author: WILLSON, C. J.

text:
    PADGITT et al. v. STILL et al.
    (No. 1741.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 28, 1917.
    Rehearing Denied March 15, 1917.)
    1. Husband and Wife <&wkey;133(7) — Separate Estate — Sufficiency of Evidence.
    A jury’s finding that land was purchased by a husband with his wife’s money held sustained by the evidence.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 491.]
    2. Vendor and Purchaser &wkey;>230(l) — Bona Fide Purchaser — Notice of Defective Title — Provisions of Warranty.
    While absence of warranty covenants in a deed does not charge the purchaser with notice of outstanding equities, deeds warranting grantor’s title to two-thirds of a tract and to the remainder during his natural life charged the grantees, and persons claiming under them, with notice of the grantor’s wife’s outstanding equity in one-third of the property.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 502-504, 507, 510, 512.]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Suit by Willie Day Padgitt and others against B. R. Still and others. Judgment for defendants, and plaintiffs appeal.
    Judgment reformed, and cause remanded.
    As commenced by a petition filed September 23, 1913, this suit was by appellant Wil,lie Day Padgitt, joined by her husband, against appellees B. R. Still, Mrs. S. M. Bounds, and Mrs. Frances Adams. By an amended petition filed October 11, 1915, ap-pellees Henry Moore, J. C. Hale, and N. J. Hales were made parties defendant. The suit was one .of trespass to try title, the land involved being 435.2 acres of the Levi Lan-ders survey in Rusk county. By a petition filed May 13, 1915, appellees D. W. Fulton and G. H. Stovall intervened in the -suit, claiming they owned an undivided one-half of the land. The appeal is from a judgment, so far as it is material to state it, awarding Still, D. W. Fulton, and G. H. Stovall a recovery of the land as against appellants and certain of the appellees.
    It appears from the record that one Wil-banks owned the land September 26, 1854, when he conveyed it to F. M. Stovall, then the husband of Martha Jane' Stovall, whom he married in 1849 or 1850 when she was Martha Jane Fulton, a widow, and who died in 1856 or 1857 intestate, it seems, leaving surviving her her then husband, said F. M. Stovall, and a child by him, to wit, appellee F. H. Stovall, and two children by her first husband, to wit, Martha Jane, who married one Taylor, and Samuel M. Fulton, who died in 1861 leaving a widow but no child.
    Appellants claimed title to the land in controversy through deeds as follows: From Marshal Wilbanks and his wife to F. M. Stovall, date September 26, 1854; from F. M. Stovall to B. J. Cone, date December 20, 1870, but reciting that it was intended as a substitute for deed made by F. M. Stovall to said Cone in 1861; from Cone to G. A. Ray, date October 8, 1862; from Ray to Cone, date September 21, 1866; from Cone to Barton, date December 8, 1870; from Barton to Mary I. Carr, date January 5, 1873; from Carr to F. M. Ervay, date August 4, 1873; from Ervay to J. A. Ross, date Octoher 2, 1876; from Ross to Mrs. Sallie McBride, date November 6, 1876; from Sallie McBride, joined by her husband, to Miss-T. M. Doss, date February 2, 1877. In 1879 Miss Doss mar- • ried W. H. Day, and in 1889, after his death, married J. C. Lea, who died in 1904. Mrs. Lea died intestate, it seems, April 4, 1906, leaving as her only heir her daughter the appellant Willie Day Padgitt, who had married her coappellant J. Tom Padgitt June 15, 1904.
    Appellee Still claimed title under a deed from Martha Jane Taylor, joined by her husband, dated August 14, 1903. Appellee D. W. Fulton, a son of Mrs. Stovall’s first husband by a former wife, claimed an interest in the land as an heir of his half-brother Samuel M. Fulton, and G. H. Stovall claimed an interest therein as an heir of his mother, said Martha Jane Stovall.
    Snodgrass, Dibrell & Snodgrass, of Coleman, for appellants. John R. Arnold and Chas. L. Brachfield, both of Henderson, for appellees.
   WILLSON, C. J.

(after stating the facts as above). So far as it is against appellants and in favor of appellees Still, D. W. Fulton, and G. H. Stovall, the judgment is based on findings of a jury: (1) That F. M. Stovall paid for the land with money belonging to the separate estate of his wife; (2) that appellants and those under whom they claimed, at the time they respectively purchased it, had notice that F. M. Stovall “did not claim to be the full and absolute owner of the land” when he conveyed it to Cone; and (3) that, had appellants and those under whom they claimed “made reasonable investigation,” they “could have ascertained that the heirs” of said F. M. Stovall’s wife owned an interest in the land.

If the findings specified were authorized by-evidence, the judgment is not erroneous in the particular stated; for, while the legal title unquestionably was in F. M. Stovall, and appellants had acquired same, the findings showed the equitable title to be in his wife, and that said appellees had acquired same, and further showed that appellants and those under whom they claimed at the time they acquired the legal title had notice of the fact that the equitable title was in the heirs of F. M. Stovall’s wife.

The findings, however, are attacked by appellants as without the support of evidence.

Consideration of the testimony has convinced us that the contention, so far as it applies to the finding that the land when purchased by Wilbanks was paid for with money belonging to F. M. Stovall’s wife’s separate estate, should not be sustained. It was shown that in 1849 or 1850, when F. M. Sto-vall married Mrs. Martha jane Fulton, then a widow, he was a Methodist “circuit rider” about 35 years of age, with no property except a horse, saddle, and bridle worth about $100, and with no income except his salary as a preacher. It was further shown that Mrs. Fulton then owned property worth over $9,000, consisting of $800 in money, an interest in land in Arkansas, 9 slaves, 6 mules, 2 or 3 horses, 6 yoke of oxen, 2 or 3 wagons, and 75 head of cattle. It appeared from a recital in the deed from Wilbanks that the land in controversy was conveyed to F. M. Stovall September 26, 1854, in consideration of $1,465 in cash paid by him to Wilbanks. It was shown that when said F. M. Stovall’s wife died in 1856 or 1857 she left, of the property she owned when she married him, 7 slaves, 2 mules, 1 horse, 1 wagon, and 2 yoke of oxen. It was further shown that the only income F. M. Stovall had, except that arising from his wife’s property, after he married until his wife’s death, was his salary as a preacher. The reasonable conclusion from the circumstances stated was that the purchase price of the land was paid to Wilbanks either out of money F. M. Stovall received as revenues from the separate estate of his wife, or out of money, and the proceeds of sales of property,' she owned when she married him. It appearing that the $800 Mrs. Fulton owned when she married Stovall had been used in some way, and that 2 of the slaves, 4 of the mules, 1 or 2 of the wagons, 4 yoke of the oxen, all the cattle, and her interest in the land in Arkansas, had in some way been disposed of during her marriage with Stovall, we think the inference that F. M. Stovall used some to pay for the land was a fair one and one the jury had a right to make, and particularly so in view of testimony in the record indicating that, while the land was not conveyed to F. M. Stovall until 1854, it was purchased cf Wilbanks within a few weeks after he married Mrs. Fulton. If it was so purchased, and then paid for, an inference that it was paid for with rents and revenues from Mrs. Stovall’s separate estate accruing after her marriage with Stovall could not reasonably he indulged. The only other inference from the testimony, if the land was then paid for, was that it was paid for with money and property belonging to Mrs. Sto-vall in her separate right.

The evidence relied upon to show that appellants had notice that the equitable title to the land was in Mrs. Stovall at the date of her death consisted alone of recitals in deeds in their chain of title as follows: From F. M. Stovall to Cone, from Cone to Ray, from Ray back to Cone, and from Cone to Barton. The recitals were in the warranty clauses. In each of the deeds the warranty was general as to a two-thirds interest in the land. In the deeds from F. M. Stovall to Cone and from Cone to Ray the warranty as to the other one-third interest was “during F. M. Stov-all’s natural life” only. In the deed from Ray back to Cone it was recited that it was' intended “only as a quitclaim” to one-third, and in the deed to Barton from Cone the warranty as to one-third was only against himself and his heirs.

We are not without doubt as to the answer which should be made to the question presented, - to wit, were the recitals sufficient to charge persons claiming under the deeds with notice of the equitable title in Mrs. Stovall at the date of her death or not? but have concluded that they were as to a one-third interest in the land.

The absence of covenants of warranty in a deed conveying land, as contradistinguished from one conveying merely the vendor’s interest in land, would not be suggestive to the purchaser that the vendor’s title was imperfect. Such covenants are not a part of the conveyance, but constitute a separate contract between the parties. The absence of such covenants in a deed, therefore, is no more indicative of a doubt on the part of the vendor of the sufficiency of his title than it is of confidence on the part of the vendee of its sufficiency, and cannot operate to charge the purchaser with notice of equities' in third persons. Richardson v. Levi, 67 Tex. 359, 3 S. W. 444.

But where, as here, deeds relied upon as evidence of title in the litigant contain such covenants, same may, though constituting separate contracts, be looked to in determining the bona tides of the purchaser. White v. Frank, 91 Tex. 66, 40 S. W. 962.

It appears from the warranty clause in the deed from Stovall to Cone that Stovall was willing to fully warrant the title to two-thirds of the tract of land he conveyed to Cone, but was unwilling to warrant the title to the other one-third further than during his (Stovall’s) “natural life.” It seems to us that such unwillingness would have suggested to a prudent person that Stovall regarded his title to one-third of the land as at least doubtful, so far as it was for more than a life estate therein, and should have caused such a person to make inquiry to ascertain whether Stovall owned a greater estate than that in it or not. If it would, then Cone and the purchasers claiming under him should’be held to have had notice, as to one-third of the tract, that the equitable title thereto was in Stov-all’s wife at the date of her death. Diligent inquiry would have disclosed that, as is shown by the record and as was found by the jury; and, being put on inquiry by the recitals referred to in deeds they claimed under, the law would charge them with knowledge of all the facts such inquiry disclosed as existing. !

We are of opinion therefore the judgment, so far as it determines the title to the land as between appellants and Still and D. W. Eulton and G. H. Stovall, and it is not complained of in other respects, should be so reformed as to award appellants a recovery of an undivided two-thirds thereof, and to ap-pellees Still, D. W. Eulton, and G. H. Stovall, in the proportions determined by the court below, an undivided one-third thereof; and that as so reformed the judgment should be affirmed and the cause remanded to effect the partition prayed for by the parties and ordered by said court.

The contention made by appellees Still, D. W. Fulton, and G. H. Stovall, in cross-assignment, that the trial court erred when he overruled their exception to appellants’ petition on tlie ground that it appeared therefrom that Mrs. Padgitt sought a recovery of the land as the heir of her mother, and that it did not appear therefrom whether an administration on her mother’s estate was pending or not, nor whether there was a necessity for such an administration or not, is overruled. It appeared from an allegation in a supplemental petition filed by appellants that an administration was not opened on Mrs. Padgitt’s mother’s estate, and further appeared that more than seven years elapsed between the date of the death of Mrs. Padgitt’s mother and the date this suit was commenced.

The judgment will be reformed and the cause remanded, as indicated above.
      ether cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, G. J.

license: Public Domain

text:
    McKINNON v. PORTER.
    (No. 7677.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 27, 1917.
    Rehearing Denied March 10, 1917.)
    1. Continuance <&wkey;37 — Application — Sufficiency.
    An application for continuance, not stating the testimony is material, showing the materiality thereof, and that the applicant “has used due diligence to procure such testimony, stating such diligonce, and the cause of failure if known,” and “that the continuance is not sought for delay only, but that justice may be done,” as required by Rev. St. 1911, art. 1918, is insufficient.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 117-121, 127.]
    2. Logs and Logging &wkey;>21 — Lumber— Sawing Contract — Construction.
    A contract to furnish sawmill and equipment to manufacture lumber from, timber on certain land, expressly providing that the landowner was “to furnish all necessary cash for operating such mill until same is in operation, that is, as soon as the mill is moved to the land location,” did not obligate the landowner for expenses until tho mill, etc., was moved to the land and in operation.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. § 53.]
    ! 3. Damages <5&wkey;62(4) — Duty to Minimize —Breach oe Logging Contract.
    On breach of timber sawing contract, the doctrine of minimizing damages did not apply, and a requested charge, applying such doctrine, was properly refused.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 128-131.]
    4. Logs and Logging <&wkey;21 — Timber—Sawing Contract — Breach.
    Plaintiff could not recover damages for breach of contract to saw timber on defendant’s land if when there was suitable timber thereon, he cut and sawed defective timber, and thereby manufactured uonmerchantable lumber.
    [Ed. Note — For other casos, see Logs and Logging, Cent. Dig. § 53.]
    5. Evidence &wkey;>4i7(9) — Parol Evidence.
    In an_ action for breach of timber sawing contract, it was error to exclude evidence that it was contemplated by both parties that green timber only was to be made into lumber; the contract not specifically covering the point.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1882.]
    0. Logs and Logging &wkey;>21 — Sawing Contract — Evidence—Admissibility.
    In an action for breach of timber sawing contract, defense being that plaintiff sawed dead and rotten timber which would not make merchantable lumber, it was competent to show what effect the deadening of timber would have after standing some time, and the relative value of lumber sawed from such timber.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. § 53.]
    7. Logs and Logging c&wkey;21 — Sawing Contract — Evidence—Admissibility.
    In such action, it was not proper to allow a witness to testify as to the character of lumber made for other parties by plaintiff, since the issue in the case was the character of lumber manufactured by plaintiff for defendant under the contract.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. § 53.]
    8. Damages <&wkey;>175 — Evidence — Relevancy —Remoteness.
    In such action, testimony of plaintiff that he was compelled to sell his mule should not have been permitted, as it was too remote, and damages therefor were not recoverable.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 469-471.]
    Appeal from District Court, Van Zandfc County; R. M. Smith, Judge.
    Action by W. M. Porter against B. H. Mc-Kinnon, Sr. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Liveley & Stanford, of Canton, for appellant. Simpson, Lasseter & Gentry, of Tyler, for appellee.
   RAINEY, G. J.

Appellee brought this suit against appellant to recover damages for the breach of a contract for sawing timber on appellant’s land, appellee furnishing the sawmill, which contract reads as follows:

“State of Texas, County of Henderson. Brownsboro, Texas, January 16, 1915. This agreement by and between W. M. Porter and B. H. McKinnon: Witnesseth: W. M. Porter agrees to furnish sawmills, boiler’s and engines, teams, tools for the manufacture of a certain lot of timber, oak gum and pine, into lumber, and to bear one-Ealf of the expenses for operating. It is understood that W. M. Porter is to pay one-half of the current running expenses from the sales of lumber only. B. H. McKin-non agrees to furnish timber from about 1,200 acres of land situated in Yan Zandt county, Texas, near Edom said land known as the McKinnon land. It is further agreed by B. H. McKinnon to furnish all necessary cash for operating such a mill until same is in operation, that is as soon as the mill is moved to the land location; and it is further agreed that in case the sale of lumber fails to pay current running expenses, then B. H. McKinnon is to furnish cash enough to pay all such expenses and receive there for lumber of the current market price. It is also agreed that the mill property is to be on the land by February I, 1915. It is further agreed by both parties that W. M. Porter and B. H. McKinnon are to share equally in the output of said mill; and it is further agreed by B. H. McKinnon that after the lumber referred to is all sawed that the said B. H. McKinnon shall pay to W. M. Porter for his entire interest in the stock of lumber then on hand a price which shall be one dollar per thousand feet less than the regular retail price of such lumber at this mill. This payment shall be made in cash.”

Appellant answered by general demurrer and general denial, and specially that appel-lee was cutting dea'd and rotten timber, and not making merchantable lumber, and was diverting the funds and supplies furnished by appellant, thereby breaching the contract, which forced him to cease furnishing supplies to run the mill. The case was tried before a jury, and verdict and judgment were rendered in favor of appellee for $850, from which this appeal is taken.

1. The first assignment of error complains of the overruling of the motion for continuance. The application does not state the testimony is material, showing the materiality thereof, “and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known,” and “that the continuance is not sought for delay only, but that justice may be done.” R. S. 3911, art. 1918. The application not complying with the statute, the assignment is overruled.

2. The second assignment of error is:

“The court erred in paragraph 3 of its main charge wherein it charged the jury that ‘it was the duty of the plaintiff to use supplies furnished by defendant and receipts from the sale of lumber in paying reasonable expense of putting down the mill.’ ”

Proposition submitted thereunder is:

“The matter complained of herein is purely a matter of contract, and, unless specifically contracted for, plaintiff would not have such right, and especially would same be error when the contract provides otherwise.”

Paragraph 3 of the court’s charge reads:

“It was the duty of plaintiff to use the supplies furnished by defendant, and the receipts from the' sale of lumber, in paying the reasonable expenses of putting down the mill and manufacturing the timber into lumber; and, if you find that he diverted and failed to account to the defendant for the supplies so furnished and receipts from the sale of lumber, then you are charged that the defendant had the right to refuse to further carry out Ms contract, and in such event you will find for the defendant.”

Appellee, under the contract was to furnish the sawmill, boiler, engine, etc., and the evidence shows that the mill, etc., were located in an adjoining county, some distance from appellant’s land, and the language used by the court in said paragraph of the charge was calculated to induce the jury to believe that appellee was to share in the expense of moving the mill, etc., to his land, when the contract expressly provides that appellant was “to furnish all necessary cash for operating such mill until same is in operation, that is, as soon as the mill is moved to the land location.” This clause of the contract is a little confusing, but we think the meaning is that appellant was not to be at any expense until the mill, etc., was moved to the land and in operation. We think the charge was misleading in this respect, and therefore was error.

3. There are numerous assignments presented relating to the main charge, and to the refusing of special charges, but there is objection to the consideration of these, because they are not in compliance with the rules, in that proper bills of exception were not preserved. But there are some matters which will probably arise on another trial, which ought to be noticed.

4. The court was asked to instruct the jury, in effect, that plaintiff should not be allowed for any damages that he could have avoided by reasonable effort, if defendant was in fault in breaching the contract. The doctrine of minimizing damages does not apply in this case, and the court did not err in refusing the charge requested. Harness v. Kentucky Fluor Spar Co., 149 Ky. 65, 147 S. W. 934, Ann. Cas. 1914A, 803; Railway Co. v. Dreeson, 43 Tex. Civ. App. 282, 96 S. W. 63.

5. If appellee cut and sawed defective timber, and thereby manufactured nonmerchantable lumber, when there was suitable timber on appellant’s land he could have utilized for that purpose, he was not entitled to damages for the breach of the contract, and the jury should have been so told.

6. It was error to refuse to admit the testimony of appellee, to the effect “that it was contemplated by both parties to the contract that green timber only was to be made into lumber.”

7. It was competent to show what effect the deadening of timber would have after standing some time and the relative value of lumber sawed from such timber.

S. It was not proper to allow witnesses to testify as to the character of lumber made for other parties by appellee. The issue in this case was the character of lumber manufactured by appellee for the appellant under this contract.

9. The testimony of Porter that he was compelled to sell his mule should not have been permitted, as it was too remote, and damages tberefor were not recoverable.

The judgment is reversed, and tbe cause is remanded.
      <Sx»Eor other oases see same topic and KEY-NUMBER in all Key-Numhered 'Digests and Indexes


author: RAINEY, C. J.

text:
    KENNEDY v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 7662.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 10, 1917.
    Rehearing Denied March 17, 1917.)
    1. Appeal and Error <&wkey;1058(2) — Harmless Error — Exclusion op Evidence.
    In an action by railroad employé for injuries from sudden lurching of train upon defective track, error in excluding plaintiff’s testimony that he could tell from the movement of the train that there was a defect in the track was harmless, where he had already stated that he thought there was a defect in the track, and his other testimony was such that the excluded testimony would have added nothing to the force of what he had already testified to.
    [Ed. Note. — Por other cases, see Appeal and Error, Oent. Dig. §§ 4195, 4201.]
    2. Evidence <&wkey;129(l) — Similar Pacts — Misstatement op Age.
    In an action by a railroad servant for injuries, where on cross-examination plaintiff was questioned as to having stated his age incorrectly in an application for employment, it was proper to exclude his testimony as to what other men customarily did in such circumstances.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 388, 389.]
    3. Appeal and Error 4&wkey;1057(l) — Harmless Error — Exclusion op Evidence.
    In action by servant for injuries, in which plaintiff’s killing of his brother-in-law was a collateral issue, the exclusion of plaintiff’s testimony that he went to his brother-in-law’s home to get the latter’s wife to get him off the street while drunk, and that the brother-in-law was a desperado, was harmless where other evidence by plaintiff showed he had acted in self-defense.
    [Ed. Note. — Por other cases, see Appeal and Error, Oent. Dig. §§ 4194-4196.]
    4. Appeal and Error &wkey;>1057(l) — Harmless Eeibor — Exclusion op Evidence.
    In action by servant for injuries, exclusion of his testimony as to why after being injured he did not complain thereof, the reason being he was afraid he would lose his job, was not reversible error, where one of his witnesses testified that plaintiff told him of his injury on the day when received, and plaintiff testified that some time thereafter he went to a doctor, and when the latter told plaintiff of the nature of such injury, plaintiff could not believe it, because he knew nothing about it.
    [Ed. Note. — Por other cases, see Appeal and Error, Oent. Dig. §§ 4194-4196.]
    5. Appeal and Error 4&wkey;1058(2) — Harmless Error — Exclusion op Evidence.
    In action by a servant for injury, refusal to permit plaintiff’s witness to answer the question whether plaintiff did not tell him he did not think the injury was serious, which answer was expected to be in the affirmative, was, if error, immaterial, in view of other testimony of the same witness that plaintiff was talking about another injury and knew nothing about the injury complained of.
    [Ed. Note. — Por other cases, see Appeal and Error, Oent. Dig. §§ 4195, 4201.]
    6.Appeal and Error <&wkey;692(l) — Bill op Exception — Exclusion op Answer to Question.
    The refusal to allow answer to a proposed question cannot be considered on appeal, where the bill of exceptions does not show what the answer would have been to the question, since no injury is shown to appellant by such ruling.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2905, 2906.]
    Error from District Court, Hunt County; Wm. Pierson, Judge.
    Action by J. E. Kennedy against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    B. Q. Evans and H. L. Carpenter, both of Greenville, for plaintiff in error. C. C. Huff, of Dallas, and Dinsmore, McMahan & Dins-more, of Greenville, for defendant in error.
   RAINEY, C. J.

