author: BROOKE, J.

text:
    CRUSE v. GAU.
    (No. 97.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 16, 1917.
    Rehearing Denied March 7, 1917.)
    1. Principal and Surety <§=>161 — Discharge of Surety — Extension of Time — Sufficiency of Evidence.
    Evidence held to sustain a verdict that the time for paying a note was extended without a surety’s consent.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 85, 439^41.)
    2. Principal and Surety <®=»104(1) — Discharge of Surety-Extension of Note.
    A surety on a note is discharged from liability by an extension thereof without his consent.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 186.],
    3. Principal and Surety ®=»130 — Discharge of Surety — Waiver.
    Where a surety on a note had been discharged by an extension of time to the maker, an alleged letter written by the surety to the payee could not operate to reinstate the obligation, where the payee never received the letter and it was never acted upon.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 373-376.]
    4. Principal and Surety <§=»155 — Action Against Surety — Pleading — Waiver of Discharge.
    In an action against the surety on a note who had been discharged by an extension of time to the maker, waiver of the discharge by the surety, if relied on, must be pleaded.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 422.]

      5. Principal and Surety <§=3108 — Discharge op Surety — Agreement Not to Sue.
    An agreement not to sue on a note for 90 days constituted an extension thereof discharging the surety.
    [Ed. Note. — Eor other cases, see Principal and Surety, Cent. Dig. §§ 211, 212.]
    6. Appeal and Error <@=>843(2) — Necessity op Decision.
    Where a defendant surety was discharged by extension of a note without his consent, it is unnecessary to decide whether failure to sue thereon within a certain time also discharg'ed him.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3331.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Action by Paul Gau against W. A. Mea-gher and others. Judgment for xilaintiff, and defendant W. W. Cruse appeals.
    Judgment reversed and entered for appellant.
    W. G. Reeves and Oliver J. Todd, both of Beaumont, for appellant. G. P. Dougherty, of Houston, and Sol E. Gordon, of Beaumont, for appellee.
   BROOKE, J.

Paul Gau filed this suit in the district court of Jefferson county against W. A. Meagher, T. E. Meagher, S. H. Van Wormer, and W. W. Cruse, to recover upon a promissory note for $1,000 executed by T. E. Meagher, in which it was alleged that the other defendants became principal obligors upon the note by reason of their having executed the same before delivery, which said note was alleged to be due and unpaid, and plaintiff sought to recover the principal and interest due thereon, together with 10 per cent, attorney’s fee upon said principal and interest.

Defendant Cruse demurred generally, admitted the execution of the note by Meagher, and that he signed the same, but denied that he ever became liable thereon as an original maker or otherwise, denied that he ever received any of the proceeds of the note, or was interested in the same, except as surety for T. E. Meagher, and, further, that plaintiff, by a valid contract, without the consent of the defendant Cruse, extended the time of payment of said note for a period aggregating two years, and that Cruse was not informed and had no knowledge that said note had not been taken up by the principal obli-gor at its maturity, and that on May 10, 1913, when first informed that the note was not paid, he wrote the attorneys for plaintiff that he did not desire them to grant any more extension of time for the payment of said note, and that he would not remain responsible if they extended the time for payment further; that thereafter, on 'May 13, 1913, plaintiff, notwithstanding said notice, for a good and valuable consideration, without this defendant’s consent, granted a further extension in the time for the payment of said note; that by the several extensions and each of them this defendant, as surety, was discharged.

Plaintiff by supplemental petition demurred generally, and denied that plaintiff, or any one with his authority, ever extended the note, denied the allegation of Cruse that he was uninformed that the note was not paid at maturity, and averred that Cruse knew said facts, denied that Cruse made any written demand to bring suit in accordance with the law, and denied that Cruse was released by any extension, and again denied that any valid extension agreement was made.

Defendant filed a supplemental answer, and demurred generally to the supplemental petition, and reiterated that he had given such notice under the statute requiring plaintiff to file suit, but that plaintiff, in total disregard of the notice, ignored the demand, refused to sue, and thereafter made a valid extension of the note.

The note sued on, with its indorsements, is as follows:

“$1,000.00. Beaumont, Texas, May 3, 1911.

“On or before the 3d day of November, 1911, after date, I, we, or either of us promise to pay to the order of Paul Gau one thousand ($1,000.00) dollars, together with interest thereon from date hereof at the rate of ten per cent, per annum until paid, payable at the office of the First National Bank of Beaumont for value received. All past due interest on this note shall bear interest at the same rate as the principal from the maturity thereof until paid.
“And in the event default is made in the payment of this note and it is placed in the hands of an attorney for collection, an additional amount of ten per cent, shall be added to the same as collection fees.
“The drawers, sureties, or indorsers hereby severally waive presentation for payment, protest and notice of protest for nonpayment of this note, and also waive all delays in collection hereof.
“Due Nov. 3, 1911. T. F. Meagher.
“Beaumont, Texas.
“249 Sureties: S. H. Van Wormer.
“W. W. Cruse.”
“Indorsements:
“(1 year)
“Interest paid to Nov. 3, 1911 — 50:00. [Notation by bank.]
“Interest paid to Nov. 3, 1912 — 102.50. [Notation by Hugh Jackson.]
“May 15, 1913, collected from Dougherty for interest. [This notation is in the handwriting of Hugh Jackson.]”

It is undisputed by the note itself, and as testified by Judge Cruse, that the note was executed by said Cruse as a mere surety for T. E. Meagher. The note, having matured on November 3, 1911, was not paid, and plaintiff gave no notice of nonpayment to the surety, Cruse, and said surety had no notice or intimation of the nonpayment until he was notified thereof by notice from plaintiff’s attorneys, dated May 7, 1913. This letter is as follows:

“Beaumont, Texas, May 7, 1913.
“Mr. W. W. Cruse, City — Dear Sir: The note given by T. E. Meagher on May 3, 1911, to Paul Gau, for $1,000:00, due November 3, 1911, upon which you appear to be a surety, has been, placed in onr hands for collection with instructions to institute suit upon same.
“This note matured on November 3, 1911, and was extended one year and the note has been ■ floating along since the expiration of the extension.
“We thought that as a matter of courtesy we should notify you that we have the note for collection with instructions to institute suit upon the same.
“Yours very truly.”

Prior to receiving this letter Meagher had told the witness that he had taken care of the note, which witness had understood to mean that he paid it.

On May 9, 1913, defendant Cruse wrote plaintiff’s attorneys as follows:

“May 9th, 1913.
“Messrs. Dougherty & Gordon, City — Gentlemen: Replying to your favor as regards the Paul Gau note of T. F. Meagher, upon which I was indorser, beg to say that I supposed this note was paid when due and did not know anything about any extensions of same. But I have seen Mr. Meagher to-day, and he says that he has arranged with you to take this note up and release me entirely from same.
“Yours very truly.”

To this letter counsel for plaintiff replied on May 10, 1913, as follows:

“Beaumont, Texas, May 10, 1913.
“Judge W. W. Cruse, City — Dear Sir: I return you your letter with memorandum thereon written by Mr. Hugh Jackson about the note of Mr. Meagher, now in our hands for collection. We sent this letter to your office twice to-day, but you were not in and we were unable to present it. We are acting in this matter under instructions from Mr. Hugh Jackson, and will make such disposition of the matter as may be directed by him.
“Yours very truly, Dougherty & Gordon.”

As to the memorandum attached and referred to in the above letter of Mr. Cruse, he stated that he had searched for the memorandum, but could not find it. He testified however, that the notification was that, unless the interest and attorney’s fees on the note were paid before 6 o’clock, suit would be filed; that the notice was the cause of witness answering as he did in his reply, dated May 10, 1913, as follows:

“May 10, 1913.
“Messrs. Dougherty & Gordon, City — Gentlemen: Further replying to your favor as regards the Paul Gau note of Mr. T. F. Meagher, upon which I am one of the indorsers, dated May 3, 1911, as X said before, I supposed this note had long since been paid. I do not desire that you grant any more extension of time for payment of this note, and will not remain responsible if you extend the time of payment further.
“Yours very truly.”

The defendant Cruse testified that he wrote both letters, stamped, and mailed them. Plaintiff’s counsel Dougherty testified that he never got the letter written by Judge Cruse dated May 10, 1913, above set forth, and that he never heard of such a letter until defendant filed such an answer herein.

Plaintiff’s counsel Sol E. Gordon testified that he never did* see said letter, and never heard of it being written or of its existence at any time before it was set up in the pleading of this case.

Miss Goldie Stern, stenographer for the firm of Dougherty & Gordon, was placed on the stand by plaintiffs, and testified that she never did see the original of said letter in their office.

It is likewise stated by counsel that they denied that they ever received this letter, and propose to show that they never got the original.

Judge Hugh Jackson testified as follows:

“That he will not say, that he had not extended notes, and taken half the attorney’s fees for the extension, because when he has a man whom he thinks is perfectly good, he will extend it; that it was two or three months after the money collected from Meagher at the time of the extension of this note from Dougherty before witness got the notice from the bank that it had been deposited; that Mr. Dougherty would go ahead and collect those notes and put it ou his books, and some convenient time, he thinks some two or three weeks afterwards, he would get notice that it was deposited, then he would put the credit on the note; that is what he intended to do, but on this note he doesn’t say that it is so, because he entered it on the date that Mr. Dougherty said he collected it, and the owner of the note should have credit from the date the payment was made, and not the date when he received it; that he didn’t remit the money to Mr. Gau, because he keeps a running account with him, and pays his taxes, but he did give him credit for it, and if he had the time to look up the books, he can tell when he received the money; that he didn’t notify Gau when the interest was paid, but _ renders him an account once a month, and pays his taxes and collects rents on his lands in this county; that Gau has 80 acres of rice land in this county, and witness keeps a little running account, and reports to him once every month, sometimes twice a month if witness thinks there is anything he would like to know about it; ^hat he never knew anything about the status of the Meagher note except what Mi-. Dougherty showed him, and Dougherty never showed him the note; that Dougherty did tell him that he had given Meagher some more time, and that he collected some money on it, and that witness went out and never said a word to him; witness told Dougherty to sue on it, but that probably he had better let the sureties know first, because maybe they would pay it; that witness told Dougherty that he would have to have the interest and attorney’s fees or sue on it; that witness didn’t want Dougherty to sue if he could help it; that witness had not seen Gau, it seems to him, for eight or ten years; that he lives down at what they call Double Bayou; that he is not a relative of witness, and is a German; that witness don’t sit down and write him a letter every time he gets in money, but puts it on the books ; if he pays any taxes for him, he charges him with it, and about once a month on an average he sends him an account, just as a merchant would send out an account at the end of each month; witness thinks the note matured on the llth day; witness does not think-he ever wrote the sureties anything about it; that Meagher always said he was going to pay it, and witness just let the thing go on; he did it in deference to Mr. Meagher; that witness himself had carried the note some fifteen months after its maturity for Meagher before he turned it over to the attorneys; it may have been longer; witness just let it run along, and tried to do his best to keep from suing him; that Meagher made payments to him to November 3, 1911, and to November 3, 1912; he thinks it was paid to the bank; that he thinks the six months’ interest was all the money that Meagher gave him; that the first credit was paid to the bank, and the other payment dated May 3, 19Í2, was a years’ interest that -was paid after witness took it out of the bank; Meagher failed to make another payment six months after it fell due, so after it fell due he came and paid witness the $50; that was after its maturity, and Meagher failed to pay the other six months’ interest, and finally the bank sent it oyer to witness; that when Meagher paid the first six months’ interest he probably told witness that he could not pay the principal, and witness told him that he would let it run. Witness said that he would take it up at any time and everywhere ; that witness might have told him he would let it run another twelve months if Meagher would take it up then; that he tells all those fellows that he will let it run; of course, Mr. Meagher would probably want three months or six months, and witness would say, ‘All right, Mr. Meagher, if you can’t pay it, I don’t want to sue you on it; let it run along.’ Witness stated that he don’t think he ever did notify the sureties; if he did, he sent word through Mr. Meagher, and that he would tell witness all the time that he had told them. Now whether he did or not witness doesn’t know; Mr. Oruse says he didn’t.”

It appears from Judge Jackson’s testimony that his acts were reported to Gau in monthly statements. The case was tried on special issues, and the issues submitted by the court are as follows:

“Special Issue No. 1. Do you find from a preponderance of the evidence that at any time between November S, 1911, and May 7, 1913, Hugh Jackson, as agent for plaintiff, Paul Gau, and the defendant T. F. Meagher entered into an agreement relative to the note in controversy, by the terms of which agreement said Hugh Jackson, as agent for plaintiff, for a consideration other than past-due interest, agreed to postpone the collection or payment of said note for a definite length of time, and that thereby said T. F. Meagher agreed that he would pay the interest on said note until the expiration of such definite period, and during which time the plaintiff should not demand payment of said note? Let your answer be Wes’ or ‘No’ as you find the facts to be.”
In answer to issue No. 1: “We answer Yes.”
“If you answer the above question ‘Yes,’ then you will answer question No. 2, but if you answer question No. 1 ‘No,’ then you need not answer question No. 2.
“Special Issue No. 2. From all the facts and circumstances in evidence before you, did the said defendant W. W. Oruse by his letter to Dougherty & Gordon of May 10, 1913, if he wrote the same, intend to thereby waive or acquiesce in any previous extension, or extensions, that may have been granted, if any, by Hugh Jackson, to the said T. F. Meagher? Let your answer be ‘Yes’ or ‘No’ as you find the facts to be.”
In answer to issue No. 2: “We answer Yes.”
“Special Issue No. 3. Do you find from a preponderance of the evidence that G. P. Dougherty and T. F. Meagher, on or about the 13th day of May, 1913, for a valuable consideration, other than past-due interest or attorney’s fees, entered into an agreement by which the said Dougherty was not to collect or demand payment of the note sued on and by which the said T. F. Mea-gher was to pay interest on the note sued on for the term of 90 days from and after May 13, 1913, or do you find therefrom that said F. P. Dougherty and T. F. Meagher at or about said time made an agreement by which the said Dougherty would postpone filing suit on said note for 90 days, and that within the said 90 days said T. F. Meagher was to pay said note, together with the interest thereon until the time of such payment? Answer as you find the facts to be. If you find that said Dougherty and Meagher made the agreement first inquired about, in the preceding interrogatory, by which said note was not to be collected or paid until the expiration of 90 days, and that said Meagher ivas to pay interest for said full period, then you will answer question No. 4; but, if you find that they made the agreement inquired about in the latter portion of the next preceding interrogatory, that is, that said Meagher was to pay the note within 90 days, with interest only until such payment, then you need not answer the following question.”
In answer to issue No. 3: “We find that G. P. Dougherty made an extension agreement with T. F. Meagher for 90 clays and was not to demand payment before that time, but Meagher was at liberty to make payment before that time with interest until paid.”
“Special Issue No. 4. Do you find from all ■the facts and circumstances in evidence before you that said G. P. Dougherty was authorized, instructed, or permitted by Hugh Jackson, as agent for the plaintiff, to make such agreement, or do you find that Hugh Jackson, as agent for the plaintiff, with knowledge of the transaction between G. P. Dougherty and T. F. Meagher, agreed to, ratified, or acquiesced in such agreement? Answer both sections of this question, and let your answers show what you find the facts to be relative to each portion thereof.”
In answer to issue No. 4: “We find that G. P. Dougherty was permitted by Hugh Jackson, as agent for the plaintiff, to make such an agreement. We find that Hugh Jackson, as agent for the plaintiff, with knowledge of the transaction between G. P. Dougherty and T. F. Meagher, ratified or acquiesced in said agreement.”

The defendant Oruse requested a peremptory instruction in Ms favor, which was refused hy the court, and exception reserved.

Both plaintiff and defendant Oruse requested the .court to enter judgment in their favor on the verdict of the jury. The court refused to enter judgment for said defendant, but entered judgment for plaintiff. Defendant Oruse filed an original motion for new trial, and an amended motion, which was overruled, whereupon he gave notice of appeal, and filed supersedeas bond, and the cause is properly before this court for adjudication.

The first assignment of error is based on the refusal of the court to enter judgment for the defendant W. W. Oruse, and in entering judgment in favor of Paul Gau, and complaining that the plaintiff here, without the consent of the defendant Oruse, who was merely a surety, did, by a valid agreement, for a valuable consideration, extend the time of payment of said obligation, and, in effect, made a new contract with the principal obligor, T. F. Meagher, to which the said Oruse was not a party, and by which he was not bound, and the judgment of the court is, in effect, a judgment against W. W. Cruse for an obligation to which he was not a party.

There is no doubt, from the indorsements on the note, and from the other undisputed facts, that the note was extended without the knowledge or consent of Cruse, and, as found by the jury, for a valuable consideration, other than past-due interest, and for a definite time, during whiáh plaintiff should not demand its payment, the effect of which amounted to the making of a new contract, and the further effect of which was a discharge of Cruse as surety on the note. The notation on the note itself evidenced the extension, and Meagher says himself that the note was extended a. few times between November 3, 1911, and May 13, 1913.

It occurs to us that it would be a work of supererogation to cite authorities to uphold the view of this court as above expressed, but we cannot refrain from quoting from an opinion rendered by Chief Justice Gaines of the Supreme Court in the case of Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128, as follows:

“The plaintiff was a surety for one Hosaek, the principal maker upon a promissory note payable to the defendant in error. Some days after the note fell due Hosaek wrote defendant in error requesting an extension, to which request the defendant replied by letter as follows: T will extend the time of payment one year, and look with confidence for the accrued interest within 60 days, hoping it will not inconvenience you. After that, if it is your pleasure to make the interest on the extension payable semiannually, it will help me.’ The defendant in error testified to having received the letter from Hosaek requesting an extension, and that the foregoing was his reply, but the contents of IIo-sack’s communication were not otherwise shown. He also testified that he was paid nothing for the extension, and that Hosaek never paid the accrued interest. Suit having been brought on the note by the payee against all the makers, the plaintiff in error pleaded his suretyship; and, the facts as stated above having been proved, the trial court gave judgment for the plaintiff in that court. That judgment upon appeal was affirmed by the Court of Civil Appeals.
“It is the right of the surety, at any time after the maturity of the debt, to pay it, and to proceed against the principal for indemnity. This right is impaired if the creditor enter into a valid contract with the principal for an extension of the time of payment. The obligation of the surety is strictly limited to the terms of his contract, and any valid agreement between the creditor and the principal, by which his position is changed for the worse, discharges his liability. Por this reason it is universally 'held that a contract between the two, which is binding in law, by which the principal secures an extension of time, releases the surety, provided the surety has not become party to the transaction by consenting thereto. If the credit- or is not bound by his promise to extend, it is clear there is no release. In order to hold him bound by his promise, there must be a consideration. Whether a mere agreement for an extension by the debtor is sufficient to support a promise to extend by the creditor is a question upon which the authorities are not in accord. We are of opinion, however, that the question should be resolved in the affirmative, at least in cases in which it is contemplated by the contract that the debt should bear interest during the time for which it is extended. If the new agreement were that the debtor should pay, at the end of the period agreed upon for the extension, precisely the same sum which was due at the time the agreement was entered into, the case might be different. But a promise to do what one is not bound to do, or to forbear what one is not bound to forbear, is a good consideration for a contract. In case of a debt, which bears interest either by convention or by operation of law, when an extension for a definite period is agreed upon by the parties thereto, the contract is that the creditor will forbear suit during the time of the extension, and the debtor foregoes his right to pay the debt before the end of that time. The latter secures the benefit of the forbearance; the former secures an interest-bearing investment for a definite period of time. One gives up his right to sue for a period, in consideration of a promise to pay interest during the whole of the time; the other relinquishes his right to pay during the same period, in consideration of the promise of forbearance. To the question why this is not a contract we think no satisfactory answer can be given. It seems to us it would be a binding contract, even if the agreement were that the debt should be extended at a reduced rate of interest. That an agreement by the debtor and creditor for an extension for a definite time, the debt to bear interest at the same rate, or at an increased, but not usurious, rate, is binding upon both, is held in many cases, some of which we here cite. * * *
“In many cases which seemingly support the contrary doctrine there was a mere promise by the creditor to forbear, without any corresponding promise on part of the debtor not to pay during the time of the promised forbearance. In such cases it is clear that there is no consideration for the promise. In others, where there was a mutual agreement for the extension, it may be that interest during the period of extension * * * did not provide for the payment of interest. * * * in this case, as we construe the correspondence between Hosaek and the defendant in error, there was a request for an extension of the debt for 12 months on part of the former, and an unconditional acceptance on part of the latter. We infer that Ho-sack must have written something about the payment of accrued interest, probably that he hoped to be able to pay in 60 days. The presumption is that the letter was in the possession of the defendant in error at the time of the trial. He did not produce it. In any event he should have known its contents, and, if Hosaek made his request for an extension conditional upon his payment of the accrued interest, he should have testified to the fact. We conclude, therefore, that there was a binding promise for an extension, and that the plaintiff in error was therefore released.”

For further authorities see Burke v. Cruger, 8 Tex. 67, 58 Am. Dec. 102; Wybrants v. Lutch, 24 Tex. 309; Pilgrim v. Dykes, 24 Tex. 384; Lane v. Scott, 57 Tex. 367; Ryan v. Morton, 65 Tex. 258; Mann v. Brown, 71 Tex. 241, 9 S. W. 111; Wylie v. Hightower, 74 Tex. 306, 11 S. W. 1118; Clark v. Cummings, 84 Tex. 610, 19 S. W. 798; Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128; Durrell v. Farwell, 88 Tex. 98, 30 S. W. 539, 31 S. W. 185; Kearby v. Hopkins, 14 Tex. Civ. App. 166, 36 S. W. 506; Zapalac v. Zapp, 22 Tex. Civ. App. 375, 54 S. W. 938; Marshall Nat. Bk. v. Smith, 33 Tex. Civ. App. 555, 77 S. W. 237; First Nat. Bank of Rusk v. Rusk Pure lce Co., 136 S. W. 89; Red River Bank v. Bray, 105 Tex. 312, 148 S. W. 290; McKaughan v. Baldwin, 153 S. W. 660; Central Bank & Trust Co. v. Hill, 160 S. W. 1099.

The second assignment of error challenges the action of the trial court in rendering judgment for the plaintiff upon the verdict of the jury, in failing and refusing to render judgment in favor of the defendant W. W. Cruse, and in finding and holding that the writing of a letter by W. W. Cruse which was never received by the plaintiff or his attorneys was never acted upon by them, was without consideration, and could not, in law, have raised an estoppel, operated to reinstate an obligation against W. W. Cruse, which had theretofore been terminated and discharged by the act of the plaintiff. The proposition under this assignment is:

“No judgment can be predicated upon the alleged fact of the defendant Cruse having waived his former discharge by writing the letter of May 10, 1913.”

The statement in the letter is in the following language:

“I do not desire that you grant any more extension of the time of payment of this note, and will not remain responsible if you extend the time of payment further.”

This language was specially pleaded by-Cruse as a notice to sue, under the statute, which he claims was sufficient to require the plaintiff to institute suit. However, the plaintiff denies that there was ever any such letter. Counsel for plaintiff, Judge Dougherty, testified that he never got the letter written by Cruse on the 10th of May, 1913, in which the above language is used, and that he never heard of such a letter until th'e defendant, filed his answer. Plaintiff’s counsel Judge Gordon testified that he never did see said letter, and never heard of it being written, or of its existence at any time before it was set up in the pleadings. Miss Goldie Stern, stenographer for the firm of Dougherty & Gordon, testified that she never did see the original of said letter in their office. The statement of facts shows that counsel denied that they ever received th’e letter.

Taking the above sworn statements as true, the Cruse letter containing the allegations was never received, and was never acted upon, and could not, in law, have raised an estoppel. We search the pleadings, which are very voluminous, in vain, to discover if the above language or letter, or any portion thereof, was pleaded as a waiver, and, so far as we can see from this record, there was nothing to base an issue as to whether or not it constituted a waiver of Cruse’s former discharge from th'e note. Instead of pleading or alleging that the letter was a waiver, plaintiff denied specifically that such a letter had ever been written, or that they had ever received the same. The view we take of the matter is that there can be no issue without pleading, as correctly contended by. appellant, and consequently no judgment could be rendered which is unsupported by the pleadings, even though facts proven to justify the same. Perhaps it will be well for us to cite, while we assume that the above is a well-settled legal proposition, some of the numerous cases in which it has been held that a waiver, when relied upon, must be set up, that it must amount either to an agreement or to an estoppel, and that in the latter case the acts, representations, and conduct which have been acted on and relied upon shall be stated with reasonable certainty. Tex. Banking Co. v. Stone, 49 Tex. 13; Insurance Co. v. Dwyer, 1 Posey, Unrep. Cas. 449; Texas Banking Co. v. Hutchins, 53 Tex. 61, 37 Am. Rep. 750; East Texas Fire Ins. Co. v. Brown, 82 Tex. 631, 18 S. W. 713; Insurance Co. v. Lacroix, 45 Tex. 158; Sun Mut. Ins. Co. v. Texarkana Foundry & Mach. Co. (Tex. App.) 15 S. W. 34; United Firemen’s Ins. Co. v. Thomas, 82 Fed. 406, 27 C. C. A. 42, 47 L. R. A. 450; Thurston v. Ludwig, 6 Ohio St. 1, 67 Am. Dec. 328; Ripley v. Insurance Co., 30 N. Y. 136, 86 Am. Dec. 369; Crandall v. Mosten, 24 App. Div. 547, 50 N. Y. Supp. 145.

The following proposition is made by appellant, under this assignment:

“There can be no waiver of an existing legal right, except by a new contract, based upon a new and independent consideration, or by such conduct on the part of the party against whom the waiver is asserted, relied on by the other party to his prejudice, as will create an estop-pel, and; there being no evidence whatsoever either of a now contract or of an estoppel in this case, the trial court was without justification in law in holding the defendant Cruse responsible for the payment of the obligation by reason of his having written a letter which plaintiffs never got telling the plaintiffs not to grant any further extension.”

We believe this contention of th'e appellant is correct, and that the court was in error, and therefore we sustain the assignment;

The third assignment is:

“The court further erred in rendering judgment in favor of the plaintiff, and in failing and refusing to render judgment in favor of the defendant, because under the verdict of the jury and the uncontroverted evidence the plaintiff released the surety, W. W. Cruse, by an extension duly entered between himself and the principal obligor, T. F. Meagher, which extension was duly indorsed upon the note, and was made under the uncontroverted evidence without the knowledge or consent of the defendant W. W. Cruse.”

The note, under the undisputed facts in the case, was extended 90 days from May 13, 1913, and the jury, in answer to special issue No. 3, heretofore set out, in answer to a direct question, found that Dougherty and Meagher entered into an agreement by which' Dougherty was not to collect or demand the payment of the note sued on, and by which the said Meagher was to pay nothing on the note for the term of 90 days from and after the date, May’ 13, 1913.

Having already passed upon the second assignment, to the effect that there was no waiver by the letter of Cruse, and by our conclusion under the first assignment, that there had been a valid extension for a valuable consideration, it would seem unnecessary to review this assignment. However, we will say that it is shown by the note itself, by the testimony of the parties, and the verdict of the jury that plaintiff bound himself not to sue for 90 days from May 13, 1913, and we believe, under the authorities above quoted, and the authority of Mc-Kaughan v. Baldwin, 153 S. W. 660, that said agreement was an extension, and discharged the surety.

By the fourth assignment of error the judgment of the lower court is called in question in rendering judgment for the plaintiff and in failing and refusing to render judgment for the defendant W. W. Cruse, because said W. W. Cruse was discharged from said obligation by failure and refusal of the plaintiff to sue upon said note either at the first or second term of said court, after W. W. Cruse wrote plaintiff’s counsel his letter of May 10, 1913, which letter has been heretofore referred to.

It being unnecessary to pass upon this and the remaining assignments of error, if we have been right in our holdings above, it would serve no useful purpose to decide this question, upon which a great deal might be written pro and con. Therefore, without passing on this assignment, as being unnecessary to a disposition of the case, the assignments 1, 2, and 3 are sustained, and judgment is here entered reversing the action of the lower court, and entering and rendering judgment for appellant.

It is so ordered.
      <S=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    AMERICAN EXPRESS CO. v. DUNCAN.
    (No. 8511.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 27, 1917.
    On Motion for Rehearing, March 5, 1917.)
    1. Cabeiers <&wkey;119 — Act oe God — Eire.
    A loss by fire, nnless caused by lightning, does not come within the exception of the act of God, and is chargeable against a-common carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 523-530.]
    2. Cabeiers <&wkey;114 — Duty to Deliver — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 707, providing that the liability of carriers shall be the same as by common law except as changed by statute, article 711, providing liability as common carrier shall exist from commencement of transportation till delivery, and article 712, providing that, if carrier at destination uses due diligence to notify consignee and goods are not taken, it shall thereafter be liable as warehouseman, the obligation of a common carrier as such continues until actual delivery or that which may be considered an equivalent or substitute therefor.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 608-620.]
    3. Carriers <&wkey;87 — Consignee’s Duty to Remove Goods at Destination — Due Diligence.
    A consignee who has goods shipped home to himself, but makes no effort to notify his folks while he makes the journey, requiring a week, on horseback, and who has actual notice the day after his arrival that goods have been received, but does not remove them because of inconvenience, cannot hold carrier liable as such for loss of his property by fire.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 323.]
    4. Carriers <&wkey;140 — Goods Held at Destination-Liability.
    Where a consignee has failed to use due diligence to remove goods after notice of their arrival at destination, the carrier’s liability thereafter is that of a warehouseman.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 609, 609%, 611-616.]
    5. Warehousemen <&wkey;34(5) — Loss oe Goods by Fire — Presumptions and Burden oe Proof.
    Where goods in a warehouse are destroyed by fire, the burden of showing negligence is on the bailor, and is not presumed from occurrence of fire.
    [E'd. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 76, 77.]
    6. Warehousemen <&wkey;24(3) — Extent oe Liability for Losses by Fire.
    A warehouseman is liable for loss by fire occasioned by his negligence or the negligence of his employes.
    [E'd. Note. — For other cases, see Warehouse-men, Cent. Dig. § 51.]
    Appeal from Shackelford County Court; J. A. King, Judge.
    Action by Claud Duncan against the American Express Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    A. A. Clarke, of Albany, for appellant. S. C. Coffee, of Albany, for appellee.
   CONNER, C. J.

The appellee, Claud Duncan, instituted this suit against the appellant, the American Express Company, to recover the sum of $350 alleged to be the value of certain personal effects, of which an itemized statement was made, which had been shipped from Littlefield, Tex., to Albany, Tex., on or about April 1, 1915, and which were never delivered to the plaintiff.

The goods in question were shipped by ap-pellee in person at Littlefield and consigned to himself at Albany. The shipment was made on or about the 26th day of March, 1915, and it arrived at Albany in good condition on the 27th day of March, 1915. Appellant’s evidence tended to show that upon arrival at Albany the goods were carefully stored in the building used by appellant as a warehouse, and that on the 29th day of March appellant, by its agent, duly addressed and mailed a notice of the arrival of said goods to the appellee, the notice being directed to him at Albany, Tex. The goods remained in the depot until the night of the 5th of April, 1915, when the warehouse and all of its contents was destroyed by fire, and appellant pleaded its liability to be that of a warehouseman only, and that it had been free from all negligence. The trial, however, resulted in a verdict for appellee in the sum of $200, and the appellant has appealed.

Appellee was an unmarried man, who, when at home, resided with his parents some 12 miles distant from Albany, Tex. Upon the delivery of his goods to the appellant company for transportation he traveled on horseback from Littlefield to his father’s home, where he arrived on Sunday evening. April 4, 1915. He made no inquiry of the appellant company that evening, but the next flay about noon be did so, and was tben informed over tbe telephone that bis goods bad arrived and were there in tbe depot. Ap-pellee testified that it was 12 miles to tbe depot, that be could have gone after bis goods and returned within two or three hours, but that he did not do so on the day of April 5th for the reason that it was not convenient, his father having some other use for his team.

A material question involved in the case is whether the appellant company, under the circumstances, was absolutely liable for the value of appellee’s goods as a common carrier, or whether its liability 'was that of a warehouseman, to wit, only liable for the loss of the goods.-by fire in the event of negligence on its part. Generally speaking, the rule is not uniform in all of the states, but all authorities seem to agree that a loss by fire, unless it is caused by lightning, does not cornel within the exception of the act of God, and accordingly is chargeable against a common carrier. The obligation of the carrier includes the obligation of a safe delivery to the consignee, and its responsibility as a carrier continues until it has made actual delivery, or done that which may be considered an equivalent to or the substitute for such delivery, and the mere arrival of goods at their destination is not sufficient to reduce the liability of a carrier to that of a warehouseman. See H. & T. C. Ry. Co. v. Adams, 49 Tex. 748, 30 Am. Rep. 116. On this subject our statutes provide that the duties and liabilities of carriers in this state shall be the same as are prescribed by the common law, except where otherwise provided (Vernon’s Sayles’ Texas Civil Statutes, art. 707), but further provide (see article 711) that:

“Railroad companies and other common carriers having depots and warehouses for storing goods, shall be liable as warehousemen are at common law for goods and the care of the same stored in such depots or warehouses before the commencement of the trip or voyage on which said goods are to be transported, but shall be liable as common carriers from the commencement of the trip or voyage until the goods are delivered to the consignee at the point of destination.”

The next article, 712, qualifies the liability thus imposed in article 711 by further providing that:

“If the carrier at the point of destination shall use due diligence to notify the consignee, and the goods are not taken by the consignee, and have in consequence to be stored in the depots or warehouses of the common carriers, they shall thereafter only be liable as warehouse-men.”

Appellant insists that the undisputed evidence shows that it used due diligence to notify appellee of the arrival of his goods by post card, and that therefore its liability un-disputedly was that of a warehouseman and that the court erred in submitting the issue of negligence in this respect. We hardly feel prepared, however, to uphold this contention. It is true that under article 712, which we aave quoted, it was only necessary, in order to reduce appellant’s liability to that of a warehouseman, to “use due diligence to notify the consignee” of the arrival of his goods, and if it was admitted that the postal notification was duly addressed and mailed, as testified to, it might be that it should be held due diligence on appellant’s part under the circumstances, inasmuch as it further appeared that between the date of the shipment of the goods appellee for several days was traveling over land over the country and admittedly made no call for his mail, and admittedly would not and could not have received the notice until shortly before the fire, but there was further evidence on the part of appellee to the effect that his mail was received by him together with that of his father’s family, and the father testified specifically that they had not received any such postal card, and upon cross-examination of the witness who testified to the mailing of the notice he did not exclude a possibility that he may have lost it between the time of writing the notice and the time that he testified that the notice was deposited in the post office. If in fact the notice had been mailed, as related by the witness, the natural inference would be that in due course it would have been received by members of appellee’s family, and their failure to so receive, together with the isossi-bility suggested by the cross-examination of the witness, rendered, as it seems to us, the fact of mailing vel non issuable and one for the jury.

Appellant further insists, however, that regardless of the issue of due diligence to notify appellee by mail of the arrival of his goods, such actual notice w.as shown by the evidence as had the effect of establishing appellant’s status of that of a warehouseman rather than that of a common carrier, and, as presented to us, we find no satisfactory answer to the contention. The appellee testified on this subject that the shipment from Littlefield was, as he thought, on March 29th, and that he was some six or seven days on the road from Littlefield to Albany; that the goods left Littlefield a day before he did, and that he reached his home at Albany late in the evening of Sunday, April 4th; that the place he spoke of as being his home is the residence of his father; that he did not know when he reached home whether or not the goods had yet arrived at Albany, and—

“that it was on Monday, April 5th, when he first knew that the goods had arrived; that he so found out by telephoning the agent; that he had not prior to or after that time received any notice to the effect that the goods shipped had arrived; *. * * that when he telephoned to the office of the American Express Company he talked with Mr. Finley, and that Mr. Finley told him the goods were there; * * * that he did not make any inquiry regarding the shipment until Monday, when he phoned the agent; * * * that there was telephone connection between the depot and his father’s house, but that he did not communicate with Mr. Finley at all on Sunday; that the depot burned on Monday night, and that he knew on Monday the goods were on hand at the depot; that at the time he talked with Mr. Finley over the telephone he was about 12 miles from Albany at his father’s residence, and that there is a public road running from close to where his father lives to Albany; that he never received any written notice through the post office that the goods were there; that Albany was his post office at the time, had been for years, and was the post office of his mother, father, and sisters, and was the nearest post office to where they usually got their mail; * * * that one could go from his father’s house to Albany in a hack in about 2% hours and in a wagon in about S hours; that he came in a hack and could get there in 2% hours, and that that would be about the usual and customary time; that he would have come after them Monday, but that he could get no team for the reason that his father’s team was busy, and he could not get them until Tuesday morning.”

B. F. Yoho, witness for defendant, testified to the arrival of the goods, that they had been stored in a suitable place in the depot building, etc., and that they were—

“lost in the fire at the time the depot burned at Albany, April 5th; that they were in the depot that day and up to 9 o’clock that night; that the building was entirely consumed by fire; that so far as he knew none of the goods were saved or taken out, and that he believed they were burned up; that the cause of the fire is not known; * * * that he considered the place where they were stored to be a reasonably safe one; that it was the usual and customary place to store express and that it was kept under lock and key.”

Mr. R. H. Finley, another witness for the defendant, testified upon the subject -under consideration substantially as Mr. Yoho, and that the goods were destroyed by fire which burned the depot, but that “he did not know” the cause of the fire.

The plaintiff’s father, J. G. Duncan, testified, among other things, that he lived south of Albany about 11 miles, and was the father of Claud Duncan, the appellee, who when not otherwise employed made his home with him, the witness; that he remembered the circumstance of his son coming home in April, on the Sunday before the burning of the depot; that when talking with Claud Duncan the night he arrived home Claud stated that—

“the goods ought to be at the depot, and asked him (the witness) if he was going to town the following day; that he would be busy himself; that Claud asked him about his team; but that they made arrangements to go to town Tuesday.”

It is thus seen that appellant offered evidence not only from which “due diligence to notify the consignee,” as required by statute, might be deduced, but also showed without dispute that appellee was actually notified and apparently notified in time to have enabled him to have come and gotten his goods before the fire. As evidenced by the record, the theory of the trial seems to have been that appellee was entitled to a reasonable time after notification to go and get his goods, and that unless he was negligent in this respect he would be entitled to recover. This is doubtless true as a legal proposition, but if appellee desired to hold the railway company liable at all events as a common carrier for the loss of his goods by fire, it was incumbent upon him to at least use diligence in their removal. To accommodate his own convenience, he might, it is true, delay until such time as it was entirely convenient to him, but if the delay was occasioned by any such reason, the liability of the carrier would be changed from that of an absolute one to that of a warehouseman, which was liability only for a -want of ordinary care for the protection and preservation of the property. In discussing this subject it is said in 4 R. O. L. § 223, p. 756, that:

“What constitutes a reasonable time for the removal of goods must, of course, vary with the circumstances of each particular case, and no fixed or definite rule can be laid down applicable to all cases by which the fact may be determined. But while the circumstances of the particular case may, in a great measure, be said to control the matter, it is not to be inferred from this that the extent of the reasonable opportunity afforded the owner is to be measured by any peculiar circumstances in his own condition and situation which may appear to render it necessary, for his own convenience and accommodation, that he should have a longer time or better opportunity than if he resided in the vicinity of the depot, and was prepared with the means and facilities for taking the goods away. This is fairly implied when it is said that the owner is entitled to only a reasonable opportunity to take his property from the possession of the company after the transit is terminated, and if he does not do it at the earliest practicable moment, he may thereby be deemed to have consented that it should remain in the possession of the company under the more limited liability of a warehouseman. For instance, a consignee cannot defer the taking away of goods in order to attend to other business matters of his own, no matter how important they may be. However, to prevent any misapprehension on this score, the reasonable time to which the consignee is entitled has in a general way been defined as such time as would enable one residing in the vicinity to inspect and remove the goods in the ordinary course and during the usual hours of business. When the facts are undisputed, the question becomes one of law to be determined by the court; but, where they are disputed and unsettled, the question must be submitted to a jury.”

From the testimony quoted it will be noted that no reason apparently satisfactory was given for appellee’s delay in securing a delivery of his goods. The reason given apparently amounts to no more than that it was not convenient for him with his father’s team to go on Monday after he had been notified of the goods’ arrival. It does not appear that he was without other means of transportation, or indeed that any real necessity existed for another use of his father’s team. So that, as stated, as the record is presented to us, appellant’s liability under the circumstances, at least after the actual notice to appellee, was that of a warehouseman, and under the evidence the jury might have been so instructed. Indeed, as the evidence is presented to us, a peremptory instruction in appellant’s favor on the whole case would seem to have been authorized; for, while the rule as to common carriers is otherwise (see Railway Co. v. Bath, 17 Tex. Civ. App. 697, 44 S. W. 595; Railway Co. v. Richmond & Tiffany, 94 Tex. 571, 63 S. W. 619), as presented here, appellant was only liable, as we have seen, as a warehouseman, and it accounted for the loss of appellee’s goods by fire not shown to be attributable to negligence on its part. The rule under such circumstances is thus stated in 40 Cyc. 473:

“By the weight of authority, where goods in the hands of a warehouseman are destroyed or damaged by fire, the bailor has the burden of showing that the warehouseman was guilty of negligence; as a presumption of negligence does not arise from the mere occurrence of the fire.”

In support of the text quoted numerous cases are cited, cases from Alabama, California, Illinois, Louisiana, Massachusetts, Mississippi, New York, North Carolina, and Tennessee; also 48 Cent. Dig, title “Warehouseman,” §§ 76 and 77, and the following cases from our own state: T. & P. Ry. Co. v. Capps, 2 Willson, Civ. Cas. Ct. App. p. 35, § 36; T. & P. Ry. Co. v. Wever, 3 Willson, Civ. Cas. Ct. App. § 60, p. 85.

In the first Texas case cited, the court says:

“Where goods in the care of a warehouseman are destroyed by fire, and this fact is shown, the warehouseman is not liable for the loss of the goods unless it be proved that the loss was occasioned by the neglect of the warehouseman, his agents, employes, or servants, and the burden of proving such negligence devolves upon the plaintiff” — citing W. & W. Con. Rep. §§ 118, 412, 414.

See, also, Railway Co. v. Winn, 132 S. W. 972.

The conclusions above noted would possibly authorize this court to reverse and render the judgment in appellant’s favor, but we have concluded that this course should not be pursued, for the reason that it does not seem clear to us that the case was fully developed upon the theories we have suggested. It is accordingly ordered that the judgment be reversed, and the cause remanded for a new trial.

Reversed and remanded.

On Motion for Rehearing.

After a careful consideration of appellant’s motion we have finally concluded, in accordance with its prayer, that we erred in remanding this cause, and that it was and is our duty to reverse the judgment below and here render judgment in appellant’s favor upon the facts and conclusions announced in our original .opinion. As shown therein, and about which there is no dispute, appellee shipped his goods at Littlefield consigned to himself at Albany, Tex., on or about the 26th day of March, 1915. Appellee must have known that by due course of transportation those goods would soon arrive at Albany, where they in fact did arrive on the 27th day of March, 1915. .The record wholly fails to show that he made any effort to notify his father or other person of the probable arrival of his goods, that they might be taken from the custody of the carrier, and that he pursued his way by horseback from Little-field to his father’s home near Albany, where he did not arrive until the evening of April 4th, some six or eight days after his goods had been shipped at Littlefield. He failed to testify that on that day he made any inquiry. I-Ie did, however, on the following day, to wit, April 5th, receive actual notice of the arrival of his goods in ample time to have on that day gone and taken them into his own custody. It was further shown without dispute that the goods were lost by fire on Monday night, April 5th, after appel-lee had notice of the arrival of his goods and after the time within which he might have received them into his own custody. As shown in our original conclusions, after notice the burden was upon the appellee by law to use diligence in the removal of the goods, or to show that the fire which destroyed them was attributable to the negligence of the appellant company. See, also, Thornton v. Daniel, 185 S. W. 585. Appellee was represented upon the trial below by able counsel, and he testified in person, as did also his father, and full opportunity apparently afforded to offer any and every fact upon the issues indicated that could be truthfully presented, and yet, as disclosed by the record before us, no sufficient or lawful excuse was shown for appellee’s failure to take his goods before the fire, nor was any effort made to show that the fire was attributable to the negligence of the appellant company. Under such circumstances there can be no legal justification for remanding the case' for a new trial. The only apparent reason therefor would be to afford appellee an opportunity to amend his evidence, and this, it is well understood, is rarely, if ever, done by an appellate tribunal. Of course, the loss of ap-pellee’s goods is regrettable, but under the facts as proven appellant was liable only as a warehouseman, and the record shows that it also suffered severe loss by a fire not shown to arise from fault or negligence on its part. It therefore, in a court of justice and by the rules of law formulated for the protection of all civil rights, cannot be held liable to compensate appellee for a misfortune that it suffered in common with him.

We conclude that our former order remanding this cause should be set aside, and that the judgment below be reversed and now rendered in favor of appellant.

      s=3'For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: HALL, J.

text:
    RUMBOLD v. ADCOCK.
    (No. 1133.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1917.)
    Vendor and Pukchaser <&wkey;232(9) — Bona Fide Purchaser — Notice of Rights of Tenant.
    Under Vernon's S-ayles’ Ann. Civ. St. 1914, art. 5488, providing that, if a landlord fails to comply -with his contract, he shall be liable to tenant, and tenant shall have a lien upon property in possession, a purchaser of land is charged with notice of the rights of a tenant in possession.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 556-558.]
    Appeal from Hemphill County Court; J. L. Jennings, Judge.
    Action by F. M. Rumbold against H. Ad-cock. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Hoover & Dial, of Canadian, for appellant. J. W. Sanders, of Canadian, for appellee.
   HALL, J.

Appellant, Rumbold, as plaintiff, sued appellee October 21, 1915, to recover the value of certain crops raised on a certain section of land during the year 1914. Plaintiff’s allegations in substance are that during the fall of the year 1913 the Tesson Realty & Investment Company, a corporation, Edward P. Tesson, and Robert F. Tesson were the owners of the north half of the section of land described in the petition; that they entered into a verbal contract with H'. Adcock for the lease of said land, and were to receive as rents one-third of all crops raised upon the premises in 1914. The crops so raised are described in the-petition, and it is alleged further that on or about the 9th day of July, 1914, the land was conveyed by the Tesson Realty & Investment Company, Edward P. Tesson, and Robert F. Tes-son to the plaintiff for a valuable consideration, and that by reason of such conveyance plaintiff alleged that he acquired the right to collect the rent from said land, that the crops had been harvested and sold by the defendant, Adcock, and that the amount due plaintiff was the sum of $250. Appellee’s original answer consisted of a general demurrer, general denial, and specially alleged that the defendant made a trade with the Tesson Realty Company, Robert F. Tesson, and Edward P. Tesson by the terms of which the Tessons were to improve the place and allow the defendant $2 per acre for breaking the raw land, the same to be paid in cash when the land was broken, and in return defendant was to render for the use of the land one-third of the crops grown on the plade; that thereafter, when defendant had broken the land, the said Tessons did not pay cash for the same, but agreed that the amount due should run and bear interest at 10 per cent per annum, and that their share of the crops should be applied to the payment of the same; that when it was ascertained that the Tessons could not place the improvements on the land as agreed, defendant was requested to do so, to charge a reasonable price for the same, and that such sum should bear interest from the date of outlay until paid at the rate of 10 per cent., and that ap-pellee should be reimbursed for such sum so expended out of said rents; that this arrangement and agreement continued through the years 1912 to 1914, inclusive, and at the beginning of the year 1914 the said Tessons were indebted to the defendant in thé sum of $226.91, and defendant was requested to do still further-improvements and labor, with the understanding that the rents from the crops to be grown upon the place should be applied by appellee to the indebtedness due him until all of such indebtedness should be fully paid off, and discharged; that, after allowing all credits, the Tessons were still indebted to defendant in the sum of $44.12; that throughout the years 1912 to 1914, inclusive, appellee was living upon said land cultivating, using, and in undisputed possession of the same prior to, at the time of, and since the alleged- purchase of the land by plaintiff. In reply to this answer plaintiff filed a supplemental petition, consisting of a general demurrer, several special exceptions, to - the effect that the answer did. not allege that the plaintiff knew, or had any facts to put him upon inquiry, as to the conditions, agreements, and understandings alleged to exist between- defendant and the Tessons; that said answer was insufficient because by the terms of plaintiff’s petition plaintiff had only sought to recover a one-third interest in the crop for the year 1914, and, in the absence of an allegation to the effect that plaintiff knew of the contract alleged in said special answer between the defendant and the Tessons at and prior to the time of the alleged purchase in plaintiff’s petition, such contract between the Tessons and the defendant would not, as a matter of law, be binding upon plaintiff, and further that the answer was insufficient because it did not allege any facts to show whether or not at the time the land was purchased by plaintiff the crops for the year 1914 were a part of the realty or had been severed therefrom. The supplemental petition further replied to the answer that, if any agreement or understanding, as alleged by defendant in his original answer, between him and the Tessons had ever existed, the same was without the knowledge of the plaintiff at the time he purchased the land; that on .the date of the purchase the crops in controversy were growing upon the land, were not ready to be harvested, and were not really harvested for more than 60 days subsequent thereto, and that at the time of the purchase said crops had never been severed from the realty, either actually or constructively. A trial before the court resulted in a judgment that plaintiff take nothing.

The first two assignments of error present the question of the sufficiency of the answer because it fails to allege that appellant had notice of the contract between the Tessons and appellee at the time appellant purchased the land. We think the court was correct in this ruling. At the time of appellant’s purchase Adcock was in visible and notorious possession of the land, actually occupying, using, and cultivating it, and had been 'for two years. Such possession was notice of all of his right, title, or equities in and to the premises, and put'appellant upon inquiry with reference to the extent of his rights and possession. Simpkins on Equity, 592, 595; Howell v. Denton, 68 S. W. 1002; Garbutt v. Mayo, 13 D. R. A. (N. S.) 97, note. This court, in the case of Frith v. Wright, 173 S. W. 453, held that the statute giving a landlord’s lien is in itself notice to all persons dealing with a tenant of whatever rights the landlord had in and to the premises or the crops raised thereon. Article 5488, Yernon’s Sayles’ Civil Statutes, provides that nothing in the title of “Landlord and Tenant,” of which the article is a part, shall be so construed as to prevent landlords and tenants from entering into such stipulations or contracts in regard to rents and advances as they may think proper, and should the landlord, without any default on the part of the tenant, fail to comply with his part of the contract, he shall he responsible to said tenant for whatever damages may be sustained thereby, and fixes a lien upon all the property in the tenant’s possession not exempt from forced sale, as well as upon all rents due the landlord, to secure such tenant in his damages. What is said in Frith v. Wright, supra, with reference to the effect of the statute giving the landlord a lien: as notice of the landlord’s rights is applicable to this case in so far as the rights of the tenant are concerned. As long as Adcock was in actual possession of the premises appellant could not become a bona fide purchaser in the sense that he could defeat any rights accruing to Adcock under the terms of his lease contract with the Tessons.

It is unnecessary to discuss the remaining assignments. The judgment is affirmed.
      «SmoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    STUART et al. v. TEAGARDEN et al.
    (No. 7671.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 20, 1917.
    Rehearing Denied March 10, 1917.)
    1. Partition &wkey;>55(l) — Pleading.
    The petition, in suit for partition and accounting, and for the cancellation of vendor’s lien notes, alleging- that plaintiffs and defendants were the joint owners of the land, and also alleging that defendants had wrongfully cut and destroyed a quantity of valuable timber, was [ not subject to general demurrer because not stating the estimated value of the land, and not alleging that defendants cut timber on all the land, and left insufficient for jdaintiffs to procure their pro rata share, but stated a cause of action sufficient to support verdict; the defects alleged being only subject to special exceptions, if at all.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 148, 149, 151, 182.]
    2. Partition &wkey;>89 —Judgment —Power oe Court.
    In a suit in equity for partition and accounting and for the cancellation of vendor’s lien notes, plaintiffs alleging that they and defendants were joint owners, and that defendants had wrongfully cut and destroyed a quantity of valuable timber on the land, the court, though title to defendants’ one-fourth of the land was not put in issue by the pleadings, had power to render judgment assessing the injury to the land and decreeing all the land to plaintiffs; defendants’ part being of less value than the damages assessed against them.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 246, 251.]
    3. Appeal and Error <&wkey;877(6) — Parties Entitled to Allege Error — Partition— Failure to Appoint Commissioners.
    In suit for partition and accounting, where the court decreed all the land to plaintiffs to satisfy in part the damage done them by defendants’ wrongful acts in cutting timber, the action of the court in not appointing commissioners to partition the land, and allowing plaintiffs to make a division among themselves, was proper, and defendants could not complain.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3570, 3572.]
    Error from District Court, Wood County; Barney Briggs, Judge.
    Suit by W. B. Teagarden and others against Buck Stuart and others. To review a judgment for plaintiffs, defendants bring error.
    Judgment affirmed.
    H. A. Turner, of Ft. Worth, for plaintiffs in error. Jones & Jones, of Mineóla, and Tea-garden & Teagarden, all of San Antonio, for defendants in error.
   RAINEY, C. J.

This is a suit for partition and accounting and for the cancellation of certain vendor’s lien notes brought by defendants in error against plaintiffs in error. The petition alleged, in effect, that the land was jointly owned by plaintiffs and defendants; that Buck, Guy, and Champ Stuart, by the authority of the other defendants, had entered upon and cut down and destroyed great quantities of timber without the consent of plaintiffs, thereby damaging the land in the sum of $2,500; that said land was chiefly valuable for its hard wood and saw timber, which was cut and destroyed by the Stuarts and appropriated to their own use; that the Stuarts are insolvent and wholly irresponsible financially, etc.

W. H. Jack and R. A. Thompson disclaimed any interest in the land. The other defendants were duly served with citation, but filed no answer and were not present nor represented at the trial. The case was tried by the court without á jury and judgment rendered assessing the injury to the land at $2,-500, and the court decreed all the land to plaintiffs; said defendants’ part being of less value than the damage assessed against them. From this judgment defendants have sued out a writ of error.

There is no statement of facts nor conclusions of law and facts filed by the court, and the assignments of error question the sufficiency of the petition to support the judgment and the power of the court to render same.

1. Plaintiffs in error complain that the petition does not state the estimated value of the land, and that it does not allege that defendants cnt all the timber off the land, and left insufficient for plaintiffs to procure their pro rata share; hence the petition is subject to general demurrer.

We are of the opinion that the petition stated a cause of action sufficient to support a verdict. It alleged that plaintiffs and defendants were the joint owners of the land and prayed for partition. It also alleged that defendants had wrongfully cnt and destroyed a quantity of valuable timber, and the judgment recites, in effect, that timber had been cut from ail the land, causing damage thereto to plaintiffs’ loss in amount exceeding defendants’ interest in the land. The defects alleged were only subject, if at all, to special exceptions.

This was a proceeding in equity, and the court had the power to render the judgment it did. In Grassmeyer v. Beeson, 18 Tex. 754, 70 Am. Dec. 309, the court said:

“The giving of the remedy by statute in a court of law has never been deemed to take away, or in any degree to abridge the original and inherent powers and jurisdiction of the court of chancery in respect to the partitioning of estates. The statute prescribes a procedure which parties may adopt if they see proper; but it is not obligatory. Our courts possessing the powers of courts of chancery may proceed to administer relief upon the principles of equity as fully and completely as a court of chancery in England could do, without the aid of the statute. The foundation of the jurisdiction ' of equity is not in the statute, but in the judicial incompetency of the courts of common law, to furnish a plain, complete, and adequate remedy; and in complicated cases the statute would afford a very inadequate and incomplete remedy. But it is usual to provide in the decree for the commissioners to report, and upon confirmation of their report to direct conveyances to be made. But it is competent for the court to direct the manner of making the partition, and to decree the making of the conveyances, without the necessity of a report and decree of confirmation. The court may in the first instance direct conveyances to be made in pursuance of the allotments of the commissioners, if that be deemed proper. There can be no doubt that the powers of the court are adequate for this purpose; and if the decree should be erroneous, none but a party or privy, or some one whose interest is in some way affected by it, could complain or take advantage of the error.”

. See, also, Moore v. Blagge, 91 Tex. 162, 38 S. W. 979, 41 S. W. 465.

2. It is contended that under the allegations of the petition the court erred in rendering judgment for plaintiffs to the title of the defendants’ one-fourth interest in the land; that the title to said one-fourth was not put in issue by the pleadings.

In a partition suit it is permissible for the court to take into consideration all matters incident to the partition. The accounting between the parties was an incident. The title to an undivided one-fourth of the land was conceded to be in the defendants. They had damaged the whole land by wrongfully cutting and destroying thereon the hard timber, for which it was mostly valuable, far in excess of the value of the one-fourth, which was a damage to plaintiffs’ interest, and it was only equitable' and just that plaintiffs should be remunerated, and to make them whole the court rightfully decreed the title to the land to them, which was within its equitable powers. Moore v. Moore, 89 Tex. 29, 33 S. W. 217; Williamson v. MeElroy, 155 S. W. 1000; Kalteyer v. Whipff, 92 Tex. 674, 52 S. W. 63.

3 Complaint is made to the action of the court in not appointing commissioners to partition the land and allow plaintiffs to make a division among themselves. The court having decreed all of the land to plaintiffs to satisfy in part the damage done them by the wrongful acts of defendants, there was no necessity to appoint commissioners of partition. The plaintiffs having agreed among themselves to divide the land, it would have been an useless expense and was a matter in which defendants were not interested in and they cannot now be heard to complain.

We have not discussed the assignments in seriatim, but hold upon the whole case that, this being an equitable proceeding for partition and accounting between cotenants, the court had the power to adjust the matters passed upon.

There being no reversible error shown by the record, the judgment is affirmed.
      <Sss>For other casts see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    SUHRE v. KOTT et al.
    (No. 5813.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 7, 1917.
    Rehearing Denied March 28, 1917.)
    1. Appeal and Ebeob <®rw719(4)-—Necessity op Assignment op Ebeob—Fundamental Ebbob.
    Sustaining a general demurrer to petition, if error at all, is fundamental, and must be considered even in the absence of any assignment of error.
    [Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. §§ 2973, 3490.]
    2. Malicious Pkosecution <@=j12—Proceed-ings Actionable—Afpidavit op Insanity.
    It is actionable to falsely and maliciously file an affidavit that another is insane, and the affiant cannot excuse his conduct on the ground that he was authorized by law to make the affidavit.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 5.]
    3. Malicious Pbosecution <@=340 — Acts Actionable — Atoidavit of Insanity.
    In action for malicious prosecution by filing affidavit that plaintiff was insane, it was no justification that the justice before whom affidavit was made and who issued warrant for the plaintiff’s arrest exercised judicial discretion.
    [Ed. Note. — Por other- cases, see Malicious Prosecution, Cent. Dig. § 81.]
    4. Malicious Pbosecution <§=^16 — Elements of Offense.
    The essence of the action for malicious prosecution is causing legal process to regularly issue for the mere purpose of vexation, annoyance, or injury, and three elements are required to establish a case of malicious prosecution: Pirst, that the suit was -instituted with malice; second, that it was brought without probable cause; and, third, that the malicious action has terminated in the acquittal or discharge of the person claiming damages.
    [Ed. Note. — Por other cases, see Malicious Prosecution, Cent. Dig. §§ FÍ9 — 22, 59.]
    5. Malicious PeosecutioW <§=^>37 — Termination of Pbosecution — What Constitutes.
    Where a prosecution for lunacy was had before a commission afterwards declared unconstitutional, a discharge of the alleged insane person by the county judge was a termination of the prosecution in his favor.
    [Ed. Note. — Por other cases, see Malicious Prosecution, Cent. Dig. §§ 72-77.]
    6. Malicious Prosecution <@^>56 — Palse Imprisonment — Burden of Proof.
    In action for malicious prosecution coupled with charge of false imprisonment, the burden is upon the defendant to show that the imprisonment was lawful.
    [Ed. Note. — Por other cases, see Malicious Prosecution, Cent. Dig. §§ 112-116.]
    7. Insane Persons <S=»7— Commitment — Discretion of Court — “May.”
    While the county judge has a discretion to issue a warrant, where an affidavit of lunacy is made, the justice of the peace has not, since the words “said justice may issue a writ” do not necessarily imply discretion; for, whenever the word “may” is used in the furtherance of justice or in a matter in which the public has an interest, it should be construed to mean “shall” or “must.”
    [Ed. Note. — Por other cases, see Insane.Persons, Cent. Dig. § 15.
    Por other definitions, see Words and Phrases, Pirst and Second Series, May.]
    8. Malicious Prosecution <@=»1 — Defenses —Warrant of Law.
    Where a person wrongfully causes the arrest and imprisonment of another or otherwise maliciously sets in motion machinery of the law, he must respond in damages, and it is no defense that the prosecution was in a judicial proceeding.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 1.]
    9. Appeal and Error <®^766 — Briefs—Defects — Amended Brief.
    Assignments as to special exceptions contained only in amended brief, which attempts to remedy the defects in the original brief, not being permitted by any rule of law, cannot be considered.
    TEd. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3101, 3126.]
    Appeal from District Court, Wilson County; P. G. Chambliss, Judge.
    Action by William Suhre against Hugo Kott and others. The cause was dismissed, and complainant appeals.
    Reversed and remanded.
    Rebel L. Robertson, of San Antonio, and P. E. Johnson, of Stoekdale, for appellant. J. L. Browne, of San Antonio, and Wiseman Bros. & Burney and J. E. Canfield, all of Floresville, for appellees.
   PLY, C. J.

This is an action for damages arising from a malicious prosecution in initiating lunacy proceedings against appellant. It was alleged that without probable cause therefor appellees maliciously and falsely made an affidavit that appellant was a lunatic, or non compos mentis; that it was necessary that he should be placed under restraint; that they procured his arrest and had him brought before a justice of the peace, who refused him bond and placed him in jail; that he was taken before a commission and tided for lunacy and was discharged; that appellees have continued to pursue appellant and have published and declared that he was of unsound mind. General and special demurrers were sustained, and, appellant declining to amend, the cause was dismissed.

Sustaining a general demurrer to a petition is fundamental error, if error at all, and must be considered even in the absence of any assignment of error.

We are of opinion that it is actionable to falsely and maliciously file an affidavit that a person is insane or a lunatic, and the party making such affidavit could not excuse his conduct on the ground that he was authorized by the laws of Texas to make such affidavit.

Nor can it'be held a justification of the affidavit that the justice of the peace exercised judicial discretion in issuing a warrant for the arrest of appellant. If that be the law, there could be no case in which damages for malicious prosecution could be recovered. The basis for the damages is the making of a false and malicious affidavit charging the party against whom it is directed with violating some law, or of being afflicted with a disease of weakness, the possession of which would damage his standing and reputation, or inflicting pain and mental anguish.

The essence of the action for malicious prosecution is causing legal process to regularly issue for the mere purpose of vexation, annoyance, or injury, and three elements are required to establish a case of malicious prosecution: Pirst, that the suit was instituted with malice; second, that it was brought without probable cause; and, third, that the malicious action has terminated in the acquittal or discharge of the person claiming damages. Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Breneman v. West, 21 Tex. Civ. App. 19, 50 S. W. 471. The three essentials mentioned are alleged in the petition.

The argument is made that the prosecution for lunacy has not terminated, for the reason that appellant was tried by a commission, which has been declared unconstitutional. Whether the proceeding was constitutional or not, appellant was discharged by the county judge and the prosecution has terminated. Whether the dismissal depended upon the proper procedure or not is not material, for it was done upon a hearing of the testimony, and appellant was fully acquitted of the charge of lunacy and discharged from custody. Porter v. Martyn, 32 S. W. 731; Rogers v. Mullins, 26 Tex. Civ. App. 250, 63 S. W. 897. It cannot be reasonably contended that appellant should insist that he was not properly discharged, but must be tried by a jury; for, if he did, then it would be contended that he was responsible for being detained and should not recover. Appellees, under the pleadings, have abandoned the prosecution, and the suit instituted by them has terminated. We have discussed the question as though it had been finally determined that the present law is unconstitutional, which question we do not decide.

False imprisonment is charged in the petition, and the allegation of such imprisonment must be deemed unlawful, and the burden would rest upon appellee to show that it was lawful. Gold v. Campbell, 54 Tex. Civ. App. 269, 117 S. W. 463.

The statute provides for the county judge exercising discretion as to issuing a warrant when an affidavit of lunacy is made, but no such provision applies in the case of the justice of the peace. It was evidently the intention of the statute to lodge the discretion, as to imprisoning a -man for lunacy, with the county judge, and not with a justice of the peace, for the language is not used in connection with the latter, and the law re- * quires him to make his writ returnable to the county judge, who is the ultimate arbiter as to the fate of the man charged with lunacy. As before stated, even if the justice of the peace had the power to refuse to issue the writ, he did not do it in this case, and no such high premium is put upon the wisdom, prudence, and discretion of a justice of the peace that his acceding to the request of ap-pellees would shield them from liability. The words, “said justice may issue a writ,” do not necessarily imply the right of discretion, but, read in immediate connection with the language applied to the county judge, convey the idea that “may” in this connection means “shall.” Whenever the word “may” is used in the furtherance of justice, or in a matter in which the public has an interest, it should be construed to mean “shall” or “must.” Lee v. Life Ass’n, 97 Va. 160, 33 S. K 556; Railway v. Walker, 50 Kan. 739, 32 Pac. 365; McLeod v. Scott, 21 Or. 94, 26 Pac. 1061, 29 Pac. 1. The word “may,” when used in a statute in regard to duties of a public officer, means “shall.” Hagadorn v. Raux, 72 N. Y. 583.

Appellees lose' sight of the allegation that their affidavit was falsely and maliciously made when they contend that it was their duty to make the affidavit. They have no right or authority, under the law, to start a malicious prosecution or falsely imprison a person. Whatever may be the rule in regard to slander and libel, it does not apply to the class of case now before the court. It is clearly laid down in decisions and works of text-writers that where a defendant wrongfully causes the arrest and imprisonment of a plaintiff, or otherwise maliciously sets in motion the machinery of the law, he may be compelled to respond to the wrong committed in adequate damages. Whenever a wrongful prosecution is had and damage is caused to a man’s reputation, to his person, or to his property, an action of malicious prosecution will lie. It is no defense to say that the prosecution was in the course of a judicial proceeding, before a court of competent jurisdiction, for prosecutions, malicious or otherwise, are usually so initiated and pushed, and the quotation from Odger on Libel and Slander, p. 125, has no application whatever to such cases.

The assignments as to the special exceptions that were sustained are not presented so as to be considered. The amended brief which attempts to remedy the defects in the original brief are not considered, because not permitted by any rule or law. The amended briefs are stricken from the record. It does not matter, however, whether we consider them or not, because it was not incumbent upon appellant to brief anything in connection with the special exceptions; for, if he had not stated any cause of action, it did not matter as to the details reached by the special exceptions. It was error to sustain the general demurrer, and, however proper the action of the court may have been as to the special exceptions, the dismissal of the suit was improper, because a cause of action still remained.

The judgment is reversed, and the cause remanded.
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