text:
    FT. WORTH & D. C. RY. CO. et al. v. SHANK & DEAN.
    (No. 634.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1914.)
    1. Carriers (§ 229)—Injury to Live Stock —Damages—Evidence.
    In an action for damages for negligent delay and rough handling of a shipment of live stock, the jury, in estimating the damages, should consider the fact of their recovery from any injury after they were put upon a pasture.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    2. Carriers (§ 228)—Injury to Live Stock —Admission of Evidence—Damages.
    In an action for injuries to cattle shipped, where there was no evidence of the market value of the stock, either in its injured condition when delivered, or in the condition in which it should have arrived, evidence for plaintiff that the cattle were worth $5 less per head than they would have been had they been transported without negligence was inadmissible.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 951-960; Dee. Dig. § 228.]
    3. Carriers (§ 228)—Injury to Shipment oe Live Stock—Pleading.
    In an action for damages to a shipment of cattle, where plaintiffs did not seek to recover special damages for the extra feed necessary to bring the cattle back to the condition in which they should have been delivered, evidence as to the value of such feed was inadmissible.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    4. Partnership (§ 219) — Actions — Negligence oe Carriers—Recovery oe Whole Damages prom One Dependant.
    In an action against several carriers as partners for negligent delay and rough handling of a shipment of live stock, where the pleadings of defendants denying the charge were unverified, plaintiff had the right to recover the whole sum against either of the defendants.
    [Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 429-440, 442-445; Dec. Dig. § 219.]
    Appeal from Clay County Court; W. T. Allen, Judge.
    Action by Shank & Dean against the Ft. Worth & Denver City Railway Company and others. Judgment, for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Thompson & Barwise, of Ft. Worth, and Taylor & Humphrey, of Henrietta, for appellants. Wantland & Parrish, of Henrietta, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

Appellees instituted this suit against the appellants to recover damages for alleged negligent delay and rough handling of a shipment of one car of stock cattle from Winona to Dean, Tex. Upon a trial before a jury, plaintiffs recovered against the St. Louis & Southwestern Railway Company of Texas $20, against the Wichita Valley Railway Company $45, against the Ft. Worth & Denver City Railway Company $65, and against the Texas & Pacific Railway Company $280.

Appellants first assign as error the action of the court in refusing to charge the jury in effect that after the cattle were put upon a pasture, if they recovered from any injury they might have received in the shipment, that then the jury should take the fact of such recovery into consideration in estimating the amount of damages, if any. The appellants were entitled to have this charge given to the jury, and the assignment is sustained. Ft. Worth & Rio Grande Railway Co. v. Word, 51 Tex. Civ. App. 206, 111 S. W. 753; Guinn v. P. & N. T. Ry. Co., 142 S. W. 63.

The court erred in admitting the testimony of the appellee Dean, while testifying in his own behalf, to the effect that the cattle were worth $5 less per head than they would have been worth had they been transported within the usual, and ordinary time, and without rough handling. There was no evidence of the market value of the cattle, either in their injured condition when delivered, or in the condition in which they should have arrived if transported without negligence. As said by James, Chief Justice, in G., W. T. & P. Ry. v. Staton, 49 S. W. 277:

“Atkins testified that when the animals arrived at Teneha, their destination, they were damaged from $7 to $10 per head, and neither in this testimony nor elsewhere in the record is there-any evidence as to their value. He explains the nature of the injuries they received; but it is clear that this would not furnish to the jury any means for estimating the damages in dollars and cents. Therefore the opinion of Atkins cannot be pronounced harmless. In fact, it was the only evidence furnishing any estimate of the damages, and without it the verdict would have been guesswork.” C., R. I. & G. Ry. Co. v. Kapp, 117 S. W. 904; G., C. & S. F. Ry. Co. v. Hughes, 31 S. W. 411; St. L. & S. W. Ry. Co. v. Dean, 152 S. W. 527.

The appellee Dean was permitted to testify that the cattle were damaged at least $5 per head, and that he arrived at this amount of damage because of the extra amount of feed that would be necessary to bring said cattle back to the condition in which they would have been had they arrived without the unusual delay and rough handling, and that he had fed said cattle at least $5 worth of feed more per head than would have been necessary had said cattle been transported in the usual and ordinary manner. Appellees insist that this testimony was admissible in rebuttal, because appellants had proven by this witness that the cattle within a reasonable time after their delivery had in a large measure recuperated and recovered from the alleged injuries. This was proof of special damages, and was • admissible only in the event appellees had by their pleadings sought to recover such damages.

The fourth assignment of error insists that the recovery of $20 against the St. Louis & Southwestern Railway Company is contrary to the evidence, in that the testimony affirmatively showed that there was no delay or rough handling whatever on its line of railway. We agree with appellant that there is no basis in the evidence for such recovery; but suit was filed against all of defendants as partners, and the pleadings of defendant denying the allegation were not sworn to, and the assignment is without merit, since appellees had the right to recover, the whole sum against either of the partners.

Eor the errors pointed out, the judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: CÁRL, J.

license: Public Domain

text:
    KENEDY MERCANTILE CO. v. WESTERN UNION TELEGRAPH CO.
    (No. 5301.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 3, 1914.
    Rehearing Denied June 27, 1914.)
    1. Contracts (§ 26) — Offer by Mail — Acceptance.
    Where an offer is .submitted by letter, an acceptance is conclusive and binding when the letter containing it is deposited in the post office.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 119, 120; Dec. Dig. § 26.]
    2. Contracts (§ 26) — Offer by Telegraph —Acceptance.
    Where an offer is by telegram, an acceptance becomes binding on the proposer from the date of the delivery of the telegram of acceptance to the telegraph company, since the offer being made by such means was equivalent to an invitation to accept by the .same means.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 119, 120; Dec. Dig. § 26.]
    3. Exceptions, Bill of (§ 54) — Bystanders’ Bill of Exceptions — Proceedings.
    Under Rev. St. 1911, art. 2067, relating to bystander’s bill of exceptions, the bill must be prepared, sworn to, and filed at the time of the occurrence of the matters to which it relates.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 89; Dec. Dig. § 54.]
    Appeal from Karnes County Court; C. L. Bell, Judge.
    Action by the Kenedy Mercantile Company against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    M. B. Little, of Karnes City, and John W. Thames, of Kenedy', for appellant. George H. Fearons, of New York City, Proctor, Yan-denberge & Crain, of Victoria, and Crain & Hartman, of Cuero, for appellee.

      For oilier oases see same topic and section NUMBER in rfec. Dig. & Am. Dig. Iiey-No. Series & Rep’r Indexes

   CÁRL, J.

On July 25, 19.11, at 2:45 p. m., Weld-Neville Cotton Company sent from Houston, Tex., by the Western Union Telegraph Company, to the Kenedy Mercantile Company, at Kenedy, Tex., a message in code, which translated means:

“Our limit to you is 13 cents basis middling. Landed Houston, Houston weights and classification. Shipment to be made this week.”

The Kenedy Mercantile Company, on the same day, deposited with the telegraph company at Kenedy, Tex., a return telegram also in code which translated is, as to body:

“Book us 50 bales at 13 cents basis middling, landed Houston.”

Appellant, the mercantile company, alleges that it shipped 50 bales of cotton to Weld-Neville Cotton Company in compliance with said message, but that the telegraph company failed to transmit and deliver its said message to Weld-Neville Cotton Company, and that on account of the failure to promptly transmit and deliver said message appellant lost the sale of said 50 bales of cotton at 13 cents basis middling and afterwards on July 31, 1911, learned for the first time that the telegram of appellant had not been delivered to Weld-Neville Company, and sold said cotton on the last-named date at 11% cents per pound, basis middling, which was the best price that could be obtained for said cotton at said time. The difference between 13 cents and 11% cents per pound was claimed as damages against the telegraph company. The court, after hearing the evidence, instructed the jury to return a verdict for the appellee, telegraph company, which was done, and the Mercantile Company has appealed.

The trial court was correct in so instructing the jury. It is well-settled law in this state that, where an offer is submitted by letter, an acceptance is conclusive and binding when a letter is deposited in the post office accepting same. The delivery to the one making the offer is not the test; for when the offer is submitted in that way it is equivalent to an invitaton to accept by the same means, and when the acceptance is delivered to the agency chosen by the one making the offer the contract is complete. And so, where the offer is by telegram, and the answer is by the same means, the contract is then complete. The risk of prompt delivery is upon the one selecting the agency. In the ease of Mortgage Co. v. Davis, 96 Tex., page 508, 74 S. W., page 18, 97 Am. St. Rep. 932, Judge Brown says:

“The authorities are well-nigh unanimous in asserting that, when a party submits to another through the mail a proposition of purchase or sale, the receiver of the proposition has the right withi’n a reasonable time and before it is withdrawn to accept by writing deposited in the post office duly stamped, ready for carriage and delivery, and such an acceptance binds the proposer of the contract from the time the deposit is made in the postoffice, whether it be delivered or not. Blake v. Insurance Co., 67 Tex. 163 [2 S. W. 368, 60 Am. Rep. 15]; Bryant v. Booze, 55 Ga. 445; Levy v. Cohen, 4 Ga. 13; Moore v. Pierson, 6 Iowa, 292 [71 Am. Dec. 409]; Vassar v. Camp, 11 N. Y. 441; Hunt v. Higman [70 Iowa, 406], 30 N. W. 769; Hallock v. Insurance Co., 26 N. J. Law, 280; Dunlop v. Higgins, 1 H. L. C. 397. Any number of authorities to the same effect might be added.” Western Union Tel. Co. v. Davis (Civ. App.) 35 S. W. 189; Postal Tel. Co. v. Cotton Co., 140 Ky. 506, 131 S. W. 277; 9 Cyc. p. 295; Burton v. U. S., 202 U. S. 344, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Beach on Mod. Law of Contracts, vol. 1, p. 82; Lucas v. Tel. Co., 131 Iowa, 669, 109 N. W. 191, 6 L. R. A. (N. S.) 1016; Simkins on Contracts, p. 15; W. U. Tel. Co. v. Connell Land Co. (Civ. App.) 128 S. W. 1162.

Appellant’s remedy was against the Weld-Neville Company.

Appellant has one bill of exceptions, which is not approved by the trial court, but which is signed by three persons who are ■called bystanders. The parties so signing do not swear to the matters set out in the bill. 'The Judgment was November 25, 1913, and ■the bill of exceptions is dated January 6, 1914. It has been held that, to meet the requirements of article 2067, the bill must be prepared and sworn to and filed at the time ■of the occurrence of the matters to which it relates. Dehougne v. W. U. Tel. Co. (Civ. App.) 84 S. W. 1068; Shook v. Shook, 145 S. W. 699. And when it is not verified it will not be considered. G., C. & S. F. Ry. Co. v. Holt, 30 Tex. Civ. App. 330, 70 S. W. 591. The affidavit of one bystander is not sufficient, since the statute requires three. Taylor v. State (Cr. App.) 87 S. W. 1039.

The assignments will be overruled, and the judgment affirmed.


author: I-IIGGINS, J.

text:
    SOUTHWESTERN CASUALTY INS. CO. v. HEISTERMAN.
    (No. 319.)
    (Court of Civil Appeals of Texas. El Paso.
    May 21, 1914.
    Rehearing Denied June 18, 1914.)
    1. Appeal and Ekkoe (§ 664) — Record— Conflict between Bill of Exceptions and Agreed Statement of Facts.
    Where the bill of exceptions stated that evidence, the admission of which was assigned as error, was.admitted mpon a witness’ redirect examination, while the agreed statement pf facts disclosed that it was developed upon his cross-examination, the agreed statement controlled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2856-2859; Dec. Dig. § ■664.]
    2. Appeal and Eeeoe (§ 882) — Review—Invited Eeeoe.
    Defendant could not complain of the admission of testimony developed in response to ■questions propounded by its counsel on his cross-examination of plaintiff.
    [Ed. Note. — For other cases, see-Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    Appeal from Reeves County Court; H. N. McKellar, Judge.
    Action by Herman Heisterman against the Southwestern Casualty Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Ross & Hubbard, of Pecos, and Jno. F. Onion and Jno. F. Onion, Jr., both of San Antonio, for appellant. Hefner & Cooke, of Pecos, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. ICey-No. Series & Rep’r Indexes

   I-IIGGINS, J.

Heisterman brought this suit to recover an indemnity alleged to have accrued upon an accident insurance policy issued by appellant. The policy insured against loss resulting from bodily injuries caused by accidental means. On July 4, 1912, appellee sustained a fracture of his right leg, and he sought recovery of the indemnity stipulated for time lost, also for- 12 per cent, additional as damages, together with an attorney’s fee and for an unearned portion of the premium paid.

Error is first assigned to the admission of certain testimony of Heisterman. The bill of exception states that it was admitted upon I-Ieisterman’s redirect examination as a witness in his own behalf and in response to questions propounded to him by his counsel. The agreed statement of facts, however, discloses that the evidence was developed upon his cross-examination by defendant’s counsel. In case of a conflict between the bill and the agreed statement of facts, the latter controls. Railway Co. v. Jones, 118 S. W. 759; Helsley v. Moss, 52 Tex. Civ. App. 57, 113 S. W. 599; Railway Co. v. Montgomery, 139 S. W. 885; Cohen v. Rittimann, 139 S. W. 59.

Since the statement of facts discloses the testimony to have been developed in response to questions propounded by appellant’s counsel, it cannot complain that it was improper.

We have examined the evidence and the jury’s findings upon the special issues sub-' mitted and have reached the conclusion that the findings are supported by the evidence and that they are not subject to the objections urged, and further that, upon the facts found, judgment was properly rendered in appellee’s favor. The three remaining assignments are therefore overruled; the court being of the opinion that, as we understand the same, they are without merit.

Affirmed.


author: RAINEY, C. J.

text:
    COMMERCIAL UNION ASSUR. CO. OF LONDON v. HILL.
    (No. 7167.)
    Court of Civil Appeals of Texas. Dallas.
    May 30, 1914.
    Rehearing Denied June 20, 1914.)
    1. Insurance (§ 325) — Automobile Policy —Oonsteuction.
    A provision of an automobile fire insurance policy, that the machine during the term of the policy should not be used for carrying passengers for compensation, should be construed to prohibit the owner from using the machine continuously for carrying passengers for hire as a business, and was not breached by the fact that the owner’s son, on two or three afternoons during a fair, used the car without the owner’s knowledge for carrying passengers for hire to and from the fair grounds.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 750; Dec. Dig. § 325.]
    2. Insurance (§ 665) — Automobile Policy —Breach of Warranty — Location of Machine. ,
    In an action on a policy for loss of plaintiff’s automobile by fire, evidence that plaintiff informed defendant’s general agent as to certain visits to other places, and was told that the company had no objection and that no written waiver was necessary, was sufficient to show a waiver of a warranty that the ear should at all times be kept in a specified private garage, with the right to house the car in another building for exceeding 15 days at any one location at any one time, provided the car was en route, visiting or being cleaned or repaired.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.]
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Henry Hill against the Commercial Union Assurance Company of London. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    William Thompson, John S. Patterson, and Wm. O. Thompson, all of Dallas, for plaintiff in error. W. L. Mathis and Leake & Henry, all of Dallas, for defendant in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

Appellee took out insurance on his automobile against loss by fire for $4,000, with appellant. The automobile was destroyed by fire, and tljis suit was brought to recover for the value of said insurance. The company pleaded breach of certain' warranties contained in the policy, by which said policy was rendered null and void. A trial resulted in a verdict and judgment for appellee, and the company has appealed.

The policy sued on provided, among other things:

“It is warranted by the insured that the automobile hereby insured during the term of this policy shall not be used for carrying passengers for compensation, and that it shall not be rented or leased.” “In the event of violation of any warranty hereunder, this policy shall immediately become null and void.”

The evidence shows that, on two or three afternoons during the Fair in Dallas, Tom Hill, appellee’s son, used the car without ap-pellee’s knowledge for carrying passengers for hire to and from the fair grounds.

It is urged .by appellant that .such use of the car violated the provisions of the policy and therefore annulled it. We do not believe the use of the car for the limited time it was used breached the warranty clause in reference to the use of the car for hire, etc. The words, “that the automobile hereby insured during the term of this policy shall not be used for carrying passengers for compensation,” etc., were intended to mean that the automobile should not be continuously used, for that purpose for any length of time, or, in other -words, the owner should not make a business of using said automobile for carrying passengers for hire, and it was evidently never contemplated that the casual use of it as made in this instance would work a forfeiture of the policy. Ins. Co. v. Wade, 95 Tex. 598, 68 S. W. 977, 58 L. R. A. 714, 93 Am. St. Rep. 870; Ins. Co. v. Shearman, 20 Tex. Civ. App. 343, 50 S. W. 598.

It is further insisted that said policy was forfeited by the violation of this warranty clause, which follows:

“Private Garage Warranty. In consideration of the reduced rate at which this policy is written, it is understood that the property insured hereunder shall at all times be kept or stored in the private garage or private stable situate at 1000 So. Harwood street, Dallas, Texas. Privilege, however, to operate car and to house in any other building or buildings for a period of not exceeding fifteen days at any one location, at any one time, provided the car is en route, visiting or being cleaned or repaired, all other terms and conditions of the policy remain! ing unchanged.”

In answer to appellant’s plea of forfeiture for breach of warranty, appellee pleaded that Reinhardt, appellant’s general agent, had waived the provisions of said warranty provision. Appellee did not keep his car much of the time at 1000 South Harwood street, when he was in Dallas; but the evidence fails to point out in what respect he failed to comply with the terms of the warranty; that is, it fails to show during the time it was not at 1000 South Harwood street it was at some other place not authorized by the terms of the policy. The car was insured on May 5,1911, for 12 months. From the time of the contract of insurance until the car was burned Hill kept it in use; he and his family making visits in it to Mineral Wells, Okl., and Denton, Tex., to which last place he moved a month or so before ‘ the car was destroyed in December, 1911.' While on these trips he kept his car out of Dallas for more than 15 days, which worked a forfeiture of the policy, unless the warranty clause had been waived. ,*!

On the issue of wáiver appellee testified:

“You ask me to state what occurred between me and Reinhardt & Son in regard to where the car should be, and I answer: Well, when I wanted to. go to the country, I went to the company and told Mr. Reinhardt I was going, and he said, ‘All right.’ I asked him if there was any writing I needed, and he said no, that was all right, and told me any time that I wanted to go to the country it was all right. You ask me if he told me that any time I wanted to go to the country it was all right, and I answer, yes, sir. You ask me if I made any explanation to him' about going up to Denton county, and' I answer, yes, up on my farm. Q. Well, now, then Mr. Reinhardt having made that statement to you about it was all right for you to go up there whenever you wanted to, when was the first time that you heard of the proposition that the company objected to you having it on the Denton county place? A. Not until after the fire. Q. After this suit was filed they raised that objection? A. Yes, sir. Q.' Did you talk to Mr. Reinhardt on that subject more than once about having the auto up in Denton county? A. Tes, a half dozen times, and also, when I went off to Oklahoma on a trip, I told him I was going up there. Q. At no time he made any objections, but told you it was all right? A. Yes, said I didn’t need anything else, but just his word would be all right. Q. Did you say anything to him about changing the warranty in the policy? A. No, I told him I was going, and asked him if I needed anything, and he said that was all right, to go ahead. Q. This is the policy of insurance, is it? A. Yes, I guess so; yes, that’s it.”

Mr. Reinhardt is the general agent of appellant and authorized to make waivers. We think the provisions of the warranty clause were waived and that appellant should not be allowed to defeat the payment of the policy for breach thereof. Wagner v. Fire Ins. Co., 92 Tex. 549, 50 S. W. 569; Morrison v. Ins. Co., 69 Tex. 353, 6 S. W. 605, 5 Am. St. Rep. 63.

The judgment is affirmed.


author: PLEASANTS, O. J.

text:
    DICKENSHEETS v. HUDSON et al.
    (No. 6751.)
    (Court of Civil Appeals of Texas. Galveston.
    May 28, 1914.
    Rehearing Denied June 18, 1914.)
    1. Justices oe tiie Peace (§§ 116, 126)— CORRECTION OE JUDGMENT.
    While a justice of the peace has no authority to grant a motion for a new trial after the expiration of ten days after the date of judgment, as provided by Rev. St. 1911, art. 2374, he is authorized by article 2015, after the expiration of such time, to correct a mistake in the record of a judgment rendered by him so as to make the record speak the truth.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 369-371, 400, 464; Dec. Dig. §§ 116, 126.]
    2. Justices oe the Peace (§ 130) — Judgment — Res Judicata — Issues—Jursidiction.
    Where a justice of the peace without jurisdiction to adjudge a lien on an automobile nevertheless, as a part of a judgment, denied a lienor’s right to a lien, but thereafter the justice on motion corrected the judgment so that it expressly stated that the court had no jurisdiction to foreclose the alleged lien, the judgment as so corrected was not res judicata of the lienor’s right to a lien.
    [Ed. Note. — For other cases, see Justices of the Peace, Dee. Dig. § 130; Judgment, Cent. Dig. §§ 989, 1153.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by C. Dickensheets against F. M. Hudson and another. Judgment for defendants, and complainant appeals.
    Affirmed.
    T. H. Stone, and H. E. Stephenson, both of Houston, for appellant. John B. Warren, of Houston, and M. C. Lane, for appellees.

      Tor other cases see.same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

   PLEASANTS, O. J.

This suit was brought by appellant to enjoin appellees from proceeding, under the provisions of article 5667 of the Revised Statutes, to sell an electric coupé owned by appellant. The ground upon which the injunction was sought is, in substance, that defendants’ claim of lien upon the property above mentioned had been adjudicated against them in a suit brought by them against appellant and others in the justice court for precinct No. 1 of Harris county, in which they sought to recover the sum of $128.85 alleged to be due for storage and repairs upon said coupé, and to foreclose the lien given by the statute to secure the payment of said sum. The judgment as originally entered in the justice court, after reciting the appearance of the parties and the dismissal of plaintiffs’ suit against appellant’s codefendants in said suit, is in the following language:

“And the court, having heard the evidence and argument of counsel, is of opinion that the plaintiffs, F. M. Hudson and S. D. Center, ought to recover against the said C. Dickensheets the sum of $128.85, but nothing as to the defendant C. A. McNeeley. It is further ordered that the plaintiffs be denied the right to assert any lien whatever against the electric coupé mentioned in the pleadings and the evidence; that the plaintiff recover all costs in this behalf expended. For the collection of this judgment and costs let execution issue. It is ordered that this judgment bear interest at the rate of 6 per cent, per annum from the date hereof.”

On the day the judgment in the justice court was rendered, February 5, 1914, appel-lees herein, who were plaintiffs in said suit, filed a motion asking that the judgment be reformed so as to “include a foreclosure of lien.” This motion was overruled by the court. No appeal was taken from said judgment. On February 7, 1914, appellees, under the provisions of article 5667 of the Revised Statutes, posted notices of the sale of said coupé for the purpose of satisfying their claim of $128.85. Thereupon appellant brought this suit to enjoin said proceeding. The petition, which sets out the facts above stated, was presented to Hon. Wm. Master-son, judge for the Fifty-Fifth judicial district, and, upon consideration thereof, the judge, on February 26, 1914, granted a temporary injunction in accordance with the prayer of the petition. On February 27th, after the temporary injunction was granted, appellees filed in the justice court a motion to correct the entry of the judgment of February 5, 1914, as it appears upon the minutes of said court. On the hearing of this motion on February 28, 1914, the justice made and; entered the following order:

“On this the 28th day of February, A. D. 1914, came on to be heard plaintiffs’ motion in the above entitled and numbered cause, in which F. M. Hudson and S. D. Center are plaintiffs and C. Dickensheets, S. A. McNeeley, and the Auto Company, a private corporation, are defendants, to have the entry of the judgment given herein on the 5th day of February, A. D. 1914, amended and corrected so as to speak the' true action of the court in said case, and, defendant O. Dickensheets having been given due notice of the filing of said motion, and of the-hearing of same, both or all parties being represented in court, and argument or counsel having been heard, the court orders, adjudges, and decrees that the entry on the minutes of the-court be corrected and amended so as to show the true judgment of the court, said entry to be corrected and amended to read as follows: ‘F. M. Hudson et al. v. O. Dickensheets et al. No. 19391. On this, the 5th day of February, A. D. 1914, came on to be heard the above entitled and numbered cause, and, the parties appearing herein, except the Auto Company, a private corporation, as to whom plaintiffs dismissed their cause, to which no exception was made, and the court having heard the evidence and argument of counsel, it is the opinion of the court, and so ordered, adjudged, and decreed, that plaintiffs, P. M. Hudson and S. D. Center, recover of and against the defendant C. Dickensheets the sum of $128.85, the amount sued for, with interest thereon at the rate of 6 per cent, per annum from date hereof until paid, together with their costs, and for which let execution issue, but nothing as to the defendant S. A. McNeeley. The court is of the opinion that it has no jurisdiction to foreclose the lien asserted by plaintiffs against the electric coupg mentioned in the pleadings, and now in their possession.’ ”

After obtaining this order correcting the ■entry of the judgment in the justice court, appellees filed an answer and motion in the district court to dissolve the temporary injunction. This motion was heard and granted by the court on March 31, 1914, and from the judgment dissolving the temporary injunction appellant prosecutes this appeal.

Without discussing appellant’s several assignments of error in' detail, we will state our reasons for holding that the trial court did not err in dissolving the temporary injunction.

While a justice court has no authority to grant a motion for new trial after the expiration of ten days from the date of a judgment (R. S. art. 2374; Carter v. Com’rs’ Court, 75 Tex. 286, 12 S. W. 985), such court can, under article 2015 of the Revised Statutes, correct a mistake in the record of a judgment rendered by it so as to make the record speak the truth. The power of a court to correct its records continues to exist after the court has lost jurisdiction of the subject-matter of the suit, and the exercise of such power, whenever the truth and justice of the case requires its exercise, has been uniformly sanctioned by our higher courts. Blum v. Neilson, 59 Tex. 378; Imlay v. Brewster, 3 Tex. Civ. App. 103, 22 S. W. 226; Railway Co. v. Walker, 39 Tex. Civ. App. 53, 87 S. W. 194; Railway Co. v. Roberts, 98 Tex. 42, 81 S. W. 25.

The only ground for injunction shown by the petition was the allegation that appellees’ right to foreclose their statutory lien upon appellant’s coupé was adjudicated against them in the suit brought by them against the appellant in the justice court, and, no appeal having been taken from the justice court judgment, appellees’ claim of a lien upon the property was res adjudicata, and their right to assert and enforce such lien is concluded by said judgment. The judgment as originally entered in the justice court does adjudicate appellees’ claim of lien, and, if the judgment so entered had been the judgment rendered, appellees could not now assert or enforce any lien upon the property. The learned trial judge, acting upon the assumption that the judgment originally entered in the justice court was the judgment rendered by that court, was correct in granting the temporary injunction. When, however, on the motion to dissolve it was made to appear by the record from the justice court that that court did not adjudicate the question of appellees’ right to establish and foreclose the lien claimed by them, but declined to pass upon such question, on the ground that it had no jurisdiction thereof, we think the injunction was properly dissolved. A judgment cannot be held to be res adjudicata of a question or issue which the judgment shows upon its face was not determined thereby, and certainly appellees cannot be held to have lost their lien by their attempt to establish and foreclose it in a court which had no jurisdiction of such suit.

It follows from these conclusions that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.


author: MOURSUND, J.

text:
    ALSWORTH et al. v. REPPERT et al.
    (No. 5291.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 3, 1914.)
    1. Teial (§ 390) — Findings and Conclusions — Time for Filins.
    Under the statutes allowing the court 10 days after adjournment in which to file findings of fact and conclusions of law, an order of court allowing itself 30 days after adjournment in which to file such findings and conclusions conferred no power to file them after the time prescribed by statute.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 913; Dec. Dig. § 390.]
    2. Estoppel (§ 63) — Inconsistent Claim-Sale of Trees — Passing of Title.
    Under a contract whereby the seller, in consideration of certain payments, agreed to deliver in a healthy condition all orange trees in his nursery more than two feet in height, estimated at 3,000, to he delivered by their removal by the buyer at his own expense, at 30 cents per tree, that the buyer thereafter instructed the seller not to sell to others trees over two feet high did not estop him from denying that the title passed by the contract; it being only notice of his claim to the right to all trees of that size.
    [Ed. Note. — For other cases, see Estoppel, Dec. Dig. § 63.]
    3. Sales (§ 61) — Construction of Contract.
    The contract was an executory contract of sale, and title to trees which were frozen before they were dug and removed by the buyer never passed to him so as to make him liable for the price.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 162-170; Dec. Dig. § 61.]
    4. Sales f§ 72) — Construction of Contract — Quality of Goods — “Sound and Healthy Condition.”
    Where the seller contracted absolutely to deliver orange trees in a “sound and healthy condition,” it meant that the trees were to be alive, and not frozen so badly as to be worthless, and the seller, failing to deliver them in that condition, could not recover therefor.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 197-202; Dec. Dig. § 72.*]
    5. Sales (§ 150*) — Passing Title — Risk ob Loss.
    In the absence of contract, the risk of loss of goods sold goes with the title.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 350, 351, 354-356; Dec. Dig. § 150.*]
    6. Sales (§ 358*) — Action fob Peice — Evidence.
    In an action for the price of “sound and healthy” orange trees which the seller was to deliver, but which were frozen before delivery, evidence that the term “sound and healthy” meant, among nursery men, such condition as was certified to by inspectors from the department of agriculture, was inadmissible.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1049-1055; Dec. Dig. § 358.*]
    Error from District Court, Galveston County; John M. Conley, Acting Judge.
    Action by C. W. Alsworth and another against A. P. Reppert and another. Judgment for defendants, and plaintiffs bring error.
    Affirmed.
    C. W. Bocock and Gill, Jones & Tyler, all of Houston, for plaintiffs in error. Barkley & Green, of Houston, and Mar sene Johnson, of Galveston, for defendants in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

Plaintiffs in error sued defendants in error for $830, alleged to be the balance due plaintiffs for 3,200 orange trees sold and delivered to defendants. The defendants answered by a general denial and a plea that they had paid plaintiffs for all the trees delivered to them; that about November 29, 1911, most of the trees froze, and plaintiffs could not deliver them in a sound and healthy condition as they had contracted to do, for which reason they were not indebted to plaintiffs in any sum. The court rendered judgment for defendants, and, upon plaintiffs’ request, filed findings of fact and conclusions of law, on February 14, 1913. The court adjourned on January 31, 1913. As a precautionary measure, the court entered an order allowing himself 30 days after adjournment in which to file findings of fact and conclusions of law. This order conferred no power upon the court to file findings of fact and conclusions of law after the time prescribed by statute, namely: 10 days after adjournment. Wandry v. Williams, 103 Tex. 91, 124 S. W. 85; Melvin v. Deer (Tex. Civ. App.) 126 S. W. 681; Yelasco Fish & Oyster Co. v. Texas Co. (Tex. Civ. App.) 148 S. W. 1184; Houston Oil Company v. Powell (Tex. Civ. App.) 151 S. W. 887. The failure of the court to file the same within the statutory time was not excepted to by plaintiffs, nor is it assigned as error. The’findings of fact and conclusions of law will not be considered. There is an agreed statement of facts in the record, and the case will be disposed of as if no findings of fact had been requested or filed. The facts are undisputed anyway, and it only remains to determine whether the judgment of the court thereon was correct.

The parties, on November 14, 1911, executed a written instrument, as follows:

“November 14, 1911.
“Purchase Contract.
“The State of Texas, County of Galveston.
“The following contract and sale is this day entered into between C. W. Alsworth & Son, hereinafter named as party of the first part, and the Satsuma Nursery Co., represented by its manager, I. M. Johnson, known hereinafter as the party of the second part, all parties now residing in Bay View, Galveston Co., Texas, and is made performable in all its parts in Galveston county, Texas.
“For and in consideration 'Of one hundred ($100.00) dollars, this sum paid to us in hand this date, and two hundred ($200.00) dollars to be paid to us December 5, 1911, we, the party of the first part, bind ourselves and agree to deliver to party of second part, in a sound and healthy condition, such and all trees now growing in our nursery rows, and hereinafter described. The party of the second part to dig ail the trees described, and is to have the privilege of balUnff said trees on the grounds as dug.
“Party of the first part agrees that party of second part shall have the privilege of digging, and removing from his nursery any and all Satsuma Orange nursery stock now standing in his nursery rows, and ranging in height from two feet in height and up.
“The party of the second part agrees that all trees shall be removed from nursery rows of party of first part on or before March 1, 1912.
“The total number of the aforesaid trees are estimated by both party of first and second part as three thousand, for which party of first part is to receive from party of second part the sum of thirty cents (30d) per tree. Three hundred ($300.00) dollars of this sum is to be paid to party of first part by party of second part as trees are delivered, the delivery consisting as above described, wherein party of second part is to dig said trees at his own expense.
“Witness our signature this the fourteenth day of November, 1911.
“C. W. Alsworth & Son,
“By. W. Alsworth, Mgr.
“Satsuma Nursery Co.
“By I.'M. Johnson, Mgr.
“Witness: S. B. Crawford.”

Upon the signing of said instrument, which was written by the defendants, the latter paid plaintiffs $100, but failed and refused to pay the $200 on December 5, 1911, but on December 20, 1911, paid $30. On January 24, 1912, defendants removed 261 trees. The trees were sound and healthy at the time the written instrument was executed; but about November 29, 1911, all were frozen, except the 261 above mentioned. The testimony showed there were 3,685 trees of the size mentioned in the agreement. Defendants instructed plaintiffs, after the agreement was executed, not to dig any trees over two feet high under any circumstances. When the $30 was paid, defendants told plaintiffs that said amount, with the $100 theretofore paid, would cover all the live trees they could get, and refused to pay any more until they should ascertain how many good trees they would get out of the lot.

The evidence with regard to defendants’ instructions not to dig the trees was introduced pursuant to a plea by plaintiffs in their supplemental petition, to the effect that defendants were estopped to deny that the title passed, because a short while after the execution of the written agreement between them plaintiffs undertook to sell the surplus over 3,000 trees of the size described in said agreement, and defendants stated that the contract called for all trees of that size, and that all trees of that size belonged to defendants. The evidence fails to show any element of estoppel, and such statement by defendants does not tend to show that defendants construed the written agreement as passing the title, but merely shows that defendants were insisting upon their right to have all the trees delivered to them which were covered by the agreement.

Appellants’ main contention is that the written instrument passed the title to the trees from appellants to appellees, and that the latter must therefore bear the loss. The instrument is headed “Purchase Contract,” and is referred to as a “contract and sale.” It does not recite that the appellants have sold the trees to appellees, but that appellants agree to deliver them in a sound and healthy condition. The trees were sound and healthy at the time the instrument was signed, and, had it been intended that appellees should take title at that time, and with it the risk, it would have been easy to have expressed that intention by simply saying that the trees were sold and delivered to appellees. The instrument further provides that the balance was to be paid “as trees are delivered, the delivery consisting as above described, wherein party of second part is to dig said trees at his own expense.” By this clause the parties admit that no delivery has been made, and agree what should constitute a delivery. It does not appear that the trees were counted, or their number agreed upon, at the time or before the signing of said instrument, and, while the number of trees of the size mentioned could easily be arrived at by measuring and counting, yet it also became necessary to determine at the time of delivery how many of the trees were sound and healthy, and to separate them from those which might be unsound or unhealthy. The agreement either contemplated that the title should pass at the time of delivery as to those trees only which were sound and healthy at such time of delivery, in which case the risk was with the appellants, or that the title passed at once, and appellants contracted that all of the trees would remain in a sound and healthy condition up to the time when delivery should take place as provided in the instrument. The latter construction, which was the one adopted by the trial court, is said by appellants to be absurd, as it would bind them to deliver every tree of the size specified then growing in their nursery rows, and, if they failed to do so, appellees would be released from complying with the' contract. Such a contract appears very unwise to appellants after the freeze, and upon a close analysis of its terms by their attorney; but it is highly probable that when they signed it they did not view it as they now do. Certainly their contention that one part of the contract refers to a constructive delivery and the other to an actual delivery is absurd. They say that the obligation to deliver in a. sound and healthy condition meant to so deliver constructively at the time the instrument was signed, and, as it is admitted that the trees were sound and healthy at that time, they have fully complied with their contract. The delivery contemplated in the agreement was an actual delivery, and it was-expressly provided how it should be consummated.

We conclude that the parties intended the-instrument as an executory contract of sale, and that the title to the trees which became frozen had never passed to appellees; but, should we be mistaken in this, then it is-clear that appellants contracted absolutely to-deliver the trees in a sound and healthy condition when called for by appellees, and that they failed to comply with such contract. The law declares that the risk goes with the title; but that is in the absence of a contract. There can be no doubt that the parties-as a part of their contract can provide that the seller assumes the risk up to time of actual delivery. When such a contract is made, and the payment is to be made for trees delivered in a sound and healthy condition, plaintiffs cannot recover the price upon delivering or tendering frozen trees. We are-not considering the question whether appellants could be held for damages for failing-to comply with their contract, but whether they can recover upon same when they have not complied therewith. If appellants wanted to make any exceptions which would relieve them from the risk they assumed by contracting that the trees would be sound and healthy when delivered, they should-have named such exceptions in the contract. They did not occupy the position of bailees or-agents of appellees, as contended by appellants, but as contractors who, having failed to comply with their contract, cannot recover the compensation agreed to be paid for-such compliance. The first, third, fourth, fifth, and sixth assignments of error are-overruled.

The testimony that “sound and healthy” means, among nursery men, such condition of trees as is certified to by certificates of inspectors from the department of' agriculture .was properly excluded. No inspector would certify that dead or frozen-trees were in a sound and healthy condition. The words “sound and healthy” may mean free of disease, as contended by appellants, but also mean that the trees must be alive. and not frozen so badly as to be worthless. We therefore overrule the second assignment. The judgment is affirmed.
      ‘For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes


author: PBEASANTS, C. J.

text:
    JACKSON v. CRAIGEN et al.
    (No. 6635.)
    (Court of Civil Appeals of Texas. Galveston.
    June 4, 1914.
    Rehearing Denied June 18, 1914.)
    Deeds (§ 31) — Sisnatube—Eeeect.
    A deed, reciting that it was a conveyance by B., which was not signed by B., but was signed after her death by her heirs, does not convey the interest of the heirs in the premises.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 60-63; Dec. Dig. § 31.]
    Error to District Court, Jefferson County; John M. Conley, Judge.
    Trespass to try title by Ellen Craigen and another against R. S. Jackson, in which Sevenne Be Blanc and others intervened. From a judgment in favor of certain of the interveners, the defendant Jackson brings error.
    Affirmed.
    Bipscomb & Bipscomb, of Beaumont, for plaintiff in error. Thos. J. Baten and E. E. Easterling, both of Beaumont, for defendants in error.

      For otfter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PBEASANTS, C. J.

This is a suit of trespass to try title brought by Ellen Craigen and Odelia Caruthers against R. S. Jackson to recover 660 acres of land on the Wm. H. Smith league in Jefferson county. A number of persons intervened in the suit, claiming undivided interests in the land, among whom were the children and heirs at law of Emer-ente Broussard, deceased. By the judgment rendered in the court below these Emerente Broussard heirs recovered against all the other parties to the suit the interest of their deceased mother in the land in controversy. From this judgment defendant Jackson prosecutes this writ of error.

Under an appropriate assignment of error plaintiff in error assails this judgment on the ground that a deed introduced in evidence by plaintiff in error, which was signed by the heirs of said Emerente Broussard, conveyed the title of said heirs to the grantor of plaintiff in error, and that the trial court erred in holding that because said deed did not purport to be the deed of said heirs, it did not convey their interest in the land, notwithstanding the fact that it was signed by them.

The material facts of the deed are as follows:

“The State of Bouisiana, Parish of Yernon. We, Azilda Broussard, Delzinde Broussard, Hermogene Banglinais, Emerente Broussard, Elodie Broussard, Sevenne Be Blanc, Celenna Broussard, and Adam Thibodeaux * * * in consideration of fifty dollars to each of us * * * in hand paid by Derneuville Broussard * * * for our separate interest of the value of fifty dollars each * * * grant, sell and convey unto the said Derneuville Broussard * * * all that certain tract of land * * * part of the west % of the league granted to Wm. H. Smith, beginning on the N. line 1250 varas E. of the N. W. corner; thence S. 5000 varas to the S. line at a point 1250 varas E. of the S. W. corner of same; thence W. 720Vio varas to the S. W. corner of the tract sold by Pierre O. Broussard to Eloi Broussard * * * thence N. 5000 varas to the N. line; thence E. on the N. line 720Vio varas to the place of beginning, containing about 637 acres * * * and the part herein conveyed by us is the undivided 5/0 of the above described tract of 637 acres, amounting to about 354 acres, each share of us being 70Vio acres, which we inherited from our father’s estate, Pierre O. Brous-sard. Also another part of the said Smith league * * * and we do hereby bind ourselves to warrant * * * the said premises unto the said Derneuville Broussard, his heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.”

This deed was never signed by Emerente Broussard, but after her death it was signed by her children and heirs at law, the defendants in error.

While the question was not properly before us for decision, this court, in deciding an appeal taken from the judgment from which this writ of error is prosecuted by other parties to this suit, expressed the opinion that the deed in question was inoperative as a conveyance of the title of the heirs of Emer-ente Broussard. In discussing the question in that case Mr. Justice Reese, speaking for this court says:

“If, however, the question had been properly presented, the contention of defendant Jackson could not be sustained. The fact that Emer-ente Broussard is named as one of the grantors in the body of the deed, and that her interest is to be conveyed, she being dead, would not distinguish this ease from the general doctrine, which is well settled in this state, that a deed is not binding upon one who signs it, but who is not named in the body of the deed as one of the grantors. Stone v. Sledge, 87 Tex. 49, 26 S. W. 1068, 47 Am. St. Rep. 65; Thompson v. Johnson, 24 Tex. Civ. App. 250, 58 S. W. 1030. The rule is different in some of the states. Sterling v. Park, 129 Ga. 309, 58 S. E. 828, reported also in 13 B. R. A. (N. S.) 298, 121 Am. St. Rep. 224, 12 Ann. Oas. 201. An extensive note to this report collates the authorities showing that the weight of authority is in favor of the rule stated in the Texas cases cited.” Be Blanc v. Jackson, 161 S. W. 67.

Counsel for plaintiff in error say in their brief that the general rule prevailing in Texas “that where a signer of a deed is not one of those recited therein as grantors the deed is inoperative as to him,” is based upon the weight of reason and authority, but insist that the rule is not applicable to the deed in question. There is nothing in this deed that can distinguish it from the deed under consideration in the case of Stone v. Sledge, supra. In the case cited only the name of the husband appeared in the body of the deed as the grantor, but it was sighed by both the husband and wife and properly acknowledged by the wife as her act and deed. The land conveyed was the separate property of the wife. If the wife’s signature and acknowledgment to this deed did not show an understanding on her part, and manifest a purpose to convey her land, we cannot see how it can be held that the signatures of the heirs of Emerente Broussard, who are not named as grantors in the deed in question, manifest a purpose on their part to make a conveyance of the land. In each case the deed purported to convey land owned by signers who were not named as grantors, and who alone could convey the title, and we cannot see upon what ground the one deed could be held operative as to the signers not named therein as grantors and in the other inoperative as to such signer. The writer is not prepared to agree to the proposition that the rule announced in Stone v. Sledge is based upon the soundest reason, but that it is well settled in this state and is based upon the great weight of authority cannot be questioned.

Such being our views upon the only question presented by the brief of plaintiff in error, it follows that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.-


author: FLY, C. J.

text:
    ALEXANDER et al. v. GARCIA et al.
    (No. 5305.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 3, 1914.)
    Stipulations (§ 17)— Time fob Filing Briefs — Effect of Agreement.
    Although agreements of the parties for a time, beyond that allowed by the law or the court, to file their briefs are not binding on the court, yet they are binding upon the parties to the extent at least of preventing either from asking for a dismissal on the ground that the other’s brief was not filed within the time allowed.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 38-40; Dec. Dig. § 17.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action between George R. Alexander and others and Augustin G. Garcia and others. From a judgment for the latter, the former appeal.
    Motion to strike out appellants’ briefs overruled.
    A. Winslow, of Laredo, and N. A. Rector, of Austin, for appellants.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

Appellees seek to strike out the briefs of appellants because not filed in the trial court or this court until May 16, 1914; the cause having been set down for hearing on May 27th. On April 30, 1914, an agreement was entered into between counsel for appellants and appellees that appellants should have until July 1, 1914, to file their briefs, and appellees until October 1, 1914, in which to file their briefs. Such agreements aré not recognized by this court, when they necessitate postponement of submission, for the simple reason that it cannot confide the arrangement of its docket to attorneys, and thus tie up the business and retard the court in its action on cases. This fact is well ■ known, or should be, to the attorneys of this district, having been in force for the last 21 years. But the agreement was entered into, and, although not recognized by this court as binding upon its actions, it should be binding upon those who voluntarily entered into the. agreement, to the extent at least of preventing either party to ask for a dismissal on a ground created by the agreement itself. If appellees did not have time in which to brief the case, an extension of time might have been obtained at the hands of this court, but no request was made for an extension. This case could readily have been briefed by appellees in 2 weeks, but, although the brief of appellants was filed 11 days before submission, no effort has been made to file a brief, and no extension of time asked for. It could not have been an act of bad faith on the part of appellants to file briefs, as charged by appellees, because they have merely acted in obedience to the orders of this court, so as to do all they could to have the case ready for submission.

The motion to strike out is overruled.


author: PLEASANTS, C. J.

text:
    BIXLER v. DOLIEVE.
    (No. 6608.)
    (Court of Civil Appeals of Texas. Galveston.
    May 6, 1914.)
    Sales (§ 119*) — Contbacts — Rights of Buyer.
    A contract of sale of jewelry, described as solid gold and filled or rolled gold, which provides that at any time within a certain limit the seller will, on receipt of any of the goods bought, exchange them for any other goods in stock, that if at any time an article purchased proves unsatisfactory it must be promptly returned, and the seller will replace it with a new one, and that, should the retail sales total less than the whole of the purchase, the seller will repurchase, at the wholesale price, the goods remaining unsold on specified conditions, does not deprive the buyer of the right to repudiate the contract in its entirety for the failure of the seller to deliver the kind of goods ordered, and he need not accept and pay for goods which do not conform to the order, and rely solely on the contract as his remedy for a breach by the seller.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 293; Dec. Dig. § 119.*]
    Appeal from San Jacinto County Court; E. W. Love, Judge.
    Action by Miles F. Bixler against J. M. Dolieve. From a judgment for defendant, plaintiff appeals.
    Reversed arid remanded.
    Wm. McMurrey, of Cold Springs', for appellant.
   PLEASANTS, C. J.

Appellant brought this suit against the appellee to recover the agreed purchase pride of an assortment of jewelry sold by him to appellee. The suit, which was for $198, was brought in a justice’s court. The defendant answered by pleas of fraud and misrepresentation and breach of warranty, and by plea in reconvention sought to recover damages against plaintiff in the sum of $175. A trial in the justice’s court resulted in a judgment in favor of defendant on plaintiff’s demand, and in favor of plaintiff on defendant’s claim for damages. Plaintiff appealed to the county-court, and upon a trial de novo in that court the following judgment was rendered:

“This day came the parties by their attorneys and submitted the matter in controversy, as well of facts as of law, to the court; and the evidence and the argument of counsel having been heard and fully understood, the court is of the opinion that the facts as well as the law is against the plaintiff and in favor of defendant. It is therefore considered, adjudged, and decreed by the court that defendant, J. M. Dolieve, go hence without day, and recover of plaintiff, Miles F. 'Bixler, all costs in this behalf expended, for which ho may have his execution. It further appearing to the court by the answer of defendant to plaintiff’s original petition that the defendant, J. M. Dolieve, tenders to plaintiff the return of the property in controversy, it is therefore considered, adjudged, and decreed by the court that plaintiff, Miles F. Bixler, have and recover of defendant, J. M. Dolieve, the property in controversy, for which he may have his execution.”

The contract for the purchase of the goods was evidenced by an order, signed by the ap-pellee and appellant’s agent. This order, after setting out a list of the jewelry to be sent appellee, many of the articles in said list being described as solid gold, and others as filled or rolled gold, contains the following provisions:

“Exchange Privilege. — At any time within 18 months we will, upon receipt of any goods purchased of us, exchange them, dollar for dollar, for any other goods in our stock.
“Warranty. — If at any time, for any cause, an article purchased of us proves unsatisfactory, it must be promptly returned, and we will replace it with a new one free of charge.
“Sales Insurance. — Should the retail sales from these goods in 12 months’ time total less than the whole sale amount of this order, we will repurchase, at the wholesale price, the goods remaining unsold, on condition that purchaser will keep 'the goods displayed 12 months, and use reasonable effort to sell them, and send us within the first five days of every alternate month an invoice of the goods then on hand. Customers not desiring this protection may omit these requirements.”

The amount agreed to be paid for the jewelry, as stated in the order, was $198.

The evidence sustains the finding of the trial court that none of the articles shipped by appellant to appellee were gold, and when appellee discovered, soon after the jewelry was received, that the articles which made up the assortment were not as represented by the agent of appellant who took the order, and as described in the order, he notified appellant that he would not accept the jewelry, and offered to return the shipment and pay appellant for the few articles he had sold before he discovered the breach of warranty as to the material of which the goods were made. Appellant refused to take the goods back, and they have remained in ap-pellee’s possession, and he has sold some of them; the exact amount of such sales not being shown. No evidence was offered by appellee sustaining his claim for damages.

We shall not discuss appellant’s assignments of error in detail. Most of them are not followed by a sufficient statement to entitle them to consideration.

We do not think the covenants and agreements in the contract of sale before set out should be regarded as limiting appellee’s right to repudiate the contract in its entirety because of the failure of appellant to ship him the kind of goods ordered. The agreements as to the exchange and return of goods which might not prove satisfactory were intended to apply to goods of the kind ordered, and if, as found by the trial court, defendant shipped appellee brass jewelry, instead of gold, as the contract required, appellee would not be required to accept and pay for such goods and rely solely upon the agreements for exchange set out in the contract as his remedy for such breach of warranty. ,

But, the evidence having shown that ap-pellee had sold a portion of the goods after appellant had refused to take them back, he is clearly liable to appellant for the value of the goods sold by him. The evidence as to the value of the goods sold is not sufficiently definite to enable us to render a judgment therefor in favor of appellant, and for this reason the judgment is reversed, and the cause remanded.

Beversed and remanded.


text:
    CLEMMONS v. JOHNSON.
    (No. 6536.)
    (Court of Civil Appeals of Texas. Galveston.
    April 16, 1914.
    Rehearing Denied May 21, 1914.)
    1. Appeal and Error (§ 1002) — Verdict— Conflicting Evidence.
    A verdict establishing the location of a disputed boundary line based on conflicting evidence will not be set aside on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    2. Estoppel (§ 32) — Deed — Location op Boundary Line.
    Where plaintiff did not have certain tracts conveyed by him surveyed and was not present when the surveys were made, and the dividing line between his land and defendant’s was located as claimed by defendant, the fact that in the deeds the dividing line between plaintiff’s land and that of defendant was called for, which line was located by a surveyor as claimed by defendant, did not estop plaintiff from denying that the line was correctly located.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 81; Dec. Dig. § 32.]
    3. New Trial (§ 102) — Newly Discovered Evidence — Diligence.
    Where defendant knew of alleged newly discovered evidence prior to the trial but made no effort to produce it and his only excuse was that the matter had “slipped” his memory, the motion was properly denied.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.]

      Appeal from District Court, Tyler County; A. E. Davis, Judge.
    Trespass to try title by C. Johnson against J. W. Clemmons. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    John L. Little, of Kountze, and J. J. Goodwin, of Woodville, for appellant.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This suit was brought by the appellee against the appellant in the form of an action of trespass to try title to the south half of a tract of 150 acres of land on the E. E. Hants league in Tyler county, described in plaintiff’s petition, less several small tracts out of said south half, which are also described in the petition. Defendant by his answer disclaimed title to all of the land sued for except that portion in conflict with a tract described in his answer. As developed by the pleading and evidence, the case involved only a question of boundary. The trial in the court below with a jury resulted in a verdict and judgment in favot of plaintiff, establishing the boundary line as claimed by him.

By his first assignment of error the appellant complains of the refusal of the trial court to instruct a verdict in his favor upon the following grounds:

“(1) That the dividing line between the Johnson 150-acre survey and the west line of defendant’s property lies as claimed by defendant and surveyed by Wm. McCready. (2) Because the plaintiff had by previous conveyances, introduced by defendant, from plaintiff and wife to Pope, Livings, George and Clemmons, conveyed all interest, right, and title that he had in the land along the east line of the Johnson survey to said parties above named, and he therefore is estopped from denying the recitations in said deeds. (3) By said conveyances mentioned in paragraph 2 herein, the plaintiff has no claim, possession, or right of possession to the disputed strip in controversy, and not being in possession or entitled to right of possession cannot maintain this action.”

Upon the question of the true location of the line in dispute the’ evidence was conflicting, but there is ample evidence to sustain the finding of the jury that the line was located as claimed by plaintiff.

Upon the issue of estoppel the evidence shows that plaintiff had conveyed several tracts of land to the parties above named, and in said deeds of conveyance the dividing line between the land of plaintiff and defendant was called for, and this line as located by the surveyor who surveyed and located the tracts so sold by plaintiff was located as claimed by the defendant in this suit. But the evidence further shows that plaintiff did not have these tracts - of land surveyed, and was not present when the surveys were made and the dividing line between his land and defendant’s located as claimed by defendant. This is the only act of plaintiff upon which the claim of estoppel is based, and we do not think it is sufficient to sustain such claim.

The evidence is sufficient to sustain -the finding that none of the land claimed and recovered by plaintiff in this suit was included in the conveyances made by him before mentioned.

These conclusions dispose of the second and third assignments of error, which complain- of the verdict on the ground that it is unsupported by the evidence, as well as the first assignment, and each of said assignments is overruled.

The fourth assignment of error, which complains of the refusal of the trial court to grant defendant a new trial because of newly discovered evidence, cannot be sustained.

The record shows that the defendant knew of the alleged newly discovered evidence prior to the trial and made no effort to produce said evidence on the trial; his only excuse for not having the witness’ testimony being that the matter had “slipped” his memory. In this state of the record it cannot be held that the trial judge abused his discretion in refusing to grant a new trial on the ground of newly discovered evidence.

None of the remaining assignments of error require any discussion. None of them, ' in our opinion, present any error that would require or authorize a reversal- of the judgment, and each is overruled.

It follows that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.


text:
    KALLISON v. POLAND.
    (No. 5293.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 27, 1914.
    Rehearing Denied June 22, 1914.)
    1. Vendor and Purchaser (§ 108)—Reme-dies oe Purchaser—-Fraud.
    When a purchaser discovers fraud in connection' with the sale of land, he has the election, either to ask for a rescission of the contract and the repayment of the money, or to sue for damages suffered by reason of the fraud.
    •[Ed. Note.—For other cases, see Vendor and Purchaser, Dec. Dig. § 108.]
    2. Fraud (§ 27)—Representations — Contract for Sale oe Land.
    Fraudulent misrepresentations by the vendor that there was upon the land a well containing 10 to 12 feet of water are such as to justify a recovery .by the vendee of the damages arising therefrom.
    [Ed. Note.—For other cases, see Fraud, Cent. Dig. § 8; Dec. Dig. § 27.]
    3. Vendor and Purchaser (§ 93)—Rescis-sion by Vendor — Nonpayment oe Purchase Price—Defenses.
    Where a purchaser had instituted suit to recover damages for misrepresentations affecting the value of the land, and had asked that the damages be applied on the lien notes, his failure to pay a note which became due pending the action does not entitle the vendor to rescind the contract; the jury having found the existence of the fraud.
    [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 153, 154; Dec. Dig. § 93.]

      Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by I. W. Poland against Natban Kallison for damages arising from false representations in tbe sale of a tract of land. From a judgment awarding damages to tbe plaintiff, but allowing tbe defendant to rescind tbe sale, both parties appeal.
    Reversed, and judgment rendered for tbe plaintiff.
    Templeton, Brooks, Napier & Ogden and S. C. Eldridge, all of San Antonio, for appellant. Hertzberg, Barrett & Kerebeville, of San Antonio, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig, Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is a suit for damages alleged to bave arisen from false representations made by appellant to appellee in regard to a well on a certain tract of land afterward sold by appellant to appellee. It was alleged that appellant represented that tbe tract of land bad on it a good well that always bad 10 to 12 feet of water in it, and that tbe water therein was amply sufficient to water 75 bead of cattle; that, acting on said representations, appellee paid appellant $800 in cash, and executed to bim two promissory notes, one for $700, due on June 10, 1913, tbe other for $4,600, due on October 10, 1917, each bearing ■ 10 per cent, interest; that when appellee moved on said land, with bis family, be found tbe well practically dry and of no use or benefit. Appellee further alleged that be had paid $61 an acre for tbe land, and that its real value was only $35, and be prayed for judgment for an excess of $26 an acre, amounting in tbe aggregate to $2,600. Tbe cause was tried on a second amended petition and a third amended answer; neither of them indicating when the original petition and original answer were filed. Appellant denied tbe allegations of tbe petition, and alleged that tbe $700 note became due on June 10, 1913; that he demanded payment of tbe same, which was refused; that it was provided in the notes, if tbe first note was not paid at maturity, or tbe interest not paid on either of them, appellant should bave the right to declare them both due and payable; that appellant, upon default in payment of- tbe first note, declared tbe other note due and placed them in tbe hands of an attorney; that, after giving appellee reasonable time in which to pay said notes, appellant elected to rescind said sale and tendered back tbe notes to ap-pellee; that appellee failed and refused to pay said notes; and appellant prayed for a judgment for tbe title and possession of tbe land, and for tbe cancellation of tbe notes.

Tbe cause was submitted to a jury on special issues, to which they answered that appellant bad made tbe false representations as to tbe well; that appellee believed them to be true, and would not bave purchased tbe land if such representations bad, not been made; that they were material; that tbe fair market value of tbe land at time of tbe sale was $40 an acre; and that tbe rental value of tbe land from July 23, 1913, to date of judgment was $100. In addition to tbe answers of the jury, the court recites in tbe judgment tbe finding, upon uncontroverted evidence, that on October 10, 1912, appellant conveyed a certain tract of 100 acres of land, therein described, to appellee; that appellee paid thereon $800 in cash, and at tbe same time executed two promissory notes, one for $700, due on June 10, 1913, and tbe other for $4,600, due on October 10, 1917, reserving in the deed and each note a vendor’s lien to secure payment of the notes, ‘and giving tbe option to the bolder to mature both notes upon default of payment of the first note or any installment of interest; that appellee defaulted in tbe payment of tbe $700 note, and appellant elected to rescind the sale. Upon tbe answers of the jury and tbe findings of tbe court, tbe court rendered judgment for appellee for $2,000, and for appellant for tbe land and a cancellation of tbe two notes.

Under the answers of tbe jury tbe damages amounted to $21 án acre, amounting in tbe aggregate to $2,100, and it is evident that tbe sum found by tbe jury was reduced by tbe sum of $100 found as rent due by ap-pellee. Tbe jury found tbe allegations of fraud to be true, and yet the judgment granted a rescission of the contract, not giving tbe fraudulent representations any force or effect on the question of rescission. From tbe judgment of tbe court, both parties appealed, and tbe ease is. before this court on assignments o& error by appellant and cross-assignments by appellee; the contention of appellant being that judgment should have been rendered in his favor for tbe land, and in favor of appellee for $800, amount of cash paid on tbe land, less tbe $100 rent for tbe period after an election to rescind was made, and tbe contention of appellee is that appellee should have bad judgment for $2,-100, to be applied on the two notes, and that tbe balance on .the $4,600 be declared to become due on October 10, 1917.

When appellee discovered tbe fraud of appellant in connection with the land, be had the election between two remedies, namely: To ask for a rescission of tbe contract of sale, for tbe repayment of the purchase money be bad' paid, and a cancellation of his notes, or to retain tbe land and sue for tbe damages that be bad suffered by reason of tbe misrepresentations of appellant. Bigelow on Fraud, p. 184; Grabenheimer v. Blum, 63 Tex. 369; Du Bois v. Rooney, 82 Tex. 173, 17 S. W. 528.

There can be no doubt that if appellant, as found by tbe jury, made fraudulent representations to appellee as to tbe condition of tbe well, that appellee could sue for and recover tbe damages arising from such fraud. Pendarvis v. Gray, 41 Tex. 326.

That proposition is not one about which there can be any controversy, and, without complication with the cross-action £or forfeiture instituted by appellant, the matter would be plain and simple. Putting aside that action for rescission of the land contract, appellee had the right to recover the damages and have-such damages placed as a credit on the purchase money yet unpaid.

If appellant had instituted suit on the notes, and appellee had answered, setting up the facts upon which he based this suit for damages, it is clear that he could, upon proof of the same, have offset his damages against the amount of the notes. If that be true in a court of law, would it not be true in a court of equity into which a vendor enters to rescind the contract of sale? In that court, where justice presides, and conscience is the standard, no one can come with unclean hands and invoke aid of its decrees. In that court rescissions are not favored, and no forfeiture will be permitted, if it appears that the default upon which the rescission or forfeiture is asked was brought about through any act of the plaintiff. The mere failure to pay the purchase money justifies a rescission; but it must appear that such default was not caused or induced by the act of the party seeking the rescission. Warvelle on Vendors, c. 30, § 6, p. 822; Scarborough v. Arrant, 25 Tex. 129; Thomas v. Beaton, 25 Tex. Supp. 318; Buckingham v. Thompson (Civ. App.) 135 S. W. 656; Wallace v. McLaughlin, 57 Ill. 53.

In this case the evidence showed fraudulent misrepresentations upon the part of appellant which induced the sale, and that the default in the payment of the $700 note was caused directly by such misrepresentations. It was by reason of the fraudulent actions and representations that the' note was not paid, because appellee not only had the right to have the- damages he had suffered credited on the purchase money notes, but that they should have been used to liquidate the debt that became due while the suit was pending. It would be inequitable and unjust to permit a rescission under such circumstances. Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290.

“Whatever be the nature of the plaintiff’s demand and of the relief which he seeks, if his elaim grows out of, or depends upon, or is inseparably connected with, his own prior fraud, a court of equity will, in general, deny him any relief, and will leave him to whatever remedies and defenses at law he may have.” Pomeroy, Eq. § 401.

The rule stated by Story, in his Equity Jurisprudence, vol. 1, § 779, and approved by the Supreme Court in Roberts v. Lovejoy, 60 Tex. 253, is the one to govern in cases like this, and is as follows:

“The general rule * * * in all such cases is that the purchaser, if he chooses, is entitled to have the contract specifically performed, as far as the vendor can perform it, and to have an abatement out of the purchase money or compensation for any deficiency in the title, quantity, quality, description or other matters touching the estate.”

That rule is one supported by justice and reason. As said by Waterman, in his work on Specific Performance:

“The purchaser will be entitled to compensation at any time before the conveyance and the payment of the whole purchase money as to a matter which has previously arisen either before or after the contract.”

In the case of Austin v. Ewell, 25 Tex. Supp. 403, cited and approved in the Roberts-Lovejoy Case, herein cited, the court said:

“The case here presented is one in which the vendor is the party who first places himself in the wrong. When it was ascertained that the house, which was supposed to be on the land conveyed, was not in fact on the land, it was the duty of the vendor to have allowed the proper deduction from the purchase money which remained to be paid. His refusal to do this placed him in the wrong. * * * The original contract of sale by Ewell to Austin and Weatherby ought to have been enforced; the proper deduction being made from the purchase money on account of the house in which Ewell lived at the time of the sale.”

That was a suit to recover the land by the vendor. In the present suit appellant had represented that a certain well was permanent with water at a fixed depth of 10 or 12 feet, which representation was not true, and appellant should have allowed a proper deduction from the purchase price to cover the lack of the well. He did not do so and thereby placed himself in the wrong, caused the default in payment of the note, and cannot ask a rescission of the contract of sale. Watson v. Baker, 71 Tex. 739, 9 S. W. 867; Hazzard v. Morrison (Civ. App.) 130 S. W. 244.

The law did not require appellee to pay the note that became due during the penden-cy of his suit, and it was not a default on his part to refuse such payment. Appellant could not take advantage of a state of circumstances created by his own fraudulent conduct to rescind the contract and retake the land. Appellee had the right to a specific performance of the contract with a deduction from the purchase price agreed to be paid for the land. It would be unconscionable to permit appellant to escape the result of his fraudulent representations by rescinding the sale and retaking the land. As said by this court in Buckingham v. Thompson, herein cited:

“If it should be determined that plaintiff was guilty of false representations concerning the land inducing the contract, we think plaintiff would have had no right to retake possession by summary process.”

The jury have found that the fraud of appellant induced the contract, and appellant cannot be permitted to rescind the contract and retake the property:

Appellee had the right to have the contract specifically performed, and to recover a rebate on the purchase money that would reduce the purchase price to the proper value, and this equitable relief did not depend upon the manner and form in which the suit for specific performance and the cross-action for rescission were instituted. Whether the ven-dee is entitled to equitable relief is a proper subject of inquiry in every case. Moore v. Giesecke, herein cited.

In order to rescind the contract and recover the land, there must be a default upon the part of the vendee, and it is permissible in such a suit for the vendee to show that he was not at fault, but that the vendor is in fault on account of failure to comply with the terms of the contract of sale. Kauffman v. Brown, 83 Tex. 41, 18 S. W. 425; McCord v. Hames, 38 Tex. Civ. App. 239, 85 S. W. 504.

If appellee had failed to make out a case of fraudulent representations on the part of appellant, then the right to a rescission might have accrued to appellant; but, when fraud was found by the jury which induced the execution of the contract of sale, appellant failed to show equities entitling him to a rescission and retaking of the land, and appellee should, under the verdict of the jury, have recovered the amount of the excess in value of the land, and such sum should have been applied as a payment first on the $700 note and then the balance on the $4,600 note as of date of the-contract of sale, the balance of said note to become due according to the face and tenor thereof.

The judgment is reversed, and judgment here rendered that appellant take nothing by his suit, and in favor of appellee as herein indicated, together with all costs in this behalf expended.


text:
    DALLAS COUNTY v. LIVELY et al.
    (No. 6098.)
    (Court of Civil Appeals of Texas. Dallas.
    June 27, 1914.)
    Courts (§ 488) — Appellate Courts — Certi-pied Questions — Determination anb Dis- , position op Cause — Affirmance.
    Where the only question involved on an appeal to the Court of Civil Appeals was certified to the Supreme Court, which answered it in favor of the appellee, holding that the trial court correctly held in his favor, the judgment must he affirmed.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1316-1323; Dec. Dig. g 488.]
    Appeal from Dallas County Court; Kenneth Foree, Judge.
    Action -by Dallas County against H. F. Lively and another. Judgment for defendants, and plaintiff appeals.
    Affirmed in conformity to answer of Supreme Court to a certified question (167 S. W. 219).
    Dwight Lewelling and Horace Williams, both of Dallas, for appellant. Spence, Knight, Baker & Harris, of Dallas, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

This suit was instituted by the county of Dallas to recover of Hi F. Lively $675, alleged to have been improperly and illegally received by him as remuneration for ex-officio services as county judge; the same having been duly allowed him by order of the commissioners’ court of said Dallas county, and duly indorsed on the minutes of said court. A trial was had, and a judgment duly entered for the appellee Lively.

This case was certified by us to the Supreme Court of Texas, and, the question certified was answered by that court May 28, 1914 (167 S. W. 219). The Supreme Court held in effect that H. F. Lively’s receipt of said money was not improper nor illegal, and that the lower court correctly so held. The answer of the Supreme Court was based upon the conclusion of facts as found by this court, and which are copied in the Supreme Court’s opinion, and here referred to.

But one question is involved, and, that one being answered by the Supreme Court favorably to the contention of Lively, the judgment is affirmed.


author: CARL, J.

text:
    ELSTUN v. SCANLAN.
    (No. 5316.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 10, 1914.)
    Error to District Court, Cameron County; W. B. Hopkins, Judge.
    Action between Eli Elstun and Mrs. Annie Seanlan. There was a judgment for the latter, and the former brings error.
    Dismissed.
    Ira Webster, of Brownsville, for plaintiff in error. Graham, Jones, West & Dancy and J. C. George, all of Brownsville, for defendant in error.
   CARL, J.

This cause is brought to this court on petition for writ of error. The transcript contains no motion for a new trial nor assignments of error, and the appeal will necessarily have to be dismissed for want of prosecution.

Appeal is dismissed.


author: PRENDERGAST, J.

text:
    BROWN v. STATE.
    (No. 3171.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    Rehearing Denied June 26, 1914.)
    Criminal Law (§ 200*) — Former Jeopardy— ' Different Offenses.
    As one could not under an indictment for murder be tried for unlawfully carrying a- pistol, an acquittal under an indictment for murder will not avail to him, as former jeopardy, when he is subsequently indicted for unlawfully carrying the pistol, with which, and when, he did the killing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. § 200.*]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    John Brown was convicted for unlawfully carrying a pistol, and appeals.
    Affirmed.
    Will S. Payne, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted, tried, and convicted for unlawfully carrying a pistol. His punishment was fixed at the lowest prescribed by law.

The uncontradieted evidence showed that he carried a pistol at the time alleged. His sole defense was former jeopardy — acquittal —in that he was duly indicted in the district court of said county for murder and was acquitted therefor. His contention is that, because he carried the pistol at the time and with which he killed deceased and was acquitted therefor, he could not be tried for unlawfully carrying a. pistol. Of course, no one would contend that under an indictment for murder a person could be tried for unlawfully carrying a pistol or that they were the same offense. That he unlawfully carried the pistol at the time and with which he killed a person, was tried, and acquitted therefor, could not and would not be former jeopardy for unlawfully carrying a pistol. Thomas v. State, 40 Tex. 36; Ballard v. State, 167 S. W. 340. It is unnecessary to cite other cases or discuss the question.

The judgment is affirmed.


author: HARPER, J.

text:
    DAVIS v. STATE.
    (No. 3154.)
    (Court of Criminal Appeals of Texas.
    June 10, 1914.
    Rehearing Denied June 26, 1914.)
    1. Criminal Law (§ 1090) — Review—Bills of Exceptions — Misdemeanors.
    Bills of exceptions must have been reserved, that there may be a review of the admission of evidence, the charge, or the refusal of requested charges, in a misdemeanor case.
    [Ed. Note. — For other cases, see Criminal Law, §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. pig. § 1090.]
    2. Libel and Slander (§ 148) — Privilege.
    Statement of defendant to L., the father of the wife of defendant B., when, B. having left his wife, L. went to defendant and asked him what was the matter, that she was unchaste before she was married was not privileged ; defendant being the originator of the false charge.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 407-411; Dec. Dig. § 148.]
    3. Criminal Law (§ 1099) — Appeal—Statement of Facts — Filing—Diligence.
    Appellant is chargeable with lack of diligence, where the statement of facts is not presented to the trial judge for his signature within the time allowed by law, though it was prepared and delivered to the state’s attorney in ample time, and through his neglect it was not seasonably filed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§' 2866-2880; Dec. Dig. § 1099.]
    4. Clerks of Courts (§ 69) — Filing Papers —Date. '
    The clerk of the trial court should place, on papers filed with him, the actual date of filing.
    [Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. § 97; Dec. Disj. § 69.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Adam Davis was convicted of slander, and appeals.
    Affirmed.
    Wear & Frazier and V. L. Shurtleff, all of Hillsboro, and C. L. Black, of Austin, for appellant. . C. E. Lane, Asst. Atty. (Jen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of slander; the information alleging that appellant did unlawfully, orally, falsely, maliciously, and wantonly impute to one Mrs. Jessie Davis a want of chastity, in that in the presence and hearing of W. H. Landrum falsely, maliciously, and wantonly say that Mrs. Jessie Davis was four months gone, meaning thereby that she was pregnant with child and had been for a period of four months, and by the language so used to the said W. H. Landrum that Mrs. Davis was unchaste and was not virtuous prior to her marriage to appellant’s son, and that she had had carnal intercourse with a male person while she was unmarried.

This is a misdemeanor conviction, and no bills of exception were reserved to the introduction of testimony, to the charge of the court, nor to the failure of the court to give those of the special charges which were refused, and under such circumstances no question is properly presented for review. Basquez v. State, 56 Tex. Cr. R. 329, 119 S. W. 861. Appellant says, however, that, taking the record as a whole, it does not show' that the appellant has violated the laws of this state. The evidence shows that Ben Davis, a son of appellant, ran away with and married Jessie Landrum; that, after living with her about a month, he abandoned her, and she returned to the home of her father, W. H. Landrum. Landrum testifies that he then went to “appellant’s house to see if he could not get the parties to go back together; that he asked him what was the matter, and he said, ‘Xour daughter is four months gone.’ ” Appellant claims that, as Landrum went to see Davis and asked what caused the separation, Davis’ answer would be privileged, regardless of what the answer might have been, and that no prosecution for slander could be based thereon. In this we do not think he is correct. The case he cites is where the slander was already in circulation, and the party goes to investigate the slander, and the person inquired of tells what he has heard, and that only, and of course, in that character of ease, no action will lie. But in this case the appellant does not claim to have heard any one so say, but charges the slander himself as a positive fact. In fact, the record would clearly indicate that he was the originator of the charge, for from no other source does it appear to have come, in the record before us. If one goes to another to inquire about a disagreement of any character, and the person originates a false and slanderous report as justification for his conduct, such language would be the basis for slander.

We have said this much because appellant complains, if we should not consider the statement of facts, an injustice would be done him through no fault or neglect of his own. It is made clear by the record and affidavits on file that the statement of facts was not filed until after the expiration of the time allowed by law, and for tbis reason there was delay in filing tbis transcript in tbis court. Appellant’s attorneys claim that it was prepared in ample time and delivered to the state’s attorney, and it was through the neglect of the prosecution that it was not filed in time. To this the prosecuting officer agrees. However, the law is if the attorneys do not agree on a statement of facts and present it to the judge for his signature within the time allowed, or they fail to agree, and the party appealing does not present to the judge a statement, he is lacking in diligence. There is no contention made in the affidavits that any statement of facts of any character was presented by appellant to the trial judge for his approval within the tíme allowed by law, and a failure to do so is chargeable to him. The clerk’s letters and statements would indicate that at times some parties in Hill county have asked her to leave off the date when their papers are filed, and it has been done. This is improper, and the date of actual filing should be placed on each. It should not be antedated, nor the date left off, and we trust records will not be sent to us in that condition.

The judgment is affirmed.