Plaintiff sued to recover of defendant damages for personal injuries to him while employed by appellee as a fireman of an engine in operating a ditcher, while said ditcher was being transported from Greenville to Mineóla on its own road; that while he was reaching up to procure some waste to start a fire in said ditcher the train, while going over a defective track, made a sudden lurch which caused plaintiff to fall over a bar which produced hernia and otherwise injured him.

Defendant answered by general demurrer and general denial. A trial resulted before a jury in a verdict and judgment for defendant, from which appeal is taken.

The evidence pro and eon was introduced, and the assignments of error presented all relate to the admission and rejection of certain evidence.

The first is that the court erred in refusing to allow plaintiff to testify “that he could tell from the movement of the train when the car went down that he was on that there was a defect in the track at that point.” The plaintiff was an experienced railroad man, aDd was competent to answer the question propounded, but he had already stated that he thought there was a defect in the track, and his testimony in regard to the lurching of the car, and his testimony after going over the track and examining the point where he claimed to be hurt was such that his answer would have added nothing to the force of what he had already testified to, and therefore the error is harmless, and not reversible.

The second assignment relates to the exclusion of testimony of plaintiff on redirect examination as follows:

“Q. What was it you said about it fyeing customary for all men to do that went into service? A. The reason I done it, the railroad company, if you arc past a certain age, won’t take you sometimes, and you have got to make your age younger, as all of them do.”

Objection was made to that part of the answer which read “as all of them do.” The court sustained the objection and told the jury not to consider it. The witness was being questioned about his age, he having stated on cross-examination that when he made application for employment to defendant he had stated he was horn in February, 1885, when in fact he was born in 1879, and further:

“I put my age clown at that time in making the application to the railroad company the same as ail other men do.”

He had on cross-examination testified without objection to the same effect, and if the effect of the court’s ruling was to exclude the testimony in each instance, there was no error, because he stated, in effect, his reason to be that he would be more apt to secure employment by placing his age younger than he really was. What other men did in such cases was no excuse for him doing it, and was therefore immaterial, and not admissible. The court did not err in its ruling.

The third assignment of error relates to the admission of testimony of plaintiff “that he shot to death his own brother-in-law on the streets of Coalgate, Old..,” and, further, that the court erred in refusing to permit plaintiff to answer the following question:

“I will ask you if you didn’t beg him (meaning Baldy Bunch) to put up his pistol and go home?”

This assignment does not cite the bill of exception nor page of the record where it can he found. We have found no such bill, and therefore cannot pass upon it intelligently.

With the third assignment was grouped the fourth, fifth, and sixth assignments, and which are submitted together. The fourth complains of the refusal of the court to allow plaintiff to answer the following question:

“Q. I will ask you if you did not go to his home (meaning Baldy Bunch) that morning and get his wife to go after him and asked her to get him and get him off the streets?”

The fifth assignment complains of the court in not allowing plaintiff to testify:

“That Baldy Bunch was considered a desperado and^ that his general reputation in that community was that of a desperado.”

The sixth assignment complains of the court in not permitting plaintiff to answer this question:

“Q. I will ask you if while you were on the streets, you and the city marshal, in the performance of your duty as officers there, if this man while drunk didn’t pull his pistol and open fire on you and the city marshal?”

Under these assignments plaintiff submits the following proposition:

“The plaintiff on cross-examination by the defendant’s counsel being required to testify before the jury as_ follows: ‘I don’t know that 1 went to the penitentiary for killing my brother-in-law. Me and the city marshal was charged and convicted of killing my brother-in-law and given 6% years.’ It was admissible on redirect examination to show in explanation of his conduct with and connection with the killing of his brother-in-law that plaintiff was constable of Coalgate, and this his brother-in-law, Baldy Bunch, was drunk, had his pistol out, and that he went to him and begged Mm to put up his pistol and go home, and when ho wouldn’t do it he went to his brother-in-law’s home and got his wife to go after him and begged her to get him to go home off the streets; that Bunch was considered a desperado; that was his general reputation; and that, being drunk and having his pistol, he opened fire on plaintiff and the city marshal, and when the shooting was over he was lying on the ground dead or dying, and the plaintiff and the city marshal turned and walked to the sheriff and gave themselves up.”

The matter to which the grouped assignments relate, the killing of one Baldy Bunch at Coalgate, Old., was a collateral issue in this ease. From the statement of facts we find that on direct examination by his counsel plaintiff in the beginning of his testimony after giving his name, stated:

“I have not my pardon [from the penitentiary] with me; it is down at the house. * * * When I lived in Oklahoma I was hoisting engineer at the ‘Katy’ mines. I was elected constable of Coalgate in 1907, when Oklahoma came into statehood, and was constable about two years and resigned. It was in July, 1909, when I had that trial there. I was constable at the time this difficulty came .up; the-city marshal and I were together. No, sir; I didn’t get away or skip out.”

On redirect examination plaintiff testified:

‘Yes, sir; and when I was constable at Coal-gate it is true that Baldy Bunch was drunk and had his pistol out in the street, and he opened fire on me and the city marshal. It was in this shooting scrape he was killed. When the shooting was over he was lying on the ground dead or dying, and me and the city marshal turned and walked to the sheriff and give up.”

The testimony of plaintiff that he went to the home of Baldy Bunch to get Bunch’s wife to get him off the street, and that Bunch was a desperado, became immaterial in view of the fact that the evidence shows in relation to the killing that plaintiff acted in self-defense. While under sentence he never was confined in the penitentiary, but was out on parole and was finally pardoned by the Governor of Oklahoma. Under the circumstances the rulings of the court were not injurious to plaintiff, and the assignments are overruled.

The seventh assignment of error complains of the action of the court in not letting plaintiff testify why, after being injured, he did not say anything to the crew with whom he was working about being injured; the reason being he was afraid he would lose his job with the railroad company. Bullard, a witness for plaintiff, testified that plaintiff told him of his injury on the same day of the injury. Plaintiff testified that some time afterward he went to Dr. Cantrell to be examined. “When he told me I had an open ring, I couldn’t believe it, because I knew nothing about it.” We hold that there is no reversible error in this ruling.

The eighth assignment complains of the court for not permitting the witness Brandon to answer the following question:

“Q. Did he not tell you be didn’t think it was serious?” (meaning the injury he received and had complained of in his petition and at the time when they were down at the place on the 31th of March, at the time of the injury).

Objection was made that it was hearsay and self-serving. Counsel expected the witness to answer the question in the affirmative; that is, that he told Brandon of the injury and said that he did not believe that it was serious. The witness in relation to plaintiff being injured testified:

“Ho said he was hurting in his breast. He said it hurt him when he coughed. I inferred from that that it was in his breast where it hurt him. I cannot say that I heard him say he got hurt coming down, for I was not with him very much at first. I could not say that I learned while X was down there that he had gotten hurt somehow as he went down. I know he was making some complaint. I never noticed anything the matter with him from the way he was working.”

Counsel for appellee objected to the language in parenthesis, meaning that the question was related to the injury mentioned in the petition. The testimony of Brandon is clear that he was talking about hurting in the breast and knew nothing about any other injury. Be this as it may, when all the testimony is considered we think the ruling, if error, is immaterial.

The ninth assignment of error complains of not being allowed to prove by witness Brandon wrecks had occurred at said place in the last year and two or three months. Objection was made that the question propounded does not confine itself to the time of the alleged accident or shortly before that and anything that has occurred within a year since that would not be admissible.

We are unable to consider this assignment, as the bill of exception does not show what the answer would have been to the question, and therefore no injury is shown to appellant by the ruling of the court in not permitting the witness to answer.

The record shows that the verdict and judgment are fully supported by the evidence, and therefore the judgment is affirmed.

Affirmed.
      <Snn>Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J

text:
    McCLOSKEY v. SAN ANTONIO TRACTION CO.
    (No. 5799.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1917.
    Rehearing Denied March 14, 1917.)
    1. Injunction <&wkey;118(S) — Pleading — Construction.
    In a railroad’s suit to restrain an alleged barrator from fomenting litigation, neither the allegation that defendant knew nothing of certain claims, nor the allegation that there appeared to be no real basis for claims of liability, could properly be construed to charge that the claims were fraudulent, or that defemdamt induced claimants to conceal their true character or condition.
    [Ed. Note. — Eor other cases, see Injunction, Cent. Dig. § 235.]
    2. Champerty and Maintenance <&wkey;4(l)— Barratry — Soliciting Employment to Adjust Claims — Statute.
    There is in force in Texas no common law nor statutory law making it unlawful for a person not a licensed attorney to solicit employment as an agent to adjust claims, or to solicit claimants to present claims or to sue upon them; Pen. Code 3.911, art. 421, forbidding only attorneys at law to solicit employment in any suit.
    [Ed. Note. — Eor other cases, see Champerty and Maintenance, Cent. Dig. §§ 4, 9, 12, 13.]
    3. Assignments <&wkey;24(2) — Causes of Action.
    Causes of action, including those for personal injuries, have been commercialized, and can be bartered, sold, and contracted for like personal property, and the common and civil law inhibition to deal in them does not obtain in Texas, so that a transportation company has no legal right to complain of the acts of a third person in hunting up persons injured by the company and soliciting them to sue or assign their claims.
    [Ed. Note. — Eor other cases, see Assignments, Cent. Dig. § 43.]
    4. Injunction <&wkey;12 — Inducing Presentation of Claims.
    Injunction cannot issue to restrain one not an attorney at law from inducing the presentation of exaggerated or doubtful claims for personal injuries against a railroad, the court being without jurisdiction, since the court cannot indulge the presumption that trial of suit on such claims will result in unfair loss.
    [Ed. Noto — For other cases, see Injunction, Cent. Dig. §§ 11,12.]
    5. Injunction <&wkey;13 — Pecuniary Loss — Inducing Presentation of Claims.
    Costs incident to the preparation and trial of a lawsuit, such as lawyer’s fees, loss of time, legitimate expense of collecting testimony, none of which can be recovered even in trial resulting in defendant’s favor, do not constitute pecuniary loss or injury to entitle a railroad to enjoin, one not an attorney from inducing injured persons to present exaggerated or doubtful claims.
    [Ed. Note. — Eor other cases, see Injunction, Cent. Dig. § 13.]
    6. Injunction i&wkey;26(4) — Multiplicity of Suits.
    The multiplicity of suits that can be enjoined in equity applies only where the numerous suits are based on the same cause of action, or on causes of action that can be legally joined.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 31.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by the San Antonio Traction Company against Frank P. McCloskey. From a temporary restraining order against defendant, he appeals.
    Judgment reversed, and cause remanded.
    R. H. Ward, J. F. Carl, Jno. H. Biekett, Jr., and P. H. Swearingen, Jr., all of San Antonio, for appellant. Templeton, Brooks, Napier & Ogden, of San Antonio, for appel-lee.
   SWEARINGEN, J

The San Antonio Traction Company, appellee, filed this suit against Frank P. McCloskey, appellant, to have him restrained by temporary'and permanent injunction from pursuing the business of claim adjuster. The detailed methods by which appellant conducted the business are alleged in appellee’s petition. The allegations, relevant to the questions we consider conclusive of this case, are substantially these:

“In the conduct of its [appellee’s] said business and in the operation of its said street railway system as is necessarily incident in carrying on such business accidents occur in which passengers on plaintiff’s cars and travelers on the streets are involved; that said accidents may, and frequently do, result in claims of injury to the pei’sons involved; that many claims for injuries sustained in such accidents, and for alleged injuries sustained in alleged accidents, are presented against plaintiff [appellee], and many suits for such damages are filed against plaintiff [appellee] on account of such injuries and alleged injuries; that the costs and expenses to plaintiff of investigating, handling, settling, and defending such claims and suits is approximately * * * $1,000,000 per annum; that the said costs and expenses are greatly, unnecessarily, wrongfully, and unlawfully increased by the acts and practices of defendant [appellant] as hereinafter set out.” The pro rata of the $1,000,000 above mentioned, incurred by reason of the practices of appellant, it is alleged, will be in excess of ten thousand dollars unless appellant is restrained. Appellant’s business is that of a common barrator soliciting and stirring up claims and suits for unliquidated damages for personal injuries against appellee, soliciting and stirring up vexatious and speculative litigation based on such claims. Appellant “maintains offices and employs a large number of agents to handle his office and field work. He advertises and holds himself out as an adjuster of claims for unliquidated damages for personal injuries. He and his agents make it their business to look out for the happening of accidents that may serve as the basis of such claims for damages, hunt up and get in touch with possible and prospective claimants, and solicit such claimants to make and urge claims for damages on account of such accidents and to enter into contracts with defendant [appellant], employing him to take charge of and handle their claims. 1-Ie secures and obtains a great many such contracts, usually by the means stated. Such contracts generally, if not invariably, transfer and assign to him an interest in the alleged * * * cause of action as a consideration for liis services; such interest transferred and assigned being usually for one-third or one-half of such * * * cause of action. Upon obtaining such contract, he gives notice to the party against whom such claim is made that he holds such contract and has such transfer and assignment, * * * which makes it impossible for such party to deal directly with the claimant, and settle the claim upon terms satisfactory to such party and claimant, and makes it necessary for such party to deal with defendant [appellant], and to settle the claim upon terms satisfactory to defendant [appellant] or let the claim go to suit. * * * By the means aforesaid * * * [appellant] causes and procures a great number of such claims to be presented against plaintiff [appellee] * * * that otherwise would never be presented or urged. Many of such claims so presented are * * * claims concerning which plaintiff [appellee] * * * knows nothing and can learn nothing; in a great many of them the injuries claimed to have been sustained are grossly exaggerated; in many of them there appears to be no real basis of the claim of liability. * * * In cases where [appellee] refuses to settle on [appellant’s] terms, he employs or causes attorneys to he employed to bring suit thereon.” The appellant “usually * * * agrees to become responsible for the costs and expenses of the litigation, and frequently advances money for that purpose. * * * He sometimes advances money to the claimant to induce him to make such claim and to give such contracts to [appellant], and he generally makes advances in monthly or weekly installments to the claimant pending the settlement of the claim.”

And appellee closed his petition with the prayer that appellant be notified to appear and show cause why a writ of injunction should not be granted, restraining him from each and all of the acts and practices herein above set out. Appellant’s answer consisted of a general demurrer, several special exceptions, a general denial, and special admissions. After hearing the evidence, the court made the following order;

“It is therefore ordered, adjudged, and decreed by the court that the clerk of this court be and he is hereby directed, on the filing by the plaintiff of a bond herein in the sum of $5,000, conditioned and payable as required by law, to issue a writ of injunction against the defendant, F. P. McCloskey, enjoining and restraining him, his agents, servants, and employes, during the pendency of this suit, from soliciting, inciting, or inducing, or attempting to induce, any person or persons to present claims or bring suits for unliquidated damages against the plaintiff, and from soliciting, inciting, or inducing any person or persons to turn over their claims for such damages to him, or to employ him in connection therewith, and from soliciting, inciting, or inducing any person or persons to present exaggerated or fraudulent claims for such damages against the plaintiff, or to conceal the true character or nature of their condition, and from buying or offering to buy any such claim from any person or persons unsolicited by such person, and from offering any money or other thing of value to any person as an inducement to such person to employ him to represent such person in such claim or suit against plaintiff, unless such person shall first go to defendant and request him to represent him in such claim or suit, and from interfering with settlements between plaintiff and persons having claims against it, and from attempting to prevent such person or persons from making settlement with plaintiff.”

From this temporary restraining order this appeal is taken.

The evidence introduced at the hearing is fairly summarized by the trial judge in his terse, lucid, and able opinion, as follows:

“The testimony offered by the plaintiff tends strongly to establish the material allegations in the plaintiff’s petition. It appears that about 60 per cent, of all the claims presented against the plaintiff are presented by the defendant. A large number of witnesses testified that they had received slight injuries, or been on cars which were derailed, in which they received practically no injuries; that they were not acquainted with the defendant or his agents, and that almost immediately after such accidents the defendant or his agents approached them and solicited his employment by the claimants, urging them to present claims against the plaintiff for large damages, and that, if they would give him the claims to handle, he could obtain large sums of money for them, and urging them to exaggerate their injuries, to remain in bed as long as they could endure it, and when they went out insisted upon their using crutches when not necessary, and by various means trying to induce them to assist him in obtaining large sums of money from the plaintiffs, in many instances paying them a considerable sum of money in advance for the purpose of securing contracts of employment from them, and in some instances calling in a doctor to advise the claimants that they were seriously and permanently injured, when in truth and in fact they were only slightly injured, or not injured at all; that a great,number of suits for hundreds of thousands of dollars were filed by attorneys employed by the defendant on claims presented by the defendant, and that the defendant is still- continuing said business, one claim having been presented during the hearing of this application, and that he proposes to so continue the same. Although the defendant and his principal agent and assistant were present in court during the hearing of this application and heard the testimony of these witnesses, in which they were charged with the thing's here-inabove stated, they did not take the stand to deny or refute the testimony of these witnesses.”

The controlling question presented for our determination is this: Do the allegations in appellee’s petition authorize an injunction!

We will say, incidentally, that the order made by the court was probably not in all respects supported by appellee’s pleading. For example: The order restrains appellant from soliciting, inciting, or inducing any person * * * to present * * * fraudulent claims, * * * or to conceal the true character or nature of their condition. The only allegation in the petition that might have been construed to support the last-stated portion of the order is this:

“Many of such claims so presented are what is known as ‘blind claims’; that is, claims concerning which plaintiff [appellee] knows nothing and can learn nothing; * * * in a great many of them there appears to be no real basis of the claim of liability.”

Neither the allegation that appellee knows nothing of the claim, nor the allegation that there appears.to be no real basis of the claim of liability, can be properly construed to charge that the claims are fraudulent, or that appellee induces the claimants to conceal the true character or nature of their condition.

To return to the main question, the sufficiency of appellee’s petition: It is apparent that the allegations therein are correctly propounded upon the hypothesis that the alleged acts or system of business of appellant are in violation of law, and that there is imminent danger that appellee will be injured thereby. The main question naturally falls into two parts: What law is violated! and what is the injury! Counsel for appellee, in their most interesting and instructive brief, contend that the law violated is that of public policy as defined in the English statutes of barratry, champerty, and maintenance, which' statutes themselves were merely declaratory of the prior prevailing common law. Appellee’s counsel concede that the common-law definition has been modified by the Texas Penal Code by adding a new article in 1876 (Acts 15th Leg. c. 135), and by article 421 of the Penal Code now in force. They further admit in their brief that the acts alleged in their petition are not sufficient in themselves to indict or convict appellant of the offense of barratry, maintenance, and champerty as defined by the Texas Penal Code. But counsel insist that the common law made it unlawful to solicit claims, to render aid where there was no interest, to institute fraudulent claims, and to acquire a contingent interest in causes of action, because contrary to public policy; and counsel argue that to this extent the common law prevails in Texas, and will give jurisdiction to a court of equity to enjoin the acts condemned by the common law, provided special injury is alleged and proven to the petitioner.

Mr. Chief Justice Brown, in his splendid sermon on the marriage status, reported in Grigsby v. Reib, 105 Tex. 600, 153 S. W. 1125, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011, says:

“The effect of the act of 1840 * * * was not to introduce and put into effect the body of the common law, but to make effective the provisions of the common law so far as they are not inconsistent with the conditions and circumstances of our people.”

The statute itself (article 5492) adopts the common law only in so far as it is not inconsistent with the laws of this state, or until altered or repealed by the Legislature. The question whether or not the common law against champerty and maintenance was a part of our civil law in 1873 was ably discussed by those great lawyers of counsel in the case of Bentinck v. Franklin, 38 Tex. 458. The Supreme Court in that case determined that at that time there was no law prohibiting champerty in this state. Again, our Supreme Court, in the case of Stewart v. Railway, 62 Tex. 246, held that the common-law doctrine of champerty and maintenance .was not in force in this state. Again, in the case of Wheeler v. Riviere, 49 S. W. 697, Chief Justice Pleasants made a similar holding. To the same effect is the opinion in the case of G., H. & S. A. Ry. v. Ginther, 96 Tex. 295, 72 S. W. 166.

Inasmuch as the common law of barratry, maintenance, and champerty was defined by an English statute, it may present a more definite idea of this ubiquitous common law to here quote the statute itself as given by Mr. Blackstone:

“Common barratry is the offense of frequently exciting and stirring up suits and quarrels between his majesty’s subjects, either at law or otherwise.” Though to be a barrator one must not sue in his own right according to note 13, vol. IV, page 134. The punishment for this offense * * * is by fine and imprisonment.
“Maintenance .is an offense that bears a near relation to the former, being an officious inter-meddling in a suit that no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it. • * * This is an offense against public justice, as it keeps alive strife and contention. * * * And therefore, by the Roman law, it was a species of the crimen falsi to enter into any confederacy, or do any act to support another’s lawsuit, by money, witnesses, or patronage. A man may, however, maintain the suit of his near kinsman, servant, or poor neighbor out of charity and compassion.”
“Champerty, campi-partitio, is a species of maintenance and punished in the same manner, being a bargain with a plaintiff or defendant, campum partiré to divide the land or other matter sued for between them, if they prevail at law, whereupon the champerter is to carry on the party’s suit at his own expense. * * * It signifies the purchasing of a suit or right of suing, a practice so much abhorred by our law, that it is one main reason why a chose in action, or thing of which one hath the right, but not the possession, is not assignable at common law.” 4 Cooley’s Blackstone, 134 et seq.

As shown above, this English law probably never was in force in Texas. Prior to 1876 there was no barratry statute in Texas, but in that year the Legislature passed a criminal statute (Acts 15th Leg. c. 135) which in substance made it unlawful for any person to willfully instigate, maintain, excite, prosecute, or encourage the bringing of any suit at law or equity in any court of this state in which such person has no interest, .with the intent to distress or harass the defendant therein, or shall willfully bring or present any false suit at law or equity of his own with intent to distress or harass the defendant therein. The above statute remained in our Penal Code until 1901, when the Legislature amended said act (Acts 27th Leg. c. 57), stating in the caption that the amendment was made “so as to include the fomenting of litigation by attorneys at law by soliciting employment or advancing money * * * to the parties to litigations in order to procure employment.” The statute as amended is article 421 of our Penal Code:

“If any person shall willfully instigate, maintain, excite, prosecute or encourage the bringing of any suit or suits at law or equity in any court of this state in which such person has no interest, with the intent to distress or harass the defendant therein, or shall willfully bring or prosecute any false suit or suits at law or equity, of his own, with the intent to distress or harass the defendant therein, or, if any attorney at law shall seek or obtain employment in any suit or case at law, or in equity, to prosecute or defend the same by means of personal solicitation of such employment, or by procuring another to solicit for him employment in such cause, or who shall, by himself or another, seek or obtain such employment by giving to the person from whom the employment is sought money or other thing of value, or who shall, directly or indirectly, pay the debts or liabilities of the person from whom such employment is sought, or who shall loan or promise to give, loan or otherwise grant money or other valuable thing to the person from whom such employment is sought, before such employment, in order to induce such employment, whether the same shall be done directly by him or through another, shall be deemed guilty of barratry, and shall, upon conviction, be punished by fine in any sum not to exceed five hundred dollars, and may in addition thereto be imprisoned in the county jail not exceeding three months. The term ‘attorney at law’ shall include counselor at law; and any attorney at law, violating any of the provisions of this law, shall, in addition to the penalty hereinbefore provided, forfeit his right to practice law in this state, and shall be subject to have his license revoked and be disbarred in the manner provided by law for dishonorable conduct or malpractice, whether he has beesn convicted for violating this law or not.”

From the foregoing we conclude that the Texas law defining barratry, etc., is not an indefinite idea of the common law of England, but an exactly framed statute, which accurately defines the law of barratry, maintenance, and champerty. It is clear that only an attorney at law is forbidden to solicit employment in any suit himself or by an agent. Why the Legislature left it lawful for a layman to do with impunity those things, which it made unlawful to be done by an attorney at law, we are not called upon to explain. It may be the Legislature did not anticipate that a layman would develop a large and lucrative business of speculation and peculation, as Judge Gould expressed it in the brief in the Bentinck Case, dealing with the accidents of transportation companies. We find that there is not in force in this state any common law nor statutory law that makes it unlawful for a person, who is not a licensed attorney, to solicit employment as agent to adjust claims, nor to solicit claimants to present claims or sue upon them.

One of the practices anciently considered contrary to public policy and most severely condemned by both the civil and common law was the buying of causes of action. By the decisions of our Supreme Oourt and legislative acts causes of action are commercialized, and can be bartered, sold, and contracted for like personal property. As early as 1840 all rights and interests in property, and all rights of causes of action for tort connected with or growing out of property or contracts, were assignable. The test of the assignability was whether or not the claim would pass as an asset to the legal representative of the assignor at his death. Railway v. Freeman, 57 Tex. 156; Stewart v. Railway, 62 Tex. 246; Jones v. Matthews, 75 Tex. 3, 12 S. W. 823. Thus the first change was the assignability of a cause of action for tort, and it was limited to torts connected with contracts or land. The common-law rule, that the right of action for injuries to the person, or on account of torts unconnected with contracts or property, died with the person, prevailed in Texas until 1895, and prior to which date such causes of action could not be assigned.

Article 5686 was passed in 1895, and provides substantially, that suits for such injuries shall not abate by reason of the death of the injured person, but shall survive in favor of the heirs and legal representatives of the injured party. Since the enactment of article 5686 it has been held that such causes of action are assignable. Railway v. Ginther, 96 Tex. 295, 72 S. W. 166; Railway v. Ellyson, 43 Tex. Civ. App. 45, 94 S. W. 910; Railway v. Stubbs, 166 S. W. 699; Railway v. Vaughan, 16 Tex. Civ. App. 403, 40 S. W. 1065; Wheeler v. Riviere, 49 S. W. 697. In the meantime the Legislature, in 1889, had enacted article 6833, which provided that the sale of any cause of action or interest therein after suit had been filed should be evidenced by written transfer filed among the papers of the cause, and that said article should apply to all suits, claims, and causes oí action, whether assignable in law and equity, or not. This statute is one of notice, and is also legislative recognition of the right to barter and sell interests in personal injury suits. Railway v. Wooten, 10 Tex. Civ. App. 54, 30 S. W. 684.

Prom the foregoing, there can be no doubt that causes of action for personal injuries are property subject to sale, barter, contract, or gift as any other property, and that the common and civil law inhibition and condemnation of dealing in causes of action is obsolete in Texas. Since a claimant has the right to assign all or any part of his cause of action, and all persons have the right to buy or acquire the same or any part thereof, it is not unlawful for the appellant to acquire an interest in any claim or claims. How appellant acquires them, whether by hunting for them and soliciting them, or having them first presented to him, is a question that appellee has no legal right to inquire into, nor to regulate. The consideration paid by appellant for his interest in the cause of action is a matter that concerns only the parties to the contract concerning the cause of action, and appellee has no lawful right to change, prevent, or in any way regulate the same.

After appellant thus lawfully acquires an interest in the claim, he has a lawful right to require appellee to make a settlement satisfactory to him. The settlement of the cause of action cannot by law be confined to appellee, and the original claimant for appellant has lawfully acquired whatever right the original claimant had in proportion to the interest acquired. This discussion leads to the conclusion that appellant, who it was alleged was not a lawyer, would violate no law by doing any of the acts or things from which he was restrained by the trial court’s order, unless it be inciting persons to present exaggerated claims, or claims about which appellee knew nothing, or claims of which there appeared to be no basis of liability.

As will be observed, the foregoing is an examination of the first part of the hypothesis of appellee’s petition, viz., that appellant violated the law. We will now consider the second part; that is, it will not be sufficient to allege the violation of an abstract principle of law, but in order to confer jurisdiction upon the court to grant an injunction the petition must also allege that the petitioner is in imminent danger of suffering some injury by reason of the alleged violation of the law. Chambers v. Gallup, 30 Tex. Civ. App. 424, 70 S. W. 1009. The petition before us alleges no facts which in law can be construed to mean will endanger ap-pellee’s property or force a financial loss. All that can be fairly deduced from the petition upon this issue is that appellant will, as he has been doing, induce the presentation of exaggerated or doubtful claims for payment, and, if not paid when presented, suit will be filed in the court to enforce payment. The courts have no jurisdiction to enjoin the presentation of claims by claimants, though the claims are unjust, and more certainly have no authority to enjoin appellant from inducing the claimant to present such claims.

But it is alleged that, if appellee refuses settlement upon presentation, appellant will cause suit to be filed to enforce payment of the claim. We cannot for a moment indulge the presumption that a trial of the cause will result in an unfair loss to appellee. On the contrary, it must and will be presumed that a trial will result in exact justice being meted out to all parties to the suit. A threat to sue is not coercion, force, or violence, not vi et armis, but an offer of a fair and equitable settlement. No one can be deprived of his rights to resort to the courts for the adjudication of his claim by a writ of injunction.

The costs incident to the preparation and trial of a lawsuit, such as lawyers’ fees, loss of time, legitimate expense of collecting testimony, none of which can be recovered, even in a trial resulting in appellee’s favor, do not constitute pecuniary loss or injury. Salado College v. Davis, 47 Tex. 135; Sedgwick on Damages, 38; King v. Sullivan, 92 S. W. 52; Vance v. Lindsey, 60 Tex. 290-291; Mutual Life Ins. Co. v. Hargus, 99 S. W. 580; Smith v. Adams, 27 Tex. 30.

The fact alleged, that appellant will bring a multiplicity of suits, cannot be intended to warrant an injunction in the case at bar, for it is well known to counsel that the multiplicity that can be enjoined applies only where the numerous suits are based upon the same cause of action, or causes of action that can be legally joined in one suit. The claims alleged in appellee’s petition are each distinct causes of action. We can understand, from the extent and nature of appellant’s business shown by the record before us, that the insufficiency of our law upon the subject may cause appellee to suffer most unjust and expensive wrongs, for which there is now no remedy. But courts can only apply the law, and cannot make it, even under the beneficent power of equity.

The judgment is reversed, and the cause remanded.
      ©a^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    LEAL v. MOGLIA.
    (No. 5801.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1917.)
    1. Judicial Sales <&wkey;61 — Conveyance—Certainty of Description — Subvey.
    A sheriff’s deed description of property as onc-lialf of survey 671, being. 338% acres in a certain county, while not void, is insufficient unless aided by extrinsic evidence, where there might be other surveys of the same number in the same county, and the evidence indicates the acreage number was wrong.
    [Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 119-122.]
    2. Trespass to Tby Title &wkey;>38(l) — Burden op Proof — Description oe Deed.
    In trespass to try title, plaintiff, claiming under a sheriff’s deed in which the description was insufficient without aid of extrinsic evidence, had the burden of offering such proof.
    [Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. § 53.]
    3. Trial <&wkey;60(l) — Evidence Dependent on Preliminary Proof.
    In trespass to try title, a sheriff’s deed whose description was insufficient without aid of extrinsic evidence should have been excluded, where such extrinsic evidence was not offered.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 141-143.]
    4. Appeal and Error &wkey;> 1177(5) — Disposition-Remand Without Entry of Judgment.
    Where a judgment for plaintiff in trespass to try title was reversed upon assignments relating to the admission of evidence, the case will be remanded for another trial, instead of entering judgment for defendant in the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Djg. § 4607.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Trespass to try title by Lod Moglia against Esteban Leal and Antonio Rios. Judgment for plaintiff, and defendant Leal appeals.
    Reversed and remanded as to appellant.
    Mann & Henry, of Laredo, for appellant. Greer & Hamilton, of Laredo, for appellee.
   MOURSUND, J.

Lod Moglia sued Esteban Leal and Antonio Rios in trespass to try title, seeking to recover survey No. 671, containing 640 acres of land, and survey No. 459, containing 53.5 acres of land, both of which surveys are described as situated in Webb county. Defendant Rios failed to answer. Defendant Leal answered by general demurrer and plea of not guilty. Judgment was rendered in' favor of plaintiff against Rios for one-half of survey 671, “containing 301.8 acres of land,” and survey No. 459, containing 53.5 acres of land, and against Leal “one-half of survey No. 671 containing 338% acres,” said' lands being described as situated in Webb county, Tex.

On May 4, 1914, Lod Moglia recovered a judgment against Leal and Rios, defendants herein, for $865.87 and costs of suit, as well as for foreclosure of an attachment lien, which had been levied upon the property described in the judgment as follows: “One-half of survey No. 671, being 301.5 acres of land, and survey 459, containing 53.5 acres of land, situate in Webb county, Tex.” — levied upon as the property of Antonio Rios, and one-half of survey 671, being 338%' acres of land in Webb county, Tex., as the property of Esteban Leal. Order of sale was issued upon said judgment which contained the same descriptions of the land to be sold. The sheriff’s return reciting the levy of said writ and the sale thereunder also contains the same description of the lands, and so does his deed to Lod Moglia, who became the purchaser at such sale. Certified copies of the judgment, order of sale with officer’s return and sheriff’s deed, were admitted in evidence over appellant Leal’s objections, and by appropriate assignments of error he attacks the rulings relating to the admission in evidence of said instruments, which constituted the entire evidence in the case. He objected on the ground that the description of the land was insufficient; that it did not describe the land with such certainty as the law requires, or in such manner as to identify it with any degree of certainty, nor does it refer to any record or other facts by which the land could be identified with any degree of certainty. The further objection was made to the deed that it was evident the bidders did not know what land was being sold, otherwise so much land would not have been required to be sold for such a small sum. The descriptions were not aided by any extrinsic evidence showing what land was owned by appellant at the time of the levy of the attachment, or that there was only one survey in Webb county numbered 671. We must therefore decide, in passing upon the admissibility of the instruments, whether the descriptions standing alone are sufficient.

The duplication of survey numbers may occur in a county, and unaccompanied by a reference to either the abstract number, certificate number, or name of the original grantee, a description alone by survey num-( ber shows no certainty that the land can be identified. In the instruments referred to the land is described as one-half of survey No. 671, being 338% acres of land in Webb county. This description indicates that the survey is one of 677 acres, but whether the half levied upon is an undivided half or a certain half is not described. The description of the lands of Rios levied upon, instead of aiding the description of the land levied upon as the property of Leal, makes it more uncertain, for it calls for one-half of survey 671, being 301.5 acres. According to such description, there is a survey No. 671 which contains 603 acres. However, taking this to be the same survey, it is apparent that it was supposed Leal owned 338% acres, and not one-half, and that Rios owned 301% acres, making 640 acres, which is the acreage described in plaintiff’s petition as embraced in the survey sued for. We are of the opinion that the sheriff’s deed and its supporting instruments cannot be declared void for uncertainty, for it is not apparent that it cannot be ascertained from the description therein given, aided by extrinsic evidence, what property was intended to be levied upon, sold, and conveyed. Hermann v. Likens, 90 Tex. 448, 39 S. W. 282; Pierson v. Sanger Bros., 93 Tex. 160, 53 S. W. 1012; Wilson v. Smith, 50 Tex. 365; Williams v. McComb, 163 S. W. 654; Edrington v. Hermann, 97 Tex. 193, 77 S. W. 408; Welles v. Arno Co-operative Irrigation Co., 177 S. W. 985; Waterhouse v. Gallup, 178 S. W. 773. But we conclude that, unaided by extrinsic evidence, the descriptions cannot ba said to have been sufficient to enable the bidders to identify it and know what was being sold. The duty rested upon the party who offered these instruments in evidence to show that they were entitled to probative value; that in fact they were sufficient, aided by extrinsic evidence, to identify the land. This duty was not performed, and, objection having been made to the instruments, they should have been excluded. We therefore sustain the assignments of error.

The judgment against Leal is for one-half of survey 671, containing 338% acres, which description is as indefinite as that contained in the instruments relied upon. It occurs to us the petition should describe the land sued for fully, in order that, if the extrinsic evidence is of such character as to render certain the description in the sheriff’s deed, a judgment can be rendered which will adequately describe the land recovered so that from such description the sheriff can deliver possession thereof.

We are asked to render judgment in favor of appellant. The only assignments relate to the admission of evidence, and we deem it proper to remand the cause for another trial.

The judgment, in so far as it relates to the appellant Leal, is reversed, and the cause remanded; but the remainder of the judgment will not be disturbed.
      <§z»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes