing Denied March 9, 1918.)
    1. Mortgages <9=3581(3) — -Foreclosure—Attorney’s Fees.
    If mortgage notes are delivered to the trustee under-a trust deed to institute foreclosure proceedings as such trustee and not as an attorney for collection, the holders of the notes are not entitled to the attorney’s fees mentioned in the notes.
    2. New Trial <s=373 — Grounds—Conflicting Findings.
    Conflicting jury findings on the question whether mortgage notes were delivered to a trustee under a trust deed as an attorney for collection or to institute foreclosuré proceedings as-trustee, held to require a new trial.
    3. Guaranty @=316(3) — Consideration—Necessity.
    A written contract guaranteeing payment of an overdue note, held void because without consideration.
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Suit by Winifred A. Conroy, Nora C. Davenport, and Sam Davenport, her husband, and Mary B. Blankenship, against the Oak Cliff State Bank & Trust Company and M. L. Morris. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Morris & Williamson, of Dallas, for appellants. Short & Feild, of Dallas, for ap-pellees.
   TALBOT, J.

This suit was filed in the district court of Dallas county, Tex., October 5, 1915, by the appellees Winifred A. Con-roy, Nora C. Davenport, and Sam Davenport, her husband, and Mary B. Blankenship, against the appellants, Oak Cliff State Bank & Trust Company and M. L. Morris, alleging that on the 15th day of March, 1912, C. G. Quillian was the owner of lot 15 in block 120, situated in the city and county of Dallas, state of Texas; that on said date the said Quillian, by warranty deed, conveyed to John J. Conroy said lot, in part payment for which the said Conroy gave to the said Quil-lian his two promissory notes in the sum of $625, each of even date with said deed, due and payable respectively in 12 and 24 months after date, and bearing interest from their date at the rate of 8 per cent, per annum, payable semiannually; that a vendor’s lien was expressly reserved in the face of said conveyance to secure the payment of said notes; that on the same date, to wit, March •15, 1912, the said John J. Conroy, in order to further secure the payment of said notes, executed to M. L. Morris, as trustee, a deed of trust on said property; that said deed of trust provided that in case of default in the payment of said notes the said trustee should advertise and sell said property at the request of the legal owner and holder of said notes at the courthouse door of Dallas county, Tex.; that after the execution and delivery of said notes and said deed of trust, the' said Quillian transferred and delivered said notes, with all the securities for the payment of the same to the defendant Oak Cliff State Bank & Trust Company, and that said bank at the time of the institution of this suit was the owner and holder of same; that after the execution of said .notes and securities John J. Conroy, in the month of January, 1915, conveyed the said property, subject to the liens stated, to the appellants Winifred A. Conroy, Nora Conroy Davenport, and John T. Conroy, who assumed the payinent thereof; that afterwards John T. Conroy and wife by deed dated January 27, 1915, sold and conveyed the interest of the said John T. Conroy in said property to said appellee Winifred A. Conroy, who assumed, in addition to the portion she had already assumed, the payment of the portion of said notes which John T. Conroy had undertaken to pay; that afterwards, on the 4th day of October, 1915, the said Winifred A. Conroy and Nora C. Davenport and husband, by their deed, sold and conveyed to the appellee Mary B. Blankenship the said property warranting the title to the same against the payment of the notes due the appellant Oak Cliff State Bank & Trust Company and all liens and in-cumbrances. Appellees further alleged that at the time of the last-mentioned conveyance there was due on the two notes held by appellant bank the sum of $1,422.10, being the principal and interest of said notes, and that M. D. Morris, the trustee named in the said deed of trust, had advertised said property for sale; that if the same had been advertised in the manner provided in the deed of jxust, the trustee was entitled for his services to reasonable compensation for preparing and posting the notices of sale, which ap-pellees alleged was “about the sum of $15, and not exceeding that sum”; that on the said 4th day of October, 1915, the appellees desiring to pay off the said notes held by the appellant bank tendered to appellants $1,-437.10,' being the full amount of the principal, interest, and trustee’s fees, but appellants refused to accept said sum in full payment of their debt, and that M. L. Morris as trustee having advertised said property for sale was threatening to sell. Appellants prayed, upon the facts alleged, for a writ of injunction restraining the sale of their property and for general and special relief. The writ as prayed for was granted, and the appellants on October 8, 1915, filed answer and a cross-bill. The appellants alleged that the principal, interest, and 10 per cent, attorney’s fees due on said two notes of $625 each, and the ownership in said bank, and the renewal and extension agreement, dated February 14, 1914, executed by John J. Con-roy to said hank, increasing the rate of interest to 8 per cent., and providing for 10 per cent, attorney’s fees, if collected by attorney, or placed in the hands of an attorney for collection or collected by suit, and making said notes due in 6 and 12 months from said date. Appellants also alleged the execution of the deed of trust in usual form providing for 10 per cent, trustee’s fee in case of sale by the trustee. Appellants denied that $15 was a reasonable fee to the trustee, and alleged that- appellants declined the tender of $1,437.10, because insufficient in amount since the notes were placed in the hands of M. L. Morris as an attorney for collection about August 1, 1915, and in addition to the principal, $1,250, interest to October 5, 1915, $171.80 and 10 per cent, attorney’s fee, $142.18, the said John J. Conroy owed said hank another note of $100, dated June 18, 1914, and due in 90 days, with 10 per cent, interest from maturity, $10.80, and 10 per cent, attorney’s fees, $11.05, making the total indebtedness $1,682.52, and that the trust deed provided for 10 per cent, trustee’s fees, $168.50, a total of $1,854.08, but that appellants had offered in a spirit of compromise, or in the event the court should think it would be a hardship to allow both the attorney’s fees and the trustee fee, to waive the trustee’s fee; that Winifred A. Conroy and John J. Conroy, by writing, duly executed and dated August 11, 1915, guaranteed the payment of said $100 note, and secured it by lien on' said lot 15, block 120, Oak Cliff, and agreeing said note of $100 should be paid out of the proceeds of said lot if sold. Appellants sought judgment and a foreclosure of its liens to secure all said indebtedness, three notes, including principal, interest, and attorney’s fees, and prayed for sale of said lot as under execution, and that the temporary restraining order he dissolved.

The appellees by supplemental petition and answer denied all the matters contained in appellants’ answer and cross-bill; the ap-pellee Winifred A. Conroy averring specially that she was not liable on the written guaranty which appellants alleged she executed for the payment of her father’s debt evidenced by the note of $100 described in appellants’ cross-bill, beca.use there was no consideration for said guaranty. The appel-lee Mary B. Blankenship in said supplemental petition and answer averred that at the time she became the purchaser of the property involved in the suit on the 4th day of October, 1915, she purchased the same in good faith and paid therefor its fair, full, and reasonable value; that she had no. knowledge, actual, or constructive, at the time of her purchase of the lien claimed to have been executed thereon by John J. Con-roy and Winifred A. Conroy to secure the payment of the $100 note of said John J. Conroy (described in appellants’ cross-hill, and that such lien, if any, should not be foreclosed against her property. Appellants, in a supplemental answer, alleged that the transactions between appellees and John J. Conroy by which the latter sold and conveyed all the property he owned to his children .were colorable and made to wrong and defraud appellants and defeat them in the recovery on said $100 note and the attorney’s fees; that he was insolvent and tried to cover up all his property from his creditors, and that Mary B. Blankenship was related to the family and knew of the $100 note and the lien securing it on said lot, and did not pay value for the property she bought, and that the consideration for the guarantee by Winifred A. Conroy of the $100 note was that John J. Conroy, her father, had conveyed her and his other children the lot herein and all his property subject to execution; that said lot was not the business homestead of John J. Conroy, but was rented, and he being á widower, it was at all times subject to the payment of his debts — having been acquired 2 years after the death of his wife. The case was tried and submitted to a jury on special issues. Plaintiffs and defendants each filed motions for judgment, and the motion of the latter was denied, and that of plaintiffs granted December 28, 1916, and judgment entered for plaintiffs, enjoining the sale of the lot, and canceling the vendor’s and deed of trust liens of defendants, and that the sum of money, $1,437.10, tendered and deposited in court by plaintiffs, be paid to defendants, who are ordered to release said liens, and that defendants take nothing against plaintiffs and pay all costs. From this judgment appellants perfected an appeal.

The two vendor’s lien notes of $625 each and the $100 note sued on by appellants in their cross-action were executed by John J. Conroy and held by appellants at the time this suit was instituted. Each of said notes provided that in the event it was “placed in the hands of an attorney for collection or collected by suit,” the maker thereof would pay 10 per cent, of the principal and interest of said note as attorney’s fees, and by appropriate assignments of error appellants complain of the action of the trial court in denying to them a recovery of said attorney’s fees embraced in said two vendor’s lien notes, and a recovery against appellee Winifred Conroy for the amount of the $100 note, principal, interest, and attorney’s fees, with foreclosure against Mary B. Blankenship on the property purchased by her, and in entering' judgment canceling said notes and liens, and that appellants be required to accept in full payment of their entire indebtedness the sum of $1,437.10, tendered by appellees.- Upon the complaint here made arises the material questions for our consideration and decision on the appeal. The appellants contend, in effect, that under the undisputed evidence and findings of the jury judgment should have been rendered' in their favor for the attorney’s fees provided for in the two vendor’s lien notes, and for the principal of the $100 note, together with the interest and attorney’s fees therein specified. Therefore the tender of $1,437.10 made by appellees was insufficient in amount, and afforded no obstacle to a recovery for the sums claimed in their cross-action or justification for the judgment rendered against them. To appellants' contention in relation to the attorney’s fees provided for in the two vendor’s lien notes appellees reply that:

“A payee of a note stipulating for the 10 per cent, attorney’s fees may not recover attorney’s fees where he does not place the note in the hand of an attorney for collection, but only for foreclosure of a trust deed.”

If the notes in question were placed in the hands of M. L. Morris, Esq., as trustee of the deed of trust heretofore referred to, with direction that he proceed as such trustee to foreclose the lien created by said trust deed in the manner as therein provided, and not as an attorney for collection within the meaning of the provisions of the notes stipulating for the payment of attorney’s fees, then appellants were not and are not entitled to a judgment for such fees in addition to the principal and interest of said notes. But we are unable to conclude from the state of the record that they were so placed in the said Morris’ hands. On the other hand, it seems to us that the testimony now before us is practically undisputed that they were delivered to him as the attorney for the appellant bank for collection in the manner his best judgment as such attorney dictated. The jury’s findings upon the issue are conflicting. Their answer to the tenth question submitting the issue is: “Foreclosure of deed of trust.” In response to the twelfth question propounded at the instance of appellants, wherein they were asked if the appellant Oak Cliff State Bank & Trust Company about August 1, 1915, delivered to M. L. Morris as its attorney the three notes in suit, two for $625 each, and one for $100 for collection to use his discretion as to the remedy to pursue, and as pay for his services to look alone to the contract for attorney’s fees provided for in said notes, they answered, “Yes.” If appellant bank did not, according to the undisputed testimony, show itself entitled to recover the attorney’s fees stipulated in each of the $625 notes to be paid in case said notes were placed in the hands of attorney for collection, its right to have a clear, definite, and unequivocal finding upon the issue cannot be questioned. Such finding, as disclosed by the record before us, was not accorded it, and for that reason, if for no other, we think the learned trial judge erred in not setting the verdict of the jury aside and directing another trial.

Upon the question of appellant’s right to recover judgment against appellee Wini-frcd Conroy for the amount of the $100 note, including attorney’s fees, upon her alleged guaranty, we hold against appellants. It is well settled that the undertaking of a guarantor, if in form of a contract like the one in question, must be supported by a consideration. This consideration, it is said—

“is usually either of benefit to the principal or surety, or of detriment to the creditor; * ⅜ * but where the consideration between the principal and creditor has passed and become executed before the contract of the surety or guarantor is made, and such contract was no part of the inducement to the creation of the original debt, such consideration is not sufficient to sustain such contract.” Baker v. Wahrmiind, 5 Tex. Civ. App. 268, 23 S. W. 1023; Simmang v. Earnsworth, 24 S. W. 541; 1 Brandt, Sur. (2d Ed.) § 17.

Another form of stating the rule is as follows:

“A promise as guarantor or surety to pay an executed contract of indebtedness of a third person, without additional consideration, is not binding.” Bluff Springs Mercantile Co. y. White et al., 90 S. W. 710.

The note for the sum of $100 executed and delivered to appellant bank by John J. Conroy was executed June 18, 1914, and was due 90 days after its date. The written guaranty of Winifred Conroy and upon which appellant relies was executed and delivered August 11, 1915, about 11 months after the maturity of the note. The evidence, in our opinion, fails to disclose any such additional consideration as is required under the rule stated to support the contract of guaranty.

