author: TALBOT, J.

text:
    NELSON v. BOGGS.
    (No. 7379.)
    (Court of Civil Appeals of Texas. Dallas.
    June 12, 1915.)
    1. Appeal and Error i&wkey;>737 — Assignments op Error — Sufficiency.
    Under Kev. St. 1S95, art. 1018, requiring appellant or plaintiff in error to file assignments of error distinctly specifying the grounds on which he relies, an assignment of error asserting that the court erred in overruling general and special demurrers to the answer was too general to require consideration where there were several exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3030-3032; Dec. Dig. <i&wkey; 737.]
    2. Evidence c&wkey;444 — Parol Evidence to Vary Writing — Showing Conditional Delivery.
    Where a contract for the sale of land was delivered to a third party, the vendor could show by parol that it was not to take effect and become an absolute obligation, unless he was able to procure a conveyance of the land from another party, as thisi did not contradict the writing, but simply proved that there never was any concluded contract, and this rule applies as well where the contract involved is one for the sale of land as where it is one relating to a commercial transaction or a sale of personal property.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929-1944, 2049; Dec. Dig. &wkey; 444.]
    3. Appeal and Error <&wkey;544 — Reservation op Grounds op Review — Exceptions.
    Under Act 33d Leg. c. 59, the giving or refusal of charges cannot be reviewed by an appellate court unless bills of exception are taken to the court’s action.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 247S, 2479; Dec. Dig. &wkey; 544.]
    4. Appeal and Error &wkey;>742 — Assignments op Error — Suppiciency.
    In an action for a forfeit under a contract for the sale of land defended on the ground that the contract was not to become effective unless defendant could procure a conveyance from a third party, plaintiff assigned as error that the court erred in permitting defendant to open and close because such action gave defendant an advantage over plaintiff in the argument, and because defendant admitted the contract sued on, but denied its leg’al effect and whereas taking the whole facts necessary to make out defendant’s liability plaintiff was entitled to open and close. The assignment was not submitted as a proposition, no proposition was advanced under it, and no statement in support thereof, such as is required by the rules was made. Held, that the assignment could not be considered, especially as the burden of proof was on defendant, and so far as anything to the contrary appeared from the assignment of error, he was entitled to open and close.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. <&wkey;>742.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by John Nelson against George E. Boggs. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Woods & Morrow, of Kaufman, for appellant. Ross Huffmaster and Wynne & Wynne, all of Kaufman, for appellee.
   TALBOT, J.

The appellant, John Nelson, brought this suit against appellee, George B. Boggs, to recover the sum of $560 as a forfeit for an alleged breach of a written contract signed by appellant and appellee for the sale and purchase of a tract of land situated in ■ Kaufman county, Tex. The contract declared on describes the land and is dated the 30th day of December, 1913. It recites in substance, that the appellee, Boggs, “agrees to sell and does sell” to the appellant, Nelson, the land therein described; that the appellant, Nelson, “agrees to buy and ■ does buy said land, and agrees to pay the sum of $3,200 for same as follows: ‘$560 cash, the ■balance to be divided into notes so that the principal and interest will amount to $300 per annum, the notes to be in the usual form of vendor’s lien and to bear 8 per cent, interest per annum from January 1, 1914, the interest payable annually as it accrues.’ ” The contract then stipulates that appellee will furnish an abstract showing a good title to the land, and pay interest on all outstanding indebtedness to January 1,1914, and taxes to include 1913, and to give appellant, Nelson, possession of the premises, upon said cash-payment by January 15, 1914, “in as good condition as same is now in except natural wear and inevitable results.” The contract contains the further recitations, in substance, that the appellee, Boggs, attaches to the contract his check in the sum of $560 as a forfeit, and the appellant, Nelson, attaches a bill of sale to certain personal property, and that should the said Boggs do all the things agreed to be done by him, and the said Nelson then fails and refuses to perform his part of the contract, then the said Boggs shall receive all the property described in said bill of sale as a forfeit, and that should the said Boggs fail and refuse to perform his part of the contract, then the said Nelson shall receive said check for $560 as a forfeit, and there shall be no further cause of action in the premises. The contract further recites that;

“It is understood that George G. Shaw shall hold contract and all papers pertaining thereto for said parties in trust.”

The appellant alleged that a few days after the contract for the sale and purchase of the land in question was executed, the appellee notified appellant that he would not carry out said contract, and thereupon breached the same without any fault on the part of appellant; that appellee willfully and wrongfully breached said contract, although appellant was then ready, willing, and able to carry out his part of the contract; that on or about January 15, 1914, appellant tendered performance of said contract, but that appellee still persisted in his breach and violation thereof; that appellant demanded the forfeit provided for in the contract in case appellee refused to perform his part thereof, and that this was refused. Tlie appellee answered and admitted the execution and delivery of the contract and the posting of the forfeit to bind the parties thereto; but he pleaded that, at the time the contract was so executed and delivered, it was delivered and executed under certain conditions and contingencies; that it was placed in escrow in the hands of George G. Shaw, to await the happening of an event, before it was to have life; that the title to said land was in one Sutton, and the contract was not to take effect and not to be binding unless the defendant could get the title out of Sutton; .that the contract should have contained this stipulation, but that by mistake of the draughtsman and by mutual mistake and oversight the said condition and contingency had been omitted. That at the time the same was delivered, the fact was mentioned and each party agreed that the condition was so well understood that it need not be changed. The defendant further pleaded that:

“The conditions upon which the contract had been executed had failed, and that the said contract had never taken life and had never taken the binding effect as to be enforceable upon the plaintiff or the defendant.”

By supplemental petition appellant demurred generally and specially to the “answer of appellee,” asserting in his special exceptions that said answer shows on its face that it is an attempt to avoid a written contract full and complete in every particular, by in-grafting upon it a contemporaneous parol agreement. Appellant, by his supplemental petition, also denied the allegations of the appellee’s answer, and pleaded that the matters set up by appellee was a scheme and plan to overreach and defraud appellant. The appellee, by supplemental answer, denied the allegations of the appellant’s petition, and pleaded that the contract declared on had been drawn by the agents of the appellant. That he, appellee, at all times, stood ready to carry out his part of the contract, if the conditions and contingencies under which it was executed had come to pass. It appears that the contract of sale, and the check and bill of sale put up by the respective parties as a forfeit in the event he failed to perform his part of the contract were left with George Shaw in escrow, and the sole issue submitted to the jury upon the trial was whether or not at the time said contract, check, and bill of sale were signed and left with said Shaw, it was understood between appellant and appellee that the trade was not to be effective if appellee Boggs could not get the land contracted to be sold from one Sutton. This issue was resolved by the jury favorably to appellee. Judgment was thereupon rendered for him, and the appellant’s motion for a new trial being overruled, he appealed.

The appellant’s first assignment of error, which is submitted as a proposition, is as follows:

“The court erred in overruling the plaintiff’s general and special demurrers to defendant’s amended original answer wherein the defendant sought by his pleading to .avoid the contract sued on by plaintiff by setting up a contemporaneous parol agreement in avoidance of plaintiff’s contract sued on.”

His second assignment of error is that:

“d]he court erred in the admission of the testimony offered by the defendant to prove a contemporaneous parol agreement tending to avoid and to render null and void the contract sued on by the plaintiff, and to contradict the terms thereof.”

The proposition under this assignment reads thus:

“A contemporaneous parol contract cannot be ingrafted onto a written contract so as to render the samé null and void and of no effect by parol testimony, for the same is without consideration and void, and the law is that all parol agreements, both antecedent and contemporaneous, are concentrated into and merged into the written contract which must bind the parties.”

A consideration of the first assignment is objected to by appellee, in effect, on the ground that it is too general; that is, that it does not distinctly specify the ground of error relied on, and does not point out that part of the proceedings contained in the record in which the error is complained of, in a particular manner, so as to identify it. The objection is unquestionably well taken. It has often been held that an assignment of error complaining that the court erred in overruling a general demurrer and special exceptions where there were several exceptions points out no distinct error, and is too general to require consideration. We cite only a few of the great number of eases so holding. Paschal v. Owen, 77 Tex. 585, 14 S. W. 203; Caldwell Co. v. Harbert, 68 Tex. 325, 4 S. W. 607; Railway Co. v. Leak, 64 Tex. 656; Wetz v. Wetz, 27 Tex. Civ. App. 597, 66 S. W. 869; Rev. St. art. 1018. But the same legal question sought to be raised by the first assignment arises on the second assignment of error. The legal proposition asserted under this assignment is, in substance, the famiiliar one that parol evidence is not admissible to vary or contradict the term of a written contract. That such is the general rule is too well established to admit of any controversy whatever, and is not denied by appellee. He contends, however, that he did not seek by his pleadings to vary that general rule, and that the evidence admitted over the objections of appellant and of which appellant here complains, does not have that effect; that the purpose of his pleadings and the evidence admitted thereunder was to show that the contract in question never took effect, and became a binding obligation. In support of this contention he asserts, as a well-established proposition of law, that:

“Where a contract is reduced to writing and is delivered conditionally, that is, not to take effect and become a valid and binding obligation except upon the happening of a certain event agreed to by the parties, the contract does not become a binding obligation nntil the happening' of the event or condition.”

That this position of appellee is correct and supported by many authorities is diear. The issue was between the original parties to the contract, and the evidence offered and admitted “did not in any true sense contradict the terms of the writing in suit, nor vary its legal import.” Like the evidence in the case of Meeks v. HIolmes Commerce Co., 154 S. W. 365, its effect was simply to show that the written instrument was never in fact delivered as a present contract, unconditionally binding upon the appellee, according to its terms, from the date of its delivery, but was left in the hands of George G. Shaw, according to the testimony offered by appellee, to take effect and become an absolute obligation of appellee only in the event he was able to procure a conveyance of the land from one Sutton. The appellant denies that it was the agreement that the contract was not to take effect and become binding unless appellee could procure a deed to the land from Sutton, but appellee testified that it was only upon such a contingency that the written' instrument upon which appellant’s suit is predicated was to become a contract binding upon the parties thereto. So as similarly said by this court in Meeks v. Holmes Commerce Co., supra, evidence of such an oral agreement and that the contingency never happened, would not be in contradiction of the writing. It would simply prove that there never was any concluded contract entitling the appellant to enforce its stipulation. Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698; Elliott on Contracts, § 1636. The rule is very clearly expressed by the Court of Civil Appeals for the Seventh District, in Watson v. Bice, 166 S. W. 106, in the following language:

“A party who concedes that the instrument evidencing the contract was placed in the possession of the party seeking relief, but claims that the latter took it with the understanding that it was not to go into effect until the happening of some other or further event, and that such event has not transpired, is not considered as one seeking to vary or contradict a written contract, but is one endeavoring to show that no contract between the parties ever in fact came into existence. Eor this reason evidence of such conditions precedent is held admissible. The cases which so hold merely give recognition to the well-settled rule that an instrument may be delivered by one party to another to take effect on the happening of a contingency, and that, by such collateral agreement, the legal operation of the writing is merely postponed until the happening of the contingency.”

The pleadings and evidence in the present case are sufficient to show that the written contract, upon which appellant’s alleged cause of action is founded, was executed and delivered, upon the condition that appellee could get the title to the land contracted to be sold out of Mr. Sutton; that the title had passed out of Sutton before he could obtain it; that he could not obtain it, and therefore the condition and contingency upon which the contract was to take effect had not happened and was not enforceable. The rule applies, contrary to the view expressed by counsel for appellant, as well where the contract involved is one for the sale of land as where it is one relating to commercial transaction or sale of personal property.

There are several assignments of error complaining of the court’s refusal to give certain charges requested by appellant. These assignments cannot be considered because the record does not show that bills of exception were taken to the action of the court. In order to have the ruling of the court in giving or refusing charges reviewed by the appellate court it is essential, under tie Acts of 33d Legislature, and numerous decisions in this state, that the complaining party reserve proper bills of exception to such ruling and incorporate such bills in the transcript on appeal. This is so well settled that we need not cite the authorities.

The next assignment of error is that:

“The court erred in. permitting the defendant’s counsel, over the objections of th,e plaintiff, .to open the argument on the trial of this cause, and to close the same to the jury, because the said action of the court tended strongly towards giving the defendant the advantage over the plaintiff in the argument of the case, and because the defendant admitted the contract sued on, but denies its legal effect and denies that it was a binding obligation, whereas, in taking the whole facts necessary to make out the defendant’s liability under the pleadings in this case, the plaintiff was entitled to the opening and closing the argument by counsel in his behalf.”

This assignment cannot be considered. It is not submitted as a proposition, no proposition is advanced under it, and no such statement in support thereof, as is required by the rules for briefing a case, is made. How the action of the court in permitting the appellee’s counsel to open and conclude the argument “tended strongly towards giving the defendant the advantage over the plaintiff in the argument of the case” is not pointed out, nor are the facts, or any sufficient part of the facts, in evidence which, notwithstanding the admission of the appellee, as stated by appellant, shows that appellant was entitled to open and conclude the argument, are stated. Besides, the record and the assignment of error under consideration disclose that the execution of the contract, upon which appellant’s suit is based, was admitted by the appellee; that the burden of proof to establish the defense urged by appellee, to the effect that said contract never took effect and became binding upon him, was upon appellee, and that he assumed such burden in the trial of the case. This was practically the only issue in the case, and the burden of proof upon that issue being upon appellee and he having assumed it, he was entitled to open and conclude the argument so far as anything to the contrary appears from appellant’s assignment of error complaining of the court’s action in permitting Mm so to do. We find in the bill of exception reserved to tbe court’s ruling permitting appellee’s counsel to open and conclude tbe argument that one of the grounds of objection thereto was that “tbe defendant did not claim the said right to open and conclude the argument in this cause before and at the time plaintiff and defendant announced ready for trial,” but the assignment of error complaining of the court’s action does not specify this objection as a ground of error relied on for a reversal of the case, and there is no proposition that the court erred for that reason. On the contrary the assignment of error, as will be seen, ■ limits the grounds of error relied on to two, namely: (1) That the action of the court tended “strongly towards giving the defendant the advantage over the plaintiff in the argument of the case,” and (2) that in taking “the whole facts necessary to make out the defendant’s liability under the pleadings in the case the plaintiff was entitled to the opening and closing the argument by counsel in his behalf.” There is no proposition of any character under this assignment.

We find no reversible error in the record, and the judgment of the court below will be affirmed.
      <g=3Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    AMERICAN NAT. INS. CO. v. FULGHUM.
    (No. 461.)
    (Court of Civil Appeals of Texas. El Paso.
    May 27, 1915.
    On Rehearing, June 24, 1915.)
    1. Appeal and Error <&wkey;1003 — Review — Verdict.
    Though there is a conflict in the evidence, appellate courts have the authority and the duty to set aside a verdict against such a preponderance of the evidence as to be clearly wrong, though they do so reluctantly and with extreme caution.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. &wkey;
    2. Insurance &wkey;G65 — Action on Policy-Recovery — Sufficiency of Evidence.
    In an action on a policy against bodily injury effected directly and independently of all causes through external violence and accidental means, excepting accidents resulting directly or indirectly from entering or trying to enter a movable conveyance using steam as a motive power, wherein plaintiff claimed that he was struck by a projection from a freight car and thrown under the train, and defendant claimed that he was injured while attempting to board the train, evidence held not to sustain a verdict for plaintiff.
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 1555, 1707-1728; Dec. Dig. &wkey; 665.]
    On Rehearing.
    3. Insurance <&wkey;666 — Liability—Interest-Right to Recovery — Pleading.
    Where plaintiff in his petition in an action on an accident insurance policy confined his claim to the indemnity specified therein, and attorney’s fee, and the 12 per cent, damages allowed by Rev. St. 1911, art. 4746, without asking for interest or for damages sufficient to cover interest, interest was not recoverable.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1791; Dee. Dig. &wkey;666.]
    4. Insubanoe <&wkey;>598 — Liability—Interest.
    Under Rev. St. 1911, art. 4977, making 6 per cent, the legal rate of interest on sums due and payable under written contracts, interest is recoverable upon the amount contracted to be paid in an insurance policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1494; Dec. Eig. <@=>59S.].
    5. Insurance <&wkey;597, 598 — Liability—Payment.
    Under an accident insurance policy not specifying when an accrued indemnity should be payable the liability accrues when the accident occurs, and payment should be made when proof of this liability is made to the insurer.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1493, 1494; Dec. Dig. &wkey;597, 598.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Special Judge.
    Action by Tom Fulghum against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Williams & Neethe, of Galveston, and Lane, Wolters & Storey and Paul Kayser, all of Houston, for appellant. Barkley & Green and Dave D. Hughes, all of Houston, for ap-pellee.
   HIGGINS, J.

The American National Insurance Company insured Fulghum against bodily injuries effected directly and independently of all other causes through external, violent, and accidental means, agreeing to pay $1,000 for the loss of either arm, and the additional sum of $17.50 per week during the time he was incapacitated for work. The policy provided that it should not cover accidents, injuries, or loss of limb resulting directly or indirectly from entering or trying to enter or leave a movable conveyance using steam as a motive power.

Fulghum had his arm severed by a moving freight train in the yards of the Wabash Railroad at Hand, Mich., and brought this suit to recover upon the policy based upon the loss of such arm. Appellant defended upon the ground that he received his injuries while attempting to board the train while it was in motion. The plaintiff’s theory was that-he was walking beside the track toward the town of Adrian and was struck by some object projecting from the passing train going in the direction of Adrian, which threw him to the ground with an arm under the wheels. In response to a special issue, the jury found that plaintiff was injured in th.e manner claimed by him.

The question presented by this appeal is- the sufficiency of the evidence to support this finding. Our courts have at all times manifested extreme caution in disturbing the findings of a jury where there is a conflict in the evidence and always do so reluctantly ; yet they have the authority (Nowlan v. Hall, 97 Tex. 441, 79 S. W. 806; Lee v. Railway Co., 89 Tex. 583, 36 S. W. 63) and it is their duty to interfere and set it aside where the verdict is against such a preponderance of the evidence that it is clearly wrong. Railway Co. v. Somers, 78 Tex. 439, 14 S. W. 779; Railway Co. v. Schmidt, 61 Tex. 282; Zapp v. Michaelis, 58 Tex. 275; Short v. Kelly, 62 S. W. 944; Kohlberg v. Awbrey & Semple, 167 S. W. 829.

This case, we think, demands the application of this rule. Plaintiff testified that he was not working at the time of the accident, but had been doing so a short time before and had been up to the roadmaster’s office to get his time signed up; not finding him there he was going down the road to get his two time cheeks signed up, and while walking beside the track and about six feet from the rail a freight train passed, going in the same direction, running at the rate of 25 or 30 miles an hour; that the engine and tender passed him when he was struck in the back by a projection from the train, thrown under the train, and his arm cut off. The projection extended from about the second car from the engine. At another point in his testimony he says he was going to see the foreman to get a pass over to Adrian as well as to have his time signed; that he had been told by the superintendent that if he would go to Adrian he could get a job. He was changing jobs, but was going over there to work for the same company. The train which struck him was going to Adrian, where he was also going. He denied that he attempted to board the train. He stated he did not sue the Wabash Railroad, and admitted giving it a statement and release for $50. He stated he did so because he wanted to come to Texas and they gave him $50 to come on. This statement reads:

“I, Thomas Fulghum, state that prior to the 13th day of August, 1912, he was a laborer in the employment of the Wabash Railroad, doing construction work, and that on the 11th day of August, he resigned and drew 1ns pay and Quit the service of said railroad; that on the 13th day of August, he went to Hand, Mich., and from there walked down the track westward from said station, at about 4 :50 p. m., and while walking down said track a freight train was passing and he attempted to board same, slipped and fell, and was injured. At this time he was not in the employment of the Wabash Railroad and was on the company’s property, and was not near any highway crossing. I attach no blame whatever to the Wabash Railroad, or its employés, as I was a trespasser at the time and had no right to attempt to get on a freight while it was moving or at any other time. My home is in Houston, Tex., and I am in destitute circumstances and desire to go to my home. Have no attorneys employed at this time for said accident. The above statement is the truth, and is made voluntarily by me this 11th day of February, 1913.”

He admitted signing a letter to appellant, dated November 30, 1912, at Detroit, reading:

“American Nat’l Insurance Co., Accident Dept., % Mr. C. B. Black, Claim Adjuster, Galveston, Texas — Dear Sir: I am in receipt of your letter dated November 11th, which was evidently mailed before receipt of letter which I addressed you on November 11th. In that letter 1 believe I explained very fully as to the fact that I was working for the company at the time I received the injury. Of course, I have got a claim against the Wabash Railway Company for damages and if they are able to show that I was not working for them at the time of accident might materially aid their defense. I have gone over the facts with two attorneys in reference to damage claim against the Wabash Railway, and both inform me that providing I can prove my statements by the several witnesses which I have, there would be no question but that I was working for the Wabash at the time of the accident. As I stated in my letter of November 11th, I received leave of absence the day previous to the injury and returned to Hand Station at about 4:30 p. m. on the day of the injury and reported to the foreman, under whom I was working. This foreman advised me to put in the balance of the day at work. I was on my way to the work assigned me by the foreman when the through freight passed, having a projection sticking from it which knocked me down, throwing me under the cars. I would state further that I have received full pay from the company, including the time spent in Detroit under leave of absence and in full for the day on which I received the injury. You will realize that I have been unable to work for several months, and that I am badly in need of the amount I would have coming under this policy to pay bills which I have contracted and to tide me over until I can secure a position and be able to take care of myself. I trust you will push this matter as rapidly as possible. Please address all correspondence to me, % O. G. Hill, 625 Moffat Building, Detroit, Mich., as I have left the Detroit Sanatarium, and address in the future will not he permanent. This will assure my receiving your mail promptly and avoid any future unnecessary delay.”

C. G. Hill, mentioned in the letter, was his. attorney and prepared the letter for him— so plaintiff testified. Upon his redirect examination, he denied making the statements-, contained in the written statement given to the Wabash Railroad. His explanation of the circumstances under which he gave the written statement reads:

“The claim agent came up to the depot. I was in the depot and he came up from Huntington, Ind. His son is assistant claim agent. His name is Dunham, and he says, ‘Come upstairs and I will give you some money, and sign up-some things;’ and I says, T ain’t going to sign nothing; I need money bad; I ain’t got nothing, and they are pushing me for my rent out to the house;’ but we went upstairs, and he says, ‘Sign this, and I will see that you get a job, and will help you to get your insurance from the insurance company.’ He read the policy over. I told him, I says, ‘If you will do that, and give me a lifetime job, I will sign something;’ but I never signed no such statement. I signed some paper up there, but there is a lot of that paper that I didn’t sign. I did' not read it over after it was reduced to typewriting.”

Louis Mann, a telegraph operator, testified:

“I was present at Hand, Mich., on August 13, 1912, when the accident to Tom Fulghum occurred. I saw the accident when it occurred. At that time I did not know the plaintiff in this case. Tom Fulghum had been employed by the-Wabash Railroad Company as a section laborer prior to that time. I was standing about 100 feet from the place where the accident occurred. There was nothing between, me and where-the accident occurred that would obstruct my ■view o'f the accident. At the time and immediately before the accident happened, Tom Fulg-hum was walking along the side of the train, and tried to catch the train. He was walking west. The plaintiff was about 3 feet, I would judge, from the railroad track at the time of the accident. There was a freight train approaching the point where plaintiff was immediately-prior to the accident, and was going in a westerly direction. The train was moving in the same general direction that plaintiff was walking. It was a freight train. Said train was not used for the conveyance of passengers. From five to ten ears had passed plaintiff before the accident occurred. The train was traveling approximately about 20 miles an hour. _ Immediately prior to the accident he was walking alongside of track, by side of train. I saw him attempt to catch the train. The train was in motion, running about 20 miles an hour. He caught the train, but lost hold, and fell under the train. I saw nothing that was projecting from the side Of the train that struck plaintiff and knocked him down under said train. I saw it all, and what I have stated is true.”

Cross-examination:

“When the accident occurred, I was on the outside of the ticket office. I knew Tom Fulg-hum only as a section laborer; never had an introduction to him, and cannot give a description of him. I know he was working for the Wabash Railroad through some one else. I had nothing to do with Tom Fulghum’s employment. I was just watching him walking along as I naturally would do with any other person on right of way when the train was approaching. I had been watching him about five minutes. The _ train was coming from the east, on the main line or track nearest the depot office. There are three tracks, the main line, the passing track, and house track. There were no cars standing on any of the side tracks that I remember. It is not a fact that the first time I saw Tom Fulg-hum was after the accident occurred. I saw him from the time he came on the right of way until he was carried off.”

Under the evidence detailed, considered in the light of all the attendant circumstances, it is quite manifest that plaintiff’s version of the manner in which the accident occurred was evolved to meet the exigency of the case. There is a direct conflict between his testimony and the witness Mann, and if the plaintiff’s testimony was not otherwise impeached, it would, of course, amply support the verdict. According to his testimony, he was not a trespasser in the railroad yards at the time of his injury, and if he was injured in the manner stated by him he would have had a most meritorious cause of action against the Wabash Railroad. He was represented by counsel at the time he released that company, and it is inconceivable that he would have released such a right of action for the paltry sum of $50. The statement which he gave the Wabash flatly contradicts his testimony on the stand, and the explanation which he gives impeaching its verity is a manifest fabrication. The letter of November 30, 1912, which he wrote appellant, contains statements which he does not now attempt to claim to be true, and he now admits that he was not working for the railroad. He attempts to avoid the consequence of these untruthful statements by saying his lawyer wrote the letter and he merely signed it. We deem it unnecessary to discuss the subject further. Under the evidence, the verdict should be set aside. Railway Co. v. Walker, 38 Tex. Civ. App. 76, 85 S. W. 28; Railway Co. v. Lovett, 74 S. W. 570; Railway Co. v. Ives, 34 Tex. Civ. App. 49, 78 S. W. 37; Kohlberg v. Awbrey & Semple, supra. Reversed and remanded.

On Rehearing.

The original opinion inadvertently failed to pass upon appellee’s cross-assignment complaining of the refusal of the court to allow interest on the indemnity provided for in the policy.

The plaintiff, in his petition, confined his claim to the indemnity specified in the policy, an attorney’s fee and 12 per cent, damages allowed by article .4746, Revised Statutes. He did not ask for interest, and the damage claimed was not laid in sufficient amount to cover same. In the state of his pleadings, recovery thereof was properly.denied. Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200; Railway Co. v. Starks, 109 S. W. 1003; Bank v. Cleland, 36 Tex. Civ. App. 478, 82 S. W. 337.

In view of a retrial it is proper to say that interest is recoverable upon the amount contracted to be paid in an insurance policy. Article 4977, Revised Statutes; Insurance Co. v. Ice Company, 64 Tex. 578; Insurance Co. v. Swift, 130 S. W. 670; Insurance Co. v. Bank, 107 S. W. 114; Insurance Co. v. Wilderspin, 118 S. W. 1131.

The policy here considered does not specify when an indemnity, which has accrued thereunder, shall be payable. In such case, the liability accrues when the accident occurs, and payment thereof should be made when proof is made to the company of its liability. Interest should be allowed from the date such proof is furnished. Insurance Co. v. Bank, supra.

The motion for rehearing is overruled.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    LEDGERWOOD v. DASHIELL et al.

    (No. 5496.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 9, 1915.
    On Motion for Rehearing, June 25, 1915.)
    1. B’anks Asm Banking <&wkey;102 — “Cashier” —Authority.
    The “cashier” of a bank is its chief executive officer, and is an agent of the bank; but, where he exceeds his authority, his acts are not binding on the bank.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. |§ 239-243; Dec. Dig. <&wkey;> 102.
    For other definitions, see Words and Phrases, First and Second Series, Cashier.]
    2. Principal and Agent &wkey;>100--Authority op Agent — “Carry on Business.”
    An agent with authority to carry on a business has no authority to pledge or mortgage the
      property In his possession, for the phrase “to carry on,” when applied to business, means to prosecute; to continue.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 262-273, 345, 364, 368-373; Dec. Dig. <S&wkey;100.
    For other definitions, see Words and Phrases, First and Second Series, Carry on Business.]
    3. Banks and Banking <&wkey;104 — Authority of Cashier — 1Transfer of Bank’s Assets.
    A cashier of a bank, with mere authority to do all things necessary to the management and carrying on of the banking business, has no authority to assign the assets of the bank for the benefit of a part of the creditors to the exclusion of others.
    [Ed. Note. — For other eases, see Banks and Banking, Cent. Dig. §§ 244-248; Dec. Dig. &wkey;> 104.]
    4. Bankruptcy &wkey;>138 — Trustee in Bankruptcy-Unsecured Creditors — Rights of Parties.
    AVhere a private banker was insolvent when receiving deposits, and he. practiced no fraud to secure the deposits, depositors, not otherwise entitled to a lien on the assets of the bank, were common unsecured creditors, and the trustee in bankruptcy of the banker was entitled to the assets as against the depositors.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 193-204, 206-209; Dec. Dig. &wkey; 138.]
    On Motion for Rehearing.
    5. Bankruptcy <&wkey;100 — Filing of Petition —Effect.
    The filing of a petition in bankruptcy is a caveat, and, on adjudication, title is vested in the trustee who takes the property as of the time of filing the petition to administer it under the bankruptcy law.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 60, 131, 141-144; Dec. Dig. &wkey; 100.]
    Appeal from District Court, Leon Comity; S. W. Dean, Judge.
    Action by B. D. Craig and others against B. D. Dashiell, who impleaded H. O. Ledger-wood, trustee in bankruptcy of C. Thompson, E. R. Thompson, and the Citizens’ Bank of Medicine Mound, who claimed funds in controversy as trustee. From a judgment for plaintiffs, the trustee in bankruptcy appeals.
    Reversed and rendered.
    George W. Steere and Ocie Speer, both of Ft. Worth, for appellant. M. C. H. Park, of Waco, for appellees.

       Writ of error pending in Supreme Court.

   CARL, J.

B. D. Craig and a number of other persons, as plaintiffs, sued B. D. Dash-iell and H. O. Ledgerwood, trustee of C. Thompson, E. R. Thompson, and Citizens’ Bank of Medicine Mound, bankrupts, and al-ledged substantially that Dashiell, as their attorney, had received certain money, notes, and bank furniture, etc., from the Citizens’ Bank of Flynn for their benefit pro rata, and refused to turn same over to them; that Ledgerwood was the trustee in bankruptcy of C. Thompson, E. R. Thompson, and the Citizens’ Bank of Medicine Mound and was asserting claim to the property in the hands of Dashiell, as trustee of said bankrupt estate, etc.

The petition also charges that C. Thompson had organized a private bank at Flynn, in Leon county, Tex., with A. M. Beeman, as cashier, and in the organization of the same represented that both he and Beeman had ampie capital, and that both of them had the integrity and ability to conduct safely -such a business, and petitioners believed such representations, and deposited their money in said Citizens’ Bank of Flynn; that, soon after the organization of said bank, Thompson withdrew all the money he had placed therein; that the representations made by Thompson and Beeman were false and made for the purpose of inducing the plaintiffs and others to deposit their money in said bank. It is further pleaded that on April 4, 1911, the bank transferred and delivered to B. D. Dashiell, for plaintiffs’ use pro rata, the safe, furniture, and fixtures, together with the notes and other obligations due the bank for money loaned, as well as all books, papers, etc.

The instrument which is claimed to be the assignment of the assets of the bank was written on the back of a list of the notes, and is as follows;

“The notes itemized on the reverse side hereof, are this day transferred and delivered to B. D.Dashiell, as attorney for the depositors of the Citizens’ Bank and subscribers for stock in the Citizens’ State Bank, to be held and disbursed for him for the benefit of depositors and subscribers, this April 4, 1911.
“[Signed] A. M. Beeman.”

Dashiell answered, admitting that he received the notes and other property substantially as alleged, and showed that he received $117 in cash, of which he paid Vestal $63, and shows that he had collected of the notes $946.43, and $4.70 net from sale of the typewriter, and he still had on hand the safe. He alleged further that since the filing of the suit H. O. Ledgerwood, trustee of C. Thompson, E. R. Thompson, and Citizens’ Barde of Medicine Mound, had made demand on him for possession of all the property he received from the Citizens’ Bank of Flynn, that he had been to an expense in attending the bankruptcy court at Ft. Worth and in the prosecution of this suit, and prayed that the court determine to whom this property belonged, and that compensation for him and his attorneys be fixed, as well as other administration expenses.

Ledgerwood, trustee in bankruptcy, answered and specially pleaded the bankruptcy proceedings, in regard to C. Thompson, E. R. Thompson, and the Citizens’ Bank of Medicine Mound, his own appointment and qualification as trustee April 13, 1911, and that he had made demand for this property, which was refused. This answer further alleged that the plaintiffs were simple, unsecured, common creditors of the bankrupt, and that title and the right of possession of said property had been in him since April 13,1911. We should also state that this answer questioned the jurisdiction of the trial court, claiming that the federal court had acquired jurisdiction, and further that the plaintiffs had no lien on the property and were not entitled to any. It further charged that Beeman was without authority to turn over the assets of the bank to Dashiell; that the transfer was without any authority from Thompson and was not done as agent, and such attempted transfer was made with full knowledge on part of plaintiffs 'of his lack of authority. It is shown that the bankruptcy proceeding is still pending.

The trial was before the court without a jury, and judgment was rendered in favor of the plaintiffs in accordance with their prayer. The trustee in bankruptcy, Ledgerwood, has appealed.

The second assignment challenges the authority of A. M. Beeman to make the transfer of the property of the bank to Dashiell as he did on April 4, 1911.

The only one of the depositors who testified was T. A. Cozert. The substance of his testimony will be gathered from the following excerpt:

“The first man that came there in regard to ■organizing it was C. Thompson. He came to us and told us his business, and said he wanted to come in there and organize a bank, and he stayed around there something like a week, and we wouldn’t have anything to do with him, he being a stranger, and he had a bankers’ journal •of the Northern district of Texas, showing that he was president of the Bankers’ Association of that district, and showed up his character as a banker, and finally he got me to go around in a buggy with him to meet the people and talk the banking business up, which I did one day, and he said before he would organize the other bank he would start a private bank there, and he did and called himself the Citizens’ Bank, and we ■did a little business with him. He didn’t stay there. He stayed there a few days until Mr. Beeman came in. Thompson told me that he had wired Beeman to come, and, when he came, Thompson brought him • in and made me acquainted with him and told us he was the man he had for cashier of the bank, and that he would run the bank, and he talked all the time that Beeman was the man he wanted to be •cashier of the State Bank. He is the man that Thompson told us was his cashier. Thompson didn’t stay there all the time. He left a few days after he got the business straightened up. To my knowledge, Beeman stayed there and accepted deposits and acted in every way for the bank in the payment of checks drawn on it. He stayed there all the time in banking hours. The Citizens’ Bank began business in October or November; I don’t remember exactly. It lasted until along in March of the next year. It began in 1910 and wound up in 1911. I was present at the conversation with Mr. Dash-iell and Beeman at Nuby. I was with the ones ■that went to Nuby to meet Mr. Dashiell. Mr. Beeman went with us on that trip. He was represented as cashier of the bank on that trip.”

It will be seen that Thompson was the man who was organizing the bank, and not Bee-man. No witness undertakes to say that Beeman entered into the organization or was at all considered, except that Thompson told them he was to be the cashier. Before they were ready to organize a state bank at Flynn, and to fill in that interval with a banking institution in the thriving village of Flynn, Thompson very kindly agreed to put in a private bank of his own, and told the citizens that Beeman would be his cashier. Cozert says:

That Thompson told him and them that he was a regular banker, had worked in that business all his life, and claimed that he was with a string of banks, which would help the business. “He told me that he could take $4,000 or $5,000 and put in a little banking business until they got the State Bank on foot. He stated that he had money to operate it, to operate this private bank until the State Bank was organized.”

No witness undertakes to say that Beeman had any interest whatsoever in the bank, except to act as cashier, and he was put there by Thompson for that purpose. He drew a salary as such, which was shown by the books of the concern. The record shows that the depositors were considerably wrought up when they discovered the condition the bank was in, but Thompson, the man upon whose credit the money was put there, was the object of their wrath, and not Beeman, whom Dashiell considered a mere “greenhorn.”

Then, since Beeman was only an employé and not shown to be further interested, it becomes material to inquire whether he had the power to make the assignment of the bank’s assets he attempted to make, when he executed the paper to Dashiell as attorney for some of the creditors, as above quoted. No particular authority is claimed for Bee-man, except in his capacity as cashier, and, if he did not have such power by virtue of his position, he did not have it at all. The cashier of a bank is its chief executive officer, and yet he is an agent of the bank, and it has been held that, if be exceeds his authority, his acts will not bind the bank. Arnold v. National Bank of Waupaca, 120 Wis. 362, 105 N. W. 828, 3 L. R. A. (N. S.) 580, 77 Am. Dec. 759, note; Martin v. Webb, 110 U. S. 7, 3 Sup. Ct. 428, 28 L. Ed. 49.

And if it be conceded that Beeman was fully authorized to do any and all things necessary to the management and carrying on of the banking business at Flynn, in the absence of express authority to do so, he would not be authorized to close out the business by making an assignment of the bank’s assets. An agent who is authorized to manage and carry on a business is not empowered thereby to pledge or mortgage the property in his possession, for that is not carrying on the business. It is placing the business at the will and pleasure of the mortgagee. Mechem on Agency, vol. 1, p. 724, § 1004; First National Bank v. Hicks, 24 Tex. Civ. App. 269, 59 S. W. 842.

The meaning of the phrase “to carry on,” when applied to business, is well settled. In Worcester’s Dictionary, the definition is “to prosecute; to help forward; to continue, as to carry on a business,” etc. Florsheim Bros. Dry Goods Co. v. Lester, 60 Ark. 120, 29 S. W. 34, 27 L. R. A. 505, 46 Am. St. Rep. 162 (citing Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137).

It is said in section 1007, p. 725, vol.. 1, Mechem on Agency:

“For similar reasons, a general authority to manage a business or property clearly contemplates, in the ordinary case, that the business is to be continued or the property retained, and not disposed of. Such a power, therefore, ordinarily implies no authority to sell the business.”

In Gouldy v. Metcalf, 75 Tex. 455, 12 S. W. 830, 16 Am. St. Rep. 912, there was a power of attorney given which embraced powers as follows:

“In and about my business to buy, sell, or exchange property, to receive and receipt for money, to sell and dispose of property, to give bills of sale thereto, or to sell and transfer real estate and execute deeds thereto, or to do and perform any lawful act in or about or concerning my business, as fully and completely as if I were personally present; and I herein and hereby confirm all their lawful acts and deeds that they perform in any manner connected with my business.”

The attorneys in fact, under this instrument, executed a statutory deed of assignment for the benefit of creditors. The Supreme Court said, in passing upon that case:

“We think it clear from the foregoing quotations that an assignment for the benefit of creditors may be made by any agent or attorney in fact authorized thereto. The instrument under which the power was exercised in this case does not in terms grant the authority. The language used in the grant of general power is certainly very comprehensive, but the established rule of construction limits the authority derived by the general grant of power to the acts authorized by the language employed in granting the special powers. ‘When an authority is conferred upon an agent by a formal instrument, as by a power of attorney, there are two rules of construction to be carefully attended to: (1) The meaning of general words in the instrument will be restricted by the context, and construed accordingly. (2) The authority will be construed strictly so as to exclude the exercise of any power which is not warranted, either by the actual terms used, or as a necessary means of executing the authority with effect.’ Ewell’s Evans on Agency, 204, 200; Reese v. Medlock, 27 Tex. 123, 124 [84 Am. Dec. 611]. Applying these rules to this case, and none of the circumstances under which the power was executed being shown, we are of opinion that the attorneys in fact did not have the power to make the assignment, and that the court did not err in so holding.”

The case of Lamb v. Cecil was twice before the West Virginia courts. 25 W. Va. 288, and 28 W. Va. 653. In that case, Cecil was a director of the bank, and had a deposit. It became hopelessly insolvent, and, with full knowledge of the condition of the bank, the cashier, acting fraudulently with Cecil, turned over to him some discounted paper in payment of his deposit. Such transfer was held void.

Beeman, in this instance, occupied a dual position of trust. He owed a duty to represent, within the scope of his authority, the interests of C. Thompson, whom the undisputed evidence shows was his principal, for the bank was organized upon the strength of his credit and standing as a banker and a man of means. No witness undertakes to testify to any fact which would show him to be anything but the representative and agent of Thompson. In the second place, Beeman was in a position of trust toward all the depositors. If it should he contended that the emergency was so pressing as not to admit of delay, and that he had the power to make any assignment at all, he would certainly not have the right to make an assignment for the benefit of a part of the creditors to the exclusion of others.

This was not a suit for rescission of the contract, upon the ground of any fraud practiced by Thompson, and no fact is pleaded or proved which would entitle the plaintiffs to a lien of any kind on the assets of the bank. They were common unsecured creditors. And it is not shown that Thompson was insolvent at the time the deposits were made. It is shown that he was adjudged bankrupt on April 13, 1911; but that fact alone would not show that he was insolvent at the times the money was deposited. It is known of all men that insolvency may occur suddenly and ordinarily is not reached by any fixed formula. While bankruptcy may yet reach the dignity of an exact science, the courts, so far as we know, have never recognized any particular method or time by which it is to be obtained.

It therefore follows; from what we have said, that the judgment of the trial court will be reversed and judgment is here rendered that the plaintiffs take nothing by reason of this suit; and that the defendant, Ledgerwood, trustee in bankruptcy of C. Thompson, B. R. Thompson, and the Citizens’ Bank of Medicine Mound, do have and recover, as against the plaintiffs and B. D. Dash-iell, all 'of the property or the proceeds thereof which passed into the hands of said Dash-iell by reason of the assignment made by the said Beeman.

Reversed and rendered.

On Motion for Rehearing.

In stating this case, through oversight, we stated that B. D. Craig and a number of others sued B. D. Dashiell and H. O. Ledger-wood, trustee, etc., when as a matter of fact Craig and others sued Dashiell for an accounting as their agent, and he impleaded Ledgerwood, trustee, who came in and claimed the funds in his capacity as trustee. Further, the petition in bankruptcy was filed April 13, 1911, but the final adjudication was not made until November 13,1911; Led-gerwood qualifying as trustee on December 6, 1911. This correction is made in deference to the request of counsel for appellees, and not that it makes any material difference in so far as the case is concerned. Neither does it make any difference when Ledgerwood qualified as trustee.

“ ‘The filing of the petition (in bankruptcy) is a caveat to all the world and, in effect, an attachment and injunction. * * * And, on adjudication, title to tlie bankrupt’s property became vested in the trustee, with actual or constructive possession placed in the custody of the bankruptcy court. * * * ’ The filing of the petition is an assertion of jurisdiction with a view to the determination of the status of the bankrupt and a settlement and distribution of his estate. The exclusive jurisdiction of the bankruptcy court is so far in rem that the estate is regarded as in custodia legis from the filing of the petition. It is true that, under section 70a of the act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 565 LU. S. Comp. St. 1913, § 9654]), the trustee of the estate, on his appointment and qualification, is vested by operation of law with the title of the bankrupt as of the date he was adjudicated a bankrupt; but there are many provisions of the law which show its purpose to hold the property of the bankrupt intact from the time of the filing of the petition, in order that it may be administered under the law if an adjudication in bankruptcy shall follow the beginning of the proceedings. Section 70a, in reciting the property which vests in the trustee, says there shall vest ‘property, which prior to the filing of the petition (the bankrupt), * * * could by any means have transferred or which might have been levied upon and sold under judicial process against * * * (the bankrupt).' Under section 67c attachments within four months before the filing of the petition are dissolved by the adjudication in the event of the insolvency of the bankrupt, if their enforcement would work a preference. Provision is made ‘for the prompt taking possession of the bankrupt’s property, before adjudication, if necessary (section 69a). Every person is forbidden to receive any property after the filing of the petition, with intent to defeat the purposes of the act.’ Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 32 Sup. Ct. 96, 56 L. Ed. 208.” Kopplin v. Ludwig, 170 S. W. 106.

The motion is overruled.
      (g^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©m>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    J. W. CARTER MUSIC CO. v. EVANS et al.
    (No. 459.)
    (Court of Civil Appeals of Texas. El Paso.
    June 16, 1915.
    Rehearing Denied July, 1, 1915.)
    1.Evidence ©=>471 — Statements oe Pacts —Conclusion oe Witness.
    On the issue whether a witness bought a piano from plaintiff or from a third person, testimony of the witness that she bought from the third person, and that a representative of plaintiff told her that the third person had requested him to deliver the piano to the witness, who should make payments to the representative, was not objectionable as a conclusion, but was admissible as facts for the jury.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. ©=>471.]
    2. Appeal and Error ©==>1170 — Harmless-Eeeoe — Ebbonbous Admission oe Evidence.
    Where all the facts on an issue were fully developed, error in admitting testimony amounting to a mere conclusion of the witness was not reversible, within court rule 62a (149 S. W. x), and must be disregarded.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. ©=>1170.]
    3. Appeal and Error ©=>692 — Questions Reviewable — Rulings on Evidence. <•
    Where the evidence expected to be elicited1 from a witness is not set out, and the court on appeal does not know what the testimony would have been, error in excluding it was not shown.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. ©=> 692.]
    4. Evidence ©=>54^-Admissibility — Rele-vancv.
    On the issue whether a person bought a piano and gave in part payment therefor another piano, the testimony of a third person-that about the time of the transaction he took a piano to the person, unaccompanied by anything to show what induced the taking of the-piano to the person’s house, was inadmissible, under the rule that an inference on an inference cannot be proved.
    LEd. Note. — Por other cases, see Evidence, Cent. Dig. § 74; Dee. Dig. ©=>54.]
    Appeal from Harris County Court at Law;, K. C. Barkley, Special Judge.
    Action by the J. W. Carter Music Company against Maggie Evans and others-Prom a judgment for defendants, plaintiff appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, R. H. Kelley, and M. E. Kurth, all of Houston, for appellant. Kahn & Williams, of Houston, for appellees.
   WALTHALL, J.

The J. W. Carter Music-Company, a corporation, sued Maggie Evans- and her husband, Al Evans, and Mrs. Moses D. Cohen and her husband, Moses D. Cohen, seeking a recovery against Maggie Evans upon a note for $195, interest, and attorney’s fees, alleged to have been executed and delivered by Maggie Evans to plaintiff, and against all defendants for foreclosure of a chattel mortgage lien reserved in said note-on a piano; Cohen and wife having taken possession of the piano under a claim of ownership.

Appellant’s contention is that it had sold to Mrs. Cohen a new piano for $650 on partial payments of $25 per month and had taken her old piano, the one in question, as a first payment on the sale, and thereafter sold the-old piano to Maggie Evans for $200 on installments of $5 each month, expressed in the-note and mortgage sued on. The Cohens pleaded that they owned the piano in question and had sold it to Maggie Evans for-$175, to be paid in $5 installments, but had not delivered it at the time hereinafter mentioned; that the J. W. Carter Music Company, through J. W. Carter, was attempting to sell to them a new piano, and| for that purpose proposed to deliver it to them for trial, and did pnt a piano in their house over their protest, and that, on Mrs. Cohen’s statement that she had one piano and no room for two, and being informed that they had sold the old piano to Maggie Evans, proposed to deliver the old piano to Maggie Evans without cost to her' or to Maggie Evans, and this she (Mrs. Cohen) permitted him to do, but they allege that they did not buy the new piano from Carter, or the J. W. Carter Music Company, nor sell the old piano to him, nor assign any debt of Maggie Evans to him or his company, or authorize him to sell to or collect any money from Maggie Evans. Mrs. Cohen pleaded that she was at all times the wife of Moses D. Cohen, with whom she was then living, and that, if she signed any instrument purporting to be a contract of any hind assigning to plaintiff the indebtedness due from Maggie Evans, her husband did not join her in executing it, and that it was not executed in payment of any necessaries furnished herself or her children, or for expenses incurred by her for the benefit of her separate property, nor for any other purpose for which the law permits her to incur debts separate and apart from her husband.

Maggie Evans, in similar language, pleaded her marriage with A1 Evans, that her husband was not a party to the note or mortgage lien and knew nothing of it, that the note and mortgage were not for necessaries, etc., and they were therefore void as to her. She pleaded that the note and mortgage was obtained by fraud, in that she had previously purchased the piano of the Cohens for $175 on similar installments, and that when J. W. Carter brought the piano to her house he stated to her that he wished her to sign an instrument which he represented to be a receipt for the delivery of the piano from Mrs. Cohen; that Mrs. Cohen had bought a new piano from him, and had agreed that the payments should be made to him, and that the instrument he was then requesting her to sign had been approved by Mrs. Cohen; that she could not read, and trusted and relied on what he (Carter) told her as to the character of the instrument, etc.; that as soon as she informed Mrs. Cohen of the transaction, and that she had paid $5 on the piano to Carter, Mrs. Cohen then instructed her to make all other payments to her, as she had agreed to do.

Appellant further pleaded, by way of supplement to the Cohen answer, that Mrs. Cohen represented the piano sued for to be her sole property; that at the time said representation was made her husband was present and made no objection, but acquiesced in the statement made; that all of the transactions relative to the note sued on and the execution of the bill of sale by Mrs. Cohen to the J. W. Carter Music Company transpired subsequent to August 3, 1913. The case was tried before a jury in the county court at law, and submitted on special issues. Upon answers to such special issues, judgment was entered for defendants.

The appellant in its first assignment asserts error to its prejudice in the admission! over objection of the following evidence by Maggie Evans:

“All I know about this transaction is that I bought a piano from Mrs. Cohen, and Mr. Carter told me that Mrs. Cohen had him bring the piano and deliver it to me, and I asked him about the payments I was going to make to Mrs. Cohen, and he said, ‘You make the payments to me.’ That was right at the time he delivered the piano. I says, T have no money to-day, but will make a payment on Saturday,’ and he said that was all right; so I made my payment on Saturday. I paid him $5 at the store there. Mr. Carter had an instrument for me to sign. I can’t read or write. He told me, when he delivered the instrument, that he wanted me to sign that paper to let Mrs. Cohen know that he had delivered the piano, and he further said that I had to pay him; that he had made it all right with Mrs. Cohen for me to pay him.”

It is claimed that, as the question of whether or not Maggie Evans had purchased the piano in controversy was the vital issue in the case, it was reversible error for the court to permit her to testify that she did not buy it from plaintiff and that plaintiff did not sell it to her; the facts stated being conclusions of law. It is true, as claimed by appellant, that the question as to whether Maggie Evans purchased the piano from appellant was a question at issue in the case for the jury to determine, was submitted as one of the issues, and on which the jury made a finding; but it seems to us that the issue has not the importance as being vital to any result. Again, we do not construe the statement of the witness as meaning to give or having the result as giving her opinion or conclusion from the facts stated that the transaction did not have all of the necessary elements to constitute a contract of purchase by her, or a sale by appellant to her of the piano, but rather, from her understanding, of what took place. She did not buy the piano from Carter, as she had already bought it from Mrs. Cohen, and that she so understood Mr. Carter, from what he said to her as to the transaction then had with him. Her statement could not be construed to conclude the fact as to whether the transaction amounted to a sale to her of the piano. But, however that may be, all of the facts bearing upon the issue of the sale of both pianos were fully developed on both sides, and if the evidence objected to was subject to the objection made, its admission could not be regarded as reversible error. Rule 62a (149 S. W. x). Tbe assignment is overruled.

We are of the opinion that the vital question in the case is whether appellant had such ownership, interest, or control over the piano as to authorize it, through Carter, to make a sale of it to Maggie Evans, so that the consideration for it in the sale could constitute the consideration expressed in the note and mortgage sued on. If Mrs. Cohen did not as a fact sell the piano to appellant, it had no interest in it to sell to Maggie Evans. The jury found that Mrs. Cohen did not sell the piano to appellant, and that one issue, it seems to us, if properly presented, concludes every other one.

The second assignment is based on the exclusion of the testimony of a witness from another music store to the effect that Mrs. Cohen “had dealt with said witness respecting the purchase from his store of a piano,” immediately subsequent to the conversation and transaction between Mrs. Cohen and J. W. Carter. The evidence expected to be elicited from the witness is nowhere set out, and we do not know what the testimony would have been. The court was not in error in excluding it. To say the most of it, it could only have been heard as contradictory of the statement of Mrs. Cohen that, in the conversation at the house about the purchase of a piano, her husband had said to Carter that they were not in the market at that time for a piano. Appellant, in its bill of exceptions, makes a quotation from Mrs. Cohen’s evidence to which the excluded evidence of the witness would have reference, and, from the evidence quoted, the above is the only feature of her testimony to which it could relate. It is not claimed that the witness was present at the conversation and would deny that her husband made such remark to Carter. The evidence was wholly irrelevant, and the assignment is overruled.

The third assignment is to the exclusion of the statement of a witness to( the effect that “shortly prior to and after the execution by defendant Mrs. Coben of the $650 note in favor of plaintiff he (witness) hauled to the home of Mrs. Cohen a piano from the respective place of business of plaintiff’s witnesses,” and offered as a circumstance on the question as to whether Mrs. Cohen intended to buy a piano at the time plaintiff claims she did buy the $650 piano. It is not shown that Mrs. Cohen in any way induced the hauling of a piano to her house, or why it was hauled there. It was foreign to the issue as to whether Mrs. Cohen did really buy the $650 piano, and, if she did, then, did she give in part payment for it, the piano in question? If the evidence offered had been heard, the only effect it possibly could have had would be to create an inference, first, that Mrs. Cohen had directed it to be sent to the house; second, that if she would have a piano sent to the house, it was her intention to buy a piano; and, third, if it was her intention to then buy, she must have made the purchase of the piano from appellant, and, if she did, she must have sold appellant the old piano in part payment. An inference on an inference is beyond the rule of the admissibility of evidence. St. Louis S. W. Ry. Co. of Texas v. McIntosh & Carlisle, 126 S. W. 692; Missouri, K. & T. Ry. Co. of Texas v. Byrd, 124 S. W. 738. The assignment is overruled.

In addition to what has been said on the questions raised by the assignments, it might be remarked that the undisputed evidence showed that Maggie Evans at the time of the making of the note and mortgage was a married woman, and there is no evidence or effort made to bring her within the rule that would make her personally liable on the note, so as to authorize a personal judgment against her, or foreclose the mortgage lien without such judgment.

We are of the opinion that the court was not in error in entering judgment for the appellees.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    PITTS et ux. v. KENNEDY et ux.

    (No. 5492.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 10, 1915.
    Rehearing Denied June 25, 1915.)
    1. Frauds, Statute ox <&wkey;129 — Part Performance-Possession and Improvements.
    Plaintiff claimed that he offered to purchase from defendant the whole of a tract of land, and defendant verbally accepted such offer. The deed executed by defendant, however, did not convey a part of the tract, which was inclosed separately from that conveyed. Plaintiff, with knowledge that the deed did not convey the whole tract, against defendant’s wishes, and after defendant had offered to rescind, took possession of the whole tract and made improvements on the part conveyed. Held, that such possession and improvements did not take the verbal contract out of the operation of the statute of frauds, as improvements, in order to create rights, must be made upon the faith of the verbal contract and with the belief that it will be carried out, while plaintiff made his improvements upon the faith of the deed and not the verbal contract.
    [Ed. Note. — Eor other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 803, 306-308, 310-312, 814, 318-320, 322, 323, 325, 326; Dec. Dig. &wkey;129.]
    2. Homestead <&wkey;124 — Contracts ox Sali>-Enxorcement.
    A contract for the sale of a homestead, used and occupied as such by husband and wife, cannot be enforced, but is not unlawful, and may be enforced upon the abandonment of the home or the death of the wife.
    [Ed. Note. — Eor other eases, see Homestead, Cent. Dig. §§ 218, 210; Dec. Dig. &wkey;124.J
    3. Frauds, Statute ox &wkey;>125 — Operation and Expect — Actions xor Damages.
    Where, pursuant to a verbal contract for the sale of a tract of land, defendant conveyed only a part thereof, no action for damages would lie for the breach of the contract; it being in contravention of the statute of frauds.
    [Ed. Note. — Eor other cases, see Frauds, Statute of. Cent. Dig. §§ 275-277% ; Dec. Dig. <&wkey;> 125.]
    4. Fraud <&wkey;25 — Necessity ox Damages.
    Plaintiff claimed that defendant verbally agreed to sell the whole of a tract of land for $2,000, but that he conveyed only a part thereof. He, however, admitted that he would not take $2,500 for the property conveyed, and there was no evidence that it was worth less than the price paid. Held that, assuming that a case of fraud authorizing a recovery of damages was made out, there could be no recovery,’ because no damages were proved. •
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 24; Dec. Dig. &wkey;s25.]
    Appeal from District Court, Polk County; J. Llewellyn, Judge.
    Action by C. N. Pitts and wife against C. M. Kennedy and wife. Judgment on a directed verdict for defendants, and plaintiffs appeal.
    Affirmed.
    Campbell & Campbell, of Livingston, for appellants. S. H. German, of Livingston, for appellees.

       writ of error pending in Supreme Court.

   MOURSUND, J.

C. N. Pitts and wife, M. "V. Pitts, sued C. M. Kennedy and wife, Annie E. Kennedy; the material allegations of the petition being as follows: That defendants were the owners of a place in the town of Livingston, known as block No. 8, which they invited plaintiffs to purchase. That on December 8, 1913, plaintiff C. N. Pitts wrote to said C. M. Kennedy rejecting a prior offer made by said Kennedy, and stating:

“If you care to take it I will give you two thousand dollars cash for the property, as it now stands, without any reservations. If you care to take this, you can make out the deeds and put them in the bank, and I will send money over to cover same.”

That this offer was accepted by said C. M. Kennedy over the telephone. That by the terms of said sale said Kennedy bound himself to prepare and execute a deed to the whole of block 8, and place said deed, together with his original deed and an abstract of thé title to said property, in the Guaranty State Bank of Livingston, and plaintiffs were to send $2,000 to said bank to pay therefor. That said Kennedy, knowing that plaintiff C. N. Pitts was busily engaged at Onalaska, and could not in person come and attend the receiving of said deed, and would have no opportunity of seeing it, and knowing the great confidence the plaintiffs reposed in him, and that he would have plaintiffs’ money before any fraud could be detected, caused a deed to be prepared and executed to only a portion of block 8, the portion omitted being off the west end of said block and being 140 feet by 250 feet. That said Kennedy placed such deed in said bank and failed to place his original deed and abstract of title in the bank, thus making it improbable that the fraud would be detected before the plaintiff had paid his $2,000. That said Kennedy telephoned to plaintiffs that he had prepared and deposited the deed in accordance with the agreement, whereupon plaintiffs paid the $2,-000 to the bank as agreed upon, and the deed which had been prepared and executed by defendants was sent to plaintiffs. That the acts of said G. M. Kennedy were fraudulently, willfully, and schemingly done with intent to deprive and defraud plaintiffs of said land. Plaintiffs prayed for judgment divesting out of defendants the title to said parcel of block 8 not included in said deed, and vesting the same in plaintiffs, and in the alternative for damages in the sum of $1,000, alleging that the value of said parcel was $500 and that the part actually conveyed would be worth $500 more if the other part was held therewith.

The answer of the defendants was very lengthy, and it will suffice for the purposes of this opinion to say that they denied the making of any such agreement as was pleaded by plaintiffs, and alleged that the land omitted from the deed was never intended or agreed to be conveyed; that as soon as they learned that plaintiffs were dissatisfied, and before the deed was recorded and before any improvements were made, they offered to return the $2,000 to plaintiffs and accept a re-conveyance of the property described in the deed, but plaintiffs declined such proposition. They also pleaded the statute of frauds, and alleged that all of said block 8 was their homestead at the time of the transactions with plaintiffs. They alleged further that plaintiffs had taken possession of- the land in controversy, and that their claim cast a cloud upon defendants’ title, which they prayed should be removed.

Each party filed supplemental pleadings, but the above statement sufficiently sets out the material pleadings of each party.

The court instructed a verdict for defendants, which being duly returned, judgment was entered in accordance therewith.

The evidence shows the following facts to be undisputed: (1) Regardless of who is correct about what land was to be conveyed, the fact remains that there is no written contract or memorandum signed and delivered by either Kennedy or his wife wherein it was agreed to convey the land not included in the deed. (2) The possession of plaintiffs was taken under a deed specifically describing the land conveyed, and such description does not include' the lot in- controversy. (3) No improvements whatever have been put upon the lot in controversy, .which was in-dlosed separately from the remainder of block 8. (4) Plaintiffs made about $300 worth of permanent improvements upon the premises actually conveyed, but such improvements were made after they had discovered that the deed did not include the land in controversy, and after defendants had offered to rescind. (5) Immediately 'after defendants were advised by plaintiffs that the deed did not convey what plaintiffs claimed they were to get, defendants offered to refund the purchase money and cancel the trade, which plaintiffs refused to do. (6) At the date of the alleged contract declared upon, Kennedy and his wife were living upon, using, and claiming all of block 8 as their homestead. (7) That Mrs. Kennedy was not guilty of any fraud or misrepresentation that in any manner entered into the transaction.

We will first consider the question whether the court erred in holding as a matter of law that plaintiffs were not entitled to specific performance of the agreement to convey the land in controversy, if the jury should find there was such an agreement. No agreement or memorandum in writing was signed by Kennedy. Possession of the land in controversy was not secured by plaintiffs with the consent of Kennedy and wife, but was taken in disregard of their wishes. No improvements at all were made upon the land in controversy. The improvements made upon the premises described in the deed were not made upon the faith of a verbal contract to convey all of block 8, but were made upon the faith of a deed to the premises upon which they were made, and were made with full knowledge that such deed did not convey the land in controversy. Such improvements were also made after defendants had offered to repay the purchase price and accept a reconveyance of the premises described in the deed. Improvements, in order to create rights, must be made upon the faith of the verbal contract and with the belief that it will be carried out. The facts as to possession and improvements shown in this case are not sufficient to take the verbal contract out of the operation of the statute of frauds. Gilmore v. O’Neil, 139 S. W. 1162; Openshaw v. Dean, 125 S. W. 989; Ann Berta Lodge v. Leverton, 42 Tex. 25.

At the time Kennedy made the verbal contract, all of block 8 was used and occupied as the homestead of himself and wife, and the contract could not have been enforced at that time even had it been in writing and made by both husband and wife. But it is held that such a contract is not unlawful, and, though not enforceable so long as the property retains its homestead character, it may be enforced either upon the abandonment of the home or the death of the wife. Goff v. Jones, 70 Tex. 572, 8 S. W. 525, 8 Am. St. Rep. 619; Eberling v. Deutscher Verein, 72 Tex. 339, 12 S. W. 205; Ley v. Hahn, 36 Tex. Civ. App. 210, 81 S. W. 354; Hudgins v. Thompson, 163 S. W. 659.

In this case it is contended that the homestead was abandoned by selling and conveying that part of block 8 upon which the improvements used for a home were situated, and failing to take any steps towards establishing a home upon the portion in controversy. If, under the facts of this case, the rule announced in Goff v. Jones, and other cases above cited, could be applied, it would seem that Mrs. Kennedy, who was induced to sign a deed to the major portion of the homestead believing a certain price was being paid therefor, should be protected against being held to such conveyance when it is sought to be used as a means of depriving her of all of her homestead for a price to which she has never agreed; there being no acts on her part which would in any way estop her from asserting her rights. However, as we have already held that the verbal contract cannot be specifically enforced, because in contravention of the statute of frauds, we 'need not decide the question arising on account of the homestead character of the property at the time the contract was made.

We will next take up the contention that the court should at any rate have submitted, as against Kennedy, the issue of damages on account of failure to include in the deed the land in controversy. While the the husband can be held liable for damages for breach of a contract by him to sell the homestead, if such contract be in writing, when it is in contravention of the statute of frauds as was the contract sued upon in this case, no action for damages will lie for its breach. Cross v. Everts, 28 Tex. 535; Ray v. Young, 13 Tex. 552; Schulz v. Schirmer, 49 S. W. 246; Brown on Statute of Frauds, § 118.

Appellants seek to avoid the statute of frauds by contending that they have an action against Kennedy for fraudulent representations and acts. It is sufficient answer to this to point out that, if the allegations and proof were sufficient to make a case of fraud independent of the verbal contract, no damages are shown, for appellant Pitts admitted that he would not take $2,500 for the property conveyed to him, and there was no evidence that such property was worth less than the price paid by him. George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456.

The judgment is affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      É^oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    KRUEGEL v. MURPHY & BOLANZ et al.
    (No. 7466.)
    (Court of Civil Appeals of Texas. Dallas.
    June 5, 1915.
    Rehearing Denied June 26, 1915.)
    Bankruptcy <&wkey;421 — Discharge—Eíttect on Judgment.
    Where, after being cast in judgment, defendants voluntarily declared themselves bankrupt, and were thereafter discharged from liability for all debts existing on a date four years subsequent to the judgment, such discharge satisfied plaintiff’s judgment, and ended all his rights thereunder as against the judgment debtors.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 772-774, 776, 777, 779-781, 783-786, 788-790; Dec. Dig. &wkey;421.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by Herman Kruegel against Murphy & Bolanz and others. Judgment for plaintiff, and, from judgment refusing to sustain a motion to adjudge the district clerk of the county in contempt for refusing to issue pluries execution upon the judgment, plaintiff appeals.
    Affirmed.
    See, also, 168 S. W. 983; 157 S. W. 1182.
    Herman Kruegel, of Dallas, pro se.
   RASBURY, J.

This is an appeal from the judgment of the district judge refusing to sustain a motion to adjudge the district clerk of Dallas county in contempt of court for refusing to issue pluries execution upon the judgment in the cause in which it was filed.

The evidence and sworn pleading disclose the following undisputed and material facts: On March 17, 1894, in the case of Herman Kruegel v. Murphy & Bolanz, pending in said Fourteenth district court of Dallas county, judgment was rendered in favor of Kruegel and against J. P. Murphy and Charles F. Bolanz for $1,318.60. The judgment provided that it should bear interest at 6 per cent per annum from rendition, that Kruegel should recover all costs, and that execution should issue for its enforcement Subsequent to the rendition of the judgment, J. P. Murphy and Charles F. Bolanz voluntarily declared themselves bankrupts, and in their petition scheduled the judgment in favor of Kruegel, among other debts, as one from which they desired to be released. Kruegel was notified and appeared in the bankrupt court and contested the proceeding. On June 8, 1899, both Murphy and Bolanz were by the United States District Court discharged from liability for all debts existing on September 8, 189S, which included Kruegel’s judgment rendered March 17, 1894. In 1900, Kruegel was also adjudged a voluntary bankrupt, and was subsequently discharged of his debts; one May being appointed trustee in the proceeding. Subsequent to the discharge in bankruptcy of J. P. Murphy and Charles F. Bolanz, Kruegel, in an attempt to collect the judgment rendered in his favor, procured an execution to be issued upon said judgment and caused same to be levied upon a lot of land. Thereupon Charles F. Bolanz filed suit in the Fourteenth district court to enjoin the collection of said judgment on the ground that the judgment debtors, J. P. Murphy and Charles F. Bolanz, had been discharged and released of all liability on said judgment after its rendition by the bankruptcy court. The case was by order made and entered in the minutes of the Fourteenth district court transferred to the Forty-Fourth district court for trial. That court, on March 26, 1904, and after trial, rendered judgment enjoining Kruegel, the district clerk, his deputies and successors, from issuing execution upon the judgment and enjoining the sheriff of Dallas county, his deputies and successors, from levying any execution issued upon said judgment. Upon the judgment rendered for Kruegel in the original case, execution was last issued on May 11, 1908. On November 27, 1914, Kruegel requested the district clerk, H. H. Williams, to issue another and the seventh execution, which he refused to do. Whereupon this proceeding originated by motion to adjudge Williams in contempt and which, as stated, the district judge, Hon. Kenneth Foree, declined to do.

The first issue presented in appellant's brief is the validity of the judgment of the Forty-Fourth district court enjoining Krue-gel and the officers of court from issuing or levying an execution upon the original judgment rendered in the Fourteenth district court. The appellant, in a number of proceedings arising in various ways, has repeatedly challenged the validity of that decree on the ground that one district court has no control over the judgments rendered in another district court, and that as a consequence the order enjoining the parties named from issuing and levying the execution was void. Without conceding that the action of the court is as broad as the legal proposition asserted, it is sufficient to say that the identical question upon facts similar to those disclosed in the instant case has been in a number of cases decided adversely to appellant, and we think a reference to those cases a sufficient disposition of the issue. Kruegel v. Rawlins, 121 S. W. 216; Kruegel v. Jones, 121 S. W. 218; Kruegel v. Rawlins, 103 Tex. 86, 124 S. W. 419.

Further, it has been twice decided by this court that the voluntary bankruptcy proceedings by Murphy and Bolanz, also shown in this proceeding, wherein they scheduled Kruegel’s judgment debt and were released and discharged therefrom by the bankrupt court, satisfied the judgment, and that Krue-gel as a consequence had no legal right to have process issued for its enforcement. Kruegel v. Murphy & Bolanz, 126 S. W. 680; Kruegel v. Rawlins et al., 148 S. W. 343.

Independently of all other matters, the discharge in bankruptcy satisfies appellant’s judgment and ends all appellant’s rights thereunder as against the judgment debtors and all attempts to enforce the judgment are useless.

Many other collateral issues are presented in the brief, which announce sound propositions of law, but they are without force or application in view of our holding on the issues discussed, which control all others.

The judgment is affirmed.
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