author: CARL, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. MOSES.

    (No. 5607.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 23, 1916.
    Rehearing Denied March 22, 1916.)
    1. Appeal and Error &wkey;3994(2) — Review-Questions of Fact.
    In a railway employe’s action for injuries, where there was testimony to support the allegations that bolts in the bolsters of a car were improperly placed, or had become loose so as to slip down and catch on the lower beam or bolster holding the trucks rigid so they would not adjust themselves to curves, but would run off the track, it was for the jury, and not for an appellate court, to pass upon the credibility of the witnesses testifying to this effect.
    [Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. §§ 3902, 3903; Dec. Dig. &wkey; 094(2).]
    2. Master and Servant &wkey;>lll(l) — Liability for Injuries — “Defect” in Appliances.
    Where bolts in the bolsters of a railway car were improperly placed, or had become loose so as to slip down and catch on a lower beam or bolster, making the trucks rigid so that they ¶ ould not adjust themselves to curves, and causing them to leave the track, the rigidity so caused was a “defect” in the car.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 215; Dec. Dig. <&wkey;> 111(1).
    For other definitions, see Words and Phrases, First and Second Series, Defect.]
    3. Master and Servant &wkey;>124(10) — Liability for Injuries — Negligent Inspection.
    It was not the law that a railway company was not liable for injuries to an employé caused by a derailment, if its inspectors who inspected the train failed to discover the defect in the car, causing the derailment, though the car was not its own, and the court properly refused to so charge, as a railroad company has no more right to endanger the lives and limbs of its employés with defective foreign rolling stock than with its own when using such foreign cars.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 242; Dec. Dig. &wkey;> 124(10).]
    4. Tut at. <&wkey;>260(l) — INSTRUCTIONS Covered by Those Given.
    • A requested instruction, fully covered in one given, was properly refused, especially where the one given came nearer being the law than the one refused.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 651; Dec. Dig. &wkey;260(l).]
    6. Trial <&wkey;194(l) — Instructions—Weight qe Evidence.
    A requested instruction, which was on the weight of the evidence, was properly refused.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 418, 436, 439, 440, 450; Dec. Dig. &wkey; 194(1).]
    Appeal from District Court, Bexar County; .R. B. Minor, Judge.
    Action by A. N. Moses against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appéals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed W. Smith, all of San Antonio, for appellant. D. Pred Worth and John Sehorn, both of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   CARL, J.

Appellee sued appellant for personal injuries inflicted on him by reason of the derailment of a car, No. 127, belonging to the Lone Star Brewing Association. The. derailment occurred on the switch or track which runs from appellant’s east yards in the city of San Antonio to the brewery between Burleson and Lamar streets. The alleged defects in the car and grounds of negligence will fairly appear from the following paragraph, No. 4, of the plaintiff’s petition:

“That the bolster, trucks, center bearings, side •bearings, wheels, axles and all the running gear of said car were out of order and defective, and would not operate and perform the functions of said parts and running gear properly, and by reason of the said defective condition of the said parts and the running gear the trucks of the said car would not operate so as to permit the wheels of said car to follow and remain on the rails, but the said trucks of the said car were caught and held too rigidly, and as a consequence thereof the wheels of said trucks were prevented from adjusting themselves to suit the different conditions and changes in the curvature and elevation of the track, rails, and switches at the point where the said derailment occurred, and were prevented from following and remaining on the rails, and the said wheels were thereby caused to leave the rails and become derailed; that the defendant was negligent in permitting this condition, and in operating said car while in such defective condition, which said negligence caused, and directly contributed to produce and cause said derailment and plaintiff’s injuries. Plaintiff alleges that he cannot more specifically describe the defects which caused the said derailment than as above set out.”

The petition charges that within a day or so before this accident this car was derailed, which was notice to appellant of its defective condition, and, notwithstanding such notice, appellant continued to operate said car. An ordinance of the city of San Antonio was pleaded which prohibits the running of cars to exceed 10 miles per hour, and it is alleged that this train was being operated at 15 to 17 miles per hour, at the time of the derailment, in violation of such city ordinance. Plaintiff alleges that he was on top of said car at the time of the derailment, and was thrown and caused to fall with great violence upon and about the top of said car and against the running board, and his back, sides, spine, and spinal cord were severely shocked and injured; that his nervous system suffered shock and injury; that by reason thereof his heart action had been greatly impaired and made weak; that his kidneys and Madder and vocal organs were seriously affected; and his general health and physical condition have been permanently impaired and broken down, etc. The petition avers that the plaintiff cannot more specifically set forth the defects in the ear, but that such facts are peculiarly within the knowledge of the defendant company. His injuries are alleged to be permanent. The defendant, among other things, alleges that the injuries were the result simply of an accident; that the defects in the car, if any, were latent, and proper inspection had been made, all of which was denied by appellee. The verdict rendered by the jury was for $8,000, and judgment was in accbrd therewith.

The first assignment of error is that the verdict is contrary to the law and the evidence, it being set out in detail wherein' appellant contends that this is true. In a large part of the statement and in the argument, appellant seeks to show that the evidence produced by appellee is untrue; but the fact remains that there is testimony to support the allegations of the petition, certainly on the proposition that the bolts in the bolsters were improperly placed or had become loose so as to permit them to slip down and catch on the lower beam or bolster. And the evidence is that when this happened such bolts would hold the trucks rigid so that they would not turn and adjust themselves to the curve in the track. Instead of adjusting themselves to the curve of the track, the trucks remained straight, and therefore would run off the track. There seems to be little or no difference of opinion that this would be the natural result, the only difference being, on that point, as to whether the bolts were properly in place. Not only the plaintiff, but. another witness, testified that these bolts were not in place. It is true that there was much testimony to the contrary; but appellant must know that it is not the function of this court to pass upon the credibility of witnesses, when by law that duty is placed upon juries. The first assignment is overruled.

We do not think that the fourth paragraph of the court’s charge is subject to the criticism urged. As we understand the objection, it is based upon the idea that the rigidity caused by the bolts dropping down was not a defect in the car. We have already held, in substance, that such was a defect in the car, in G., H. & S. A. Ry. Co. v. Webb, 182 S. W. 424, recently decided by us and not yet officially reported, in which case the injuries grew out of the same derailment. The evidence supports the finding that the defect in the bolsters caused the injury. The second assignment is overruled, as is also the third.

There was no error in the court refusing to give appellant’s requested special charge No. 7, because to have given the same would have been equivalent to charging the jury that if there were defects in the car which were not actually discovered by appellant’s inspectors, the verdict should be for defendant. The suggested charge starts out on the hypothesis that the inspectors were not required to inspect the car at all; but in fact they say they did inspect the whole train of about nine cars in about 80 minutes. Then the proposed charge concludes:

“And, even if you should find that there was a defect in the construction of this car in respect to the side bearings in question, and that this was the cause of the alleged derailment, but that such defect was not noticed or observed by defendant’s said inspectors, then olaintiff is not entitled to recover, and you should return a verdict for the defendant.”

We do not understand this to be the law. A railroad company has no more right to endanger the lives and limbs of its employés with defective foreign rolling stock than it has with its own, when it is using such foreign cars. The fourth assignment is overruled.

The duty of inspection was fully covered in the fifth paragraph of the charge given, and in special charge No. 12, so far as it was necessary to charge on that subject, and it was not error to refuse to give appellant’s special charge No. 8, requested. It was not the law. The fifth and sixth assignments are overruled.

The matter asked for in the defendant’s requested special charge No. 10 was fully covered in appellant’s special charge No. 12, which was given, and the one so given came nearer being the law than the one refused did. The seventh assignment is overruled, and the eighth as well.

The ninth assignment complains of the refusal by the court to give appellant’s requested special charge No. 13, which is subject to the objection, heretofore mentioned, that it assumes that the trucks becoming rigid would not constitute a defect. The requested charge was on the weight of the evidence. The assignment is overruled.

There is sufficient evidence to sustain the verdict, which, considering plaintiffs testimony and that of the medical fraternity participating in the trial, we cannot say is excessive.

Judgment affirmed.
      <gs»For other oases see same.topie and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    KANSAS CITY, M. & O. RY. CO. v. HANSARD.
    (No. 931.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 23, 1916.
    Rehearing Denied March 15, 1916.)
    1. Carriers &wkey;>22S(l) — Live Stock — Burden OF PROOF — REASONABLENESS OF Stipulation— Notice.
    In an action for damages to a shipment of live stock the carrier has the burden of proving that a stipulation in a written contract for carriage that notice of injury must be given in one day before the cattle were removed from the place of delivery at destination was reasonable under the facts of the particular shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957, 958; Dee. Dig. &wkey;228(l).]
    2. Carriers i&wkey;218(l) — Live Stock — Stipulation — Reasonableness.
    A provision in a written contract for the carriage of live stock that a suit for injury must be brought within 91 days after the alleged injury, or else the action should be barred, is not unreasonable or invalid.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 933-935, 939; Dee. Dig. &wkey;218(l).]
    3. Carriers <&wkey;218(5) — Live Stock — Limitation of Liability — Consideration.
    A stipulation in a written contract for the carriage of live stock that a suit for damages must be brought within 91 days would not be binding if there was no consideration therefor; and where an oral, contract, binding the carrier, had been previously made, a subsequent written contract would be without consideration. ■
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696; Dec. Dig. &wkey;218(5).]
    4. Carriers &wkey;>207(2) — ^Interstate Shipment —Oral Contract.
    An interstate shipment of live stock may be made on an oral contract.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. &wkey;207.(2).]
    Appeal from Hardeman County Court; D. E. Magee, Judge.
    Action by T. M. Hansard against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    L. W. Allred, of Chillicothe, and H. S. Garrett, of San Angeló, for appellant. Marshal) & Perkins, of Quanah, for appellee.
   HUFF, C. J.

The appellee, Hansard, sued the railway company, in the county court, for alleged damage to a shipment of cattle, from Chillicothe, Tex., to Wichita, Kan., with the usual allegations of delay and rough handling, remaining on side tracks, and consequent skinning, bruising, resulting in ' damages to the appellee. The railway company answered at length, principally setting up a written contract, which required notice to be given in 1 -day before the cattle were removed from the place of delivery at destination, and also requiring suit to be brought within 91 days after the alleged injury or the cause of action would be barred, and certain other provisions of the contract not necessary to set out. The appellee replied the cattle were not shipped on this written contract; that previous to signing the written contract he had theretofore entered into a lawful verbal contract with the railroad to transport the cattle from Chillicothe to Wichita, and under the oral agreement had contracted for the cars, which were furnished, the cattle loaded into the cars, and the railroad had accepted the cattle for transportation, and they were then on the track ready for shipment when the written instrument was presented for the signature of the shipper; that it was signed without reading, and that he did not have time to read it and could not read it because of so much fine print, and that he understood that it was only intended as a return pass for the caretakers of the cattle, and that there was no consideration for the written contract or the provisions set up. The jury found substantially that these allegations were true, and that there was no consideration for the written contract In addition to the findings of the jury, the trial court also finds that there was no consideration for the written contract, and that the cattle were shipped on the oral contract set up.

This case turns on a question of law alone; that is, whether an interstate shipment may be made on a verbal contract. All of appellant’s assignments go to that point, which assignments are presented by motions to strike out testimony, exceptions to testimony and to render a verdict oh the written contract, etc. There is no assignment, however, calling in question the sufficiency of the evidence to establish a verbal contract of shipment. It may be stated that the railway company entered into a verbal contract to furnish cars for the carriage of the cattle from Chil-licothe, Tex., to Wichita, Kan., and under such contract the cattle were delivered to the railroad and loaded into the cars, and after they were loaded and just before they started on the trip, the agent of the railway presented a written contract to be signed by the shipper, who did not read it, and he testified he did not have time to do so, but signed it believing that it was only a contract for return trip pass, and not the contract for the shipment of the cattle, with the provisions set up as to the limitation of his right to sue,, as pleaded by appellant. This writing contains a stipulation that notice must be given of the injury, in one day after the cattle arrite at their destination, etc., and also if suit was not brought in 91 days after the injury received by the cattle, the cause of action should thereafter be barred.

On the first ground in the contract, this court, by a majority opinion, held the burden was on the carrier to allege and prove the stipulation for 1 day’s notice reasonable under the facts of the particular shipment. Railway Co. v. Whaley, 177 S. W. 543; Railway Co. v. Dalton, 177 S. W. 556. This court is not convinced beyond a reasonable doubt of the correctness of the position there taken, as .will be evidenced by the vigorous dissenting opinion of Judge Hendricks, but nevertheless, it will be regarded as the rule of construction by this court until corrected by the higher courts, if error.

The United States Supreme Court, in the case of Railway Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690, in passing on a provision in almost the exact language of the 91-day clause pleaded in this case, said:

“But there is nothing in the policy or object of the statute which prohibits parties to an agreement to provide a shorter period, provided the time is not unreasonably short. That is a question of law for the determination of the court. Such stipulations have been sustained in insurance policies,” etc.

Again:

“The provision requiring a suit to be brought within 90 days is not unreasonable.”

In support of the proposition announced in that case that court cited a Texas case (McCarty v. Railway Co., 79 Tex. 33, 15 S. W. 164), which was rendered prior to our present statute with reference to contracts of this kind. It appears from appellee’s brief that, owing to the case of Railway Co. v. Word, 159 S. W. 375, he was compelled to do unnecessary work in procuring the trial court to find there was no consideration for this provision. This court simply announced in that case what the Supreme Court had held, and our duty in such cases. The case of Railway Co. v. Scott, 156 S. W. on pages 296, 297, cited by appellee and relied on by him, also recognized that the Supreme Court of the United States holds such provision valid. The trial court in this case held the 91-day clause without consideration, as the jury also found. If there was no consideration for the written contract as we held in the Word Case, and in others, it .would not be binding. If a lawful contract binding the railway company to transport the cattle had been previously made, then the contract in question was without consideration. If there was no lawful contract so made, the stipulation pleaded in this case would be binding, and would constitute part of the contract of shipment, and in such case the trial court should instruct a verdict for the railway.

This court, however, is committed to the proposition that an interstate shipment may be made on oral contract, and if such a contract is executed before the delivery of the written, with a provision such as here sot up, and which is contrary to the oral contract agreed upon and stipulated for, such provision would be without consideration and could not be enforced. Such is the holding of this court, and .whether we were right or wrong, as we now consider the matter, it will require the holding of the Supreme Court to the contrary, in order to change the ruling. Railway Co. v. Stinson, 181 S. W. 526; Railway Co. v. Jones, 182 S. W. 1 (not yet officially reported). In the two eases named, various authorities are collated in support of the proposition necessary to the conclusion there reached. This case falls under the rule established by this court as to such contracts, and the verdict and judgment in the trial court, establishing that an oral contract was entered into previous to the written contract pleaded by appellant, and without the stipulations set up by the appellant as contained in the writing, will require an overruling of all the assignments presented by appellant in this case.

The case will therefore be affirmed.
      &wkey;5Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    McAMIS v. GULF, C. & S. F. RY. CO.
    (No. 7618.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 12, 1916.
    Rehearing Denied March 25, 1916.)
    1. Eminent Domain &wkey;>243(2) — Condemnation— Effect of.
    As under Rev. St. 1911, art. 6518, the only issue in a proceeding by a railway company to condemn land is the damages which will be sustained by the owner and the benefits which will result to the remainder of the land, the fact that a railroad company condemned land intending to use the property condemned as a channel for a water course which it was about to divert, will not prevent the owner of the land from enjoining an unlawful diversion.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig'. §§ 627, 700; Dec. Dig. <&wkey;> 243(2).]
    2. Waters and Water Courses &wkey;>78 — Diversion-Right to Diversion.
    A railroad company cannot divert a water course which drained plaintiff’s land in such a manner as to impound surplus waters on plaintiff’s property. Acts 34th Leg. (1st Called Sess.) c. 7, specifically prohibiting such diversion.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 67-69; Dec. Dig. <&wkey;>78.]
    3. Injunction <&wkey;146 — Proceedings — Temporary Injunction.
    Under Rev. St. 1911, art. 4649, declaring that no injunction shall be granted unless the applicant shall present ids petition verified by his affidavit, a temporary injunction may be granted on a verified petition alleging facts sufficient to warrant issuance despite defendant’s general denial, which denial was re-established by Acts 34th Leg. (1st Called Sess.) c. 7, for, except upon final hearing for perpetual injunction, the bill when properly verified may be used as an affidavit, and when so verified may be sufficient basis for the issuance of a temporary injunction unless the facts averred are controverted by other facts set up by verified answer.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 319; Dec. Dig. <S&wkey;146.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by J. K. McAmis against the Gulf, Colorado & Santa Fé Railway Company. From a judgment denying temporary injunction, plaintiff appeals.
    Reversed and remanded.
    A. S. Baskett, of Dallas, for appellant. Terry, Cavin & Mills, of Galveston, E. M. Browder, of Dallas, and Lee, Lomax & Smith, of 1ft. Worth, for appellee.
   RASBURY, J.

This is an appeal from the judgment of the trial court refusing appellant a preliminary or interlocutory injunction. The application was submitted on sworn pleading, neither party tendering any evidence, and for that reason it is necessary to deduce from the pleading the facts alleged by both parties.

The essential facts alleged by appellant and upon which he based his application, stated in our own language, are in substance, as follows: The appellant owns certain pasture land contiguous to Rowlett creels in Dallas county at a point where appellee’s line of railway crosses appellant’s land and said Rowlett creels by means of a trestle. At this point the configuration of the ground is such as to afford a natural drainage, in time of heavy rains and consequent overflows of Rowlett creek, away from appellant’s land, with which natural drainage appellee’s trestle does not interfere. Shortly before the commencement of this suit appellee filled in under one end of its trestle with earth for a distance of about 264 feet. The result was that the water which formerly flowed under the trestle, following the natural drainage, was permanently impounded at said point, due to the fact that the earth’s surface was higher at the end of the fill than at the point where the surface water was so impounded. For the purpose of discharging the waters thus impounded, appellee was preparing to dig a ditch of considerable size parallel with said fill, beginning at the point and place where it had impounded the surface water, and thence from said point to the end of the fill and under the trestle, and thence following the fill back to a point opposite the point where the water was impounded on the other side. Appellee intended to dig said ditch upon appellant’s lands contiguous and adjacent to its right of way, using for that purpose a strip 25 feet wide and 264 feet long. The impounding and diversion of the water in the manner proposed would in time of heavy rains cause the surface waters to overflow and remain upon appellant’s land, instead of flowing away from same as it does under present conditions, for a time sufficient to kill appellant’s grass, and cut his land in washouts or excavations, resulting from the increased bulk of water thrown upon appellant’s land. Upon the facts stated, appellant prayed that appellee be restrained from constructing the proposed ditch so as to discharge the said overflow waters upon his lands, and from digging same upon his lands. Appellant’s suit was commenced September 24, 1914, and tlie petition was verified in the manner provided by statute.

The record does not contain appellee’s original answer, which was filed October 10, 1914, but does contain its amended original answer which was filed October 30, 1915. The answer, in addition to tendering the general demurrer and general denial, discloses the following facts: Subsequent to the commencement of appellant’s suit and the coming in of appellee’s original answer and a hearing, appellee, in the exercise of the power of eminent domain conferred upon it, filed with the judge of the county court of Dallas county at law its petition to condemn the strip of land which it proposed to use over appellant’s land for the purpose alleged. Commissioners were appointed, notice was issued, and appellant appeared and the commissioners condemned the land to appellee’s use and assessed the damages. Appellant, not being satisfied with the damages awarded, filed his opposition thereto in the c-ounty court at law, which opposition was undetermined at the time of the hearing on appellant’s application for preliminary injunction. Desiring to enter upon and take possession of the land awarded it by the commissioners pending determination of the opposition, appellee deposited in court the amount of the award, paid all costs, and executed the bond and made the additional deposit provided for in such cases. Appellee desired the strip of land so condemned for the reason that its use was essential to the proper drainage of defendant’s dump and right of way, and to prevent damage to its dump, track, and adjacent land. The pleading was not sworn to, but counsel for appellant, on submission, stated in open court that verification was waived, and requested this court to consider the pleading from that standpoint, which he will do.

The application, as we have said, was denied, the court basing its judgment, as shown by the recitations thereof, on the ground that the issuance of the injunction would in the opinion of the court, “materially interfere with and defeat the rights of the defendant under the condemnation proceedings in the county court of Dallas county at law as set up in said first amended original answer.”

Appellant has not favored us with briefs, but his counsel argued, on submission, on his behalf, in effect, that conceding, as he did, that the condemnation proceedings eliminated the issue of appellee’s right to dig the ditch upon appellant’s land, he was .entitled nevertheless to the relief prayed for on the ground that the other facts alleged by him established prima facie that appellee was about to divert the natural drainage of the waters of Rowlett creek, and that such diversion would cause appellant irreparable injury. Counsel 'for appellee, who has filed briefs, argues' that the ground upon which the court based its judgment is correct. In short, that to restrain appellee from diverting the waters in the manner proposed would be to destroy or suspend the power of eminent domain, conferred upon it by the Constitution and statutes, and by authority of which it acquired the land of appellant.

We will discuss appellee’s contention first. As we understand the several statutory provisions under which appellee condemned appellant’s property, their effect is only to confer upon railroads the power of eminent domain, ordinarily the attribute of tlie sovereignty, on the theory that such power will promote the general welfare. We also understand that when land is appropriated in the exercise of suc-h power it must nevertheless be used in a lawful manner and for a lawful purpose. Such conclusions are obviously correct when certain provisions of the act conferring the power are considered. The only issue according to the statutes to be considered in such proceeding is “the damages which will be sustained by the owner,” and “the benefits that will result to the remainder” of the land (article 6518, R. S. 1911), save as that issue may be modified by article 6519, 6520, or 6521, as the case may be. In Gregory v. Gulf & I. Ry. Co., 21 Tex. Civ. App. 598, 54 S. W. 617, it was ruled that the owner could not in condemnation proceedings recover damages resulting from depredations of stock due to the failure of the company to build cattle guards and fence its right of way, since the inquiry in such cases is limited to the provisions of the statute quoted above. In Kirby v. Panhandle & G. Ry. Co., 39 Tex. Civ. App. 252, 88 S. W. 281, in point here, it was also ruled that damages to the owners of grain caused by an overflow due to the defective construction of the railroad company’s embankment were not recoverable in condemnation proceedings. Such issue it was said “is independent of and should not be confounded with a condemnation proceeding.” Thus it is quite clear that appellant was not precluded by the condemnation suit from proceeding against appellee for injunction, but that he could not have urged such remedy in the condemnation proceeding had he attempted to do so; and from which it follows also that the injunction proceeding, so long as it did not attempt to prevent appellee from acquiring the land, in no way tended to destroy or suspend that right.

We now come to the question of whether appellant was entitled to a preliminary injunction on the facts alleged in his petition therefor. It is probable in such connection that the trial court never considered that precise question after he concluded the condemnation proceedings were a bar, in any event, to the issuance of the writ. In fact the judgment of the court recites as much, as we have shown at another place in this opinion. We conclude, with the issue upon which the writ was refused eliminated, that the. pleading when presented to the court disclosed a state of facts which, in the absence of other proof, entitled appellant to the preliminary writ. The facts dedncible from the petition, as we have shown, disclosed that appellee was about to divert the natural flow of surface waters, now prohibited by statutory enactment (Gen. Laws 1915, 1st Call. Sess. 34th Leg. 17), so as to discharge same upon appellant’s land, and that such diversion would irreparably damage appellant’s grass and land. Such verified allegations of fact on preliminary hearing, in the absence of an answer, affidavits, or oral testimony, controverting same, are sufficient basis for the issuance of the writ. The rule is thus stated:

“Except on final hearing for a perpetual injunction the bill or complaint itself, when properly verified, may be used as an affidavit as to the facts properly stated therein, and frequently the bill alone, when so verified, may be a sufficient basis for the issuance of a temporary injunction if it contains allegations of fact sufficient, if taken as true (as they will be before answer), to authorize the issuance of an injunction. * * * 22 Cyc. 942.

The rule is recognized by statute in this state. Article 4649, R. S. 1911. The only attempt to controvert the facts related in the petition, other than the condemnation proceedings tendered in avoidance, was the general denial. This plea was, we believe, insufficient, notwithstanding it was sworn to. While the effect of the general denial, which was re-established in our practice by the Thirty-Fourth Legislature, is to put plaintiff upon proof of every fact essential to his case, the sworn petition has that effect, since it is to be received and considered by the court as an affidavit, and being so considered, it proves the facts alleged. Accordingly, the defendant cannot rely on such denial, but is required to go further and state facts which disprove those stated by the plaintiff, or which will avoid the effect of those so stated. An accepted authority states the rule to be that:

“Upon an application for preliminary injunction, defendant may at once file his answer which must be considered and given its proper effect in deciding as to the propriety of issuing a temporary injunction. If properly verified it must be given effect as an affidavit of and for defendant. On motion for an injunction made on bill and answer, statements made under oath in the answer, where responsive to the bill, will be taken as true, and if in such answer under oath the facts constituting the claim of the complainant for the interposition of the court are controverted by defendant,. the court will not generally interfere but will deny the injunction.” 22 Cyc. 945, 946.

The submission by the parties of the case upon the sworn pleading is quite similar to the case of the coming in of the defendant’s answer on motion to dissolve injunction issued upon ex parte hearing. In that character of case the rule, which we think applicable here, is that:

“When the sworn answer fully and unequivocally denies all the material allegations of the bill upon which complainant’s equity rests, the injunction will he dissolved. This rule, however, requires positive averments in the answer and not merely general allegations of denial based on information and belief. The denial must he of the same positive character as the averments in the bill on which the complainant’s equities are based. Nor will an answer suffice where it is not fully responsive to the bill.” Dawson v. Baldridge, 55 Tex. Civ. App. 125. 118 S. W. 593.

For the reasons indicated the judgment Of the court below is reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.
      <©=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    BOGATA MERCANTILE CO. v. OUTCAULT ADVERTISING CO.
    (No. 1528.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 13, 1916.)
    1. Commerce <&wkey;16 — “Interstate Commerce” —Application of State Laws.
    Where a mercantile corporation in Texas signed an order directing an advertising corporation in Chicago to ship certain advertising cuts and type, the transaction was interstate commerce, and not subject to the anti-trust laws of Texas.
    [Ed. Note. — For other eases, see Commerce, Gent. Dig. § 2; Dec. Dig. <&wkey;>16.
    For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    2. Contracts <&wkey;22(l) — Countermanding Order after Acceptance — Effect.
    Where defendant signed an order, directing plaintiff to ship it certain advertising cuts and type, defendant’s acceptance of the order completed the contract between the parties, and the subsequent countermanding of the order did not relieve defendant of the legal consequences of its breach of contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 90, 107; Dec. Dig. &wkey;22(l).]
    3. Contracts <&wkey;312(2) — Breach—Exclusive Privileges.
    Where a contract by which plaintiff agreed to furnish defendant certain advertising service, consisting of certain advertising cuts and type, provided that defendant was to have the exclusive right to use such service in its city, plaintiff .did not break the contract by furnishing another party in the same city a diffei-ent advertising service.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1279%; Dee. Dig. <@=3312(2).]
    4. Damages <&wkey;163(2) — Mitigation of Damages — Burden of Proof.
    An order, signed by defendant, for certain advertising cuts and type, provided that defendant was to hold the type and cuts, subject to plaintiff’s order, when the contract expired. Defendant countermanded the order, and plaintiff sued for the amount agreed to he paid. There was evidence warranting the inference that the advertising material prepared for defendant could be used only by it, and would have been of no value to any one else, and that it had been fully prepared before plaintiff’s receipt of the letter countermanding the order. Held, that the contract was not one for the sale of the material, but for its hire to defendant, and it appeared prima facie that plaintiff’s damage was the sum defendant agreed to. pay for the use thereof, and the burden was on defendant to show that plaintiff might have pursued a course which would have mitigated the damages.
    [Ed. Note. — For other cases, see Damages, .Cent. Dig. §§ 456, 457; Dec.- Digú &wkey;163(2).f

      Appeal from Red River County Court; George Morrison, Judge.
    Action by tlie Outcault Advertising Company against the Bogata Mercantile Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Appellant, a Texas corporation, carried on its mercantile business at Bogata, in this state. Appellee, an Illinois corporation, carried on its advertising business at Chicago, in that state. September 24, 1913, appellant, through one of appellee’s traveling agents in this state, sent it an order as follows:
    “Order No. 151.
    “To Outcault Advertising Co., 508 S. Dearborn St., Chicago, Ill.:
    “Date Sept. 24, 1913.
    “Ship us, at our expense, as per samples shown you, Outcault Service De Luxe to cover a of one year, beginning Oct. 10, 1913. This service to consist of
    “40 Outcault Service De Luxe (4 Column) cuts.
    “12 Outcault Service De Luxe (6 Column) cuts.
    “One font of type. (9 lbs. in font).
    “We agree to pay you net cash monthly, at the rate of $3.50' per week, for one year, we to have exclusive right to use the above Outcault Service De Luxe in our city only, and to hold type and cuts subject to your order when this contract expires.
    “Failure to pay any installment when due renders full amount of this contract due.
    “This contract cannot be canceled. Ship all at one time if possible.
    “Lines of goods we carry,
    “Fill in ‘Yes’ or ‘No.’
    “Dry Goods, Yes. Millinery, Yes.
    “Ladies’ Made Wear, Yes.
    “White Goods Sale When? -.
    “Fur Sale When? No.
    “Anniversary Sale When? Sept.
    “Men’s Clothing, Yes.
    “Men’s Shoes, Yes.
    “Ladies’ Shoes, Yes.
    “Furniture, No. Groceries, Yes.
    “Rugs, Yes. Carpets, No.
    “M. O. Cuts, Yes.
    “Bogata Mercantile Co.,
    “Per B. C. Peyton, “[write plainly.]
    . “Town, Bogata.
    “State, Tex.
    “J. M. Wyatt, Salesman.”
    The order was received and accepted by appellee on September 27, 1913. On that day appellant telegraphed appellee as follows:
    “Withhold shipment adv. matter. Will advise by letter”
    —and on the same day wrote appellee as follows:
    “Bogata, Texas, 9/27, 1913.
    “Outcault Adv. Co., Chicago. — Gentlemen: We wired you to-day:
    “ ‘Withhold shipment of adv. matter. Want to make change.’ Which we now confirm.
    “Owing to the limited circulation of our little paper here we have decided that your proposition is too large for us. We realize the importance of advertising, and are now, and intend to contribute to adv., yet your proposition is too large for us. Consequently we would ask that you cancel our order. It is quite probable that we will take up your line for the fall of 1914.
    “Yours, Bogata Mercantile Co.,
    “Per B. C. Peyton.”
    The telegram was received by appellee the day it was sent, but, as found by the court, after appellee had received and accepted the order. The letter was not received by appel-lee until September 29, 1913. Appellant’s president, Peyton, testified:
    “Mr. Wyatt, salesman for the Outcault Advertising Company, came into the store of his own accord and'told me about this advertising. I didn’t know what the Outcault Service De Luxe was, but Mr. Wyatt explained that they would furnish special cuts and special advertising matter for our store, and that the cuts would have to be fixed with our name and address, and picture cuts specially designed for us would be furnished each week, 52 of them. I understand from Mr. Wyatt that this material would have to be specially prepared for our use after our order was accepted by the company. I don’t know how long it would take!”
    The witness Pladden, who seems to have been the manager of appellee’s business at Chicago, testified:
    “We kept no record of when the goods in question on this contract were manufactured, and consequently I cannot recall the exact dat-ings and cannot give them and cannot say what of_them were manufactured prior to September 27, 1913, and what prior to receipt by our company of letter from the Bogata Mercantile Company dated September 27, 1913.”
    Part of the material constituting the advertising service appellant contracted for was shipped to it by appellee October 2, 1913, and the remainder thereof October 3, 1913. Appellant declined to receive either shipment, claiming that it had countermanded the order therefor by its telegram and letter of September 27, 1913, and that it therefore was not liable to appellee on the contract, and, further claiming it was not liable because, it alleged: (1) The contract was in violation of the antitrust law of this state, in that it was for an exclusive right to use appellee’s advertising “service de luxe” ; and (2) was first breached by appellee, in that it entered into a similar contract with the Bogata Drug Company on or about September 24, 1913. Appellee thereupon commenced this suit in a justice court. On appeal to the county court judgment was rendered in appellee’s favor against appellant for $182, the sum sued for, and appellant appealed.
    Long & Wortham, of Paris, for appellant. Austin S. Dodd, of Clarksville, for appellee.
   WILLSON, C. J.

(after stating the facts as above).

The transaction between appellant and appellee evidenced by the contract was interstate commerce, and hence not subject to the anti-trust laws of this state. Albertype Co. v. Gust Feist Co., 102 Tex. 219, 114 S. W. 791; Eclipse Paint & Mfg. Co. v. New Process Roofing & Supply Co., 55 Tex. Civ. App. 553, 120 S. W. 532; Moroney Hardware Co. v. Goodwin Pottery Co., 120 S. W. 1088; McCall Co. v. Stiff Dry Goods Co., 142 S. W. 661; Koch Vegetable Tea Co. v. Malone, 163 S. W. 663. Therefore the first and second assignments are overruled.

There was evidence to support the finding involved in the judgment that appellee had received and accepted appellant’s order at the time it received the latter’s telegram of September 27, 1913. If, therefore, that telegram should be construed as one countermanding the order — and we think it should not be so construed — it did not have the effect appellant claims it had. Appellee’s acceptance of the order completed the contract between the parties, and countermanding the order thereafterwards did not relieve appellant of the consequences the law attached to its breach of its contract. Therefore the fourth assignment is overruled.

There was testimony to support a finding that the “little druggist advertising service,” which appellee bound itself to furnish to the Bogata Drug Company, was not the same as the “service de luxe,” which it hound itself to furnish to appellant. Therefore the fifth assignment, in which appellant complains that it appeared that appellee violated its contract with it by entering into a similar one with the Bogata Drug Company, is overruled.

What has been said disposes of all the assignments except the third, in support of which appellant contends that the measure of appellee’s damages was not the sum it agreed to pay for the use of the advertising material, as determined by the court, but was the difference between that sum and the value of the material in the condition it was in at the time the order for same was countermanded. The fair inference from the testimony of the witness Hadden, set out in the statement above, was that appellee had done all it was to do to prepare the material for the use appellant was to make of same before it received appellant’s letter of September 27, 1913, countermanding the order. The fair inference from the testimony of the witness Peyton was that the material as so prepared could have been used only by appellant for advertising purposes, and therefore was of no value for such purposes to any one else. Therefore, it seems to us, it prima facie appeared that appellee was entitled to recover as damages for the breach by appellant of its contract the sum it had agreed to pay for the use of the material. The contract was not one for the sale of the material, as appellant treats it. It was for the hire thereof to appellant for a period of one year. What appellant was entitled to was the use of the material during that period. What appellee was entitled to was the material at the expiration of that period and the sum appellant agreed to pay for its use to that time. As appellee was entitled to the material after it had been used by appellant during the time agreed upon, it prima facie appeared, we think, that what it lost as a result of appellant’s refusal to receive and use the material as agreed upon was the sum appellant undertook by its contract to pay for the use' thereof. It so' appearing, 'as we understand the rule, the burden was on appellant to show, and it did not, that, when it breached the contract appellee might have pursued, but did not, a course which would have mitigated the damage it suffered. Jefferson & N. W. Ry. Co. v. Dresson, 43 Tex. Civ. App. 282, 96 S. W. 63; Porter v. Burkett, 65 Tex. 383.

The judgment is affirmed.
      <§r»For other oases s&e same topic and KEY-NUMBÉK in all Key-Numbered Digests and Indexes


text:
    WESTERN UNION TELEGRAPH CO. v. WINTER.
    (No. 1571.)

    (Court of Civil Appeals of Texas. Texarkana.
    March 1, 1916.
    Rehearing Denied March 16, 1916.)
    1. Telegraphs and Telephones <&wkey;3S(6) — Delay in Delivery — Contents op Message —Notice to Company.
    A telegram worded as follows: “Houston, Texas, July 2, 1914. Geo. W. Winter, Bonham, Texas. Gabe died Chicago this morning. Arrangements later. [Signed] Francis” — which was not promptly delivered, charged the telegraph company with notice that Gabe Winter had died in Chicago; that funeral arrangements were yet to be made; that he was the brother of addressee; and that addressee would probably desire to attend the funeral.
    [Ed. Note. — For other cases, see Telegraphs and Telephones; Cent.' Dig. § 33; Dec. Dig. <&wkey;> 38(6).]
    2. Telegraphs and Telephones <&wkey;38(6)— Delay in Delivery — Liability—Knowledge of Facts.
    The delay in delivering such message rendered the telegraph company liable for damages resulting from the addressee’s failure to attend the funeral, notwithstanding the company’s lack of knowledge of the place where the funeral would be held.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. <&wkey; 38(6).]
    3. Telegraphs and Telephones <&wkey;49 — Damages — Subsequent Telegram.
    A telegraph company which failed to deliver promptly a message announcing the death of addressee’s brother is not relieved from liability for damages resulting from his failure to attend the funeral by its prompt delivery of a subsequent message for addressee giving the place and time of the funeral to the person in whose care it was sent, by whom it was not communicated to addressee until too late, since, if the person to whom it was delivered could be considered addressee’s agent, it could only be for the purpose of delivering the message to him, and her knowledge of its contents could not be imputed to him so as to make his failure to attend the funeral negligence.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. <&wkey;49.]
    4. Telegraphs and Telephones <&wkey;37(2)— Delivery — Care op Another Person.
    Where a telegram is addressed to a person in care of another, delivery by the company to the other relieves the company from- all liability.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 29, 32; Dec. Dig. &wkey;37(2).]
    Appeal from District Court, Fannin County ; Ben H. Denton, Judge.

      Action by George W. Winter against tbe Western Union Telegraph Company. Judgment for tbe plaintiff, and defendant appeals.
    Affirmed.
    Appellee’s brother, Gabe Winter, resided in Waco, Tex., but on July 2, 1914, died in a sanitarium at Chicago, Ill. On the morning of that day Erancis Winter, another brother to appellee, delivered to appellant at Houston, Tex., for transmission to appellee at Bonham, Tex., where he resided, a telegram as follows:
    “Houston, Texas, July 2, 1914. Geo._ W. Winter, Bonham, Texas. Gabe died Chicago this morning. Arrangements later. [Signed] Erancis.”
    The message was promptly transmitted to Bonham, but it was not delivered to appellee until Sunday morning, July 5th. In the meantime, to wit, at 4 o’clock on the afternoon of Saturday, July 4th, the remains of appellee’s brother Gabe, having been removed to Waco, were there interred. This suit was by appellee to recover damages resulting to him, as he alleged, from negligence of appellant in failing to promptly deliver to him the message set out above. The appeal is from a judgment in his favor for the sum of $500.
    Hamp P. Abney, of Sherman, and Erancis R. Stark and Albert T. Benedict, both of New York City, for appellant. Cunningham & McMahon, of Bonham, for appellee.

      Application for writ of error pending in Supreme Court.

   WILLSON, C. J.

(after stating the facts as above).

The language of the message, which was set out in full in the petition, charged appellant with notice of facts as follows:

(1) That Gabe Winter had just died in Chicago.

(2) That arrangements had not been, but would be, made for interring his remains.

(3) That he was appellee’s brother.

(4) That in all probability appellee would desire to attend the funeral when it occurred. Tel. Co. v. Carter, 85 Tex. 580, 22 S. W. 961, 34 Am. St. Rep. 826.

Notwithstanding it thus appeared that appellant had notice of such facts, and notwithstanding allegations showing that appellee could and would have ascertained when and where the remains were to be interred, and could and would have attended the funeral at Waco had the telegram been delivered to him promptly, appellant insists that the petition did not state a cause of action against it, because it did not appear therefrom that it had notice of the fact that the burial would be at Waco. Western Union Tel. Co. v. Kuykendall, 99 Tex. 323, 89 S. W. 965, and Western Union Tel. Co. v. Ayers, 41 Tex. Civ. App. 627, 93 S. W. 199, are cited as supporting the contention.

In the Kuykendall Case it appeared from the petition that the plaintiff’s wife’s brother died at Hollis, O. T., December 18th, and was buried in the family burying ground at Tow Valley, Tex., December 21st. The plaintiff, with his wife, lived eight or ten miles from Kingsland, near Tow Valley. The message, which was not delivered until 6 o’clock p. m. December 19th, was as follows:

“Hollis, O. T., 11/18/03. Mrs. Myrtle Kuykendall, Kingsland, Texas. Will Arant died this a. m. Will be at Lampasas to-morrow evening the 19th day. [Signed] Walker Arant.”

It was not alleged that the defendant had notice of any other facts than those disclosed by the language of the message. The Supreme Court held that the petition did not show liability on the part of the defendant for damages to the plaintiff’s wife due to the fact that, because the message was not promptly delivered, she did not have an opportunity to prepare for the interment of her brother’s remains or to attend the funeral. The court said:

“One would naturally expect the deceased person would be buried in the vicinity of his residence, where he died. The phrase ‘will be at Lampasas to-morrow evening the 19th day’ clearly means that the sender, Walker Arant, would be at Lampasas at the time named; but there is nothing- in the terms of the message to indicate that he would carry the body of the deceased with him. Neither did the message give notice to the telegraph company that the deceased would be buried in the family burying ground, near the home of the sister, nor of any facts or circumstances which would make it necessary for her to make preparation to receive the body or to enable her to attend the funeral.”

The Ayers Case was not different from the Kuykendall Case in any material respect, and was held by the Court of Civil Appeals to be ruled by it.

In both of those cases there was an absence of anything in the message which could' be construed as notice to th-e telegraph company that the funeral might not be at the place where the deceased died. In this ease appellant knew from the face of the message delivered to it that arrangements for the funeral had not been, but were to be, made, and we think it might reasonably have contemplated that the arrangements when made would provide for the funeral to be elsewhere than in Chicago. Moreover, we think appjellant might and should have contemplated that appellee, on receipt of the message, if promptly delivered to him, could and would, as he testified he could and would, have ascertained what the arrangements, when made, were, in time to have attended the funeral at Waco.

The case is more like Smith v. Tel. Co., 104 Tex. 171, 133 S. W. 1041, 135 S. W. 1147, than it is like those cited by appellant. In that case it appeared that it was understood between plaintiff’s wife and one Thatcher that, if her brother, David Terry, who was sick at Belton, should die, he (Thatcher) would advise her of the fact and arrange for the burial in the family burial ground at Houston. The message was as follows:

“Belton, Texas, November 25, 1904. Mrs. J. Mayrant Smith, care Oriental Oil Company, Dallas, Texas. Dave died this morning three o’clock. Will make all arrangements. [Signed] Wm, Thatcher.”

The Court of Civil Appeals held that:

There was “nothing in the telegram that can be held to give notice to the telegraph company that the remains would be carried to Houston for burial, and therefore it cannot be said that the damages resulting to Mrs. Smith in not being notified in time to attend the funeral at Houston were contemplated by the company at the time the contract to transmit and deliver the message was entered into.” Postal Tel. Cable Co. of Texas v. Smith, 124 S. W. 733.

And on authority of the Kuykendall Case it reversed the judgment in Smith’s favor. The Supreme Court, having granted a writ of error, reached a contrary conclusion, and in distinguishing the case from Tel. Co. v. Kuykendall, supra, said:

“In the present case the place of the burial had been fixed, and all due arrangements in respect thereto provided for, all of which was well understood and known to the addressee of the message. These were not matters as to which she needed information or as to which the message was intended to give information. The important fact intended to be conveyed to her, and which alone, as she avers, was necessary to enable her to attend the funeral of her brother, was the fact of his death. This information was, by the negligence of the company, withheld from her. The nature of the telegram was such as to visit it with notice of the fact that she might, and probably would, wish to attend the burial whenever it might be. Nor can her right to recover be defeated because notice of the place of the funeral was not given in it.”

The difference between the Smith Case and this one lies in the fact alone that there, had the message been delivered to the addressee, she would have known, not when, but where, the funeral would occur; while here, had the message been delivered to appellee, he would not have known when nor where the remains of his brother would be interred. But in each of the cases the important fact intended to be conveyed to the addressee by the message was the death of the party named therein. As Mrs. Smith, had the message been promptly delivered to her, could have ascertained when the funeral would occur, so appellee, had the message to him been promptly delivered, could and would, he alleged, have ascertained when and where his brother’s remains would be interred, and have been present at the funeral. So far as the language of the message in the Smith Case is concerned, it was not materially different from that in the message to appellee, and it did not advise the defendant in that case of any fact not disclosed to appellant by the message in question here. We think the petition stated a cause of action, and it was not error to overrule the demurrer.

Appellant alleged and proved that on Friday, July 3, 1914, appellee’s brother Francis delivered to it at Waco a message to appellee at Honey Grove, as follows:

“Waco, Texas, 7/3/14. Geo. W. Winter, care Miss MeNew, Honey Grove, Texas. Join Annie Dallas morning Katy. Gabe interred Saturday 4 o'clock. [Signed] Francis.”

And he further alleged and proved that the Miss McNew, to whose care the message was addressed, was appellee’s sister-in-law, and that it promptly transmitted and delivered the message to her at Honey Grove. It appeared from the testimony that appellee was not, in fact, advised of the contents of this message until Sunday morning, July 5th; but it further appeared that, had Miss Mc-New acted diligently, the contents thereof could have been communicated to him in time to have enabled him to be present at his brother’s funeral.

Appellant insists that the delivery of this message to Miss McNew was, in legal effect, a delivery thereof to appellee, and that he was chargeable with knowledge of its contents at the' time it was delivered to Miss MeNew. On this theory appellant urges that it appeared as a matter of law that appellee’s failure to act on the information contained in this telegram, and not its negligence in failing to promptly deliver the telegram of July 2d, was the proximate cause of his failure to attend his brother’s funeral, and therefore that the court erred when he refused to peremptorily instruct the jury to find in its favor.

It is true that appellant fully discharged the duty it owed to appellee with reference to the telegram of July 3d when it promptly transmitted and delivered same to Miss McNew. Tel. Co. v. Young, 77 Tex. 245,13 S. W. 985, 19 Am. St. Rep. 751.' Had appellee’s suit been predicated on that telegram, it must have failed; for it would have appeared that appellant had fully discharged the obligation it incurred when it accepted same for transmission and delivery. But appellee’s suit was not predicated on any act or omission on the part of appellant with reference to that telegram, but on its negligence in failing to promptly deliver the telegram of July 2d. It is, of course, true that, had it appeared that the contents of the telegram sent to Miss McNew’s care were communicated to appellee in time to have enabled him to attend the funeral, he should not have been heard to complain because of appellant’s negligent delay in delivering the other telegram; for it would then have appeared that his own negligence, and not appellant’s, was the proximate cause of his absence from the funeral. But it conclusively appeared that the contents of the telegram to Miss McNew’s care were not communicated to appellee until Sunday, after the funeral on Saturday. Certainly appellee was not negligent in fact in failing to act on information which had not been communicated to him at the time he must have acted to avoid the injury he suffered; and we do not think it should be held that he was negligent in law on the theory that Miss McNew’s knowledge is imputed to him. We know of no principle of law which operated to charge appellee with knowledge of the contents of the telegram possessed by Miss MeNew. If she was Ms agent, she was not so because of any act of his, and was so for the sole purpose of receiving that telegram when it was tendered to her, and delivering same to him. Knowledge on her part of the contents thereof, in any event, could he imputed to him only so far as it might affect rights asserted by him with respect to that telegram.

The judgment is affirmed.

       other eases see same topic and KEY-NUMBBR in all Key-Numbered Digests and Indexes


author: LAN®, J.

text:
    COLLIN COUNTY NAT. BANK et al. v. SATTERWHITE.
    (No. 7144.)
    (Court of Civil Appeals of Texas. Galveston.
    March 13, 1916.)
    1. Carriers <@=>58 — Bill oe Lading — Trans-fer — Evidence.
    Where a bank purchased a seller’s bill of lading with draft attached, but on refusal of the buyer to accept the goods the seller gave its check to the bank for the amount of the draft, held, on the evidence, that at the time of a levy on the goods as the property of the seller the title was in the seller, and not in the bank.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. <@=58.]
    2. Execution <@=>90 — Form — Omission oe WORD.
    Execution issued out of the county court of Houston county directing the officer making the levy to make return “Before said court at the courthouse thereof in Houston within 60 days,” etc., was not void for the omission of the word “County” after “Houston.”
    [Ed. Note. — For other cases, see Execution, Cent. Dig. § 185; Dec. Dig. <@=>90. ]
    3. Execution <@=>182 — Claims by Third Persons — Attack upon Validity.
    A claimant in execution cannot without pleading or proof attack the validity of the execution.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. § 547; Dec. Dig. <@=>182.]
    Appeal from District Court, Houston County; John S. Prince, Judge.
    Suit by B. L. Satterwhite against the Collin County National Bank and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Nunn & Nunn, of Crockett, for appellants. Aldrich & Crook and Adams & Young, all of Crockett, for appellee.
   LAN®, J.

At and prior to the time of the institution of this suit appellee, B. L. Sat-terwhite, had and owned a valid and subsisting judgment rendered by the county court of Houston county against Brown Grain Company, a firm composed of E. P. and O. V. Brown, of Collin county, Tex.; that on the 31st day of October, 1913, execution was issued upon said judgment, and on the same day was levied on one car of oats in Houston county as the property of Brown Grain Company. Thereafter the appellant Collin County National Bank of McKinney, Tex., filed i^s claimant’s oath and bond, claiming said oats as its property, and by virtue of such bond the officer who levied said execution delivered said oats to said bank.

Issues were joined between the appellee, Satterwhite, as plaintiff, claiming under said levy of execution, and said bank, as defendant, claiming by virtue of an alleged purchase from said Brown Grain Company prior to said levy of execution. The issues thus joined were submitted to the trial court without a jury, who, after having heard the evidence, rendered judgment in favor of appel-lee, B. L. Satterwhite, against the Collin County National Bank, as principal, and H. F. Moore and Arch Baker, as sureties, on said claimant’s bond, for the sum of $359.56, together with 6 per cent, per annum interest thereon from date of judgment. Said judgment provided that the same might be satisfied by a return of the said car of oats to the officer within ten days from date of judgment. From this judgment Collin County National Bank, H. F. Moore, and Arch Baker have appealed.

Appellants’ first assignment of error is as follows:

“The coui’t erred in its finding of fact, which is as follows: ‘I find that at the time of the levy the car of grain was the property of the Brown Grain Company, defendants in the judgment hereinbefore referred to, and not the property of the Collin County National Bank,’ because the undisputed evidence shows that the title to said car of grain [which was oats) had passed out of the Brown Grain Company and was vested in the Collin County National Bank at the time of such levy, and there was no evidence upon which to base such finding.”

The undisputed evidence shows that the Brown Grain Company shipped the car of oats in question to Crockett, Tex., consigned to Edmiston Bros.; that they drew a' draft on Edmiston Bros, for the purchase price of said car of oats, and attached the same to the bill of lading and sold said draft with bill of lading attached to the appellant bank; that, when said car of oats reached Crockett, Edmiston Bros, refused to receive the oats and pay the draft; that upon notice of such refusal the Brown Grain Company gave said bank its check for the amount of the original draft, and the same, with the bill of lading attached, were retransferred to and delivered to said Brown Grain Company; that thereafter Brown Grain Company directed the railway company to forward the car of oats to Sequoyah, Tex., consigned to 'Thompson Bros. Lumber Company. The following testimony shows substantially the disputed facts upon which the court rendered judgment:

Appellants’ witness J. W. Ashley, cashier for appellant bank, testified on cross-examination as follows:

“It is a fact that, when the car of oats arrived at Crockett, Tex., Edmiston Bros, refused to accept the car. This car was diverted to Sequoyah, Tex., to Thompson Bros. Lumber Company, and a draft with bill of lading attached was made on Thompson Bros. Lumber Company by tho Brown Grain Company, and was purchased by the Collin County National Bank and sent out by said bank as a cash item; the proceeds of the draft haying been passed to the credit of the Brown Gi-ain Company. When the draft and bill of lading was returned to the Collin County National Bank that was made against Edmiston Bros, by the Brown Grain Company for the ear of oats, the Brown Grain Company gave to the Collin County National Bank their check for the draft and bill of lading. It is a fact that Thompson Bros. Lumber Company sent a draft under date of November IS, 1913, payable to the order of the Brown Grain Company, and that said draft was turned over to Collin County National Bank as part payment on the original draft that said bank purchased from the Brown Grain Company, but not as the property of the Brown Grain Company, as said bank had already paid the Brown Grain Company for the draft, and said Brown Grain Company had no interest in same, but indorsed and turned it over to the Collin County National Bank as its property.”

E. P. Brown, witness for appellants, testified. on cross-examination as follows:

“Yes; the 200 sacks of oats involved in this shipment were shipped by Brown Grain Company to Edmiston Bros., Crockett; that Brown Grain Company drew draft attaching bill of lading to draft, indorsed it over to the bank, took credit for the amount of the draft, and used the money. Afterwards Edmiston Bros, refused to accept it, and at the bank’s offer the Brown Grain Company repurchased the oats by giving their check to the bank for the amount, as the bank claimed the Brown Grain Company could handle the car of oats better than they could.”
“Yes; it is a fact that Brown Grain Company made out a bill to Thompson Bros. Lumber Company as inquired about; that .he thinks the Exhibit A is a sufficient copy of the bill.”
“Yes; the draft was received by Brown Grain Company, was indorsed by witness, but it is not a fact that Brown Grain Company received payment direct from Thompson Bros. Lumber Company, because, when Brown Grain Company received this draft, this being the property of the Collin County National Bank, the witness took the draft down to the bank, indorsed it, and handed it to the bank, and the bank received the payment of the money on the draft as it belonged to the bank.”
“No; the Collin County National Bank did not debit the Brown Grain Company with the amount of draft after Edmiston Bros, refused the oats, but they called up the Brown Grain Company and suggested that the Brown Grain Company could handle the oats better than they could, and asked the Brown Grain Company if they could not take up the oats. At their request we gave them a check for the amount, took it up, and handled it ourselves.”

G. H. Henderson, the agent for the International & Great Northern Railroad Company at Crockett, Tex., a witness for ap-pellee, testified as follows:

“That the car was shipped from Crockett to Thompson Bros. Lumber Company at Sequoyah, Tex., without bill of lading and without draft attached, there being no agent there; that there was no draft drawn for that car of oats on Thompson Bros. Lumber Company; the way it was shipped to Thompson Bros. Lumber Company was that Thompson Bros. Lumber Company could take the car and unload it without making any payment at all; that it is the rule where a ear is refused, and there is no chance of selling it to some one else at that point, then it is diverted by the railroad company per the instructions of the consignor.”
“The consignor instructed our auditor’s office to forward the car to Thompson Bros, open; that he had no instructions from the consignor, but his instructions were from W. G. Warner, auditor at Houston; that such instructions are contained in telegrams which were presented in evidence.”

B. L. Satterwhite, appellee, testified as follows:

“That after this car of oats was delivered he had a conversation with Brown Grain Company over the telephone; that they called him up the next day after the delivery of the car and said that they had had quite a good deal of hard luck, and wanted to get the judgments against them taken up, but could not pay them off 100 cents on the dollar; that they could pay 33% cents on the dollar; that he replied that he could not do that, his attorneys telling him that he was in pretty good shape to collect 100 cents, and that he wanted 100 cents on the dollar; they just said they would like to get that settled off; they didn’t mention the ownership over the telephone or in the letter either; they didn’t say anything about this car of oats being the property of the Collin County National Bank, and did not say anything only that they would like to get it settled off; didn't mention it in letter or over telephone either.”

We think there was sufficient evidence to support the judgment of the trial court. We therefore overrule appellants’ assignment.

By appellants’ second assignment they insist that the execution issued out of the county court of Houston county by virtue of which the car of oats was levied on by the officer, was void, because it directed or commanded the officer making the levy to make return “before said court at the courthouse thereof in Houston within 60 days,” etc. Appellants’ contention is hypercritical and without merit. We think it clear that the omission of the word “county” after the word “Houston” was but a clerical omission, and does not render the execution void.

The issue joined between the parties in this cause was: Was the car of oats at the time of the levy of execution the property of Brown Grain Company, or was it the property of appellant? This was the only issue made either by pleading or evidence, and this issue was decided against appellants on sufficient evidence. Appellants cannot without pleading or proof attack the validity of the execution, if indeed they might do so at all in such cases as the one before us. It is said in the case of Webb v. Mallard, 27 Tex. at page 84:

“It would present, it appears to me, quite an-anomaly if a party not in possession, and seemingly having no interest in the property, should be permitted by the interposition of a claim for the trial of the right to it to recover a judgment merely by proof of defects or irregularities in the execution.”

Appellants’ second assignment is overruled.

We find no error in the judgment of the trial court, and therefore the same is in all things affirmed.

Affirmed.
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    GRIFFITH v. SHOFNER.
    (No. 5585.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 2, 1916.)
    Bbokers @=355(1) — Right to Compensation —Siottciency op Services — Negotiations Through Otheb Agent.
    Where a broker employed to sell realty, knowing that he had not the exclusive agency, had a prospective buyer look at the property, but on his refusal to purchase took no further action, on sale to the same purchaser through the active efforts of another broker, the first broker is not entitled to commission where he refrained from further efforts to make the sale •on account of representations by the second broker ,and not on account of any interference or fault of the owner.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 82-84; Dec. Dig. @=55(1).]
    Appeal from Travis County Court; Wm. Von Rosenberg, Jr., Judge.
    Action by R. D. Shofner against F. D. Griffith, From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Edwin H. Yeiser, of Austin, for appellant. E. C. Gaines, of Austin, for .appellee.
   KEY, C. J.

R. D. Shofner brought this suit against F. L. Griffith to recover a sum •of money alleged to be due him as a commission for procuring a purchaser to whom the defendant Griffith sold certain real estate in the city of Austin. The defendant answered denying liability, but it is not necessary to make any further statement as to the pleadings, further than to say that the defendant alleged that the plaintiff did not have the sole agency, and that the sale •of the property was in fact negotiated by Hal Hailey, another agent with whom the ■defendant had listed it; that Hailey, and not the plaintiff Shofner, was entitled to the commission; and that the defendant had settled the same with Hailey. At the trial the court submitted to the jury and required them to find whether Shofner or Hailey was the procuring cause of the sale of the property, and in response thereto the jury made a specific finding that Shofner was the procuring cause of the sale. Thereupon the court rendered judgment for Shofner against the defendant Griffith for $205.25, and the latter has appealed.

We sustain the first and second assignments, and hold that the court erred: First, in not giving appellant’s requested instruction directing a verdict for him; and, second, in not setting aside the verdict and judgment and awarding a new trial. The proof shows that Griffith, the owner of the property, had listed it for sale or exchange with both Hailey and Shofner, and perhaps with other agents, and that Hailey and Shof-ner were aware-of that fact and understood that neither of them had an exclusive agency. While there is some conflict in the testimony as to what was done by Shofner in reference to the sale of the property, the most favorable view that can be taken of it in his behalf is that, a short while after the property was listed with him, he offered it for sale or trade to one Wright, who became interested in it; that on the next day he notified Griffith, the owner, that he had interested Wright in the property, and that the latter would come and look at it in a short time; that on account of Shofner’s efforts Wright kept his promise to Shofner, went and looked at the property, but declined to purchase or trade for it. Shofner testified, himself, that he never mentioned the matter to Wright but the one time, and that he never mentioned it any more to Griffith, the owner of the property, until after he had made the trade and deeded it to Wright, when he demanded his commission for making the sale and notified Griffith that he would hold him responsible for the same. The undisputed testimony of Griffith, the owner of the property, Wright, the purchaser, and Hailey, the other agent, shows that Hailey, who was agent to sell the property in question for Griffith and also agent to sell certain real estate belonging to Wright, took the matter up with Griffith and Wright in a day or two after Shofner had reported to Griffith that he had interested Wright as a prospective purchaser; that Hailey exerted himself actively for some time, but failed to bring about any agreement between Griffith and Wright. Several months thereafter, Hailey took the matter up again, and, (after considerable effort on his part, he succeeded in getting Griffith and Wright to agree to a trade, by which Griffith sold to Wright the property involved in this controversy, and Griffith bought from Wright the property which he had authorized Hailey to sell, Griffith taking it as part of the consideration for the property sold by Griffith, the balance of the consideration being purchase-money notes. As said before, Shof-ner did nothing toward effecting a sale of Griffith’s property to Wright after he notified Griffith that he had found Wright as a prospective purchaser and that the latter would come and look at the property. The only reason given for not participating any further in the matter is Shofner’s testimony to the effect that Hailey called him on the telephone, and asked him why he was “butting in” to his affairs; that he (Shofner) told Hailey that Wright was his customer for the sale of the property, and that he was the fifst one to interest him in the matter; and that thereafter, in a personal interview with Hailey, the latter told him that he had made considerable effort to sell Wright’s property, and that Wright would not make any trade with Griffith for the property here involved, if the transaction was to be handled by him (Shofner). Whereupon he (Shofner) told Hailey that, if Wright did not want him to handle his property, it was all right, but that, if Wright bought the property in question from Griffith, he (Shofner) would claim his commission from Griffith.

This case is Analogous to, and involves the same principles and rules of law that were announced and applied in, Edwards v. Pike, 49 Tex. Civ. App. 30, 107 S. W. 586, decided by the Court of Civil Appeals for the Sixth District, and we quote as follows from that case:

“The general rule is that a real estate agent having a contract authorizing him to effect a sale is entitled to the commissions agreed upon, where he procures a buyer who consummates the purchase of the property on terms satisfactory to the owner. Ordinarily, the application of this rule to the facts of a given case is not difficult; for, when it is shown that the agent was instrumental in bringing the buyer and seller together, the fact that the agent was the procuring cause of the sale afterwards consummated is sufficiently established. But when each of two or more brokers within the knowledge of the other has a contract authorizing him to effect a sale of the same property, the fact that one was instrumental in bringing the parties together fairly cannot be made the test of the liability of the owner of the property for commissions claimed. The owner has a right to authorize more than one broker, each independently of the other, to effect a sale of his property; and, so long as he remains neutral, he ought to be permitted, without incurring liability for commissions to more than one of them, to consummate the sale of the property through the one who first produces a person ready to buy it, whether the agent producing the purchaser is the one who first brought him and the buyer together or not.
“The practical test which ought to control in fixing the liability of the property owner on the facts of a case like this is: Within the knowledge of-the owner at the time, was the sale consummated on terms agreed upon between the •buyer and the broker who brought the parties together; or was it consummated on other terms as the result of negotiations between another broker and the buyer, and after the latter had abandoned the contract made by him with the •other broker? In the absence of special circumstances which would make it proper to so charge him, the. owner ought not to be held liable for commissions to more than one broker, and, after actually selling his property to a purchaser produced by one broker on terms negotiated by such broker and not by another, he ought not before paying him the commissions be required, as suggested by the charges refused, at his peril to determine whether some other broker was not, in fact, the procuring cause of the sale. In such a case, the risk of finally effecting by his agency, on terms agreed upon between him and the buyer, a sale of the property, ought to be borne by the broker. His services towards effecting one are performed with a knowledge on his part that another broker has authority similar to that conferred upon him; and if, before a sale is completed, the buyer quits him and on other terms consummates it through another agent, it is a contingency he should be held to have contemplated at the time he undertook the service, and about the happening of which he has no right to complain. Vreeland v. Vetterlein, 33 N. J. Law, 247; Scott v. Lloyd, 19 Colo. 401, 35 Pac. 733; Farrar v. Brodt, 35 Ill. App. 617; McGuire v. Carlson, 61 Ill. App. 295. The broker who undertakes a sale of property with full knowledge that another broker has also undertaken to sell it ought not to expect more of the owner than that he will not interfere in favor of the one or the other. It is then an even contest between them, "'here the chances of success in contemplation of the competition to be expected should be presumed to have been duly weighed by each; and if, as a result of such competition, without interference or fault on the part of the owner, the sale is actually consummated by his competitor, the broker who brought the prospective purchaser and the owner together, but failed to consummate a sale upon the terms agreed upon between him and the buyer, ought not to be permitted to charge against the owner the loss sustained by him, not by the owner’s fault, but as a result of acts of his competitor and conduct of the purchaser which he reasonably should have contemplated might ensue when he undertook and performed the service. Such a case is not at all like the one where the broker, having the exclusive right to sell, or ignorant of the fact that another broker has a right equal to his own, brings the purchaser and the owner together, when the sale is consummated by the owner himself or by the direct agency of another'broker. There the broker bringing the parties together should be held to be entitled to his commissions if the sale is consummated by the owner himself, because he is entitled to same by the terms of his contract; and if the sale is consummated by another broker, because his services were performed on the faith of his contract and without reference to risks of failure which a knowledge that he had a competitor would have caused him to weigh and, perhaps, provide against.”

That case was much stronger than the instant case in favor of the agent who first took the matter up with the party who thereafter purchased, because it was shown that he made a verbal contract with the prospective purchaser which was more favorable to the owner of the land than the contract which was subsequently made by another agent, who he knew was authorized to sell it. But, notwithstanding that fact, the court held that, inasmuch as the purchaser was not bound by his verbal contract with the first agent, he had the right to abandon it and accept the offer thereafter made by the other agent, and that having done so, and bought the land upon the terms submitted by the latter, that agent, and not the one who had formerly negotiated a different though more favorable contract to the owner, was the procuring cause of the sale of the property. In the case at bar, it was not shown that Wright, the purchaser, entered into any agreement with Shofner for the purchase of the property, and the agreement which was finally made and consummated was procured by Hailey.

We fail to perceive wherein what was said by Hailey to Shofner in reference to Wright’s not being willing to purchase the property if Shofner negotiated the deal can have any bearing in determining Griffith’s liability as owner of the property to pay a commission. Under the law, the agent who was the procuring cause of the sale was entitled to the commission. The undisputed facts show that Hailey was that agent, and although, in order to place himself in that position, and thereby earn the commission from Griffith, he may have said or done something which induced Shofner to make no further efforts to consummate the sale, still that fact can propierly have no force in "this ease. Hailey is not a party to this suit, and Shofner is not seeking any redress from him, hut seeks to hold Griffith, the owner of the property, for the commission which Shofner claims that he might have earned, if he had not been prevented from doing so by certain wrongful acts of Hailey. It is not claimed that Griffith was in any wise responsible for the alleged misconduct of Hailey, and if Shofner has any legal ground of complaint against him it cannot be litigated in this case, unless Hailey is made a party and afforded an opportunity to defend himself.

Hence we hold that as the undisputed evidence shows that Hailey, and not Shofner, was the procuring cause of the sale, therefore appellant is not liable to Shofner for commission for effecting the sale. Upon another trial, unless testimony is produced which materially strengthens the plaintiff’s case, the trial court should direct a verdict for the defendant.

For the error indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes