author: LEYY, J.

text:
    TEXAS & P. RY. CO. v. MILES et al.
    (No. 1688.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 14, 1917.
    Rehearing Denied March 15, 1917.)
    1. Raileoads <&wkey;350(ll) — Operation — Crossing Accident — Evidence — Sufficiency.
    Evidence held to warrant submission to jury of issue of negligence of railway employés in running at high speed without warning, proximately causing death of deceased at a crossing.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1164%.]
    2. Railroads <&wkey;351(21) — Crossing Accidents — Injuries to Persons — Proximate Cause — “Without Which He Would Not Have Been Injured.”
    In an instruction in action for death of a person injured in a railway crossing accident, the words “negligence without which he would not have been injured” mean negligence proximately causing the injury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1213.]
    3. Railroads i&wkey;350(13) — Operation — Crossing Accidents — Contributory Negligence-Evidence.
    Evidence held such that the court could not say as matter of law that deceased was negligent when struck by defendant’s locomotive.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1166.]
    4. Railroads <&wkey;350(33) — Operation — Crossing Accidents — Discovered Peril-Evidence.
    Evidence held such that the court could not say as matter of law that issue of discovered peril of wagon driver approaching a railway crossing was not in the case for damages for his death.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1191.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Amanda Miles and another against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    See, also, 192 S. W. 1139.
    An engine pulling only a caboose, specially running east, struck a wagon right on the crossing of the public road in the village of Greenwood, La., and as a result thereof Cicero Miles, who was driving the wagon, was killed. The injury occurred on August 1,1913, at 5 o’clock p. m. The surviving wife and the minor children of Cicero Miles bring this suit for damages sustained by reason of his death'. The negligence alleged in the petition is the failure of appellant’s employés in charge of the train to keep a lookout for persons and vehicles likely to be at the crossing, and in not having the locomotive under proper control, and in approaching the crossing at a high rate of speed without ringing the bell or blowing the whistle as a warning of the engine’s approach, and in the failure of the employés, after discovering the perilous situation of the deceased, to use the means they should have used to avoid injuring Cicero Miles. The defense relied upon was contributory negligence on the part of the deceased and the use of all means and effort to stop the engine before striking the wagon as soon as the approach of the wagon was observed. The verdict of the jury was in favor of appellees.
    At the point of injury the appellant’s track runs east and west, and is in a cut the north bank of which is 10 or 12 feet high. The depot building is on the south side of the track and between 12 and 20 yards west of the wagon road in question. Just west of the depot building on the south side of the track are two section houses. A public road approaches the railroad from the northwest and reaches to within 100 feet of the railroad track at a point beginning about 300 yards west of the depot. The public road then proceeds eastward parallel to the railroad track and about 100 feet north of the track and on top of the north1 bank of the cut. When the public road gets about even with the depot, it curves to the southeast, comes down the bluff of the cut, with a considerable incline, to the ground nearly on a level with the railroad, then turns south for about 50 feet, crossing the railroad at right angles and continuing on south. Cicero Miles was driving the wagon, which was drawn by two horses; and in the wagon were, also, Emma Glover, a boy, and another person. The wagon was proceeding east and south across the track. The evidence on the part of the plaintiff shows that the engine was running from 30 to 35 miles an hour, did not stop at the station, was making very little noise, and did not ring the hell nor blow th'e whistle as it approached the crossing. The witnesses for defendant testified that the engine was running from 15 to 20 miles an hour, and that the whistle was sounded as it approached the station and the crossing. It was shown that a wagon could be seen on the road at any time after the engine reached a point about 300 yards west of the crossing, and th’at an engine could be seen from the wagon road about 200 yards or more from the crossing. The engineer was on the right-hand side of the engine, and says that the boiler head prevented him from seeing the approach of the wagon from the north, and that he did not see it until the heads of the team came from behind the boiler, when the engine was right at them. The fireman saw the wagon and tried to warn the engineer of the fact of its approach, but he says the engineer did not seem to hear. The brakeman in the caboose also saw the wagon while it was on the road and approaching the crossing. The fireman testified that when he first saw the wagon he hardly knew how far the engine was from it, but judged it was something like 75 yards, and he motioned towards the wagon to stop and tried to get the engineer’s attention. At this time the engineer put on more steam and increased somewhat the speed of the engine. The horses then turned down the hill, which was a considerable grade, and began to trot, and then the driver began slapping them with the lines to get them across the track. After the engine struck the wagon, it was stopped in some six or eight car lengths’ distance. The speed of the engine could have been slackened before striking th'e wagon, at the time the fireman first saw the wagon on the hill.
    There is evidence tending to support the conclusions reached by the jury in their verdict, and, in deference to the verdict, their findings of fact are sustained.
    P. H. Prendergast, of Marshall, for appellant. Cary M. Abney and M. M. O’Banion, both of Marshall, for appellees.
   LEYY, J.

(after stating the facts as above). A paragraph' of the court’s charge reads as follows:

“Now, if you find from the evidence that the defendant’s locomotive approached the crossing where the accident occurred at a high rate of speed, and that the employés of the defendant in charge of said locomotive approached the crossing without ringing the ibell or sounding the whistle, or that the said employés of the defendant did not exercise ordinary care to discover the wagon in which the deceased was traveling, and you further find that such acts or omissions on the part of the defendant’s em-ployés, if any, constitute negligence on the part of the defendant’s servants and employés, and you further find that such negligence, if any, was the proximate cause of the death of Cicero Miles, then you will find for plaintiff, unless you find that the said Cicero Miles himself was guilty of negligence which caused or contributed to Gause his death.”

The court did not err, it is thought, in authorizing the jury in this case to determine, as the charge did, whether oi not the persons operating the engine were guilty of negligence proximately causing the death of Miles on account of the speed at which1 the engine was going when it struck the wagon, together with the failure to blow the whistle or ring the bell on approaching the crossing. Therefore assignments of error Nos. 1 and 6 are overruled.

“Negligence without which he would not have been injured,’’ as used in the fourteenth section of the court’s charge, means negligence proximately causing the injury. And the effect of the instruction is that the negligence of the deceased must proximately contribute to bring about the injury, as distinguished from a remote cause. Th'e second assignment of error is overruled.

It is thought that in the circumstances of the case the court may not say as a matter of law that Cicero Miles was guilty of contributory negligence, or that the issue of discovered peril was not in the ease. Railway Co. v. Tinon, 117 S. W. 936. And the several assignments raising these questions are overruled.

It is concluded that the verdict is not excessive, and that th'e eighteenth assignment of error should be overruled.

The remaining assignments of error do not present, it is thought, any reversible error, and they are overruled.

Judgment affirmed.
      ©nsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. MILES.
    (No. 1735.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 14, 1917.
    Rehearing Denied March 15, 1917.)
    Railboads <&wkey;348(l) — Operation — Crossing Accidents — Evidence — Sufficiency.
    Evidence held to sustain verdict for plaintiff in action for death of her husband when struck by a locomotive at a railway crossing.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138, 1140, 1141.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Amanda Miles against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 192 S. W. 1138.
    An engine pulling only a caboose, specially running east, struck a wagon right on the crossing of the public road in the village of Greenwood, La.; and as a result thereof Emma Glover, 14 years of age, who was riding in the wagon, was killed. The injury occurred August 1, 1913, at 5 o’clock p. m. The mother of Emma Glover brings the suit for damages sustained by reason of her death. The negligence alleged in the petition is the failure of appellant’s employés in charge of the train to keep a lookout for persons and vehicles traveling on the road and about to cross the track, and in not having the locomotive under proper control, and in approaching the crossing at a high rate of speed without blowing the whistle or ringing the bell as a warning of the engine’s approach, and in the failure of the employés, after discovering the perilous situation of the deceased, to use the means they should have used to avoid injuring her. The defense relied upon was contributory negligence of the deceased and the person driving the wagon. The verdict of the jury was in favor of appellee in the sum of $509.
    At the point of injury the appellant’s track runs east and west, and is in a cut the north bank of which is 10 or 12 feet high. The depot building is on the south side of the track and between 12 and 20 yards west of the wagon road in question. Just west of the depot building on the south side of the track are two section houses. A public road approaches the railroad from the northwest and reaches to within about 100 feet of the railroad track at a point beginning about 300 yards west of the depot. The public road then proceeds eastward parallel to the railroad track and about 100 feet north of the track and on top of the north bank of the cut. When the public road gets about even with the depot, it curves to the southeast, comes down the bluff of the cut, with a considerable incline, to the ground nearly on a level with the railroad, then turns south for about 50 feet, crossing the railroad at right angles and continuing on (south. Cicero Miles was driving the wagon, which was drawn by.two horses, and in the wagon were also Emma Glover, a boy, and another person. The wagon was proceeding east and ' south across the track. The evidence on the part of the plaintiff shows that the engine was running from 30 to 35 miles an hour, did not stop at the station, was making very little noise, and the bell was not rung nor the whistle sounded as it approached the crossing. The witnesses for defendant testify that the engine was running from 15 to 20 miles an hour, and that the whistle was sounded as it approached the station and the crossing, it was shown that a wagon could be seen on the road at any time after the engine reached a point about 300 yards west of the crossing, and that an engine could be seen from the wagon road about 200 yards or more from the crossing. The engineer was on the right-hand side of the engine, and says that the boiler head prevented him from seeing the approach of the wagon from the north, and that he did not see it until the heads of the team came from behind the boiler, when the engine was right at them. The fireman saw the wagon and tried to warn the engineer of the fact of its approach, but he says the engineer did not seem to hear. The brakeman in the caboose also saw the wagon while it was on the road and approaching the crossing. The fireman testified that when he first saw the wagon he hardly knew how far the engine was from it, but judged it was something like 75 yards, and he motioned towards the wagon to stop and tried to get the engineer’s attention. At this time the engineer put on more steam and increased somewhat the speed of the engine. The horses then turned down the hill, which was a considerable grade, and began to trot, and then the driver began slapping them with the lines to get them across the track. After the engine struck the wagon, it was stopped in some six or eight car lengths’ distance. The speed of the engine could have been slackened before striking the wagon, at the time the fireman first saw the wagon on the hill.
    There is evidence tending to support the conclusions reached by the jury in their verdict, and, in deference to the verdict, their findings of fact are sustained.
    F. H. Prendergast, of Marshall, for appellant. Cary M. Abney, M. M. O’Banion, and T. P. Young, all of Marshall, for appellee.
   LEVY, J.

(after stating the facts as above). The points raised by the assignments of error are that the evidence showed the deceased and the person driving the wagon to have been guilty of negligence contributing to cause her death, and did not show that her perilous situation was discovered by the engineer or the employés in the exercise of care to avoid injuring her. The controlling facts in the case of Railway Co. v. Tinon, 117 S. W. 936, are, we think, quite similar to the instant case, and in that case the questions now raised are discussed at length. We conclude that the ruling in that case would have application to this appeal, and that we would not be warranted in holding as a matter of law that the evidence does not support the conclusions of the jury as involved in their verdict.

It is thought that the court did not err in refusing the special charge complained of, and the assignments of error in that respect are overruled.

Judgment affirmed.
      &wkey;>For other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    PRICE et al. v. COUNTY SCHOOL TRUSTEES OF NAVARRO COUNTY et al.
    (No. 7783.)
    (Court of Civil Appeals of Texas. Dallas.
    March 3, 1917.)
    1. O u o Warranto <&wkey;>5 — -Schools and School Districts — Redistriicting —Restraint.
    A suit by district school trustees and taxpayers against the county school ti-ustees to enjoin the abolition of a school district and its annexation to two other districts could be maintained as an ordinary suit between the parties, and need not be by a proceeding in quo warran-to under the statute to review the acts of the county school trustee, since the statutory right to proceed by quo warranto is not an exclusive remedy, but is cumulative of other remedies.
    [Ed. Note. — For other cases, see Quo Warran-to, Cent. Dig. § 6.]
    '2. Quo Warranto <&wkey;3 — Schools and School Districts — Redistricting — Restraint.
    Whether the acts of the county school trustees in abolishing a school district and annexing it to two other districts was an abuse of their discretion may not be tested by the proceeding in quo warranto under the statute, which is a remedy employed only to test the actual right to an office or franchise.
    [Ed. Note. — For other cases, see Quo Warran-to, Cent. Dig. § 4.]
    3. Mandamus <§=o79 — Schools and School Districts — Redistrtcting—Restraint. • _
    _ As mandamus is not available to require the performance of official acts involving the exercise of discretion, under Acts 34th Leg. c. 34, giving county school trustees, general management and control of the public free schools in each county, the county school trustees have a broad discretion, and the trustees of a district could not prevent the proposed abolishment of the district, or require the trustees to retrace their steps to the extent they had proceeded, and its annexation to other districts by writ of mandamus.
    [Ed. Note. — For other cases, see" Mandamus, Cent. Dig. §§ 170-176.]
    4. Statutes <&wkey;181(l) — Construction—Rule.
    By the direct provisions of Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 5502, the statutory rule of construction is that the courts shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil, and the remedy.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 259.]
    5. Schools and School Districts &wkey;>33— Consolidation — District Courts — Jurisdiction — Review oe Acts oe County School Trustees.
    Under Acts 34th Leg. c. 36, giving the district court general supervisory control of the action of the county board of school trustees in creating, changing, and modifying school districts, the district court had jurisdiction of a petition to enjoin the action of the county school trustees in abolishing a school district and annexing it to two other districts.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent Dig. § 55.]
    6. Schools and School Districts <&wkey;39— Actions oe County Trustees — Review by District Court.
    Acts 34th Leg. e. 36, § 4a, giving district court general supervisory control over the action of a county board of school trustees creating, changing, and modifying school districts, is not controlled by section 10 of the act, Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4509, 4510, providing for appeals from the actions of the trustees to the state superintendent, and thence to the state board of education; but appeals from the action of the school trustees may be made to the district court.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 68, 69.]
    7. Schools and School Districts <&wkey;33— Consolidation — Temporary Injunction-Dissolution — Discretion oe Court.
    In an action to enjoin the abolition of the school district and its annexation to two other districts by county school trustees, where the court’s action in dissolving a temporary injunction was not based on the merits, but was upon the theory that the court was without jurisdiction, the rule that dissolution of a temporary injunction is largely' a matter of discretion is without force.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 55.]
    8. Schools and School Districts <&wkey;33— Consolidation — Injunction — Pleading-Demurrer.
    In an action to enjoin the action of county school trustees in abolishing a school district and annexing it to other districts, a general demurrer to the petition did not raise the issue of the form and manner of presenting the suit, such as the right of the district trustees to maintain the suit in the capacity in which they sued.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 55.].
    9. Schools and School Districts <&wkey;>33— Redistricting — Petition—Sueficiency.
    In a suit to enjoin the action of county school trustees in abolishing a school district and annexing it to other districts, a petition stating that since its creation the district has annually-maintained a well attended free public school for the required period, that the school now located in the district is convenient and accessible to the children in the district, as the majority reside within less than a mile thereof, while under the arrangement proposed they would be at such distance from the schoolhouse as to make their attendance impossible during the fall and winter months, and that some of them would be required to walk a distance of 4 miles, some 3 miles, and some 2% miles, held sufficient to raise the issue of an abuse of the discretion of the county school trustees.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 55.]
    10. Schools and School Districts -<&wkey;38— Redistricting — Power oe Common Trustees.
    Under Gen. Laws 1915, c. 68, giving the county school trustees general management and control of the free public schools in each county, the question of annexing the territory of a school district abolished to other districts need not be submitted to the vote of the districts to be affected, in the absence of a specific requirement in the statute.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 66.]
    31. Schools and School Districts <&wkey;33— Redistricting.
    The fact- that the value of the citizens’ property would be lessened by a change in the lines of a common school district, although possibly admissible to show the result of a proposed change could not prevent the change if it were for the best interests of the schools.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 55.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by G. P. Price and others against the Connty School Trustees of Navarro County and others. From a judgment dissolving on general demurrer a temporary writ of injunction, issued after ex parte hearing upon the application of plaintiffs, defendants appeal.
    Reversed, and remanded for another trial, not inconsistent with the opinion.
    Callicutt & Johnson, of Corsicana, for appellants. Richard Mays, of Corsicana, for appellees.
   RASBURY, J.

This is an appeal from the action of the trial judge in entering final judgment in this case dissolving, on general demurrer, a temporary writ of injunction, issued after ex parte hearing upon application of appellants. From the action of the trial court in the respect stated, appellants have appealed and assigned error, challeging same.

Since the case turns upon the action of the court in sustaining appellees’ general demurrer, it becomes necessary to state the parties, the pleading and the facts deducible therefrom. The application for injunction was presented by the trustees of common school district No. 82 of Navarro county, as trustees and individually, joined by T. S. Meador and 15 other patrons of the school maintained in the district, as well as citizens and taxpayers thereof. The parties against whom the injunction was sought were the county school trustees of Navarro county, the county superintendent as such, and as secretary of the board of county school trustees, the county judge, the commissioners’ court, the county clerk, the county tax assessor, the county surveyor, the trustees of common school district No. 60, and the trustees of common school district No. 45. The substance of the facts alleged was: About July 11, 1892, the commissioners’ court of Navarro county, upon the petition of a majority of the legal voters having a voice therein, lawfully created appellant common school district No. 82, with an area more than 6 miles square and containing about 4,000 acres of land. Continuously since the creation of said district there has been annually maintained therein a well-attended free public school for the benefit of its patrons. The territory in the district is rich, fertile, and populous, having about 20 voters, and for several years past an average of 40 children within the scholastic age. The money received from the state has been and is now amply sufficient to maintain the school for the required period, but in the year 1916 the taxpayers of the district supplemented said fund by voting a special tax of 20 cents on the $100 of valuation, in order that the school might be maintained more efficiently and for a longer period of time. On or about May 20, 1916, upon petition of certain taxpayers, voters, and patrons of appellee common school district No. 60, the county school trustees, also appellees, by resolution, added to said appellee common school district No. 60 2,600 acres of appellant’s district, and to appellee common school district No. 45 the remaining 1,300 acres composing the district, and ordered abolished appellants’ district. The school building located in appellants’ district is convenient and accessible to the children in the district, since a majority of them reside within less than a mile thereof, and some within a few hundred yards thereof, while under the arrangement proposed they would be at such distance from the schoolhouse as to make their attendance impossible, particularly ¡during the fall and winter months, since the children in appellants’ district are of tender years, and since it is an average of 3 miles from their homes to the school buildings in the proposed districts, and which would result in said children being deprived of the benefit of the public free schools. (The petition recites the names of 10 children within scholastic age living in convenient proximity to the present school, but who under the proposed arrangement will have to travel some a distance of 4 miles, some 3 miles, and some 2% miles.) Many of the taxpayers, citizens, and voters in common school districts No. 60 and No. 45 are opposed to abolishing appellant common school district No. 82, and annexing it to said districts. A petition opposing such action was circulated in said common school district No. 60, and signed by twice as many as signed the petition asking such action. .Appellees intend and will carry into effect the resolution adopted, by having appellee the county surveyor run the lines separating appellant district, which appellee county superintendent will enter in the minutes of the county trustees ; and the other officers named will in their order and to the extent of their authority make such proposed action final.

Before discussing the various contentions of the parties, a brief review of the authority now conferred upon county school trustees and the restrictions thereof will be of assistance in considering the issues presented on this appeal. They have “general management and control of the public free schools in each county.” They “are authorized to exercise the authority heretofore vested in the county commissioners’ court with respect to subdividing the county into school districts and to making changes in school district lines.” They “shall constitute a body corporate,” and as such “may sue and be sued.”, The district court has “general supervisory control of the actions of the county board of school trustees in creating, changing, and modifying school districts.” Gen. Haws 34 Beg. (1915) p. 68. The foregoing we understand to be the last amendment of the law on the subjects the amendments deal with that have any application to the precise- issues presented on this appeal. There are many other provisions in the amendment, such as the right of the county trustees to consolidate common school districts for high school purposes, the classification of schools, prescribing the course of studies, arranging free transportation for students, employing teachers, etc. The authority formerly vested in the county commissioners’ courts witli respect to creating and modifying school district lines, and now conferred on county trustees and referred to in the amendments • just enumerated, is, in addition to the right to subdivide their respective counties into convenient school districts, the right to “reduce the ¿rea- of any common school district, as may be necessary for the best interests of the school children * * * ” (article 2815, Vernon’s Sayles’ Civ. Stats.), together with -the right when they deem it necessary to redistrict a part or all of said county, or consolidate two or more adjacent districts and subdivide districts (article 2816, Vernon's, Sayles’ Oiv. Stats.). The statutes also provide for the election of district school trustees, and that they shall in the manner prescribed have the control and management of the schools in their respective districts, which fact is referred to as showing the general scheme, rather than for any significance in its relation to the present case. Nor do we attempt to set out the various changes in the law and the consequent lack of application of decisions based upon former laws to those now controlling. The issues, presented by counsel can he more conveniently discussed by a consideration of appellees’ counterpropositions offered in support of the action of the trial court, and we will observe that order of discussion.

The first contention is that the remedy of any person interested in preserving the status quo of the appellant district was quo warranto by the state or its proper officer, on the relation of the complaining parties, and not by the district school trustees and the taxpayers, citizens, and patrons of the school. It is a fact, as our statement of the case discloses, that this proceeding is an ordinary suit invoking the injunctive process of the court to restrain appellees from further acts contemplating the abolishment of common school district No. 82, and its annexation to the two other districts, and is prosecuted by appellant common school district No. 82 and by certain taxpayers, citizens, and school patrons in said district. As a consequence the issue raised is squarely presented. On this question we recently reached the conclusion that school districts, as such, and interested taxpayers, citizens, and school patrons, could maintain such suit, and that the district court could use its injunctive process in aid thereof when the facts authorized it. Collin County School Trustees v. Stiff, 190 S. W. 216. We reached the conclusion we did on the ground that the statute conferring the right to proceed by quo warranto is not an exclusive remedy, but is by its express provisions cumulative of other remedies, and that if the quo warranto statute had not been in existence the parties could have proceeded as they did, aided by injunction, and that such right as we have said was reserved to litigants by the quo war-ranto statute. It was so ruled by the Supreme Court in McAllen v. Rhodes, 65 Tex. 348, cited by us in support of our conclusion. We do not understand that special statutory remedies are exclusive. Generally speaking, if a right exists, arising on contract or in tort, a corresponding remedy for its enforcement arises in law or equity, and special statutory remedies provided by the Legislature, in the absence of at least express statutory prohibition, are merely cumulative. It has been declared that the statutory remedy of forcible entry and detainer, while giving landlords a summary method of ousting tenants holding over, is not exclusive, but that the landlord may bring an ordinary suit for possession; also that the landlord’s statutory lien and remedy may be enforced as other liens. Juneman v. Franklin, 67 Tex. 411, 3 S. W. 562. It has also been held that the amendment to the Constitution conferring upon district courts authority to try contested election cases and specifying the manner of conducting such proceedings, only enlarged the court’s jurisdiction, without limiting its power “to determine the same question by any other existing mode of procedure.” Gray v. State ex rel. Langham, 92 Tex. 396, 49 S. W. 217. In the case cited the proceeding was by quo warranto, and not by the mode provided by the constitutional amendments, which was claimed to be exclusive. The remedy pursued by appellants is just as efficacious — in fact, more so, it occurs to us — than the one provided by quo warranto, and permits a matter in which the state, when a party, is but a nominal one, to be litigated between those actually at interest. Both remedies existed when the suit was commenced, a resort to either of which was not only the result of the application of reason and principle in construction, but the result as well of the quo warranto statute, which expressly provides that the remedy shall be cumulative, not exclusive.

Further, while we have proceeded on the theory that both remedies are optional co-ordinate ones, whether the proceeding by quo warranto is correct is not altogether free from doubt. It was said, in a case by quo warranto involving the right of a justice of the peace to exercise his jurisdiction in territory detached from his precinct by the commissioners’ court after his appointment, that:

“Since the remedy by quo warranto, or information in the nature thereof, is employed only to test the actual right to an office or franchise, it follows that it can afford no relief for official misconduct, and cannot be used to test the legality of the official action of public or corporate officers. * * * ”

The proper remedy would seem to be by injunction. State ex rel. Dowlen v. Rigsby, 17 Tex. Civ. App. 171, 43 S. W. 271. In refusing the writ of error the Supreme Court said, among other things:

“The Court of Civil Appeals were inclined to doubt whether this proceeding was authorized by law, and we are disposed to agree with them.” State ex rel. Dowlin v. Rigsby, 91 Tex. 351, 43 S. W. 1101.

The purpose of the instant suit reduced to its most simple analysis is to prevent the abolishment of appellant common school district No. 82, because to do so would not be for the best interests of the school children, or, which is the same thing, that the county trustees, in the exercise of the powers conferred upon them, have abused their discretion, which is but to say they have been guilty of “official misconduct,” and which, to use the language of the case just cited, may not be tested by the proceeding in quo warranto.

As supporting its position appellee cites Crabb v. Celeste Ind. School District, 105 Tex. 194, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146. The issue involved in that case is entirely dissimilar to the issue here presented, as will appear by examination of the • opinion in that case. The question there was whether the trustees had in a lawful manner exercised the authority conferred upon them by law in annexing certain territory to Celeste independent school district. The Supreme Court said that the district, being a quasi municipal corporation, was acting under color of law, and the legality of its acts, or the' right to do the thing it did do, could only be challenged by the state in a proceeding by quo warranto. We do not understand the case at bar to be one claiming that the county school trustees are proceeding unlawfully or ultra vires, but that it is proceeding in a lawful way to do a thing which will be to the detriment of‘the schools and hence an abuse of their discretion, which is sought to be reviewed in the court charged with the duty of supervising their acts.

It is also urged that appellants’ remedy is by mandamus. The general and well-settled elementary rule is that the writ of mandamus is not available for the purpose of requiring the performance of official acts by persons, officers, tribunals, or corporations involving the exercise of discretion. We think it quite clear that the statutes cited, and which constitute the authority of county school trustees, confer broad discretion upon such trustees, and that hence appellants could not prevent the consummation of the proposed abolishment of the school district, or require them to retrace their steps to the extent they had proceeded by such writ, .since to do so would be to interfere with their discretion.

This ■ brings' us in natural order to the contention that the general supervisory control of the district court of the actions of the trustees in creating, changing, and' modifying districts does not vest such courts with authority to'prevent trustees from- abolishing school districts. We believe the construction sought to be placed upon the law too literal. The statutory rule of construction is that courts shall “look diligently for-the intention of the Legislature, keeping in view at all times the old law, the evil, and the remedy.” Article 5502, Yernon’s Sayles’ Civil Stats.’ The absence in the old law of any declaration that any given court might supervise the action of the trustees, the numerous suits that constantly arise with reference to the creation, modification, and abolishment of school district lines, point unerringly, we believe, to the evil and the remedy sought; i. e., that some judicial tribunal might in an orderly way supervise, for the best interests of all concerned, the actions of the trustees. And that the lawmakers should have intended that the district court could supervise the trustees in every respect, save when districts were wholly abolished, would be to argue that it was intended only to correct the lesser evil. However, we think it clear that the result in. the instant case was as much to change and modify common school district No. 82 as it was to abolish it. The district was not abolished, in the sense that the children in the territory composing the old district were without school facilities, but was changed and modified by attaching a portion to one district and a part to another. Particularly do we think such an arrangement was, in the broad and general meaning of the term, a “change” in the district, as will appear from the definition of the word. Accordingly we conclude that the authority conferred upon district courts, even though special, was broad enough to include the relief sought by the petition.

For the reasons therein stated, we also adhere to our former ruling, in Collin County School Trustees v. Stiff, supra, following Clark v. Hallam, 187 S. W. 964, that the Legislature having conferred jurisdiction upon the district court to supervise the matters involved here, the right to litigate such matters in the district court is not controlled by articles 4509, 4510, Vernon’s Sayles’ Civ. Stats., providing for appeals from acts of the trustees to state superintendent, and thence to state board of education.

It is next urged that the dissolution of a temporary injunction is largely a matter of judicial discretion, and appellees having filed sworn answer denying the material allegations of appellants’ petition, the action of the district court should not be disturbed. The rule is correctly stated, and has in many instances formed the basis of the action of appellate courts - in sustaining the action of the trial court in such cases. The difficulty of its applicátion here, however,* lies in the fact that it appears that- the able, district judge who tried the case did not consider the facts as a basis for his judgment, but, as. we have shown, sustained a general demurrer leveled against; the petition, the effect -of which was to admit the truth of the. facts alleged, bnt to assert that they did not entitle appellants to any relief from the court. Incidentally, while the general demurrer did not, in our opinion, raise the issue of the form and manner of presenting the suit, such as the right of appellants to maintain the suit in the capacity in which they sued, counsel stated in argument that the court did consider such issue, and we have for that reason so treated it. The court’s action, then, being based, not upon the fact that appellees met the equities of the case alleged by appellants, but upon the theory that the appellants could not maintain the suit, and that court was without jurisdiction, and by implication that the facts alleged did not entitle them to any relief, the rule invoked is obviously without force.

This brings us, then, to the facts alleged by appellants in their petition and their sufficiency. Without attempting to ■state what, in our opinion, would constitute facts sufficient to warrant the court in enjoining trustees as herein sought, or what would constitute facts sufficient to show an abuse of the discretion of the trustees, we do conclude that those alleged in appellants’ petition were sufficient to raise an issue in that respect for determination in the ordinary way. The trial court, as we gather from the briefs, never in fact determined contrarily, but sustained the general demurrer on other grounds.

Some contention is made with reference to the failure of the county trustees to submit the question of annexing the territory constituting appellants’ district to districts. Nos. 60 and 45 to a vote of those to be affected. We have been unable to find in the many acts on the subject as they now. exist any such requirement. It would seem that as the law now stands the trustees are vested with a broad and flexible discretion in the exercise of their authority, with the concurrent right on the part of those interested to review their acts in the district court.

Also it is claimed that the change in districts as proposed in the present case will affect the value of appellants’ property and result in private injury to them. We believe the fact that the value of the citizens’ property would be lessened by a change in the lines of a common school district could not be used to prevent the change, if it was in fact for the best interests of the schools. Conceivably a case might be presented which would-make such fact admissible in evidence, as tending to prove the result of a proposed change of district lines intended, not for the best interests of the school, but for the unlawful purpose of injuring the complaining parties.

For the reasons stated, it becomes our duty to reverse the judgment, and remand the case for another trial, not inconsistent with the views herein expressed.
      <te>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <Sn»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C; J-.

text:
    SAN BENITO CAMERON COUNTY DRAINAGE DIST. v. FARMERS’ STATE GUARANTY BANK et al.
    (No. 5791.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1917.
    Rehearing Denied March 14, 1917.)
    1. Referen ce <&wkey;24 — Master in Chancery-Right to Appoint.
    In view of Rev. St. art. 2156, providing for appointment of masters in chancery wherever a receiver is appointed, and article 70, providing that the parties may arbitrate their differences by any method they may select, it is within the power of the court to appoint a master in chancery by consent of parties.
    [Ed. Note. — For other cases, see Reference, Cent. Dig. § 40.]
    2. Reference <&wkey;100(3) — Stipulations — Binding Effect.
    Where the parties to a suit agree that a master in chancery shall be appointed and that exceptions to his report must be filed within 60 days, they are bound by such agreement, and cannot file exceptions after a greater time has expired.
    [Ed. Note. — For other cases, see Reference, Cent. Dig. § 159.]
    3. Drains <&wkey;49 — Drainage Districts — Liability for Construction Work.
    Although a drainage ditch was completed before execution of a construction contract calling for a complete drainage system, the drainage district obtaining the benefit of such ditch is liable to the contractor where the contract provided that its value should be estimated by the engineers.
    [Ed. Note. — For other cases, see Drains, Cent.'Dig. § 59.]
    Appeal from District Court, Cameron County ; W. B. Hopkins, Judge.
    Suit by the Farmers’ State Guaranty Bank against the San Benito Cameron County Drainage District and others. From the judgment, defendant named appeals.
    Affirmed.
    Spears & Montgomery, of San Benito, for appellant. F. W. Seabury, of Brownsville, J. M. Mothershead, of San Benito, and Graham, Jones & George and R. M. Gay, all of Brownsville, for appellees.
   FLY, C; J-.

This suit was instituted by the Farmers’ Guaranty State Bank against the Rio Grande Construction Company, San Benito Cameron County Drainage District No. 3, the commissioners thereof, and numbers of others asserting claims against the construction company and against money which appellant owed the construction company, for the construction of a drainage system. Other creditors of the construction company were afterwards made parties or intervened in the suit. The construction company, being insolvent, made no defense, but prayed that the money be paid to the creditors as their interest might appear. The case thus resolved itself into the ascertainment of the indebtedness of the drainage district to the construction company and its equitable distribution among the creditors. The drainage district admits that it is indebted to the construction company $8,962.12, but denies liability for $11,628.74, found against it for tbe construction of wbat is known as tbe Orizaba ditcb, wbich was built before tbe contract for construction was executed. The drainage district, however, does not deny that it received full benefit of tbe ditcb, and that it was necessary to tbe perfecting of tbe drainage system. Nor is it claimed that it was not a necessary link in its chain of ditches, and that it was not built as required by tbe plans and specifications.

An application was made on April 7, 1915, by two of tbe defendants, for tbe appointment of a master in chancery with such powers as the court might see proper to give him. On tbe same date an order was entered appointing 1-Iarbert ¡Dawenport master in chancery and defining bis powers and duties. Tbe appointment was made on tbe agreement of all concerned, and tbe order was agreed to in all of its terms. One of tbe items in that order was as follows:

“All findings of fact in the master’s report upon tbe matters referred to shall be considered as binding on all the parties to this suit, and not subject to review by this court unless exceptions thereto are duly taken. Exceptions to the master’s report and to his findings therein contained shall be made in writing, addressed to this court; they shall be specific, and shall point out the particular error or errors complained of, and the particular portions of the evidence relied on to support the exceptions; and they shrill be filed in this court within 60 days after the filing of the said report.”

Tbe order recites that:

All of the parties were present through their attorneys, “and in open court they and each of them consented to the granting of said application and the appointment of such master in chancery, with the specific and general powers and duties therein expressed.”

Tbe order was signed by tbe attorneys for all tbe parties. No attack is made upon tbe order, nor is it claimed that the attorneys were without authority to make tbe agreement embodied in tbe order. The order is the act of tbe court with the consent of the parties and with their indorsement of all of its provisions, and the question arises: Is it enforceable against tbe parties, or can they disregard any or all of its provisions?

In article 2156, Revised Statutes, it is provided that, whenever a receiver is appointed and qualifies, a master in chancery shall be appointed, and bis qualifications and duties are prescribed. There is nothing in the statute prohibiting the appointment of a master in other eases, and the appointment in all other cases would be governed by common-law rules. A trial by jury not having been demanded by appellant, this case is in no manner complicated with the right of trial by jury, if a jury trial could have been legally demanded after an agreement that the report of the master should become 'final after a certain time had elapsed from its filing. No exceptions were filed to the report until 3y2 months after it had been filed. It has been held that in states where statutes pro- i vide for references by consent to masters in chancery, when a party so consents, he loses his right of trial by jury, but it is held in Texas that the right of trial by jury is not lost in receivership cases, because the law compels the appointment of a master in chancery. San Jacinto Oil Co. v. Culberson, 100 Tex. 462, 101 S. W. 197.

While no statute exists in Texas empowering a court to appoint a master in chancery by consent of parties, there is no inhibition against such a procedure. The court in this case did not of its own motion appoint a master and define his power and duties, but the appointment was made with the full consent of all the parties who voluntarily bound themselves to abide by the report of the master unless exceptions to it were filed within 60 days from the time the report was filed. The choice was not forced upon appellant, but it sought the appointment of the master and agreed that his report should not be attacked unless exceptions to it were filed in a certain time. There can be no doubt that appellant could have agreed to submit all differences to an individual, not calling him a master in chancery, and could agree that it would abide by his decision. It would, in effect, be merely an agreement to arbitrate which would be binding on the parties. Any mode that parties may select to arbitrate their differences is approved by statute. Article 70, Rev. Stats.; Myers v. Easterwood, 60 Tex. 107. In the cited case a suit to settle title to land was pending between the parties, and they agreed that the land should be divided between them as one man, agreed upon, might determine, and the Supreme Court held that the action of the man was binding. The court said that:

While the arbitration was not a statutory one, “the award of the arbitrator is substantially the agreement of the parties, for they each empowered the arbitrator to ascertain and declare the terms of the agreement, and by his award, when fairly made, they ought to be as much bound as though they had made an agreement directly between themselves, embracing the terms of the award.”

That was said in a case in which there was no specific agreement to abide by the award if objections were not presented in a certain length of time, and the case is not near so strong as is this case. Fraud is not alleged, and no excuse offered for a failure to comply with the plain terms of the agreement. It is a solemn contract between the parties which is not condemned by any law, and the enforcement of which is approved and commended by equity and good conscience. The parties agreed that the report of the master in chancery should be final, and not subject to review by the court unless exceptions were duly taken before the master and then put in writing and filed in the court within 60 days after filing of- the report. No effort is made to excuse or justify a plain and open effort to breach a contract, but it is ignored by appellant, and the report attacked because it did not conform to the wishes and desires of appellant.

The contract was one not only between the parties, but their faith was pledged to the court, in order to hare the appointment of a master in chancery, that the parties would submit to the conditions and requirements embodied in the order. Without the enforcement of the agreement the appointment of a master would have been useless and futile, and the end desired, the avoidance of a long and complicated court trial, would be rendered absolutely nugatory and ineffectual. The enforcement of the agreement is not obnoxious to public policy and invades no public right, but is in the line of expediting judicial business and conserving the time and money of the state. The agreement involved the rights of the contracting parties, and affected the rights of no one else. There is nothing unfair or reprehensible in the contract, but it was entered into for the best objects and purposes, and it should be enforced. If there was any unfairness in the rulings or report of the master, exception should have been made at once. It took appellant over 3 months to discover any unfairness in the report.

We conclude, in the first place, that the appointment of the master in chancery by the district court was legal and proper, and, in the second place, that appellant, having agreed in open court to the appointment, together with all the conditions appended thereto, is bound by such conditions as it would be in any other fair contract. If it should be considered that no authority to appoint a master in chancery is vested in the district court, except in cases of receiver-ships, then we think the agreement made in open court to appoint a man with powers in regard to the controversy between the litigants would be binding upon the parties to the agreement, and its enforcement is just and proper.

The rule laid down in Ruling Case Daw, § 159, p. 752, is that it is permissible to submit to arbitration or other instruments to settle pending lawsuits or existing differences, but it is not permissible to agree in advance that in the event of differences arising in the future they will not resort to the courts for their settlement. That rule is supported by authorities. Myers v. Jenkins, 63 Ohio St. 101, 57 N. E. 1089, 81 Am. St. Rep. 613; Insurance Co. v. Hon, 66 Neb. 555, 92 N. W. 746, 60 L. R. A. 436, 103 Am. St. Rep. 725; State v. Timber Co., 106 La. 621, 31 South. 172, 87 Am. St. Rep. 309. As said in the Myers-Jenkins Case:

“After a right has accrued or an obligation has been incurred a party may waive his rights or refuse and neglect to enforce them, or he may by contract bind himself to submit the matter to arbitration or other special remedy. But a party cannot bind himself by contract in advance to renounce his right to appeal to the courts for the redress of wrongs.”

It is stated in 36 Cyc. pp. 1289-1291:

“That stipulations may be entered into concerning the trial or hearing generally, as to the time or place of trial, as to the verdict or finding, as to referring the cause, or compromising it in most, but not all jurisdictions, or the submission of issues to the court, as to instructions, as to judgment and enforcement thereof, as to staying execution, and as to review and appeal.”

In other words, wherever only private rights, and nothing of a public character, are involved, stipulations in pending suits will be enforced. In the case of Jones v. Boston Mill Corporation, 21 Mass. 507, 16 Am. Dec. 358, where the parties had agreed to submit a matter to referees, the court held in regard to the binding effect of the contract:

“It is virtually a contract to do what shall be awarded, and there does not seem to be any reason why it is not as much the subject of equity power as if the contract were complete without the interference of an arbitrator.”

That language is quoted and approved in Myers v. Easterwood, hereinbefore cited.

Although not incumbent upon this court to go into the facts, we have examined the same, and conclude that the findings of the master in chancery, which were made the basis of the judgment of the court, are fully sustained by the facts. The Orizaba ditch was completed before the construction contract was executed, but the ditch was an essential part of the drainage system and it was fully described in the plans and specifications. It became a necessary part of the work done for appellant. If it had not been completed before it would have been absolutely necessary for it to be constructed after the execution of the contract. Appellant will not be given the benefit of the ditch without paying for it, whether the engineer in charge reported it or not. The evidence shows, as found by the master in chancery, that it was in the contemplation of the parties to the construction contract that the Orizaba ditch, which had been previously excavated, should be estimated by the engineer “according to plans and specifications, in like manner as any other excavation done under the terms of this contract and this fact was a material consideration in the making of the contract.” No other reasonable construction can be placed upon the contract.

The court did not err in holding that appellant was bound by the agreement to submit the issues to the master in chancery, but if he had gone into the evidence he would, under the facts, have arrived at the same conclusion as did the master.

The judgment is affirmed.
      <&?>For oth-r oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    BEHYMER v. MOSHER MFG. CO.
    (No. 7669.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 10, 1917.
    Rehearing Denied March 17, 1917.)
    1. Negligence <&wkey; 142 — Special Finding as TO CONTRIBUTORY NEGLIGENCE — USE OE Word “Pboximately.”
    An affirmative answer by the jury to a special issue submitted, whether plaintiff’s contributory negligence “caused- or contributed to cause” injury, bars plaintiff’s recovery, although such special issue did not -use the word “proxi-mateiy” ; proximateness of the cause being necessarily implied.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 400-403.]
    2. Appeal and Error &wkey;>909(l) — Presumption.
    In action for personal injuries, where contributory negligence was pleaded as proximateiy causing the injury and judgment rendered for defendant upon answers to special issues, it will be presumed, in the absence of a statement of facts, that the fact that the contributory negligence of plaintiff proximateiy caused his injury was found by the court and supported by the evidence, although the jury did not necessarily find that plaintiff’s negligence was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3675.]
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Action by W. M. Behymer against the Mosher Manufacturing Company. Judgment for .defendant, and plaintiff brings error.
    Affirmed.
    W. I-I. Clark and John 'S. Fannin, both of Dallas, for plaintiff in error. Smith, Robertson & Robertson, of Dallas, for defendant in error.
   RAINEY, C. J.

Plaintiff in error sued defendant in error to recover damages for personal injuries, alleging in substance that he was run over by an employs of defendant in error, who was negligently and recklessly driving an automobile along a public street, while he was exercising proper care for his own safety; that said driver was engaged in defendant’s business, was negligent in not having said automobile under control, and was not using reasonable care, which negligence was the direct and proximate cause of plaintiff’s injuries; that said driver then and there saw and discovered the plaintiff crossing the street and realized his perilous situation in time to have prevented injuring him. Defendant answered by demurrers, general denial, but admitted it was a corporation; that the driver of said automobile was in its employ and was acting within the scope of his employment. It expressly denied each and every charge of negligence against it. It alleged that the automobile whs being run and operated in a careful manner, and that .plaintiff’s injury was caused by his own negligence, which was the direct and proximate cause of his injuries. The case was submitted to the jury on special issues and upon'the return of answers, to which the court rendered judgment for defendant, from which this appeal is taken.

There is no statement of facts, and this case will depend upon the face of the record, whether or not any error is shown in the trial of the case.

The plaintiff attacks the judgment rendered as not being justified from the answers returned by the jury to the issues submitted and presents the following proposition:

“The jury having specially found that the defendant’s negligence was the direct and proximate cause of the plaintiff’s injury, the liability of the defendant became thereby established, and, in the rendition of a judgment on the verdict, their answers to subsequent questions, which related solely to the defense of plaintiff’s contributory negligence, should not have been considered and should have been treated by the court as mere surplusage, 'and immaterial, in the rendition of a proper judgment -upon the verdict, in the absence of any finding of fact by the jury showing that plaintiff’s negligence proxi-mateiy contributed to his injury.”

The judgment shows that the issues submitted to the jury which are pertinent here are as follows:

“Question No. 1. Was the defendant’s servant, Grasty, negligent? Answer, ‘Yes,’ or, ‘No.’ Answer: ‘Yes.’
“If you have answered question No. 1, ‘No,’ then you need not answer this question; but if you have answered such question No. 1, ‘Yes,’ then you will answer this question : Question No. 1%. Was the negligence of the defendant’s servant, if any you have found, the direct and proximate cause of the injury to plaintiff, if any. Answer, ‘Yes,’ or, ‘No.’ Answer : ‘Yes.’
“Question No. 2. Was the plaintiff guilty of contributory negligence? Answer, ‘Yes,’ or ‘No.’ Answer: ‘Yes.’.
“If you have answered question No. 2, ‘No,’ then you need not answer this question; but if you have answered question No. 2, ‘Yes,’ then you will answer this question: Question No. 2(4. Did the contributory negligence of the plaintiff, if any you have found, cause pr contribute to cause the injury to the plaintiff? Answer, ‘Yes,’ or ‘No.’ Answer: ‘Yes.’ ” ■

The contention of plaintiff for a. reversal of this case is simply that the jury having found that defendant’s negligence was the direct and proximate cause of the plaintiff’s injury, and did not find that plaintiff’s negligence “proximateiy” contributed to his injury, judgment should be for plaintiff. We do not concur in this contention. The issue No. 2 y2 submitted did not use the word “proximateiy,” but the jury therein were asked, “Did the contributory negligence of the plaintiff, if any you have found, cause or contribute to cause the injury to the plaintiff?” which was answered,' “Yes.” This finding clearly includes that plaintiff’s negligence was the direct ánd proximate cause of his injury and precludes plaintiff’s recovery. Railway Co. v. Arnold, 87 S. W. 173; Railway Co. v. Vizard, 39 Tex. Civ App. 534, 88 S. W. 461; Ratteree v. Railway Co., 36 Tex. Civ. App. 197, 81 S. W. 567; Railway Co. v. Lester, 99 Tex. 214, 89 S. W. 754; Railway Co. v. Cotts, 95 S. W. 603.

In tlie case of Ratteree v. Railway Company, supra, it is said by Mr. Justice Fly:

“We cannot conceive of negligence that ‘caused or contributed’ to an injury not being such negligence as must have ‘proximately contributed' to the injury; but, however that may be, the courts of Texas have condemned charges that informed juries that contributory negligence which will defeat a recovery must proximately cause the injury”—citing Railway Co. v. Rowland, 90 Tex. 365, 38 S. W. 756, and other cases.

In Railway Co. v. I.ester, supra, the question of contributory negligence of plaintiff was being considered by the Supreme Court. Mr. Justice Brown, speaking for the court, said:

“It will be seen that this charge is negative and directs the jury to find for the defendant. It is correct in the conclusions stated, for, if the jury found that the act. done by the plaintiff was negligent, and that it contributed to his injury, they should have found for the defendant, as directed by the court.”

From. the authorities cited we conclude that the contention of plaintiff should be overruled.

But aside from the above holding, in the absence of a statement of facts, we will presume that the evidence was sufficient to justify the court in rendering a judgment for defendant. Contributory negligence was pleaded by defendant, and was pleaded as the proximate cause of the injury, and although, if the jury did not necessarily find that plaintiff’s act of negligence was the proximate cause, it will be presumed in support of the judgment that such fact was found by the court and supported by the evidence.

The judgment is affirmed.
      <gos>Eor other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    HOOVER et al. v. FIRST NAT. BANK OF PORT LAVACA, et al.
    (No. 5783.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1917.
    On Motion for Rehearing, March 17, 1917.)
    1. Attachment <&wkey;357 — Levy—Liability.
    An ordinary attachment levy upon real estate will not authorize recovery of damages, since any depreciation in the property’s value between the levy and release is not regarded as due to the attachment.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1307, 1309, 1310.]
    2. Attachment <&wkey;361 — Wrongful—Liability.
    An attachment, wrongfully levied upon real estate with knowledge that the owners were negotiating a sale thereof which they completed without knowledge of the levy, is actionable although the contract was not completed prior to the levy.
    [Ed. Note. — For other eases, see Attachment, Cent. Dig.' §§ 1315-1318.]
    3. Attachment <&wkey;375(3) — Wrongfuj>—Meas-ure of Damages.
    Where a wrongful attachment prevented real estate owners from consummating a sale, the measure of damages is the difference between the' contract price and the property’s market value when sold on mortgage foreclosure while the attachment was still in force.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1384.]
    4. Attachment <&wkey;373 — Wrongfui>-Suffi-cency of Pleading.
    In action for wrongful attachment, allegations that plaintiffs had arranged a sale to parties able to pay, for the land, and that the actual market value was much less when sold at a foreclosure sale, sufficiently alleged actionable damages as against a general demurrer.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1356-1362, 1395-1397.]
    5. Attachment <&wkey;373 — Wrongful—Pleading.
    In action for wrongful attachment, allegations that plaintiffs’ proposed sale of real estate was broken up by the attachment levy are Sufficient'despite the improbability of a trade for some $137,000 being interrupted by attachment for some $4,000, with large partial payments already made.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1356-1362,- 1395-1397.]
    6. Attachment <&wkey;373 — Wrongful—Pleading.
    In an action for wrongful attachment, allegations that plaintiffs had closed k contract for selling the real estate with the exception of consolidating several abstracts already approved by the purchaser, and that such consolidation would have been made, sufficiently showed performance of the contract. ,
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1356-1362, 1395-1397.]
    7. Attachment &wkey;>58 — Property Subject to —Equity in Real Estate.
    One not holding the legal title of real estate, but to whom the record owner has promised a portion of proceeds obtained from a proposed sale thereof, has an attachable interest in the property.
    [Ed. Note. — For other cáses, see Attachment, Cent. Dig. §§ 131, 149, 159.]
    8. Attachment <&wkey;373 — Wrongful—Pleading.
    In a wrongful attachment action, allegations that extension of a mortgage on plaintiffs’ property depended on closing a prospective sale sufficiently negatived the contention that the mortgage, and not the attachment, caused the sale’s failure.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1356-1362, 1395-1397.]
    9. Appeal and Error <&wkey;>231(2) — Exceptions —Sufficiency.
    A special exception from which it is impossible to tell what portions of the pleadings are objected to is too general for consideration.
    10. Attachment <f&wkey;373 — 'Wrongful—Pleading.
    In a wrongful attachment action, allegations that a prospective buyer had partly performed by assuming a debt and making part payments were proper as showing the terms and extent of compliance with the contract.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1356-1362, 1395-1397.]
    On Motion for Rehearing.
    11. Attachment <&wkey;373 — Wrongful—Pleading.
    In a wrongful attachment action, allegations that the attaching creditors’ statement that the debtor was about to dispose of his property with intent to defraud, etc., was false and known to be false is sufficient, although the pleadings established the property was to be disposed of without cash return.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1356-1362, 1395-1397.]
    12. Attachment &wkey;>357 — Wrongful—What Constitutes.
    An attachment may be wrongful if the grounds on which it is based are untrue, although defendant landowner owes a past-due debt.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1307, 1309, 1310.]
    13. Attachment <&wkey;373 — Wrongful—Pleading.
    In a wrongful attachment action for breaking up a proposed sale, allegations that the prospective purchaser was to give notes which he was able to pay, and that a mortgagee had agreed to extend his debt until such notes were due, allege damages with sufficient certainty. '
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1356-1362, 1395-1397.]
    Appeal from District Court, Calhoun County ; John M. Green, Judge.
    Action by the First National Bank of Port Lavaca, Tex., and others against A. J. Hoover and J. O'.' Hartzog. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded. Motion for rehearing overruled.
    S. S. Searcy, of San Antonio, for appellants. Wilson & Hamilton, of Port Lavaca, and Proctor, Yandenberge, Crain & Mitchell, of Victoria, for appellees.
   MOURSUND, J.

The First National Bank of Port Lavaca, Tex., on April 3, 1914, sued appellants, Hoover and Hartzog, for $4,209.91 upon their promissory note payable to plaintiff. Plaintiffs at the time of filing suit caused an attachment to be issued and levied upon 640 acres of land in Calhoun county belonging to Hoover. On July 21, 1914, plaintiff caused a second writ of attachment to be levied on about 6,000 acres of land. The ground alleged for said attachments was “that said defendants are about to dispose of their property with the intent to defraud their creditors, and that each of the defendants is about to dispose of his property with the intent to defraud his creditors.” The defendants admitted the execution of the note sued on, but by plea in reconvention alleged that the second attachment was wrongfully and maliciously sued out, and sought to recover actual damages against plaintiff and the sureties on the attachment bond, W. W. Noble and Willett Wilson, in the sums of $25,000 for Hartzog and $70,000 for Hoover, although the bond was only for $8,500, and exemplary damages as against plaintiff for $50,000. A general demurrer and eight special exceptions having been sustained to such plea in reconvention, defendants declined to amend, and the court rendered judgment for plaintiff upon his demand, and dismissed the plea in reconvention. Defendants appealed, and assign as error the rulings with respect to such plea in reconvention.

The allegations in said plea with reference to the wrongfulness of the issuance and levy of the attachment are sufficient.

Defendants alleged that they made a sale of 2,91514 acres of land decribed in the plea in reconvention, owned by them, to Oscar Lusk of Bell county. They allege, in substance, that defendant Hartzog was to receive from such sale stock in the National Equitable Society of Belton for $25,000, and that Hoover was to receive stock in said society in the sum of $53,700; that Hoover was to receive notes for $23,000, due September 1, 1915, secured by lien on 1,000 acres of the land, and a note for $22,819.80, due September 1, 1915, secured by lien on the other 1,915% acres of land; that Lusk was to assume the payment of $12,835.84 due on said 1,915% acres to George P. Brown; that notes for $10,000 due J. J. Welder, secured by the 1,000 acres, were to be paid off by Hoover out of proceeds derived from the collection of the $23,000 notes; that notes for $18,187.-25, due J. J. Welder, secured by lien on said 1,915 % acres of land, were to be paid off by Hoover; that all of the notes by Lusk were to be deposited in bank, under an agreement that the bank was to pay off out of the proceeds thereof, when collected, the notes due Welder, and that Welder had agreed, in case the sale to Lusk was consummated, he would extend his notes to September 1, 1915. It is alleged that deeds to Lusk were made; that notes were made by him and placed in bank, with the $53,700 stock which was to go to Hoover; that the $25,000 stock had been delivered to Hartzog, and that Lusk had made a deed of trust and note to Brown, who, in consideration thereof, had canceled his note and released his lien. It is further alleged that between the date of the delivery of the release by Brown and the recording of the deed of trust by Lusk to Brown the attachment complained of was levied upon the lands which Lusk was to receive. It is then alleged “that prior to July, 1914, when the sale above set out was made to said Lusk,” Hoover and Hartzog had been negotiating with Lusk for a sale of the land, and had furnished him abstracts of title thereto in different abstracts, which had been examined by Lusk’s attorney, and objections pointed out; that while these objections were being cured the sale had been consummated conditionally by the execution and delivery of deeds to Lusk; the execution of notes by Lusk “in accordance with said contract of sale, as above set out”; the delivery of the notes and the stock coming to Hoover under said contract of sale to the Victoria National Bank under the agreement above mentioned providing for payment of the Welder notes; and further providing that the stock to Hoover was to remain in possession of the bank until the different abstracts of title had been made into one abstract and delivered to Lusk for final acceptance; that all objections to the title had been cured to the satisfaction of Lusk’s attorney, and the only thing remaining to be done was to bring the several abstracts into one abstract and deliver it to Lusk for a final and complete consummation of said sale; that in accordance with such understanding, about August 20, 1914, Hoover requested the Calhoun' County Abstract Company, which had made the abstracts, to make one abstract for all of said property by compiling all of the abstracts into one; that up to October 27, 1914, said abstract had not been delivered to Hoover.

The attachment complained of was issued July 21, 1914, and levied on July 29, 1914. Defendants alleged that they had no knowledge of the issuance and levy of said attachment until the- day of October, 1914; that Hoover was preparing to extend until September 1, 1915, a debt due the Victoria Loan Company secured by lien upon other lands than those conveyed to Lusk, when on the-day of-, 1914 he was served with citation in a suit filed by said company, and was advised by said company that it was “forced to bring said suit, said indebtedness being past due and arrangements for an extension not having been made, because of the attachment liens filed against said land by the plaintiff bank. It was alleged that on account of failure to consummate the sale to Lusk, Hoover was unable to extend said indebtedness to September 1, 1915, and to keep said lands from being sold by said company, and lost an equity therein of $19,000. They alleged that on October 28, 1914, Lusk advised them by letter that he had received information of the levy of the attachment, and that such levy was made before he received the deeds, and for that reason he demanded a rescission of the trade and return of the stock and notes which were given in part payment for the lands; that defendants endeavored to induce Lusk to go on with said trade, but he refused to do so, and declared same canceled and at an end, and defendants were forced to return to him the notes and stock actually delivered in part payment for the land. They further alleged that they endeavored to arrange for money necessary to release the attachment, but were unable to do so owing to stringency in the money market due to low price of cotton and European war, and were unable to replevy the property; that about the-time the sale to Lusk was broken up war was declared in Europe, the price of cotton declined, and said land depreciated in value to the extent of $20 per acre. They then alleged diligent but unsuccessful efforts to sell the land; the sale thereof by Welder under his deed of trust in May, 1915, and that the land failed to bring the amount of Welder’s debt; depreciation in value at the time of such sale to the extent of $20 per acre below the reasonable market price at the time of the sale to Lusk, and at which it was alleged the sale was made to Lusk. It was further alleged that Lusk is a man of means, and was amply able to deliver the stock in said society and to pay off and satisfy at maturity the notes executed by him, and would have done so but for the levy of the writ of attachment; that the stock in said society “was, at the time it was delivered to defendants, and still is, reasonably worth par.” It was further alleged that plaintiffs at the time they caused the attachment to be levied knew, or by the exercise of reasonable diligence would have known, that defendants were negotiating for a sale of said land to Lusk, and that same was about to be consummated, and cause said attachment to be issued and levied for the purpose of breaking up said trade.

It is well settled that an ordinary levy upon real estate will not authorize the recovery of damages, the theory being that if any depreciation occurs between date of levy and date of release of attachment, such depreciation is not caused by the attachment proceedings. In the case of Trawick v. Martin-Brown Co., 79 Tex. 460, 14 S. W. 564, a judgment sustaining a general demurrer to a plea in reconvene on was affirmed, in which plea it was alleged, in addition to many other things, that the defendant “lost and was damaged $1,000 by being prevented from selling his real estate.” The court said:

“It is true that it is alleged that the levy prevented the defendant from making a sale of the real estate levied upon. Ordinarily, as we take it, where the defendant, as in this case, owes the debt for which he is sued, a levy upon real estate can have no such effect. If he can find a purchaser he can pay the debt, as he ought to do, and discharge the lien. However, we do not wish to be understood as holding that in no case can a levy of an attachment upon real estate cause damages recoverable in law. An advantageous bargain already agreed upon might be defeated by the wrongful levy of an attachment, and direct loss might result to the owner from subsequent depreciation in the value of the property. We are not prepared to hold that in such a case the loss might not be recovered. The allegation in this case is that by reason Of the levy upon defendant’s real estate ‘he was, and has been ever since, hindered and prevented from selling the same, or any part thereof, and liquidating his debts with the proceeds thereof, which he could and would have done had not said attachments been levied thereon as aforesaid, to his damage $1,000.’ He does not allege that he had an opportunity to sell, and that the sale was defeated by the levy of the attachment, and that the property has depreciated in value since that time.”

It was held that if there be no pending trade at the time the attachment was levied, a trade subsequently negotiated would be insufficient as a basis for damages. Drew v. Ellis, 6 Tex. Civ. App. 507, 26 S. W. 95. However, it was not alleged in that case that negotiations had been begun before the levy, and that such fact was known to the attaching creditor, and that the negotiations culminated in a trade while the levy was in force. In this ease it is impossible to tell from the allegations whether the contract or trade was made prior to the levy of the attachment or afterwards, but it is alleged that plaintiff had knowledge that' the trade was about to be made, and if it was made after the levy, the allegations show that it was made without knowledge, upon the part of defendants or Lusk of the levy having been made. We believe that in such a case the rule would be the same as if a contract had already been entered into.

Defendants undertake to allege facts showing that they suffered damages, but the allegations are vague and indefinite, and fail to disclose any definite idea as to the measure of damages intended to be relied upon. It has.been-held that the measure of damages is the difference between what the debt- or would have received had his trade not been broken off and the value of the land immediately after the attachment was released. Nixon v. Bank, 60 Tex. Civ. App. 7, 127 S. W. 882, This holding was evidently made-with the view of complying with the intimations in several cases that the loss by depreciation occurring after the breaking up of a trade would be directly caused by the levy of the attachment. See Girard v. Moore, 86 Tex. 675, 26 S. W. 945; Tillman v. Wetsel, 31 S. W. 433. In accordance with these intimations and the holding so made it appears that in this case the measure of damages would be the difference between' the value of what the defendants would have received had the trade been consummated and the market -value of the land at the time it was sold by Welder under his deed of trust, the plea in reconvention disclosing that the attachments had not been released or quashed at that time.

It is alleged that the stock, which was of the par value of $78,700, and to be accepted for said amount by defendants, was at the time it was delivered to defendants, and still is “reasonably worth par.” It was also alleged that Lusk is a man of means, and was amply able to deliver said stock and pay off said notes made by him at their maturity. It was also alleged that at the time Welder caused the land to be sold it was worth $20 per acre less than its reasonable market price at the time the sale to Lusk was made and at which it was sold to Lusk. These allegations, in connection- with the statements as to damages suffered by each, we think were sufficient as against a general demurrer to show that defendants suffered damages such as are collectible under our decisions. Poster v. Bennett, 152 S. W. 233.

We are also of the opinion that as against a general demurrer the allegations sufficiently show that the trade was broken up by Lusk on account of the levy of the attachment. The allegations must be taken as true regardless of the improbability of a trade for about $137,000 being broken up by an attachment for about $4,200 when the sellers had already received $25,000 worth of valuable stock and were to receive about $53,-000 more in stock, all of which could be devoted to raising the necessary $4,200. By special exceptions the defendants should be required to allege specifically the terms of their contract with Lusk, in order that the rights of the parties with respect thereto may be seen.

The so-called special exceptions sustained by the court were, in the main, general demurrers.

The first and third exceptions need not be discussed, as they are disposed of by what we have said above.

By the second exception it is contended that defendants have not alleged facts showing that they, or either of them, ever complied with the terms of their sale to Lusk or placed themselves in a position or had the right to demand a compliance by Lusk with the terms of any such sale. This contention, we presume, is the same as was made in aid of the demurrer, namely, that the combining of the various abstracts had to be completed before they could demand that Lusk close the trade. It was alleged that this was being done; that the contents had already been approved in separate abstracts, and that such abstract would have ■ been furnished and the trade closed had it not been for the levy of the attachment. Such allegations were sufficient as against the exception.

The fourth exception was as follows:

“And, further specially demurring to the said plea, the First National Bank and W. O. Noble and Willett Wilson say the same is insufficient, particularly as to J. O. Hartzog, because by the allegations thereof no enforceable- agreement or contract is alleged connecting him with the title to any part or portion of the lands alleged to have been sold to Lusk, and said pleading* fails to connect said J. O. Hartzog in any manner with title to said lands, or any of them, and to show any title or right of action in him as against the said bank, Noble and Wilson, or either of them.”

While it is alleged in general terms that Hartzog and Hoover owned the lands, further on in the petition Hartzog’s connection with the transaction is explained as follows: That, prior to the sale to Lusk, Hoover had conveyed to Hartzog 960 acres of land, in part consideration for which Hartzog gave notes to Hoover for $20,300, on which at the time of the transaction with Lusk there was due the sum of $23,000; that Hoover had also, prior to the sale to Lusk, conveyed to Harry McEverly 1,000 acres of the lands included in the sale to Lusk; that Hartzog, in consideration of the cancellation of the notes due by him to Hoover, conveyed to McEverly, on July 6, 1914, the 960 acres, and in consideration thereof McEverly conveyed to Hoover the 1,000 acres owned by him. It is then explained that under such agreement Hoover was to deed Hartzog the 1,000 acres received from McEverly, but the deed was not executed because under the trade with Lusk it was agreed between Hoover and Hartzog that the 1,000 acres should be conveyed to Lusk by Hoover, and Hartzog was to receive $25,000 in stock while Hoovei would receive notes from Busk for $23,000. By this complicated transaction it appears that Hoover canceled $23,000 worth of notes due him by Hartzog on the 960 acres, and was to receive $23,000 worth of notes by Lusk out of which he was to pay off $10,000 due Welder on the 1,000 acres, and that Hart-zos, for his equity in the 1,000 acres, was to receive $25,000 in stock. It was alleged that the deeds were filed prior to the levy of the attachment complained of, so it is evident that Hartzog, at that time, was not the record owner of any of the land, but had an agreement with Hoover to receive $25,000 for his equity in the 1,000 acres. This is further shown by the fact that the deeds to Lusk were all executed by Hoover.

Defendants levied upon such interest in the lands as both Hartzog and Hoover had, and we believe the levy attached to Hart-zog’s equitable interest therein. The case of Chase v. York Savings Bank, 89 Tex. 316, 36 S. W. 406, 32 L. R. A. 785, 59 Am. St. Rep. 48, differs materially from this one. In fact, while we find no Texas case directly in point, the expressions in the Chase Case and the cases therein discussed, as well as in the case of O’Neal v. Clymer, 61 S. W. 545, lead us to the conclusion that there is no merit in defendant’s contention that Hartzog had no interest subject to attachment.

The ninth exception was also without merit. It was not alleged that the trade with Lusk depended upon a binding contract with Welder to extend his notes, but that the extension of Welder’s notes depended on the consummation of the trade with Lusk. This was sufficient to negative the idea that Welder’s debt was the real cause of the trade being broken off. No damages are sought because Welder foreclosed. His foreclosure is material for the purpose of explaining when and how defendants parted with the title to the land.

The eleventh special exception was entirely too general to require consideration, for it is impossible to tell what portions of the pleading are objected to. However, in appellee’s statement, we find that the allegations held in view by them were those relating to the Brown transaction and the one to the effect that $25,000 worth of stock had been delivered to Hartzog and returned to Lusk after the sale was broken off. The assumption of the Brown debt was part of the consideration to be paid by Lusk, and the allegations were proper to show the contract and to what extent it had been executed. The allegation with regard to delivery and return of stock was also proper.

All assignments are sustained; the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

We did not state the allegations charging that the attachment was wrongful, as we did not think any issue could be raised in regard to their sufficiency. ■ Defendants alleged that the statement that they were about to dispose of their property with intent to defraud their creditors was false, and that plaintiffs knew it was false. Appellees contend in their motion that the, pleadings show the absolute truth of the grounds set out, basing the contention on the fact that no cash was to be received from Lusk and no preparations are alleged to have been made to settle plaintiffs’ debt. In passing on a general demurrer, we must take the allegations as true, and indulge every reasonable intendment in favor of their sufficiency. The matters relied upon do not show the falsity of the unequivocal allegation relating to the want of ground for issuance of attachment.

Appellees also contend that we erred in holding that, even though no ■ contract had been completed for the sale to Lusk when the levy was made, the averments were sufficient. In the case of Wetsel v. Tillman, 3 Tex. Civ. App. 559, 22 S. W. 980, cited by appellees in their motion for rehearing, the levy was made on January 4, 1889, and the opportunity to sell was alleged to have come on March 1, 1889. Plaintiff alleged his damages as the difference between what he could have sold the land for on March 1, 1889, and the value of the land at the time the attachment was released. Chief Justice Tarlton held that the petition contained averments of special damages recoverable under the rule laid down in Trawick v. Martin-Brown Co., 79 Tex. 460, 14 S. W. 564, and remanded the cause for a trial. Upon a second appeal of said case 31 S. W. 433, the judgment in favor of plaintiff was reversed on account of the admission of certain evidence, and Judge Stephens said:

“It may be that appellee should also have gone further, and shown that appellant, in procuring and retaining his attachment on the property, under the circumstances, had, at least through his agent or attorney, such knowledge, actual or constructive, of the peculiar situation relied on by appellee for recovery, as to bring the damaging result reasonably within contemplation.”

The question so stated was not decided, nor do we find any case in which it is decided, and in passing on the cross-action in this case it need not be decided, for defendants fully covered this point in their pleadings. It is very clear that the decisions in said case are to the effect that there need not be a binding contract for the sale of the land in existence at the time the levy is made. The facts alleged in this case are even stronger, for it is alleged that negotiations wei*e pending at the time the levy was made, and that plaintiffs knew of such fact, and also that after defendants received actual notice of the levy they endeavored to arrange for the money necessary to release the attachment, but after diligent efforts were unable to do so by reason of the stringency in the money market on " account of the European .war, and were unable, to replevy the property, not feeing in a position to furnish the -necessary security- to obtain the proper sureties on a replevy bond.

Appellees also virtually contend that if the owner of the land owes the debt and it is due, an attachment levied thereon cannot be wrongful, no matter • how untrue the grounds on which it is based. This contention is without merit, and we need only refer to the case of Trawiek v. Brown, supra, cited by appellees, to destroy the contention. In that case the court held- that the attachment was wrongful, and sustained the demurrer only because Of failure to show damages proximately caused by the levy. In the case of Drew v. Ellis, 6 Tex. Civ. App. 507, 26 S. W. 95, there are certain expressions tending to sustain appellees’ theory, if it be not borne in mind that the court was passing on a fact case, and not on averments being tested by a general demurrer. The court distinguished the case from the Wetsel v. Tillman Case on the ground that Ellis owed the money, and then proceeded to state that Ellis, who was shown to have large means, should have paid off the debt and released the attachment which rested on the land for some months before any offer was made. The opinion does not disclose the pleadings in the case, so we cannot say whether Drew pleaded that Ellis, although able to do so, negligently failed to prevent or minimize damages, or- whether the court was of the opinion that this could be shown, although not pleaded, and that the fact that Ellis was amply able to pay the debt and thus prevent the damage incident to the loss of the sale would preclude him from charging sucb loss to the levy of the attachment. But the facts proved in that case are very different from those alleged in this case, which must be taken as true in passing on the general demurrer. The decision of the Drew-Ellis Case was correct, regardless of whether it is or is not the duty of the owner to take such steps as are within his power to prevent damages, for the facts proved wholly failed to show that the trade would have been made.

We are unable to find any basis for ap-pellees’ statement that the “sale of the land to Lusk included the land levied on by the first writ of attachment.” It is allowed that the first attachment was levied upon subdivisions 12, 13, 14, and 16 of survey 1 of L. A. Gueringer’s surveys, and we fail to find these subdivisions mentioned in the list of the lands alleged to have been sold to Lusk. The argument, therefore, that “if appellants’ contention is correct, the levy of the first writ of attachment would have prevented the sale to Lusk” is without merit, being based upon an erroneous assumption in regard to the pleadings.

It is contended that as the suit was filed on November 3, 1914, and the notes of Lusk were'to be placed in the bank until September 1, 1915, at which time Welder was to be paid out of the proceeds, defendants could not recover unless it was shown that Lusk would have been able to pay his notes and thus pay Welder. It' is alleged that Welder agreed to extend his debt to September 1, 1915, and that Lusk was a man of means and amply able to pay off and satisfy the notes éxecuted by him. It was also alleged that the stock was reasonably worth par value. These allegations must be taken as true, and,'when so-taken, it appears that the damages are alleged with reasonable certainty.

Appellees again contend that Hartzog had .no such interest or estate in the 1,000 acres of land as would be liable to execution, and cite the cases of Moses v. Tucker, 87 Tex. 94, 26 S. W. 1044, and Boone v. Bank, 17 Tex. Civ. App. 365, 43 S. W. 594. In the first-named case, the rule is stated that no property or interest therein is subject to execution or like process unless the debtor, if sui 'juris, has power to pass title to such property or interest in property by his own act. We cannot agree with the contention that Hartzog could not pass title by his own act to his interest in the 1,000 acres which Lusk was to convey him. His ownership was in the nature of a resulting trust, but that would not prevent him from conveying his interest. If the attachment had been rightfully levied and we were called upon to say whether plaintiffs acquired a lien on the interests of both Lusk and Hartzog on the 1,000 acres, we feel that we would be compelled to say that the lien covered the interest that each of them held, and that a purchase under foreclosure would take the title from any equities in favor of Hartzog.

The motion for rehearing is overruled.
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