The views expressed render it unnecessary to discuss any other assignment of error.

ffor the reason indicated, the judgment is reversed, and the cause remanded.


author: RASBURY, J.

text:
    RICHARDSON v. CANTRELL.
    (No. 7853.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 23, 1918.)
    1. Evidence <§=>320 — Based on Hearsay.
    In action to rescind a personal property sale because the seller misrepresented the amount of an indebtedness which the buyer assumed as part of the purchase price, the buyer’s testimony regarding the amount of such indebtedness, based on conversations with the seller’s creditors, held inadmissible, because hearsay.
    2. Appeal and Eeeoe ©=>1052(2) — Haemless Error — Evidence.
    In action to rescind a sale because of the seller’s misrepresentations regarding an indebtedness which the buyer assumed, error in admitting hearsay testimony as to the size of such indebtedness, is not rendered harmless by the appellee testifying the seller admitted making misrepresentations, where the seller denied making such admission.
    3. Sequestration ©=>12 — Affidavit—Suefi-cienoy.
    A sequestration affidavit reciting that affi-ant, who was described as plaintiff in a specified suit, was sworn and stated that he was the owner of the property “sued for as aforesaid,” held sufficient, since the quoted words, by referring to the recital, make the recital substantially sworn matter.
    4. Sequbstbation ©=>12 — Affidavit—Sufei-CIENCY.
    Under a statute requiring a sequestration af-fiant to state that he fears the defendant or the person in possession of property will remove it from the county, etc., an affidavit stating that he feared defendant would do so held sufficient, although the property was then in another person’s possession.
    5. Sequestration <⅜=12 — Bond—Clerk’s Approval.
    Where a clerk of court files a sequestration bond and issues process thereon, his approval, though not indorsed on the bond, will be presumed, in absence of a showing that he did not approve the bond and that the writ was improvidently issued.
    6. Exchange of Property <®=11 — Rescission-Misrepresentations.
    The right to rescind a sale which involved the exchange of personal property is not lost merely because the exchange had taken place, where the parties could be restored to their former position.
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Suit by D. A. Cantrell against Joe Richardson. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Wear & Frazier, of Hillsboro, for appellant. Clarke & Clarke, of Hillsboro, for ap-pellee.
   RASBURY, J.

Appellee sued appellant in the court below to cancel for fraud a contract by which appellant sold and appellee purchased a small stock of confectioneries in the town of West, and for the recovery of an automobile delivered to appellant as part of the purchase price, aided by sequestration by which the sheriff seized and held the automobile pendente lite. There was jury trial with verdict for appellee, followed by similar judgment from which this appeal is taken.

By the terms of the written contract between the parties • appellee agreed to pay $1,000 for the merchandise and appellant to accept for said sum appellee’s automobile at $350, and the assumption by appellee of $650 of debts scattered among appellant’s creditors, which included $350 due A. J. Hancock and secured by mortgage upon the business. According to appellee’s testimony, which the jury' adopted, appellant represented at the time the contract was executed that $650 was all the business owed, which statement appellee relied upon and believed. Immediately after taking possession of the business appellee discovered that the indebtedness was approximately $1,050, including the mortgage debt. Appellee at once repudiated the contract, tendered the merchandise back to appellant, which the latter refused to accept, and mailed appellant the storehouse key. Subsequently this suit was commenced, with the result stated.

The first contention we will consider is that arising over the admission of testimony. Appellee, while testifying in his own behalf, was asked by his counsel if, after taking possession of the business, he made an investigation of the amount of the indebtedness against same, whereupon counsel for appellant requested and was granted permission to examine the witness upon his voir dire. The examination developed that ap-pellee went to Waco and called upon certain merchants there, from whom he ascertained that they claimed the several amounts against appellant which made up the sum alleged. Objection was then made to appellee answering the question, on the ground that his information was hearsay. The objection was overruled and the witness permitted to answer that his investigation showed that appellant owed, including the mortgage debt, $1,050, and that he secured his information from the credit men of several wholesale concerns upon whom he called and had no information of his own in that respect. Obviously, the testimony is hearsay and should have been excluded. Counsel for appellee, in effect, concedes the incompetency of the evidence, but argues that appellant admitted to appellee that he misrepresented the indebtedness, and hence the error was harmless. Appellee did testify to such an admission on the part of appellant. Appellant, however, denied having made the admission. With the evidence on the controlling issue in the case so sharply drawn and evenly balanced, it is apparent that a case is not presented which would warrant us in saying that the error was not reasonably calculated to cause and probably did not cause the rendition of an improper judgment in the case. We are constrained to believe it did.

It is also contended that the court erred in overruling appellant’s motion to quash the writ of sequestration on the ground that the affidavit therefor was insufficient. The precise point is that, while the affidavit contains all the matter required by the statute, such matter is not comprehended in the oath. The form used recites that Cantrell, who is described as plaintiff in a suit against appellant in the county court to recover a described automobile in the possession of Joe M. Hancock in Hillsboro, Hill county, appeared before the officer and being sworn says:

“He is the owner of said property by him sued for as aforesaid, and is entitled to the possession thereof and that he fears the defendant will remove same from the limits of Hill county during the pendency of this suit.”

While it is true that part of the matter necessary to be sworn to by the affiant is used by the draughtsman as descriptive matter, nevertheless, that part of the affidavit actually included in the oath refers to and includes the descriptive matter when the affi-ant is made to say “by him sued for as aforesaid,” and is in our opinion sufficient.

We also conclude that it was not necessary to recite in the affidavit that appellee feared Hancock, the person in actual possession of the automobile, would remove same from Hill county during pendency of the suit. The statute requires that the affiant shall make oath that he fears the “defendant or person in possession will do so.” The affidavit did recite that affiant feared the defendant would do so. That either would do so is sufficient, without reference to the actual possession of the property, since obviously the defendant or the person in possession for him might remove the property. Watts v. Overstreet, 78 Tex. 571, 14 S. W. 704; Whitaker v. Sanders, 52 S. W. 638.

The failure of the clerk to indorse upon the sequestration bond his formal approval thereof furnishes in our op-inion no ground for quashing the writ. It is the duty of the clerk to file and approve the bond. His approval thereof, though not indorsed thereon, when he has filed same and issued process thereon, will be presumed, in the absence of a showing that he did not approve the bond and that the writ was improvidently issued.

We are also of opinion-that appellee’s petition stated a good cause of action as against appellant’s special exception, which asserted that appellee’s remedy, if any, was a suit for damages. Material misrepresentations of matters inducing an exchange of properties was alleged, together with a showing that the parties could be placed in statu quo. The fact that the respective properties had passed into possession of the parties did not affect the right to rescind, since rescission could not be had, save in such cases.

Because of the admission of the hearsay testimony adverted to, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.
      <g=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    NEWTON v. CITY OF DALLAS.
    (No. 7888.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1918.
    Rehearing Denied March 16, 1918.)
    1. Dedication <@=35(3) — Stbeets — Acceptance.
    Where a triangular piece of land, dedicated to street purposes, was thereafter incorporated within the limits of a city, which improved a portion of the street, but not the triangular parcel, there was a sufficient acceptance of the dedication by the city.
    2. Evidence <®=508(1) — Stbeet Dedication— . Acceptance.
    An assistant city engineer’s testimony tending to show that the city had not accepted a triangular portion of a street held not binding upon the city, and only entitled to such weight as the trial court might give to his opinion.
    3. Dedication <§=39 — Streets—Estoppel.
    Where a landowner fenced a small portion of an adjoining city street with knowledge that such street had been publicly used for about 27 years, the city is not estopped from soon thereafter disputing the right of the landowner to maintain such inclosure.
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.

      Suit by Belle Newton, against tbe Oity of Dallas. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    U. F. Short and K. R. Craig, both of Dallas, for appellant. D. R. Callaway, Dee Richardson, Royall R. Watkins, E. P. Dougherty, and Etheridge, McCormick & Bromberg, all of Dallas, for appellee.
   RAINEY, C. J.

This suit was instituted by appellant to restrain the appellee from tearing away a fence she had placed on a strip of land which she claimed to own and which the city claimed had been dedicated by the owner to the public for a street. A trial resulted in judgment for the city; hence this appeal by Mrs. Newton.

The small strip of land of triangular shape here in controversy was formerly a part of the Snodgrass estate of 24 acres, which lay just outside of the city limits. In partitioning said 24 acres of land between the heirs the district court of Dallas county divided it into blocks and lots with streets and alleys between the blocks. On the map hereto attached said strip is designated by red lines, i also in the statement of facts as Exhibit A thereto attached. The partition judgment duly recorded shows the division of the Snod-grass land as divided. After the division was made the public began to travel the streets, and shortly thereafter said land was incorporated into the city limits, but the city did not do any work thereon, except upon Gano street, which it graded by throwing up the middle, leaving gutters along either side. In doing this work it left the said strip of land on the outside thereof. The public occasionally traveled across the strip in going into Lytle alley and otherwise as occasion demanded. The appellant owned and resided on lot 5, block 1, adjoining said strip, but did not own any part of said strip; however she fenced it to serve her own purpose just a short time before the bringing of this injunction suit. The triangular strip causes an offset in the south line of Gano street, at which point there is a curve making the street slightly wider.

Appellant presents by brief and by argument:

That said property was never dedicated to the city of Dallas for a public street, and that no part of the same which is embraced in her inclosure was accepted by the city as such street; “on the contrary, that the defendant had declined and refused to accept the same for street purposes, or for any other purpose, and the evidence shows that no prescriptive right to tho use of said property had been acquired by the public by the use of said property as a street or otherwise, and that defendant had no right to or interest in any nart of the premises embraced within her inclosure,” “that said city is estopped from claiming it under the alleged dedication, and the owner of the property, who has title to the middle of the street (in this case to the whole of the street), has the right to extend her _ inclosure so as to abut on the street as established by the city.”

At tbe time tbe dedication was made tbe land was not in tbe city limits, but was afterward incorporated therein, and when it was taken in tbe city at once became endowed with all tbe rights over tbe streets that followed the land by virtue of such dedication. It made no formal acceptance of tbe streets, nor was the city required so to do. It assumed control, worked, and improved Gano street, and at such time it did not improve tbe triangular strip but left it open for tbe use of tbe public.

Counsel in their argument quote tbe testimony of J. M. Strong, assistant city engineer, to show a refusal to accept, as follows :

“The reason the city graded Gano street and macadamized it and did not do the triangle that way is because it has got no business with that triangle. It is because they would have to go down there that distance and then back through here with a gutter, which it did for drainage purposes, and leave the triangle out. I say that long prior to this there was a gutter along the south line of that triangle, and I say it is there now; that is, unless they have filled it up. The city did not make the sidewalk along the east line of this triangle. The public made it themselves. The city has not been following the policy of laying out sidewalks and building them whenever it intended to appropriate land for sidewalk purposes. I do not know whether there are numerous instances in the city where tho water meters are placed inside the fence lines. The water pipe had been there for a long time before this controversy arose.”

This was a matter about which Strong could not bind tbe city, and only amounts to bis opinion in the premises and entitled to only such weight as tbe trial court saw proper to give to it.

There is no estoppel shown in this case against tbe city. Tbe appellant owned no interest in tbe said strip. She bad built a board fence around it, and tbe city sought to have it removed, which it bad the right to do. It was dedicated to tbe public, and the city, being the guardian of the public interest, bad the right to see that said strip remained open and unoccupied for the use of the public, especially as many of the lots in that addition had been sold and occupied.

The appellee cites the following authorities, to which we adhere, viz.: Corsicana v. Zorn, 97 Tex. 323, 78 3. W. 924; Martinez v. Dallas, 102 Tex. 59, 109 S. W. 287, 113 S. W. 1167; Heard v. Connor, 84 S. W. 606; Holt v. Railway Co., 160 S. W. 328; Buchanan v. Railway Co., 180 S. W. 627; Poindexter v. Sehaffner, 162 S. W. 24; Spencer v. Levy, 173 S. W. 550; Perry v. Ball, 52 Tex. Civ. App. 134, 113 S. W. 589.

Counsel for appellant in support of their theory of estoppel, among others, cite the case of Krause v. City of El Paso, 101 Tex. 211, 106 S. W. 121, 14 L. R. A. (N. S.) 582, 130 Am. St. Rep. 831, which we think is not applicable to this ease. In that case the city sought to compel the owner of a brick house to move said house out of the street, which had been erected there for quite a number of years with the consent of the city. Under the facts of that case we find no criticism, but here there are no such equities, as the appellant had been at practically no expense, and as to her being cut off from Gano street she knew of the dedication and the situation in regard to the lot; said street haying been used by the public as necessary and a convenience required for about 27 years.

The evidence supports the judgment of the court below, and, that court having so found, it is affirmed.

Affirmed.

       Shown herein by dotted lines.

      <g=»For other oases see same topic and KEY-NU MBER in all Key-Numbered Digests and Indexes


text:
    GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP., Limited, v. EVANS et al.
    (No. 7896.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 16, 1918.
    Rehearing Denied March 16, 1918.)
    1. Master and Servant @=>372 — Workmen’s Compensation — Master’s Negligence,
    Under the Workmen’s Compensation Act (Acts 33d Leg. c. 179, Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), compensation may be awarded, although the employer’s negligence did not proximately cause the injury.
    2. Master and Servant <§=>373 — Workmen’s Compensation — Rescue op Fellow Servant.
    Where an employé loses his life in rescuing a fellow employé while both are working in the course of their employment, relatives may recover workmen’s compensation, at least where the deceased was not positively prohibited by his employer from undertaking the rescue.
    3. Master and Servant @=>405(1) — Workmen’s Compensation — Sufficiency op Evidence.
    Evidence regarding warnings and protests by an employer’s superintendent against an em-ployé descending into a vat to rescue a fellow employé held to sustain the trial court’s findings that they did not constitute positive commands not to undertake the rescue.
    4. Master and Servant @=>417(4½) — Workmen’s Compensation — ConoltjsivenesS op Award.
    , Under Workmen’s Compensation Act, art. 5246q, providing that a party unwilling to abide by the Industrial Board’s findings may appeal, and in such case the board shall proceed no further, a party not exercising his option to transfer the case to court before the board’s final decision is bound thereby)
    5. Master and Servant <¿=>385(1) — Workmen’s Compensation — Judgment.
    A workmen’s compensation judgment for a certain sum and over 200 future weekly installment items, for which execution should issue, if not paid when due, was not improper.
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Proceeding under the Workmen’s Compensation Act by James Evans and others against the General Accident, Fire & Life Assurance Corporation, Limited. An award was confirmed by the district court, and the company appeals.
    Affirmed.
    Smith, Robertson & Robertson, of Dallas, for appellant. J. W. Ownby, of Paris, and Curtis Hancock and George & Hardwieke, all of Dallas, for appellees.
   TALBOT, J.

The surviving widow and minor children of iRussell Engledove, deceased, the widow suing in her own right and the children by their next friend, James Evans, appellees, brought this suit against the General Accident, Fire & Life Assurance Corporation, Limited, of Perth, Scotland, appellant, to recover the compensation due them under what is known as the Workmen’s Compensation Act of this state, on account of the death of the said Russell Engledove while in the employ of O. L. Gregory Vinegar Company at Paris, Tex. The sufficiency of the pleadings is not questioned, and the salient facts agreed to and developed in the trial, in substance, are as follows:

Russell Engledove, a negro, on October 29, 1914, was in the employ of the O. L. Gregory Vinegar Company, a corporation engaged in the manufacture of vinegar, and on that date lost his life in an attempt to rescue from death a fellow employs. The O. L. Gregory Vinegar Company had in all respects complied with chapter 179 of the Acts of the Thirty-Third Legislature of the State of Texas, relating to employers’ liability and providing for the compensation of certain employés, and had elected to carry employers’ liability insurance with the appellant, the General Accident, Fire & Life Assurance Corporation, Limited. Prior to the 29th day of October, 1914, the said appellant had issued to the O. L. Gregory Vinegar Company a valid policy of insurance for the benefit of the employés of said company, and for the benefit of the heirs and beneficiaries of such employes. The appellee Alice Engledove was the wife of Russell Engledove at the date of his death, and the other appellees, Malcolm and Wesley Engledove, were his only children. The deceased, Engledove, was a general laborer, and was shifted, as were all the other employés, as occasion demanded from one department to another. For some time prior to his death Engledove was employed in the cooperage department. He had, however, during his employment, cleaned out vinegar tanks; but that was no part of his duty on October 29, 1914, the date of his death. On the 29th day of October, 1914, Frank M. Orawford was superintendent of the vinegar company, and Herman Ingram was said company’s foreman, and both had authority to employ and discharge Russell Engledove.

In the manufacture of vinegar, large vats or tanks were used by the vinegar company, in which to place sugar for fermentation. In the fermentation of the sugar in the vat, a deadly, poisonous gas is generated, and after the' contents of the vat are withdrawn the vat remains charged or filled with such gas. The vats of the vinegar company were about 15 feet in height, and entrance into them was through an opening in the top. It was necessary from time to time for some employé of the vinegar company to enter these vats and clean them out. For the purpose of driving the deadly gas out of the vat. and to prevent a person from being overcome by its effects, water was used. On October .29, 1914, about 12:30 o’clock p. in., in the usual course of the work in connection with the manufacture of vinegar, it became necessary and proper to clean one of the vinegar vats. Herman Ingram, the foreman, took two ne-groes, one of whom was named Thomas Nelson, and went on top of the vat for the purpose of cleaning it out. After reaching the top of the vat, Ingram left thé two negroes there and went to the pump room to turn on the electric light to use in cleaning out the vat. At the time he left he cautioned the negroes not to go into the vat. He was gone about five minutes. When he returned he found the negro Thomas Nelson at the bottom of the vat lying on his back overcome by gas. The foreman at once called for help, and thereupon great excitement prevailed in the factory. The negro women, there being a number employed, began to scream and holloa, and the employés generally began to gather about the top of the vat in response to the foreman’s cry for help. Among those who came was the superintendent Frank Orawford. When the superintendent reached the top of the vat, he began trying to fasten a hook, attached to a rope and dropped into the vat, into the belt worn by Nelson, with a view of drawing him out of the vat. At the same time one of the employés lowered an electric light into the vat, while another threw water from a hose in Nelson’s face, for the purpose of trying to keep him from being killed by the gas. The superintendent was unable to hook the belt of Nel-

son, and was unable to accomplish his rescue by that method. At the time the negro Nelson was overcome in the vat by the gas, and at the time Foreman Ingram called for help, Russell Engledove, the deceased, was eating his dinner in the boiler room of the factory, and in response to the cry of the foreman for help he rushed to the top of the vat in which Nelson was lying. When he reached the top of the vat he seemed to realize that the superintendent, Crawford, was doing no good in fishing ■ for Nelson’s belt with the rope and hook, and that unless something was done at once Nelson would be dead before he could be taken out. Immediately thereupon Engledove wrapped a “gunny sack” around his head and face and descended into the vat by means of a ladder, attached the hook and rope to Nelson’s belt, and Nelson was pulled out of the vat and after a time recovered from the effects of the gas. When, however, the deceased, Engledove, attempted to mount the ladder and ascend from the vat, he was overcome by the poisonous gas and died.

A “gunny sack” saturated with water wrapped around the head will in a measure protect a person from the effects of the poisonous gas found in the vat in which Engle-dove was overcome and died. At the time the deceased, Engledove, entered the vat, he did so for the purpose of rescuing and saving the life of his fellow employé, Thomas Nelson. He was laboring under great excitement and acting in an emergency. He was warned of the danger and told not to go into the vat. In this connection the foreman Ingram testified:

“Russell [Engledove] tied a piece of gunny sack about his face and started down into the tank under protest from me and others. We tried to keen him from going.” '

He further stated:

“When I saw Engledove start to go down into the tank, as I have stated already, I protested, fearing that he would be overcome by the gas; but seeing the peril of Nelson, and I suppose realizing that unless something was done at once Nelson would be dead before he could be gotten out, and that Orawford, who was fishing for Nelson’s belt with a rope and hook was not doing any good, Engledove tied the gunny sack around his head and started down into the tank, and as he went by Orawford turned the hose on him and wet the sack.”

Again he said:

“Then Engledove came. He came on the run right across the top of the tanks. He stopped just long enough to put a piece of burlap across his face. I think that some one on the top of the tank handed him the burlap. He said: ‘Let me there. I will go and get him.’ Mack Jones said: ‘Stay out of there; do not go in there.’ That is all that I remember that was said. There were a great many people there then, and a lot of excitement.”

The superintendent testified that he got a rope with a hook on the end of it and began to fish for Nelson’s belt and clothing, so as to pull him out, but could not get any hold; that about this time Russell Engledove, the deceased, came running to the vat; that the first thing Engledove did was to tie a piece of gunny sack about his face and start down the ladder into the tank under protest from several of those present. In another place in his testimony he said:

“Russell Engledove came running to the tank, tied a piece of gunny sack around his face, and started down the ladder into the tank, although the rest of us, as I have stated, told him of the danger. As he went by me, I turned the water-on his head, so as to wet the sack and keep down the danger from the gas. When Engle-dove came to the tank, I was fishing for the negro Nelson, with a hook on the end of the rope, trying to catch his belt, but was not having any success, and we all realized, of course, that unless something was done at once Nelson would die.”

He further said:

“I knew, from the gas and the effect it had on Nelson, that it was extremely dangerous. I told Engledove that it was dangerous, and not to go into the tank. I do not remember my exact language, but that was the sum and substance of what I said. Engledove came up in a hurry, picked up a piece of burlap, and put it around his face, and went by me down the ladder, and I turned the water hose on him.”

Van Richardson, one of the laborers for the vinegar company, said that before En-gledove went down into the vat several of the men standing around told him not to go. Who these men were he did not know. lie said that Engledove remarked, “Shorty, I believe, if I put something over my nose, I can rush down right quick and tie the rope around him and come out right quick;” that some one said, “No, Russell, don’t go into that tank.” Mack Jones, another laborer said:

“I told him [Engledove! not to go; that one man in there was enough, and if he went it was apt to kill him. I caught hold of him, and again tried to keep him from going, but he went. As he started into the tank, I caught him by his jumper, and said, ‘Oh, Russell, please don’t go in there.’ I think that was what I said.”

After the death of Russell Engledove, a claim for damages on account of his death was submitted to the Industrial Accident Board of Texas in keeping with the terms and conditions of the act of the Legislature of the state of Texas relating to employers’ liability and providing for the compensation of certain employés and their representatives and beneficiaries for personal injuries sustained in the course of employment, and all the conditions and terms of said act were complied with, and thereafter, on the 29th day of December, 1914, said Industrial Accident Board entered its judgment allowing the appellees, as the heirs and beneficiaries of the said Russell Engledove, compensation in the sum of $6 per week during a period of S60 weeks, to run from the date of the death of said Russell Engledove. This decision was not recognized and complied with by appellant, and this suit followed. The trial was before the court without a jury, and judgment rendered in favor of the ap-pellees for sums aggregating $2,160, from which appellants perfected an appeal.

The question presented by the appellant’s assignments of error is whether or not, at the time Russell Engledove met his death, he was acting within .the course of his employment, within the meaning of what is known as the Workmen’s Compensation Act of the state of Texas. The contention is that the uncontroverted evidence shows that:

“Russell Engledove, in entering the vinegar vat, did so contrary to 'the orders and commands of his superiors duly authorized to give such commands and to require obedience thereto, and he thereby pro hac vice severed his employment with the master, and for the purpose of said venture put himself Without the course of his employment under his master, and became a mere volunteer, without the benefits of said Workmen’s Compensation Act of the state of Texas.”

Another question arises on the appeal, and that is whether or not the decision of the Industrial Accident Board upon the claim of appellees, as disclosed by the record, is conclusive and final of the matter? Of course, if this question should be answered in the affirmative, the Industrial Accident Board settled the controversy. We shall, however, discuss ■ first the question presented in appellant’s brief; that is, does the uncon-troverted evidence show that Russell Engle-dove entered the vat and sacrificed his life to save the life of his fellow employé under circumstances which necessarily show that for the purpose of such venture he put himself without the course of his employment and became a mere volunteer?

It has been held, in effect, that, in construing a statute of the character of the one under consideration the conditions giving rise to the law, the faults to be remedied, the aspirations evidently intended to be embodied in the enactment, and the effects and consequences as regards responding to the prevailing conception of the necessities of public welfare, should be considered, and the enactment given such broad and liberal meaning as can be. fairly read therefrom, so far as required to effectively eradicate the mischiefs it was intended to obviate; that a proper administration of the Workmen’s Compensation Act requires appreciation of the manifest legislative purpose to abolish the common-law 'system regarding injuries to employés as unsuitable to modern conditions and conceptions of moral obligations, and to erect in place thereof ofie recognizing every personal loss to an em-ployé, not self-inflicted, as necessarily entering into the cost of production, and required to be liquidated in the steps ending with compensation. City of Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A, l,- Ann. Cas. 1915B, 847. The foregoing views aptly express, we think, those things that should serve as a guide in the interpretation of a statute like the one to which they relate. The Workmen’s Compensation Act of Wisconsin (Laws 1911, c. 50), the state in which the case cited was decided, includes within its protection all injuries received by an employé in the course of his employment proximately caused by accident, except such as may have been intentionally inflicted. Our statute upon the subject authorizes, a recovery of damages for personal injuries sustained by an employé of a subscriber in the course of his employment, or for death resulting from personal injury so sustained, but provides that the employer may defend in an action brought to recover such damages on the ground that the injury was caused by the “willful intention of the employé to bring about the injury.” That the employer was negligent, and that such negligence was the proximate cause of the injury, are not essential facts to a recovery under this statute. The right to recover under it may be predicated, it seems, alone upon the fact that the injury was sustained by the employé “in the course of his employment,” subject, however, to the defense, as indicated, that the injury was caused by the willful intention of the employé to bring about the injury.

The able counsel for appellant in their argument admit, the well-recognized general rule that, where a servant’s life is placed in jeopardy through the negligence of his master, a third person, who undertakes to rescue such person from his dangerous situation, is not a mere volunteer, and may recover if he be injured in the undertaking. It is also admitted that there are decisions in some jurisdictions which hold, in construing Workmen’s Compensation Acts, that it is the duty of every employé to undertake to prevent injury to and the death of fellow em-ployés, and that in such attempts they are acting within the course of their employment. The question has not been passed upon by any appellate court of this state, so far as we are aware, and in cases in which the question arose in other states the decisions of the courts are at some variance. In some of them it was held that a workman, who goes to the rescue of his master or of another workman, and is thereby injured, is not entitled to compensation. But courts of recognized ability have, on the contrary, held that it is the duty of a workman, when the necessity ¿rises, to do what he can to save the life of his fellow employés, when they are at the time working in the line or course of their employment. Dragovich v. Iroquois Iron Co., 269 Ill. 478, 109 N. E. 999; Waters v. William J. Taylor Co., 218 N. Y. 248, 112 N. E. 727, L. R. A. 1917A, 347; Rees v. Thomas, 1 W. C. C. 9; Matthews v. Bedworth, 1 W. C. C. 124; London & Edinburgh Shipping Co. v. Brown, 42 Scottish L. R. 357; Labatt on Master & Servant, vol. 5, § 1806. The rule announced in the cited cases is humane, just, and reasonable, and we prefer to follow it. In the case of Dragovich v. Iroquois Iron Co., supra, the Supreme Court of Illinois held that injuries received by one employé of the company while endeavoring to rescue another employé from serious danger arose out of his employment, and expressed the view that any other rule of law than the one announced in that case would be not only inhuman, but unreasonable and uneconomical, and would, in the end, result in financial loss to employers on account of injuries to their em-ployés. In these views we concur. The employer has a pecuniary interest in the lives of his employés. He necessarily relies upon their labor for the conduct of his business, out of which he expects to reap a profit, and the attempt of Russell Engledove to rescue Thomas Nelson, the servant of the vinegar company, and his fellow employé, must be regarded as having been made in the interest and for the benefit of such common employer.

But appellant, as we understand, with'out admitting or denying the correctness of the principle enunciated in the authorities to which we have referred, contends that it cannot be applied in the instant case, because the evidence conclusively shows that the superintendent and foreman of the vinegar company were present when Russell En-gledove started to enter the vat in question for the purpose of rescuing Thomas Nelson, and commanded him not to do so; that, having thus been commanded not to enter the vat, his disobedience of it placed him without the course of his employment, and his wife and children cannot recover compensation for his death. As disclosed by the evidence and facts detailed in the former part of this opinion, appellant’s superintendent and foreman, as well as several common laborers, who were present when Engledove entered the vat, testified without dispute that they severally protested against his going into the vat, and told him not to go; but whether this was in fact intended as a positive command on the part of appellant’s rep-resentativés, and so understood by Engle-dove, or a mere suggestion that it was dangerous to do so, and simple protest against incurring such danger, was, we think, a question for the consideration and determination of the trial court. The able district judge who tried the case, in the conclusions of fact and law filed by him, declares that he was unable to find from the testimony in the case, considering all of it, that either appellant’s “superintendent or foreman, in keeping with his authority and as a command, commanded Russell Engledove, the deceased, not to enter the vat.” He further declared, in effect, that if what was said by appellant’s superintendent, or its foreman, to Engledove, in relation to his going into the vat, could be held to be a command not to go into it, such command and its disobedience did noi put the said Engledove without the scope and course of his employment.

We regard the declaration of the district judge that he was unable to find from the testimony that either the appellant’s superintendent or foreman commanded Engledove not to enter the vat as the expression of his opinion that such was not intended to be and was not, as a matter of fact, the effect of the language used. In this view of the trial court we are disposed to concur. At least we are not prepared to say that such conclusion is wholly unwarranted by the testimony. It is clear and undisputed that, whatever was said to Russell Engledove in the nature of warnings, protest, or command not- to enter the vat, the same occurred immediately after appellant’s foreman had cried out for help to save the life of a human being, the colaborer of himself, Russell Engledove, and other employés of the vinegar company, and during great excitement and confusion on the part of all present. The foreman’s cry for help and the actual situation suggested and called for heroic action, and that there was great eagerness manifested for some person to attempt the rescue of Thomas Nelson from his perilous position — yea, a demand for some.person to make such attempt, although it would be fraught with great danger — can easily be imagined. This person was found in Russell Engledove. He believed, as shown by his statement, that by wrapping a wet gunny sack around his face and head he might, without loss of his own life, save the life of his colaborer, Nelson. So, with the gunny sack wrapped about his face and with the appellant’s superintendent throwing water upon him with a hose, Engledove, in an emergency and at the risk of his own life, unselfishly, bravely, and heroically descended into the vat and saved the life of Nelson, but at the sacrifice of his own. The conclusion, when all the facts and circumstances in the case are considered, that appellant’s superintendent and foreman intended, by the remarks made to the deceased at the time he was preparing to enter the vat, to simply warn him of the danger of doing so, and a mere protest against it, and not in the sense of a command not to do so, or as forbidding the act is not unreasonable and unwarranted, and we are unwilling to disturb the judgment of the trial court for the reasons urged by appellant under the assignment under consideration.

The foregoing views render it unnecessary for us to determine whether or not a positive command from appellant’s superintendent or foreman to Russell Engledove not to enter the vat would have put him, in violating such a command, without the course of ¿is employment. We may say, however, in passing, that much authority may' be found to the effect that, if the act of the employé resulting in injury to him is within the scope of his employment* although he twas expressly forbidden to do it, it would not necessarily defeat his claim for damages. In Whitehead v. Reader, 2 K. B. 48, as quoted in Bradbury’s Workmen’s Compensation, it is said that it is not every breach of a master’s orders that would have the effect of terminating the servant’s employment, so as to excuse the master from the consequences of the breach of his orders; that we have to get back to the orders emanating from the master, to see what is the sphere of employment of the workman, and it must be competent to the master to limit that sphere. If the servant, acting within the sphere of his employment, violates the order of his master, the latter is responsible. This indicates, as we believe, the general rule upon the subject.

This brings us to the other question arising on the appeal, namely, whether or not the decision of the Industrial Accident Board upon the claim of appellees, as shown by the record, is conclusive and final of the matter. According to decisions of the Court of Civil Appeals of the Sixth District, construing the article of the statute (5246q) upon which a decision of this question turns, it should be answered in the affirmative. The article mentioned, which forms a part of the Workmen’s Compensation Act of this state, provides;

“All questions arising under this act, if not settled by agreement of the parties interested therein, shall, except as otherwise herein provided, be determined by the Industrial Accident Board. Any interested party who is not willing, and does not consent to abide by the final ruling and decision of said board on any disputed claim may sue on such claim or may require suit to be brought thereon in some court of competent jurisdiction, and the board shall proceed no further toward the adjustment of such claim: Provided, however, that whenever any _ such suit is brought, the rights and liabilities of the parties thereto shall be determined by the provisions of this act, and the suit of the injured employé, or persons suing on account of the death of such employé, shall be against the association, if the employer of such injured or deceased employé is at the time of such injury or death a subscriber, as defined in this act, in which case the recovery shall not exceed the maximum compensation allowed under the provisions of this act, and the court shall determine the issues in such cause instead of said board.”

In the cases cited the Court of Civil Appeals at Texarkana construed the foregoing article of the statute as providing by its terms that the parties at interest in the claim made under the Workmen’s Compensation Act have the option to go or appeal to the courts for determination of the claim under the act, or may consent and proceed under the act, and have the Industrial Accident Board make a final decision upon and adjust the claim; that when the parties at interest in the claim made under the act consent for the Industrial Accident Board to take proceedings and finally determine the claim for compensation, and do not withdraw consent before there has been a final ruling and decision by the board upon such claim, then, in virtue of the exercise by the parties of their option, the decision of the Industrial Accident Board upon the claim is, by the very terms of the act, final. The court points out that the compensation to be awarded is fixed by the terms of the act, and that the language of the article quoted, that “the board shall proceed no further toward the adjustment of such claim” when any inter' ested party in the claim “is not willing, and does not consent to abide by the final ruling and decision of said board on any disputed claim,” indicates the intention to require any interested party in the claim to exercise his option to resort or appeal to the courts before the board makes final decision upon and adjustment of the claim made under the act. We concur in the foregoing construction of, and comment upon, the statute. It satisfactorily expresses our views, and leaves nothing useful or of benefit for us to say upon the subject.

As to the submission of the claim of ap-pellees to the Industrial Accident Board, and the board’s action in regard thereto, it was agreed, and the trial court found, as follows:

“After the death of Russell Engledove, ap-pellees’ claim for damages growing out of his death was submitted to the Industrial Accident Board of Texas, in keeping with the terms and conditions of the said act of the Legislature of the state of Texas, and all the conditions and terms of said act were complied with; and thereafterwards, on the 29th day of December, 1914, said Industrial Accident Board entered its judgment allowing the heirs and representatives of said Russell Engledove compensation in the sum of $6 per week during a period of 360 weeks, to run from the date of the death of sajd Russell Engledove.”

f There is no positive testimony in the record showing that appellant expressed its conksent to abide by the final ruling and decision of the Industrial Accident Board, or that it entered its appearance before said board; but we do not regard it essential to the binding force and effect of the decision of said board, or necessary to authorize the conclusion in this court that such decision was conclusive and final of appellees’ right to compensation for the death of Russell Engledove, that such consent was given or appearance entered. Article 5246ppp of the Workmens Compensation Act provides that no proceeding for compensation for injury under the act shall be maintained unless notice of the injury shall have been given to the association or subscriber, as soon as practicable after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same, etc.; and it was admitted by appellant, and found by the trial court as above shown, that appellees presented their claim for compensation to the Industrial Accident Board in keeping with the terms and conditions of the Workmen’s Compensation Act and that all the conditions and terms of said act were complied with. There is no pretense that appellant did not. receive the notice required by this statute, or that it was not fully aware of the proceedings instituted before the Industrial Accident Board by appellees upon their claim. Nor is there anything in the record to indicate that appellant expressed any unwillingness to abide by the final decision of the Industrial Accident Board before such decision was rendered. Having acquiesced in the proceedings before the Industrial Accident Board, and failed to express any unwillingness to abide by its final decision, appellant will not now be allowed to escape the consequences of that decision on the ground that it fails to appear affirmatively or by direct testimony that it consented to abide by the final ruling and decision of the Industrial Accident Board, or be heard to say it did not consent to abide by such decision. If, in fact, it was unwilling, and did not consent to abide by the final decision of the Industrial Accident Board, such unwillingness and lack of consent should have been made known to that board before its decision was made. It will not be permitted to remain quiescent, and speculate on the probable decision of the board, and, if unfavorable, be heard to say it is not binding upon it, because it never expressed Ats consent to abide by the board’s decision.j!

What we have said practically disposes of all of the assignments of error, except the fourteenth. This assignment is to the effect that the judgment of the trial court is contrary to law, in that it attempts to create an installment liability against the appellant and “awards damages prospectively, and awards executions prospectively; it appearing that under the purported judgment herein entered that plaintiffs may become entitled to over two hundred separate and different executions for installments of compensation not yet due.” It is believed there is no material error in the judgment. The compensation awarded and the provision made for its payment are in accordance with the statute. Weekly installments amounting to $789.-80 were found to be due at the date of the rendition of the judgment and execution authorized therefor. Further sums of $6 each were allowed and made payable weekly, with direction that, if such payments were not paid, then due execution therefor should issue. That the award of such weekly sums is clearly authorized by the statute can hardly be questioned, and that appellees would be entitled to an execution to' enforce their payment when due, if not voluntarily paid by appellant, seems but reasonable and just. The issuance of the numerous executions which appellant says appellees will be entitled to under the judgment as framed will be entirely avoided by payment of the several installments awarded when due.

Under either phase of the case discussed, in this opinion, we think the law is with ap-pellees, and that the judgment of the district court should be affirmed. It is therefore accordingly so ordered.

Affirmed.
      <§=>For other cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes