author: PLEASANTS, C. J.

text:
    J. B. FARTHING LUMBER CO. v. WILLIAMS et al.
    (No. 7298.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 15, 1917.
    Rehearing Granted in Part March 22, 1917.)
    1. Chattel Mortgages <®=»6 — Nature of Transfer — Assignment of Rent.
    An assignment of rents made for purpose of excepting such rentals from a threatened foreclosure sale of the land, and accepted by the assignees to secure attorney’s fees due them, constitutes only a mortgage, and not an absolute conveyance.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 23-41.]
    2. Evidence <⅞=>20(1) — Judicial Notice — Farm Rentals.
    Judicial notice will be taken that, when lands ai-e rented under the farm tenant system by the year, the rent is not due until a reasonable time has elapsed for harvesting the crops.
    '[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 24-]
    3. Evidence <&=>84 — Rentals — Presumptions.
    In absence of contrary evidence, it will be presumed that farm rentals are not due until the crop is gathered.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 106.]
    4. Vendor and Purchaser <®u=j196 — Rights Passing by Sale — Rentals.
    Rentals, payable either in money or in crops, which are not due when the land is sold, pass to the purchaser when no reservation is made.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 404¾06.]
    5. Vendor and Purchaser <©=>196 — Rentals.
    Where land was sold before rentals were due, the title to the rents passed to the purchaser, irrespective of whether the vendor made any misrepresentations.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §| 404-406.]
    Appeal from District Court, Harris Comity; Wm. Masterson, Judge.
    Action by tbe J. B. Fartbing Dumber Company against Emily B. Williams and others. Judgment for defendants, and plaintiff appeals.
    Reversed, and judgment rendered for plaintiff.
    I-Iuggins & Kayser, of Houston, for appellant. J. W. Lockett, of Houston, for appel-lees.
   PLEASANTS, C. J.

This suit was brought by tbe appellant against Emily B. Williams, a feme sole, and others who were tenants upon certain lands in Colorado county which they had rented from the said Emily B. Williams for the year 1912. The purpose of the suit was to recover the rents due for said lands by said tenants, and to enjoin the collection by and the payment to said Emily B. Williams of said rents.

Plaintiff alleged that since the 2d day of July, 1912, it had been owner in fee simple of two certain tracts of land in Colorado county, containing 550 acres, and duly described same; that in December, 1911, plaintiff brought suit against the defendant, Emily B. Williams, in the district court of Harris county, Tex., for the sum of $3,253.46, and did in the same month attach the land situated in Colorado county described in the petition, and that some time in the year 1912, plaintiff proceeded to judgment in sáid suit, and obtained a judgment and an order of sale and a foreclosure of attachment lien, and had said land advertised for sale at the courthouse door in Colorado county for the 2d day of July, 1912; that on said date the sheriff was proceeding to sell said land, but plaintiff and defendant Emily B. Williams entered into an agreement, by which the defendant Emily B. Williams agreed to convey said land to plaintiff in satisfaction of.said debt; that plaintiff did on that day abstain from having the sheriff carry out said sale, and the defendant Emily B. Williams did on that date convey by regular general warranty deed said property to this plaintiff in satisfaction of said judgment; that said deed did not reserve to defendant Emily B. Williams the rents or crop grown on said land, and that at the time said crops were immature, and were not in fact severed from said land, and that said rents were not due at that time, and did not become due until several months thereafter. Plaintiff then sets out that the property had been rented for the season of 1912 to various tenants, setting out the amount rented to each tenant and the terms upon which the same were rented and the amount of rent due from each one, and the amount that .had been collected, but it will not be necessary in this appeal to set out these matters in detail.

Plaintiff further alleged that it was entitled to all of these rents by virtue of having taken a conveyance of said land in satisfaction of its judgment and attachment lien. Defendant) Emily B. Williams replied by numerous exceptions and demurrers unnecessary to mention here, and that, prior to July 2, 1912, she had assigned said rents to Green & Boyd; that consequently she had severed the same from the title to the land, and that she reserved them in her conveyance to plaintiff, but that after she had conveyed to plaintiff, she repurchased the rent claims for the year 1912, and said that she asserted title thereto at the time of this suit. She prayed judgment against the tenants for the rent in each instance and for $1,000 damages for unlawful issuance of the injunction against her.

The answer of three of the four tenants named in the petition admits that they owed rents for the year 1912 for portions of the land described in plaintiff’s petition, stating the amount of said rents, a portion of which they had paid to the defendant Emily B. Williams before the institution of this suit. The balance of the rent admitted to be due by each of said tenants was paid into the registry of the court to abide the result of this suit. Each of said tenants asked that, in event judgment was rendered in favor of plaintiff for the portion of rents paid to defendant Emily B. Williams, he have judgment over against said defendant for said amount.

The record shows that the fourth tenant also answered in the suit, but neither the answer nor its substance is set out in the transcript.

In reply to the answer of defendant Emily B. Williams plaintiff, by its second amended petition, alleged, in substance, that on the 28th day of June, 1912, defendant did execute an instrument in writing, purporting to assign to the said Green & Boyd all the rents due or to become due for the year 1912, and had the same recorded in volume Y, page 340, of the Bond and Mortgage Records of Colorado county. A copy of this assignment was attached as “Exhibit A” to the petition, but plaintiff alleged that this assignment was not made in good faith, was only a pretended conveyance in fraud of her creditors, and that it was understood and agreed that said rents were to be assigned back to the said Emily B. Williams, and in truth and in fact the same were reassigned to the defendant Emily B. Williams, except the sum of $300, which was retained to pay certain attorney’s fees that were due to the said Green & Boyd from the said Emily B. Williams. Plaintiff further alleged that the said Emily B. Williams was laying claim to all said rents, and was attempting to collect the same and would collect the same, unless restrained, and plaintiff prayed judgment for injunction restraining said defendant and for judgment against the other defendants for the rents due from said premises.

After hearing the evidence the trial court instructed the jury to return a verdict for defendants, and upon the coming ini of such verdict, judgment was rendered in accordance therewith.

The undisputed evidence sustains the allegations of plaintiff’s petition as to the purchase of the land by plaintiff from the defendant Emily B. Williams on July 2, 1912. The deed from said defendant to plaintiff conveying the land was a deed of general warranty, and was filed for record in Colorado county on July 2, 1912, the date oi its execution.

The contract between each of the defendant tenants and the defendant Emily B. Williams provided that the tenant give as rent one-fourth of the cotton raised on the land planted in cotton by him and pay $4 per acre for the land planted by him in corn. At the time of the sale of the land to plaintiff none of the crops growing thereon had been gathered or had matured. There is no testimony showing any agreement as to the time the rents were to be paid. The cotton was gathered and sold by the defendant tenants after the sale to plaintiff. The evidence shows the amount of the one-fourth of the proceeds of the cotton which was due as rents, and also the amount due by each of said tenants as rent for the corn land.

On June 28, 1912, four days before the defendant Emily B. Williams executed to plaintiff the deed of general warranty conveying the land upon which the defendant tenants were growing crops, she executed an instrument by which, for a recited consideration of $250 “and other valuable considerations,” she sold, transferred, and assigned to Sam. L. Green and Whit Boyd, composing the law firm of Green & Boyd, all rents due her or to become due her for the year 1912 on the land before mentioned. The uncontra-dicted evidence shows that no money or other consideration was paid for this transfer of said rents. At the time said transfer was made Miss Williams was indebted to said firm in the sum of $250 for legal services rendered her, and prior to the retransfer of the rents to her became indebted to the firm for legal services in the further sum of $50. About ten days after she had conveyed the land to plaintiff she called on Green & Boyd for a reassignment of the rents to her. She did not pay or offer any consideration for the reassignment, and Green & Boyd only demanded the payment of the $300 due them as the consideration therefor. Satisfactory arrangements having been made by which they could collect $300 of said rents in payment of the indebtedness due them, they reassigned the rents to her. Mr. Boyd, with whom the transactions in the matter of the assignment and reassignment of the rents were had, testified:

“There was no mo-ney paid by Green & Boyd to Miss Williams for this conveyance of rents. She owed us a fee of $300, and we understand we were going to get that out of the rents, these rents, which we did. The intention by us by that conveyance was to get our fee. I don’t know what her intention was. Miss Williams was not acting under my advice in making the transfer to us. I was not her attorney in the matter at the time; I don’t know that I was. We were her attorneys in a different transaction, in a suit pending in the Eleventh District court, an injunction case, involving property on Dallas avenue. This fee was on account of that suit. It was nothing connected with this matter at all. She owed us $300. I couldn’t give the language used by Miss Williams with reference to making the conveyance, but she stated she wanted to transfer the rents on this farm in Colorado county to us. We, at the time, didn’t say anything about wanting to get our fee out of it, but when she wanted to transfer it back, we refused to do it except holding out our fee. There was nothing said between us at the time she proposed to make this transfer to us. She did not say anything about our paying her for the transfer. When she came back to have it reconveyed, she asked us to reconvey the rents to her, and we told her we were willing to do so, but we wanted to reserve enough to pay our fee out of the other transaction. She objected to that first; she said we ought to be willing to trust- her for it, and we told her it was a matter of business, and refused to transfer it except as stated in the transfer, wherein we reserved the $300 on the rents due from these people.”

This instrument transferring the rents to Green & Boyd was filed for record in Colorado county on June 29, 1912, and was recorded on July 4, 1912, in the record of bonds and mortgages of said county.

We think this evidence conclusively shows that the assignment and transfer of the rents, while absolute upon its face, was nothing more than a mortgage. In so far as Miss Williams is concerned,, there is no evidence that she intended that the instrument should have any effect. The conclusion is irresistible from the evidence that her purpose in making the assignment was to place the apparent title to the rents in Green & Boyd, in the belief that by so doing said-rents would not pass to the purchaser of the land under the foreclosure sale, and that she never in fact intended to part with her title. Green & Boyd, however, accepted the assignment as security for the indebtedness due them, and their right to retain the $300 of said rents collected under the assignment is not questioned by plaintiff on this appeal, and no claim is made against the defendants for said amount.

Under appropriate assignments of error the appellant assails the judgment of the court below on the ground that the uncontra-dieted evidence shows that the title to the rents did not pass by the assignment from Miss Williams to Green & Boyd, and therefore such assignment was not a severance of the rents from the land, and, said rents not being due at the date of the execution of the warranty deed from Miss Williams to plaintiff, the title thereto, subject to the mortgage rights of Green & Boyd, passed to plaintiff by said deed. We think the assignment should be sustained. As we have before said, the undisputed evidence shows that it was not intended by either of the parties to the instrument that the assignment to Green & Boyd should pass the title of the rents, and therefore the instrument cannot be given that effect. The evidence further shows that the cotton rents were not due at the time of the conveyance of the land to plaintiff. There is no evidence that the time for the payment of the rents for the corn land was fixed by agreement of the parties. In the absence of such agreement, it cannot be presumed that said rents became due at the time the rental contract was made. On the contrary, we think it is a matter of such common knowledge that, under the farm tenant system prevailing in this state, when lands are rented by the year for farming purposes the tent is not due until the crops are made and a reasonable time allowed for their harvesting that the courts can take judicial notice of that fact; and, in the absence of evidence that the rental contract provided an, earlier payment of the rent, the presumption is that it was not due until the crop was gathered,

It seems to be settled by the decisions of our Supreme Court that rents upon land, whether payable in money or in a portion of the crop raised on the land, which are not due at the time the land is sold, passes to the purchaser of the land, when, as in this case, no reservation of the rents is made in the deed of conveyance. Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284; Porter v. Sweeney, 61 Tex. 216; Hearne v. Lewis, 78 Tex. 278, 14 S. W. 572.

The suit is not one for damages for fraud or deceit, and appellees’ counter proposition, that the trial court properly instructed the jury to return a verdict for the defendants on the ground that no actionable fraud was shown, because no material misrepresentation of fact by Miss Williams which was relied on by the plaintiff is shown by the evidence, presents no defense to the suit. If the rents were not due and Miss Williams had not transferred her claim and title thereto at the time she conveyed the land to plaintiff, such title passed -by the conveyance, and plaintiff owns the rents regardless of whether any misrepresentations were made to it by Miss Williams.

The conclusions above expressed require that the judgment pf the court below be reversed, and, the amount of rents due by each of the tenant defendants, being shown by the undisputed evidence, judgment will be rendered in favor of appellant against Miss Williams and each of the tenant defendants for the several amounts due by each of said tenant defendants; and it is so ordered.

Reversed and rendered.
      <&=oFor other cases see same topic and KEY-NUMBER »n all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    PECK v. ROBINSON & SMITH.
    (No. 7321.)
    (Court of Civil Appeals of Texas. Galveston.
    March 1, 1917.
    Rehearing Denied April 19, 1917.)
    1. Fraud <&wkey;64(5) — Jury Question — Land Trade.
    In damage action for misrepresenting amount of timber on land traded to plaintiff, evidence held to make defendant’s fraud a jury question, although plaintiff sent his own agent to inspect the land., where such agent was misled by defendant’s representative regarding the boundaries and amount of timber on the tract.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 70.]
    2. Fraud <&wkey;22(l) — Negligence of Defrauded Party — Effect.
    A damage action for fraud cannot be defeated by plea that defrauded party might have discovered the facts by exercising' proper care.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 19, 20, 22, 23.]
    Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.
    Action by H. M. Peek against John F. Robinson and Edward D. Smith, doing business as Robinson & Smith. Judgment for defendants in original action and for plaintiff upon defendants’ cross-bill. From the judgment in the original action, plaintiff appeals.
    Reversed and remanded.
    E. T. Chew, of Houston, for appellant. Campbell, Sewall & Myer, of Houston, and Sonfield, King & Sonfield, of Beaumont, for appellees.
   PLEASANTS, C. J.

Appellant brought this suit against John F. Robinson and. Edward D. Smith, composing the firm of Robinson & Smith, to recover damages for the alleged fraud and false representations of appellees and their agent by which appellant was induced to transfer to appellees property owned by him in consideration of the conveyance to him by appellees of a tract of 743 acres of land, a part of the Riggs survey in San Jacinto county.

The petition alleges, in substance, that the contract for the exchange of property between plaintiff and the defendants was entered into by the plaintiff upon the statement and representations of defendants that the land to be conveyed to plaintiff had pine timber thereon from which an average of 5,500 feet per acre could be cut, and that there were no squatters on the land claiming title to any portion thereof.

It was further alleged that, when said representations were made to plaintiff, he informed the defendants that he would like to send an experienced timber estimator upon said land, and selected as his agent and representative for said purpose Mr. Fred G. Lock; that defendants selected as their agent one L. A. White, who they said was a survey- or, and knew the location of the land, and could show the said F. G. Lock the land and the timber standing thereon, and could in fact tell him everything about the land that he wished to know; that thereafter said White took F. G. Lock upon a portion of the land where the best timber stood, and pointed out certain places where he said the lines of the Riggs survey ran, and purposely avoided that portion of the land where there was no timber, and told the said Lock, while upon the land, that the part of the survey that they had not seen would cut as good and more timber than that part they had seen, and that all of the squatters had been settled with, and thereby induced the said Lock to believe that the land was as represented by defendants, and that he had fairly covered the Riggs survey, and that same would cut on an average of 5,500 feet of pine timber to the acre, and was free of squatters; acting upon the report made by said Rock that the land would cut 5,500 feet of pine timber and was free from squatters, plaintiff consummated /the trade by transferring his property to defendants and accepting as consideration therefor a deed from defendants to the 743 acres of land; afterwards, the said F. G. Rock went upon the Riggs survey and discovered that the lines of the Riggs survey were not where the said White told him they were; that the said White had taken him where there was good timber standing upon the Riggs survey that would cut 5,500 feet of pine timber to the acre, and more, and had avoided that part of the land that had poor timber on same; that the false lines pointed out to F. G. Rock included pine timber that would cut on an average 5,500 feet per acre, while the true lines of the Riggs survey included land that had no timber and much land that had poor timber; that, instead of the land cutting 5,500 feet of pine timber to the acre, it would not cut more than 2,500 feet of pine timber to the acre; that defendants and their agent had therefore practiced a fraud and deceit upon plaintiff and the said Rock, which resulted to plaintiff’s damage in the difference between the value of the livery stable conveyed by-plaintiff to defendants and the three notes of $743 each, and interest thereon, which totaled $10,807 (as set out in said written contract), and the reasonable market value of the 743 acres, which was alleged to be $4,500.

Defendants’ answer' contains a general demurrer, special exceptions, general denial, and special denials of each of the material allegations of plaintiff’s petition. It also contains cross-bill by which defendants ask to recover damages from plaintiff because of alleged false representations made to them by him in regard to the property transferred to them.

There was a trial by jury in the court below. After hearing the evidence the trial judge instructed the jury to return a verdict in favor of defendants upon the cause of action asserted by plaintiff and in favor of plaintiff upon defendants’ cross-bill. Upon the return of such verdict judgment was rendered in accordance therewith.

Under appropriate assignments of error appellant complains of that portion of the charge instructing the jury to return a verdict against plaintiff on his claim for damages, on the ground that there was sufficient evidence to sustain a finding by the jury in favor of plaintiff upon all the material allegations of the petition.

We think the evidence raises the issue of fraudulent misrepresentation by defendants’ agent which was relied on-by plaintiff, and by which he was induced to make the exchange of property and suffered damages as claimed in his petition, and therefore the case should not have been taken from the jury.

In view of another trial of the case it is not proper for us to express any opinion upon the weight of the evidence, nor to discuss or set it out in detail. It is true that plaintiff did not rely entirely upon the statements of defendant Smith that the land would cut 5,500 feet of pine timber to the acre, and informed Smith that he would send Rock as his agent to make an estimate of the timber, but the evidence does justify the conclusion that plaintiff relied upon Smith’s assurance that White, who was Smith’s agent and sent with Rock to show him the land, knew the land and would not make any false representations as to the location of its lines and the timber thereon. There is evidence from which the jury might have found that White did not correctly point out the land to Rock, but pointed out the location of the lines of the land so as to show that a portion of the land upon which there was no pine timber was not a part of the land, and further misrepresented the facts by telling Rock that the .timber on the portion of the land which was not shown him was as good or better than that shown him. It goes without saying that defendants are liable for damages caused by the misrepresentations of their agent, and according to plaintiff’s evidence White was defendants’ agent for the purpose of showing him the land, and said agent’s knowledge of the location of the land and the timber thereon was vouched for by defendants. In regard to the alleged misrepresentation as to the claims of squatters, while there is evidence that there were squatters on the land who were claiming portions of it, it appears that all of the squatters have been dispossessed,' and there is no evidence showing to what extent, if any, these squatters’ claims depreciated the value of the land.

If White, as agent of appellees, made the misrepresentations shown by the testimony of Rock, it is no answer to plaintiff’s claim to say that Rock was negligent in relying upon White’s statements and not making further investigation as to the location of the land and the timber thereon. Where there has been fraudulent misrepresentation by which one has been induced to enter into a contract, the person committing the fraud cannot defeat a claim for damages resulting therefrom by the plea that the party defrauded might have discovered the truth by the exercise of proper care. The obvious complete answer to such plea is that one who has stated what is untrue for the purpose of inducing another to enter into a contract cannot in good conscience be heard to say that the person who relied upon the truth and honesty of his statements was negligent in so doing. Labbe v. Corbett, 69 Tex. 509, 6 S. W. 808; White v. Peters, 185 S. W. 659; Buchanan v. Bennett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St Rep. 900.

It follows from the conclusions before stated that the judgment of the court below should be reversed, and the cause remanded, and it has been so ordered.

Reversed and remanded.
      ctx^For other cases see sanie topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ■ GRAVES, J.

text:
    TRINITY & B. V. RY. CO. v. GEARY.
    (No. 7295.)
    (Court of Civil Appeals of Texas. Galveston.
    March 8, 1917.
    Rehearing Denied March 16, 1917.)
    1. Evidence <&wkey;579i — Testimony of Witness at Former Trial — Identity oe Issues.
    Though the petition in a servant’s action for injury from sudden stop of car at the first trial charged generally mismanagement of the air of the train, and at the second trial charged the particular act of mismanagement thereof, the issues were substantially the same relative to admissibility on the second trial of the testimony given on the first trial by a witness thereafter beyond the court’s jurisdiction.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2412.]
    2. Evidence &wkey;>577 — Testimony of Witness at Former Trial.
    Under exception to hearsay rule, witness being beyond the court’s jurisdiction, his testimony given on the first trial on substantially the same issue, where there was opportunity for cross-examination, is admissible on a new trial.
    [Ed; Note. — For other cases, see Evidence, ■Cent. Dig. § 2406.]
    '3. Trial <&wkey;>86 — Objections—Evidence Admissible in Part.
    Overruling of objection to testimony as a whole, part of it being unobjectionable, is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225.]
    4. Appeal and Error <&wkey;>978(3) — Review— Denial op New Trial — Misconduct op Jury.
    Review of the trial court’s discretion under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2021, in denying new trial for misconduct of jury is confined to cases where it clearly appears the rights of the parties have been disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3870.]
    Appeal' from District Court, Harris County ; Wm. Masterson, Judge.
    Action by Morris Geary against the Trinity & Brazos Valley Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 144 S. W. 1045; 169 S. W. 201; 172 S. W. 545.
    Andrews, Streetman, Burns & Logue, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. Presley K. Ewing, of Houston, for appellee.
   ■ GRAVES, J.

On November 18, 1915, in the Fifty-Fifth district court of Harris county, Morris Geary was awarded a jury’s verdict and consequent judgment against the Trinity & Brazos Valley Railway Company for $17,-500 for personal injuries received Novem- - ber 23, 1909, while working for said railway company as foreman of a section crew engaged in unloading gravel from one of defendant’s work trains. This train was being operated and controlled at the time by other and different employ és than plaintiff himself and his crew, and, the train being in motion, plaintiff was thrown from an empty fiat car, which was a part of this train and on which he was riding, by reason of a sudden and abrupt stopping of said car. From that judgment against it the defendant railway company has appealed.

Without detailing them, the railway company took all necessary and proper steps to invoke this court's jurisdiction and consideration of its appeal. Such further statement of the case as may be deemed necessary will be made in what follows:

No assignments have been filed here questioning the sufficiency of the evidence to sustain the verdict, either as to extent of plaintiff’s injuries or otherwise, nor against the verdict as being excessive. There are consequently but two main questions, with necessarily resultant subsidiary ones, raised upon and by this appeal, which may be stated succinctly as follows:

First, that prejudicial error was commit-ter against defendant in admitting, over its objections, the testimony of the witness Savage, read from the stenographer’s notes upon the first trial of this case, the grounds of objection being that the evidence was hearsay, that it was purely a conclusion and an opinion, and a deduction drawn by the witness ; that no proper predicate was laid for its introduction; and that at the time such testimony was given the issues in the case were different from what they were upon this trial, and an examination of the witness Savage by the defendant on said first trial could not in any sense have been an adequate examination, whether upon direct or cross examination, and said examination could not in any sense represent the ideas of the attorneys upon a changed condition of the pleadings.

Second, that defendant’s motion for a new trial should have been granted because of the prejudicial and improper conduct of the jury which tried this case, or some members thereof, in discussing what proportion of the amount awarded to plaintiff would be received by his attorneys, and in taking into consideration such matters in reaching the amount of damages stated in the verdict, one or more of the jurors having voted for increased ahiounts by reason of such discussion, and because of improper conduct of one of the jurors in stating in the jury room that he watched the plaintiff at the same time that defendant’s witnesses Martin and Gray testified about, and that Geary did not turn his head at the time the above named witnesses said he did, which statement made by said juror was contrary to the testimony of witnesses who testified upon the trial of the case under oath.

With admirable coherence and directness appellant has presented in this court each of these questions under two assignments, the first question under assignments Nos. 1 and 2, and the second question under Nos. 3 and 4. Our discussion of each separate question will therefore apply to both assignments so presenting it.'

No real question not hereinafter discussed is made as to the proper predicate having been laid for such admission of Savage’s testimony, he being then admittedly beyond the court’s jurisdiction, his testimony being unobtainable from any other source, and the stenographer’s notes being correct.

Appellant’s chief reason for contending that this testimony of Savage, who was in its employment as a brakeman at the time, and its own witness, was inadmissible against it upon the present trial, is that plaintiff's position is now essentially the reverse of what it was then, in that the issues of negligence in litigation in the two trials were materially different. We cannot agree to this contention; and we think the clearest way to determine that question is to directly compare the issues of negligence as joined by the pleadings of both parties, and as submitted by the court to the jury, in both trials.

Upon the first trial plaintiff’s second allegation of negligence was:

"By the negligence of the defendant’s employes, acting within the scope of their employment for it in the control and management of said train and said hose and the air run into the same, in improperly letting in, controlling, and managing such air, without which such hose would not have broken, which negligence was imputable to defendant, for that it was at the time operating a railroad, the line of which was situated in this state, and plaintiff, while engaged in the work of operating its said train, sustained the injuries of which complaint is heroin made, besides which plaintiff and said employes who so improperly placed, controlled, and managed said air as aforesaid were -not doing the same character of work or service, nor working together at the same time and at the same piece of work, nor to a common purpose, but they were controlling, managing and disposing of said train and the air of said hose, and plaintiff was a part of the crew engaged in. going to and fro on said car and unloading the gravel therefrom, and in the course of that service performing his part in the operation of such, train, but not otherwise.”

To this defendant replied:

“Defendant avers that it is not guilty of the wrongs and injuries charged against it, and it denies all and singular the averments in plain-lirE’s petition contained, and demands strict nroof of each and every material allegation thereof.”

While upon the present trial plaintiff’s allegation of negligence was as follows:

“That one of defendant’s employé’s engaged in operating said train, being one of the operatives thereof, in the course of his service for defendant in that behalf, and acting within the scope of his employment for it, while said train was moving as aforesaid, uncoupled cars of said train without turning the angle cocks and confining the air, whereby said cars separated, and thereby burst or parted the air line hose, by means thereof the air was suddenly applied to the brakes, and the car on which plaintiff was riding suddenly and abruptly stopped as aforesaid, which act on the part of defendant’s said employé in so handling said car was negligence towards plaintiff, and a proximate cause of the injuries suffered by him as aforesaid.”

Likewise the defendant t&is replied:

“Waiving nothing, but still insisting upon all of the foregoing demurrers and exceptions, and answering only if required, defendant denies all and singular the allegations of plaintiff, and says that the same are not true either in whole or in part, and demands strict proof of each and every material allegation.”

The court in both trials submitted the specific issues of negligence as thus joined, in the first trial one additional ground being also given, while in the last trial only the one so charged by plaintiff and denied by defendant was submitted.

It seems to us too clear for argument that the gravamen of the complaint by both petitions was negligent operation of the train by the defendant, whereby the air hose between the cars broke or separated, causing the air to be applied to the brake, thereby producing the sudden and abrupt stop of the car as in an emergency application, with the consequent injury to the plaintiff.

In the first petition negligence of the defendant in managing and controlling the air of the train, whereby the air hose broke, with the resultant injury, was charged generally, but without specifying the act or omission of mismanagement or miscontrol, thus leaving the averment broad enough to cover any particular act of mismanagement or miscontrol the evidence might develop; whereas in the last petition the particular act of mismanagement of the air of the train, that is, the uncoupling of the cars without turning the angle cocks and confining the air, whereby said cars separated and thereby burst or parted the air line or hose, was set out.

Aside from this attempted distinction between negligence issues as thus made by the pleadings, the identity of the issues involved in the two trials was not, nor could be, seriously questioned. True it is that vigorous contention is made that Geary’s testimony upon these two different trials as to the pulling of the coupling pin between the cars was directly contradictory, in that upon the first he said that nobody would have pulled the pin and uncoupled those cars, while in the last he testified, in effect, that he saw the brakeman on the ear in front of him in position to pull the pin, with the chain attached to it lifted in his hand; Geary denied any real contradiction, claiming that he had been rendered deaf by his injuries, and that, if he testified as was quoted to him from the record of the first trial, he had not then heard and understood the question. We think these matters all went to the credibility of this witness, and were for the exclusive judg- meat of the jury; having been there resolved against appellant, it cannot here complain.

But still another reason against the admissibility of Savage’s said testimony presented by appellant-is that, the issues upon the two trials being materially different, in that plaintiff now affirms what he originally denied, resulting from the above-claimed material change in his. pleadings, its examination of this witness on the first trial, although he was its own witness, and testified directly for it upon the negligence issues involved in that trial, would reasonably be inadequate and insufficient upon the subsequent trial.

If our conclusion that essentially, the same issue of negligence was involved in both trials be correct, it cannot be then said that appellant’s direct examination in that first trial of its own witness, back and forth over the whole gamut of the very issue likewise appearing in this last trial, would reasonably be either inadequate or insufficient. Boyd v. Railway Co., 101 Tex. 411, 416-417, 108 S. W. 813; Taylor v. Thomas, 77 N. H. 410, 92 Atl. 740; 16 Cyc. 1089.

But we think the Court of Civil Appeals at El Paso, upon the appeal from the first trial of this same case, by clfear implication at least, determined this very question of identity of the issues of negligence against appellant, because, the two grounds of negligence being as above set out, and the second one, as we think, being substantially the same as the only one here submitted, it found no fault with the submission of the second ground of negligence, nor in any manner ruled that plaintiff would not have been entitled to recover thereunder if the case had been submitted on that alone, but held that, as there were two independent grounds of negligence, separately submitted, and one of them, that relating to a defect in the air hose, had no evidence for its support, and the court could not tell upon which ground the jury found, the case was one for reversal. T. & B. V. Ry. Co. v. Geary, 144 S. W. 1046.

It is further pertinent to say that identity of the issues required is of substantial agreement, not absolute identity. See Hicks v. G„ H. & S. A. Ry. Co., 96 Tex. 355, 357, 358, 72 S. W. 835, citing illustrative cases; St. L. S. W. Ry. v. Hengst, 36 Tex. Civ. App. 217, 219, 81 S. W. 832, citing 1 Greenleaf’s Ev. §§ 164, 533, 554; Lynch’s Adm’r v. Murray, 86 Vt. 1, 83 Atl. 746; Jones v. Pendleton, 160 Mich. 338, 125 N. W. 349; Edgeley v. Appleyard, 110 Me. 337, 86 Atl. 244, Ann. Cas. 1914D, 474.

But it is further insisted that this testimony was hearsay and merely conclusions of the witness.

t It may be first replied that, under a familiar exception to the hearsay rule, the testimony of a witness given at a previous trial between the same parties upon substantially the same issue, where the parties had the opportunity to examine and cross-examine him, is admissible on the offer of either party, if the witness is out of the state, out of the jurisdiction of the court, under the circumstances shown in this case. See St. L. S. Ry. Co. v. Hengst, 36 Tex. Civ. App. 217, 219, 220, 81 S. W. 832-833, citing Wharton’s Ev. vol. 1, § 179, and Greenleaf’s Ev. vol. 1, §§ 163, 164, 553, 554; Texas & N. O. Ry. Co. v. Williams, 178 S. W. 701; Baker v. Sands, 140 S. W. 520, 521, and cases cited; Boyd v. St. L. S. W. Ry. Co., 101 Tex. 411, 416-17, 108 S. W. 813, 815, and second appeal, 56 Tex. Civ. App. 282, 119 S. W. 1154, 1155, error refused, 123 S. W. xx; 16 Cyc. 1088, 1089; Dolph v. Lakeshore & M. Ry. Co., 149 Mich. 278, 112 N. W. 981.

In the next place, Savage testified, in effect, that either he or the other brakeman, or possibly the conductor, he did not remember which, actually pulled the coupling pin, and he repeated several times over, among other things, that “two of the cars had been uncoupled, the caboose and one other car”; he “didn’t know whether the conductor had cut these cars or not”; “some of them did.” “I did have instructions to cut them off.” “I do testify that those two cars had been uncoupled,” “but I don’t know' who did that. I don’t remember which one of us did that. 4 * * I told this jury that I didn’t remember who did it, and that I didn’t see anybody else do it; well, it was done.”

While we do not think these statements conclusions only, it may be finally said that the objection was made to the testimony as a whole, some of which was clearly free from any objection whatever, and in such case, even if some part of the testimony was subject to some one of the objections made, .the court was not required to disentangle such part from other parts clearly admissible, but was justified, in overruling the objections. Chicago R. I. Ry. Co. v. Johnson, 156 S. W. 253; Hutcheson v. Massie, 159 S. W. 315; Rice v. Taliaferro, 156 S. W. 242; Houston Chronicle Pub. Co. v. McDavid, 157 S. W. 224; Kell Milling Go. v. Bank of Miami, 155 S. W. 325.

With reference to the second question, that relating to the misconduct of the jury, the issue before this court is not one of ■ determining in the first instance whether or not such conduct was reprehensible, nor of now substituting its judgment for that of the trial court, but merely of deciding from the record of that court’s proceedings whether or not it abused the discretion granted it under Vernon’s Sayles’ R. S. aft. 2021, in denying a new trial because of the misconduct charged.

That the exercise of such discretion may be reviewed was expressly held by our Supreme Court in H. & T. C. Ry. Co. v. Gray, .105 Tex. 42, 143 S. W. 606; but in doing so it concluded that the trial court’s “discretion” expressed in said article 2021 was upon the same level with the discretion vested in it in many instances, and, as in such other instances, confined the appellate review to cas- ] es “wherein it clearly appears that the rights of the parties have been disregarded.”

After the most careful review of the examination made by the trial court touching this misconduct, including the evidence, we are unable to conclude, either that it clearly appears that the rights of the appellant were disregarded, or that there was any abuse by that court of its discretion. These assignments must therefore be overruled.

The testimony taken upon the hearing of the motion for new trial is very voluminous, and no useful purpose would be served by attempting to here reproduce it, but there is, as we view it, not the slightest indication that the trial judge was indifferent to the gravity of the misconduct charged, nor that he acted unfairly in conducting the examination; but the contrary, we think, emphatically appears. He very promptly summoned every one of the jurors who tried the case, and had them all thoroughly, at much length and in minute detail, examined and cross-examined on every suggestion of improper conduct mentioned in the motion. The net results were that they each and all, with one exception, positively testified that neither the discussion as to what part of plaintiff’s recovery the attorneys might get, nor one juror’s suggestion that the railroad company ought to be fined, nor another’s that he also was watching plaintiff at the time defendant’s witnesses Gray and Martin testified that they saw plaintiff, while upon Main street during an interim of the court’s session at the trial, turn his head, and that he did not do so, had any influence whatever upon the amount of their verdict.

That the conduct alleged was improper and reprehensible goes without saying, and the trial court, no. doubt very properly, reprimanded these jurors; but. those considerations alone would not authorize us either to find that he intimidated them, or to disturb his finding, especially when it further appears that he had each and all of them — and at least one of them for the second time— grilled back and forth in open court over every detail of the alleged misconduct, and afforded every one of them every opportunity to tell every thing he knew, in a very evident purpose to get at the truth of the matter; and we are unwilling, under these circumstances, to say, by attempting to substitute our judgment for his, that he did not do so. And this conclusion is reached without regard to that line of cases holding the claimed error harmless and not reviewable, in the absence of any complaint that the verdict is excessive. Choctaw, Ok. & Tex. Ry. Co. v. True, 35 Tex. Civ. App. 309, 80 S. W. 120; H. & T. C. Ry/ Co. v. Postal Tel. Cable Co., 18 Tex. Civ. App. 503, 45 S. W. 179; M. K. &T. Ry. Co. v. Burk, 162 S. W. 457; M. O. & G. Ry. Co. v. Webb, 178 S. W. 728; I. & G. N. Ry. Co. v. Jones, 175 S. W. 489, both original opinion and rehearing; El Paso Elec. Ry. Co. v. Mebus, 157 S. W. 955, 956, citing Railway Co. v. Lynch, 40 Tex. Civ. App. 543, 90 S. W. 511.

Before any of the complained-of talk or discussion occurred in the jury room every juror secretly voted for liability, writing the amount of his verdict upon a slip of paper and putting it in with the others; the range of these amounts was from $10,000 to $35,-000, with the average considerably above the $17,500 finally awarded, hut one vote only, by practically the undisputed evidence, being as low as $10,000.

As to the juror Schotsch, who thus first voted for $17,500, we think the elaborate examination of him unmistakably showed that he, instead of being improperly influenced, stuck with evident stolidity throughout the jury’s discussion to the amount of his first vote, upon his belief that the plaintiff was in the right and the defendant in the wrong, and that in his untutored way he made no distinction between just compensation and a “fine.”

As stated above, one juror alone finally stated that he had been induced to increase the amount of his verdict by this discussion. As to him, without recording other circumstances shown in the .record, there was much doubt, independent of his own statement, upon whether he must, on this first secret ballot, have voted for near $20,000, or in any event, for more than the amount of-the final verdict.

Without further discussion, we conclude, as we must in deference to the trial court’s action, that -he 'found, after thus hearing all the evidence from the mouths of the jurors themselves, there was no misconduct that affected or resulted in an increase in the amount of the verdict, and that he was amply warranted in that finding. Vernon’s Sayles’ R. S. art. 2021; Fox v. Houston & T. G. Ry. ■Co., 186 S. W. 852, 858, citing Kalteyer v. Mitchell, 102 Tex. 393, 117 S. W. 792, 132 Am. St. Rep. 889; Id., 110 S. W. 462; Railway v. Blalack, 128 S. W. 706; Railway v. Brown, 140 S. W. 1172; Railway Go. v. Blue, 46 Tex. Civ. App. 239, 102 S. W. 128; Railway Co. v. Gray, 105 Tex. 42,', 143 S. W. 606; Hamilton v. Railway Go., 95 Kan. 353, 148 Pac. 648.

Believing that the record shows' that substantial justice was done in this case, the judgment of the trial court will be in all things affirmed.

Affirmed. '
      (g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. STATE.
    (No. 7310.)
    (Court of Civil Appeals of Texas. Galveston.
    March 23, 1917.
    Rehearing Denied April 12, 1917.)
    1. Trial <&wkey; 133(3) — Argument oe Counsel-Action by Court.
    It is enough that the court sustains objections to remarks of counsel in argument, and stops him; it not appearing request was made to instruct the jury to disregard them.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 316.]
    2. Railroads <&wkey;254(6)— Water-Closets — Reasonable Distance — Question eor Jury.
    Whether within Rev. St. 1911, arts. 6592, 6594, requiring railroads subject to a penalty to maintain water-closets within a reasonable and convenient distance from each depot, distance is reasonable and convenient, is a question for the jury under the particular circumstances shown.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. § 772.]
    3. Evidence <&wkey;515 — Expert Obinions — Reasonable Distance.
    Whether water-closets are within a reasonable and convenient distance of a depot, as required by Rev. St. 1911, art. 6592, is not a subject for expert opinion.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2324.]
    4. Railroads &wkey;*254(6)— Water-Closets — Reasonable Distance — Sufficiency oe Evidence.
    Evidence held to support finding by jury that water-closets were not within reasonable and convenient distance of depot.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 772.]
    5. Railroads <&wkey;226 — Water-Closets—Reasonable Distance — Excuse.
    Mere fact that nearer location of water-closets to depot might be objectionable on other grounds does not relieve a railroad of its positive duty under Rev. St. 1911, art. 6592, to have them within a reasonable and convenient distance.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 740.]
    6. Trial <&wkey;239 — Instructions — Inducing Compromise.
    Instruction in an action for the penalty of $50 a week, imposed by Rev. St. 1911, art. 6594, for failure to maintain water-closets within a reasonable and convenient distance of a depot, that, if the jury find defendant so failed for 322 weeks,, or any number of weeks, they will find for plaintiff for any number of weeks not exceeding 322 at $50 a week, or in such sum as they find plaintiff entitled to recover, not exceeding $16,000, is not reasonably calculated to induce a compromise.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 557-560.]
    7. Appeal' and Error-<&wkey;1033(9) — Harmless Error — Amount oe Verdict.
    Defendant may not complain that the recovery against it is less than might have been found under the undisputed evidence.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4061.]
    Error from District Court, Payette County; Prank S. Roberts, Judge.
    Action by the State against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    C. D. Krause, of La Grange, and Lane, Wolters & Storey and Baker, Botts, Parker & Garwood, all of Houston, for plaintiff in error. E. H. Moss, of La Grange, for the State.
   GRAVES, J.

The state of Texas, through her county attorney of Fayette county, brought this suit under and by virtue of Revised Civil Statutes, arts. 6592 and 6594, in the district court of that county, against the Galveston, Harrisburg & San Antonio Railway Company, plaintiff in error here, to recover a total of $16,100 in penalties for its alleged failure, neglect, and refusal, for a period of 322 weeks, beginning with September 12, 1909, and terminating with the filing of the second amended petition, November 22, 1915—

“to construct and maintain, at its passenger depot at Platonia, Payette county, Tex., or in connection therewith, or within a reasonable and convenient distance therefrom, suitable and separate water-closets or privies for either male or 'female persons, at its passenger station and passenger depot on its line of railway at Platonia, Payette county, Tex., and for the accommodation of its passengers who are received and discharged from its cars thereat, and of its patrons and employés who have business with said defendant company at such station and passenger depot at Platonia, in Payette county, Tex.”

After demurrers and denials, plaintiff in error further specially pleaded that it for many years had and maintained water-closets and privies for both male and female persons at its station and depot at Platonia, Tex., and in connection with said depot, and within a short and accessible distance from said passenger station and depot at Platonia, and that it did, and does now, in all respects, comply with all of the laws of this state relating thereto, and that said water-closets meet all of the demands within reason of all of its patrons, passengers, and em-ployés.

Trial was had before a jury, who found the railway company “guilty for the sum of $5,000 for not having their- closets at a convenient place.” The court accordingly entered judgment for $5,000 in favor of the state Of Texas against the plaintiff in error. Prom that judgment this appeal is taken, and the case is properly brought to this court by this writ of error.

Before discussing the assignments of error we set out paragraphs 2 and 3 of the court’s general charge, and its special charge No. 2, given at the request of the railway company, as follows:

“(2) If you find from a ¡.preponderance of the evidence that the defendant, the Galveston, Harrisburg & San Antonio Railway Company, failed and neglected to maintain, at its station or depot, or within its passenger depot, or in connection therewith, or within a reasonable and convenient distance therefrom, suitable and separate water-closets or privies for male and female persons, at its said passenger station at Flatonia, Fayette county, Tex., for a period of 322 weeks, or any number of weeks that you may find, if you find that the defendant railway company failed and neglected to construct and maintain such water-closets or privies,, then you will find a verdict in favor of the plaintiff, the state of Texas, for any number of weeks not to exceed 322 weeks at $50 per week, or in such sum as you may find the state is entitled to recover, not to exceed $16,000, and so state in your verdict; and, if you do not find from a preponderance of the evidence, you will find for the defendant.
“(3) If you find from the evidence that the defendant railway company had constructed and maintained suitable and separate water-closets or privies for both male and female persons within a reasonable and convenient distance from its passenger station and depot at Fla-tonia, Fayette county, Tex., you will find for the defendant.”
“The defendant requests the court to charge the jury as follows: ‘You are instructed that, as the law of this case, according to the undisputed testimony, the defendant has .maintained and constructed suitable and separate closets or privies for male and female persons near its passenger station at Flatonia, Tex., and has maintained the same since September 12, 1909, and the only question for you to determine in this ease is whether or not it has constructed and maintained the same within a distance reasonable and convenient to its patrons and employes, and if you find it to be within a reasonable and convenient distance from such station, you will find for the defendant.’ ” .

Under these charges the only question of fact thus submitted to and tried before the jury was whether or not the toilet was within a reasonable and convenient distance from the depot. Paragraph 2 of the general charge quoted, in effect, practically embodied the full provisions of the statute (art. 6592); but plaintiff in error’s said requested charge No. 2 restricted the jury’s inquiry to the one fact issue just stated. The jury having determined that fact issue against it,, plaintiff in error, under appropriate assignments, complains: First, of the court’s refusal to instruct a verdict for it, because of the claimed insufficiency of the evidence to support the verdict for the state; second, that said paragraph 2 of the court’s general charge might have and did induce the jury to compromise, and to render against it a compromise verdict, which it would not otherwise have done.

Complaint is also made under the fifth assignment of the overruling of its motion for new trial, because of certain remarks of counsel for the state to the jury in arguing the case. We think there is no prejudicial error shown in this respect, because the first bill of exceptions, relating to part of these remarks, shows that upon' objection and exception to these remarks at the time made the court sustained it and instructed the jury to disregard the same; while in the second and third bills of exception, relating to the other parts of the complained of remarks, it is shown that the court promptly sustained the objection to the remarks when made, and stopped the county attorney from making use of such, language, and it does not appear that any request was made' of the court to instruct the jury in -writing to disregard said latter remarks. Accordingly the fifth assignment is overruled.

The duty imposed upon the railway company under this statute is a positive one, and it has been, held that it is a penal statute, and that the rules governing the construction 6f penal statutes are applicable to it. State v. T. & P. Ry. Co., 143 S. W. 223. Furthermore, it contains no restriction upon the right of the jury to determine from all the facts and circumstances in evidence, just as they may the fact issues in any case, the question of whether or not the closet was within a reasonable and convenient distance from its depot; in other words, it is left for the Jury to say what is and what is not a reasonable and convenient distance under the particular circumstances shown; nor was the nature of' the inquiry such that it called for the opinions of experts, but it could be and was properly left to the judgment of ordinary intelligence. Radam v. Capital Microbe Destroyer Co., 81 Tex. 122, 16 S. W 990, 26 Am. St. Rep. 783; Shelley v. Austin, 74 Tex. 608, 12 S. W. 753; Kennedy v. Upshaw, 66 Tex. 442, 1 Si W. 308; Galveston, etc., Ry. Co v. Sweeney, 6 Tex. Civ. App. 173, 24 S. W. 947; Cooper v. State, 23 Tex. 331; Locke v. Ry. Co., 25 Tex. Civ. App. 145, 60 S. W. 314; Ry. Co. v. Kuehn, 2 Tex. Civ. App. 210, 21 S. W. 58.

This being true, and the jury having found that the distance here involved was not a reasonable and convenient one, it follows that such verdict cannot be disturbed upon appeal, unless: (1) It may be said as a matter of law that there was no evidence to support it; or (2) that the verdict is so manifestly against the great weight and preponderance of the evidence as to lead to the conclusion that the jury was influenced by an improper motive (Railway Co. v. Rowell, 45 S. W. 763; Ry. Co. v. Holland, 27 Tex. Civ. App. 397, 66 S. W. 68; T. & P. Co. v. Lee, 32 Tex. Civ. App. 23, 74 S. W. 345); or (3) unless this court shall be of opinion that the errors complained of in the court’s charge amounted to such denial of the rights of the plaintiff in error as was reasonably calculated to cause, and probably did cause, the rendition of that character of improper judgment against it of which it is in position to complain.

It is our conclusion that no one of these contingencies obtains here. The evidence was uncontradicted, and was not limited, as the railway company contends, to proof of the' mere distance of the closet from the depot. In addition to this, the immediate surroundings and conditions and uses of the property for a block or more each way on both east and west sides of the depot were shown, by photographs from different viewpoints, and otherwise. The size of the town, its_ condition with reference to lack of sewerage, and the relative uses of the ground and streets adjacent to the depot and of open spaces around the depot, were likewise shown. As to distance alone, it was shown that the closet was located on the west side of the depot 148 yards or steps from its nearest corner and 159 yards or steps from its waiting room for whites; that between the closet and depot Penn avenue, an 80-foot street, and the most frequented passageway and thoroughfare in the town, intervened and crossed, north and south, the railway tracks, upon both sides of which the business houses and other parts of the town lay; that between Penn avenue and the closet on the west, and between that avenue and the depot-on the east, there were open places about equal in extent, which, together with the 80 feet of Penn avenue, made up the above-mentioned 148 yards or steps. Nor do we think, as the railway company contends, it was not shown to be practicable to locate the closet nearer the depot; upon the contrary, we think the evidence disclosed several such nearer places, upon one side or the other of Penn avenue, and no inhibition of, any sort against putting it there was shown.

Even if it be conceded that such nearer locations might be more objectionable in some other respects, that alone would not relieve the railway company of the positive duty imposed by the statute of maintaining it within a reasonable and convenient distance for the accommodation of its passengers, and of its patrons and employes who have business at such station.

■ We, therefore, conclude that the evidence was not, as is contended by the railway company, such that reasonable minds could form, no other inference or, conclusion than that the closet, under the surroundings and conditions shown, was located within a reasonable and convenient distance, nor even that its great weight and preponderance was against the verdict, -but that it amply supported the verdict reached by the jury, and all assignments raising this issue must necessarily be overruled. Cartwright v. Canode, 106 Tex. 502, 171 S. W. 690; Flynn v. Rad-ford, 174 S. W. 902; C'onzales v. Adoue, 56 S. W. 543-548; Elwood v. W. U. Co., 45.N. X. 549, 6 Am. Rep. 140, and note; Choate v. Railway Co., 90 Tex. 82, 36 S. W. 247, 37 S. W. 319.

This brings us to the further question of whether there was such error in the court’s charge as was reasonably calculated to, and probably did, induce the rendition of such an erroneous and improper verdict’ as may be complained of by plaintiff in error. Our negative conclusion has already been indicated, and the reasons for it, we think, are plainly apparent.

At plaintiff in error’s own instance, under its above-quoted requested charge No. 2, all other issues than the reasonableness and convenience of the distance of the closet • from the depot had been eliminated, and the jury had been pointedly and specifically told that they could find against the railway company only in case they found this distance not reasonable and convenient, and further, affirmatively, that they must find for it if the - distance was reasonable and convenient.

In support, however, of the second complaint, that paragraph 2 of the general charge induced the rendition of an improper verdict in that it was a compromise verdict, we are cited to the following authorities: Ráilway v. Johnson, 99 Tex. 337, 90 S. W. 164; Cornelison v. Railway Co., 46 Tex. Civ. App. 509, 103 S. W. 1186; Wootan v. Partridge, 39 Tex. Civ. App. 346, 87 S. W. 356; Sargent v. Lawrence, 16 Tex. Oiv. App. 540, 40 S. W. 1075; Railway Co. v. Finklea, 155 S. W. 612; Railway Co. v. Byrd, 41 Tex. Civ. App. 164, 90 S. W. 185.

But, when the facts upon which each of those casqs was determined are considered, they are found inapplicable to the case at bar. Those were each and all cases where the jury, after some continued deliberation, had been unable to agree upon a verdict, and had been after such failure further directly instructed by the court, in effect, that they might compromise in order to arrive at a verdict; but no such conditions exist here. There is no! suggestion in this record of any contrariety of opinion among, or even of any discussion between, the jurors, nor that any one of them was in fact influenced in any manner to yield his individual views, and the unanimity of the verdict stands unquestioned. We do not think it can be successfully contended that the two charges here involved, when considered together, were reasonably calculated to and probably did -induce the jury to find adversely to the railway company on the question of. liability, because liability was made to depend upon the convenience and reasonableness of the distance, and upon that alone. If the actual distance shown by the undisputed evidence was convenient and reasonable, they were affirmatively left na alternative than to acquit the railway company. It was therefore not a case where the verdict did not accord with the. theory upon which it was found, as in Willingham v. Brown, 163 S. W. at page 109, cited by plaintiffs in error, but one where merely the amount, returned in harmony with the only theory of the ease submitted, and that at the special request of the railway company, was less than it might have been under the undisputed evidence.

To conclude under these circumstances that a compromise verdict was probably rendered would make it necessary to presume, without a scintilla of evidence upon which to base it, that the jury violated these last-mentioned specific instructions of the court that they must find for the plaintiff in error if they found the distance in question reasonable and convenient. No such presumption will be indulged, and tlie mete fact tliat tlie verdict was for less than the jury might, under the undisputed evidence, have found against the railway company, being in its favor, is not a matter of which it is in position to complain.

Having thus concluded that it is not made to appear that any such error as the railway company is entitled to complain of was committed, all assignments are overruled, and the judgment of the trial court is in all things affirmed.

Affirmed.
      íS^oEor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    BARKER v. ASH.
    (No. 7731.)
    (Court of Civil Appeals of Texas. Dallas.
    March 31, 1917.
    Rehearing Denied April 28, 1917.)
    1. Deeds <&wkey;70(5)t — Validity—Fraud.
    A deed cannot be canceled for fraud where defendant paid more than the land would otherwise bring in bulk, irrespective of what representations regarding its value be made, and although he sold small tracts thereof for higher prices.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. § 173.]
    2. Cancellation of Instruments <&wkey;34(l)— Laches — Fraud of Grantee.
    A sister’s action against her brother to cancel a deed secured by him from her mother is barred by her lack of diligence when brought 17 years after the conveyance and 3 years after she admitted suspecting that fraudulent representations were made.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 49, 50, 52.]
    3. Appeal and Erkoe &wkey;>230 — Review—Discharge op Juror.
    There was no reversible error in discharging a juror because of his child’s serious illness and expected death, where no objection was made except by motion for new trial.
    4. Trial &wkey;>345 — Verdict — Waiving Defects.
    An objection that a verdict was signed only by the foreman and not by the other jurors is waived, where appellant knew the facts when the verdict was returned, but made no objection until a motion for new trial was presented.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 816-820.]
    5. Jury <&wkey;149 — Discharge op Juror — Illness op Child.
    The serious illness and expected death of a juror’s child is suilicient reason for discharging him, since he could not give the case proper consideration,
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 635-637.]
    6. Trial <&wkey;323 — Verdict—Signature op Jurors — Statute.
    The statutory requirement that the 11 jurors sign a verdict- when the jury is reduced to that number is directory only.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 759.]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Action by Mary A. Barker against John F. Ash. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    W. R. Bishop, of Athens, and C. E. Henderson, of Indianapolis, Ind., for appellant. Richardson & Watkins and B. P. Miller, all of Athens, for appellee.
   RAINEY, C. J.

Appellant sued appellee to cancel two deeds to 3,300 acres of land, one made by Sarah J. Ash to appellee on January 18, 1893, and the other made by appellant to appellee on October 3, 1907, both conveying certain land in Henderson county,' Tex., which was alleged to have been procured by fraud and deceit on the part of appellee, and also to recover a one-fourth undivided interest in said land. Appellee answered by general and special exceptions and general denial and by plea of 3, 5 and 10 years’ statute of limitation. The case was submitted on special issues to a jury, and upon the return of its answers the court entered a judgment for the appellee, from which judgment this appeal is taken.

The petition, in effect, charges: That on January IS, 1893, said Sarah J. Ash conveyed said land for the consideration of $2,300, and was induced to do so by the representations of appellee, her son, which she believed and relied thereon, that said land was not worth more when in fact it was worth the sum of $10,000. She reposed confidence in appellee and did not inquire into the actual value of said land and she had not discovered its actual value at the time of her death. That appellee was familiar with the value of said land and his representation was made with the intention of having his mother to sell him the land for an inadequate consider-. ation. It was further charged that appellant, appellee, and two others were the only children and sole heirs of Sarah J. Ash, and that after the death of Sarah J. Ash, appel-lee wrote to appellant that said land was of little value, and that he could not realize anything therefrom, and that she relied on said statement; that she resided in Indiana and never visited Texas until 1908, and knew no one living in said Henderson county but appellee and his family, and did not suspect that said land was worth more than $2,300, and “did not, before October, 1907, make any effort to discover its value, by reason of the repeated statements of her said brother, but relied upon his said statements, and that at his request on October 3, 1907, made him a deed to said land”; that on September Í5, 1908, she “suspected that the representations of said defendant so made in 1893 to her said mother as to the value of said land were false; that she made no efforts to determine the truth or falsity thereof and did so quickly thereafter,” etc.

The appellant assigns as error the refusal of the court to set aside the verdict of the jury on special issues and in rendering judgment for appellee and not granting a new trial, for the reason that the jury disagreed on all material issues raised by the pleadings and did not agree on issues sufficiently to support a judgment. There were 45 issues in all submitted to the jury, to 19 of which they answered, “We disagree.” These issues, we are of the opinion, were not material, while under the pleadings and evidence the remaining answers were sufficient to have warranted the court in directing a verdict for appellee. We understand that when a case is submitted on special issues the court must render a judgment in accord with the answers returned by the jury. In this instance the answers- of the jury to issues controlling as raised by the pleadings were answered favorably to the appellee. The controlling issue raised by the pleadings is, Was the value of the land sold by Sarah J. Ash to John P. Ash on January 18, 1893, of greater value than $2,300, the amount paid therefor, which amount she was induced to receive by the misrepresentations of her son? The jury in answer to this issue as to the value of the land say the land could not have been sold for cash in bulk for more than 50 cents per acre. The price for which she sold was within a fraction of 70 cents per acre.

The evidence shows unquestionably that at the time the land was sold by Sarah J. Ash it could not have been sold to any one for the sum appellee obligated himself to pay. At that time land in'Henderson county was not commanding any appreciable price on the market. But it was shown that soon after appellee got title to same he sold some of it in small tracts for several dollars per acre, and appellant contends that this is a circumstance to show that appellee misrepresented the value to his mother. There is no allegation that said land could have been sold in small tracts at a greater sum, and that such fact was not known to Sarah J. Ash. It is also shown that appellee did not reap any special profit by these sales, as he had to take back a majority of the tracts so sold.

Conceding that appellee wrote from Texas to his mother that the land was practically worthless, and that, having full confidence in him, she was induced thereby to sell the land to him for $2,300, it matters not what his representations were, she was not injured by the representations, and, not being injured, there is no legal reason for the cancellation of her deed. She wanted to sell the land, had placed it on the market for sale, and no purchaser had been found, and if she favored her son in this sale, of which there is no evidence, it would not be strange as it is but natural for a mother to favor her son. Mrs. Ash lived about 3½ years after the sale of said land, which was deeded to her son, and there is no evidence showing that she was dissatisfied with the transaction, or that she did not believe she had received an adequate consideration for the land.

Under the pleadings and the facts adduced the court was not justified in submitting any issue to the jury, but should have instructed them to return a verdict for appellee.

Again, we are of the opinion that such time had elapsed, and the circumstances of the case are such that the appellant is not entitled to recover.

The appellee executed his notes for the land, and after the mother’s death the appellant, as one of her heirs, collected her portion of the purchase money, and no effort was made by her to ascertain or learn of the fraud with which she charges her brother. She claims that she was lulled into security by letters written by her brother to the effect that times were hard and it was hard to make a living.. At the time these letters were written the country was laboring under a pecuniary panic, and about that time he had left the land and was living in the town of Athens, earning a living by manual labor, and there being some technical error in the record of his title, at his request, she executed to him a conveyance of her' supposed interest in 1907; which cured said defect. In 1908 she visited Texas to assist her sister, who then had instituted suit against the appellee to recover the land as heir of the father, husband of Sarah J. Ash, and claiming that Mrs. Ash had no title to the land. Appellant' charges that at said time she first suspected that appellee had defrauded their mother in the purchase of said land, and in 1911 she instituted this suit, claiming the land as heir of her father, Tislow, and later amended her petition, claiming title as heir of Sarah J. Ash, and seeking to cancel the deeds to her brother on the ground of his fraudulent conduct by misrepresenting the value of the land. From the time of the making of the deed by Sarah J. Ash to appellee until the time appellant sought to recover it as heir of Sarah J. Ash more than 17 years had elapsed, and sufficient diligence is not shown why suit wasi not sooner brought.

The remaining assignment, in effect, is that the court discharged a juror without the consent of appellant, and in accepting the verdict signed only hy the foreman, without requiring the other 11 to sign it. Appellant’s bill of exception shows that after the jury retired under the charge of the court, and before a verdict had been returned, on the evening of the 10th of February, the court without consent of appellant or her attorney discharged one of the jurors, and on the next day received the verdict from the 11 remaining jurors, signed only by the foreman. To said bill the court appended the following:

“This bill of exception is allowed with the qualification that the case was argued and submitted to the jury on the afternoon of February 10th, and, after the jury retired and had for time considered of their verdict, that the juror Jasper Henderson received a phone message that Ms child was dangerously ill and about to die and asked to be discharged. That tMs infor-I mation was received just about night, and a short time before the train went towards the home of the said juror, which was about 25 miles away. That in the judgment of the court, the intelligence received was so serious as to disable and disqualify the juror from a fair consideration of the case, and the court would have discharged the juror even if the parties had been present, and refused to consent to his discharge. The court for such reason discharged the juror Jasper Henderson from further sitting in the case. The fact that the juror was so discharged was known in a- few minutes to the counsel for plaintiff. No objection was made to such discharge except in said motion. That as stated in the plaintiff’s motion for a new trial, the court on the morning of February 11th (next morning), the court announced that he had discharged the juror for the reason above given. That no objection was made to such discharge by counsel for either party at that time. That the jury continued to consider of their verdict until 10:30 a. m. February 11th, when they returned into open court their findings in the case, and that the same was read in the presence and hearing of the counsel for the plaintiff. That all of the 11 jurors were present. The jury was asked if they had agreed upon their verdict, and informed the court that they had done so far as they could. That their findings were then read, the court reading the signature of the foreman aloud, and the . jury discharged, and the counsel for plaintiff was present, and made no objection to the form of the verdict; and the court further shows that the charge as submitted to the jury, which was originally read and inspected by counsel for both parties, showed that the said findings were only to be signed by the foreman, and that there was no objection to said form made at the time, nor until the matter was presented to the court on the motion of plaintiff for a new trial.” ■

We think the discharge of the juror under the circumstances stated by the 'court is not reversible error.

We are also of the opinion that the receiving of the verdict without the signature thereto of other jurors than the foreman was waived by the appellant, and she will not be heard to complain of the verdict. The appellant’s attorney knew, on the night of the 10th of February, that said juror had been discharged ; that the remaining jurors were considering of their verdict; was present ‘when the jury returned into court; heard their answers to issues, read and signed alone by the foreman; and knew of its acceptance by the court; and during that time made no objection to the proceeding; nor was any objection made until a motion for new trial was presented.

That the juror was disabled to continue in considering the verdict we cannot for a moment doubt, for his mind, under the circumstances, would be so absorbed by thinking of his sick child that he could not possibly give the case that attention contemplated by the law, and the court did not err in discharging him. Routledge v. Elmendorf, 54 Tex. Civ. App. 174, 116 S. W. 160.

In the case of Dunlap v. Raywood, 43 Tex. Civ. App. 269, 95 S. W. 43, it is held that the statute requiring that the verdict must be signed by the foreman is but directory, and we see no reason why the requirement of the statute that 11 jurors should: sign a verdict when the jury is reduced to that number is not also directory, and we so hold.

As the judgment in this case is amply supported by the evidence, which we think would not authorize any other, it is affirmed. Affirmed.
      <&v>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    PADDLEFORD et al. v. WILKINSON.
    (No. 5778.)
    (Court of Civil Appeals of Texas. Austin.
    April 5, 1917.)
    1. Indemnity <®=»8 — Scope — Directors of Corporation.
    - A guaranty by stockholders of the directors, naming them, against personal liability on account of borrowing money to operate the company, does not extend to transactions after a change in the personnel of the directory.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 10-15.]
    2. Indemnity @=15(7) — Action—Burden of Proof.
    Liability on guaranty of named directors against personal liability on account of borrowing money to operate the company, being limited to debts contracted before a change in the personnel of the directory, even if continuing as to them after the management is turned over, ■before such debts are paid, to the new directory, the hold-over members to recover because of payment of company indebtedness by the new directory must show the part thereof paid them which was incurred by the old directory.
    [Ed. Note.' — For other cases, see Indemnity, Cent. Dig. § 44.]
    3. Indemnity @=15(7) — Action—Burden of Proof.
    Where the guaranty of directors against personal liability on account of borrowing money to operate the company is by the stockholders individually in the proportion of the shares owned by them, the directors suing one of the obligors must show the proportion for which he is liable. ⅜
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. § 44.]
    4. Pleading @=4044-Irregularity — Necessity of Exception.
    That exceptions were contained in a supplemental answer, instead of an amended answer’, is an irregularity, so that, in the absence of exception on this account, error because of this in sustaining them is waived.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1348-1354.]
    5. Appeal and Error @=1040(1) — Harmless-Error — Rulings on Pleadings.
    Any error in sustaining exceptions to pleadings was harmless, where the case was thereafter heard on the merits without reference to them.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4089, .4097.] ■
    Appeal from District Court, Coleman County ; Jno. W. Goodwin, Judge.
    Action by D. A. Paddleford and others against C. M. Wilkinson. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Critz & Woodward and Woodward & Baker, all of Coleman, for appellants. Snod-grass, Dibrell & Snodgrass, of Coleman, for appellee.
   RICE, J.

On the 17th day of February, 1911, certain stockholders of the Coleman Mill & Elevator Company, a private corporation, conducting business in the town of Coleman, desiring to indemnify its certain named directors against loss, made, executed, and delivered to them the following contract of guaranty, to wit:

“State of Texas, County of Coleman.
“Whereas, the Coleman Mill & Elevator Company, of Coleman, Coleman county, Texas, a corporation, duly incorporated and doing business in this state, with its principal place of business in the city of Coleman, Coleman county, Texas, and
“Whereas, it became necessary and will become necessary in the future to borrow money to operate the Coleman Mill & Elevator Company, and,
“Whereas, the directors of said company, to wit: D. A. Paddleford, J. D. Delleney, F. M. Bowen, A. D. Dunn, John Rogers, G. P. Roque-more and W. J. Ooulson have already borrowed money to operate said company upon, and became personally liable therefor, and
“Whereas, the said directors above named will hereafter be forced to borrow money and make themselves individually liable for same to operate said company, and,
“Whereas, the said stockholders of said company desire to hold the said directors harmless from any personal obligations that they have already made or may become necessary hereafter to make in operating' said company:
“Now, therefore, know all men by these presents: That we, the undersigned stockholders of said Coleman Mill & Elevator Company, do hereby obligate ourselves individually and in. proportion to the share of stock we own, our heirs and legal representatives, to pay to the said directors above -named a sum not to exceed the amount expressed in our share that each of said stockholders now hold in said company, and that this obligation and contract is to ’be binding on each of the undersigned stockholders to the amount of the respective share or shares in said company that he now holds upon the condition that if the said directors have to pay out on their own responsibility and individually any amount or amounts that they may become individually liable therefor by reason of signing any instrument or becoming personally liable for any debts that are due or to become due by said company, but should the said directors bo not compelled to pay out any sum or sums of money individually for the debts of said company, then in that event this instrument and contract is to- be null and void, otherwise to remain in full force and effect.
“Witness, our hands, at Coleman, Texas, this 17th day of February, 1911.” Signed by C. M. Wilkinson and 19 others.

This suit was brought by D. A. Paddle-ford, Jno. Rogers, G. P. Roquemore, W. J. Ooulson, and R. I. Bowen and G. B. Davidson, independent executors of the estate of F. M. Bowen, deceased, against C. >M. Wilkinson, to recover tbe sum of $1,000, being the amount of his shares of stock, alleging that they, together with S. P. Woodward and R. L. Boog-Scott, advanced and furnished, and caused to be advanced and furnished, to the Coleman Mill & Elevator Company, for the purpose of operating the business of said company, and that they and said Woodward and Boog-Scott subsequently paid various sums and obligations so incurred, which payments they allege exceeded the total liability of the signers under the above contract. They further allege that the Coleman Mill & Elevator Company borrowed certain sums upon the indorsement of the directors named in such contract prior to the execution and delivery thereof, and they further allege that various sums of money were borrowed by said company upon tbe indorsements of appellants and Boog-Scott and Woodward, subsequent to the date of the execution and delivery of such contract.

Appellee, after urging numerous exceptions, specially pleaded a failure of consideration, and also alleged:

“That he was a mere surety and guarantor on said contract, and that ho had been wholly released therefrom, and that the same was no longer binding on him, for the reason that tho indemnities named therein never performed their part of the contract, and, without the knowledge or consent of this appellee, substituted other and different parties in the management of said company, and substituted other parties to pass upon and decide in their judgment what obligations should be oxecuted, and represents and says that the obligees named in such contract did not incur any of the obligations sued upon in this case, but that the obligations sued upon were incurred, if at all, by other and different parties than those named therein, and tho substitution of additional parties as aforesaid was a material change in the contract and obligation, and that this appellee as surety and guarantor in such contract, if ever liable thereon, was thereby released therefrom.”

On a trial before a jury, the court directed a verdict in behalf of appellee, and such action of the court is assigned as error by appellants. The evidence shows that, soon after the execution of this contract of guaranty, Messrs. Dunn and Delleney resigned and R. L. Boog-Scott and S. P. Woodward were elected in their stead; and that, while numerous obligations were incurred by tbe Mill Elevator Company prior to tbe execution of this contract for which the indemni-tees named therein became liable by indorsement, still hone of these obligations were paid prior to said date, and were subsequently often renewed by tbe new board of directors and dually paid by said new board long after Messrs. Dunn and Delleney had resigned and withdrawn from the management of the company. For which reason, appellee contends that he is hot liable on said contract.

It appearing from the evidence that after the resignation of Dunn and Delleney the new board of directors continued to manage and operate the business of tbe company for several years, during which time they saw proper to renew these obligations from time to time, subsequently paying a part thereof, we think that appellee was discharged from further liability thereunder. It is well settled that a guaranty must be strictly construed, and any departure therefrom to tbe prejudice of tbe guarantor will relieve him from liability. In section 93, vol. ’ 1, Brandt on Suretyship and Guaranty, it is said:

“A rule never to be lost sight of in determin-' ing tbe liability of tbe surety or guarantor is that he is a favorite of tbe law, and has a right to stand upon the strict terms of his obligation, when such terms are ascertained.”

It is further stated:

“That such undertaking will not be extended by the courts beyond the necessary import of the words used. It will not be implied that the surety has undertaken to do more or other than that which is expressed in such obligation. » ⅜ ⅜ ¾ is not sufficient that he may sustain mo injury by change in the contract, or that it may be even for his benefit. He has a right to stand upon the very terms of his contract, and if he does not assent to any variation of it, and a variation is made, it is fatal.”

In the instant case, appellee and the other stockholders who signed the contract undertook to guarantee the parties named therein against loss under the conditions as therein stated. It may be that they reposed special confidence and trust in Messrs. Dunn and Delleney, and for this reason executed the contract of guaranty; hut this does not imply that they were willing to extend their guaranty to the management of the new board after the substitution of Messrs. Boog-Scott and Woodward. They might well claim that had Dunn and Delleney remained on these obligations would not have been renewed and extended from time to time, but would have been paid at their máturity, thus saving them from liability thereon. At any rate, we think on account of the withdrawal of Dunn and Delleney, and the substitution therefor of Messrs. Boog-Scott and Woodward, there was such a change in said contract as discharged appellee from further ■liability thereunder. See 1 Brandt on Sure-tyship and Guaranty, §§ 117, 118, 119, and authorities there collated. See, also, Mann v. Dublin Cotton-Oil Co., 20 Tex. Civ. App. 678, 50 S. W. 190; Smith v. Montgomery, 3 Tex. 199, and authorities there cited. See, also, Donley v. Bush, 44 Tex. 8; McRea v. McWilliams, 58 Tex. 333; Durrell v. Far-well, 88 Tex. 107, 31 S. W. 185, 30 S. W. 542; Gargan v. School District, 4 Colo. 56; Schoonover v. Osborne, 108 Iowa, 458, 79 N. W. 265; Crane v. Specht, 39 Neb. 131, 67 N. W. 1018, 42 Am. St. Rep. 567; Hill Merc. Co. v. Rotan, 127 S. W. 1080; Kelsay Lbr. Co. v. Rotsky, 178 S. W. 840.

It is alleged, in appellants’ petition that $35,940 of indebtedness was incurred by the then board of directors prior to signing the guaranty contract, and that $37,991.35 of indebtedness was incurred after said time. We gather from the statement of facts that the business of the mill company was run at a loss, and that in 1913 or 1914 its property was sold and the proceeds applied to its indebtedness, leaving some $23,000 unpaid, which has since been paid by the new board of directors.

It does not appear that at the time the new board took charge the company did not have sufficient assets to pay its debts, and we think that it was the duty of the former directors, if they wished to hold the guarantors liable, to have paid-such debts before turning over the management to the new board.

We think it is clear that the guarantors were not liable for the debts incurred by the new board of directors, and, even could they be held liable for such part of the unpaid indebtedness as was incurred by the old board, it was the duty of appellants to clearly show what part of the indebtedness paid by them was incurred by the directors named in the bond. This they have not done by either allegations or proof, for which reason, aside from the reason hereinbefore stated, we think appellee is not liable on the guaranty contract.

Further, the obligation sued on is a joint one, and it is not made to appear what proportion thereof appellee was liable for, if any. For the reasons above stated, we think the court did not err in giving the peremptory charge complained of.

We overrule the first assignment, because, even if it was error on the part of the court, as contended by appellant, to sustain the exceptions contained in the supplemental answer on the ground that they should have been set out in an amended answer, still this was a mere irregularity, and in the absence of an exception on this account the error, if any, must be held to have been waived. See Baker v. Hamblen, 75 S. W. 362 et seq.; Stoker v. Patton, 35 S. W. 64. But, aside from this, it appears from the record that the court continued the cause until the next term, at which time the case was heard upon its merits, -and all evidence introduced without reference to such exceptions, for which reason the ruling complained of became immaterial.

No error appearing in the proceedings of the trial court, the judgment is in all things affirmed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes