author: HARPER, C. J.

text:
    LOOP LAND & IRRIGATION CO. v. OGBURN.
    (No. 496.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 2, 1915.)
    1. Appeal and Error @=291 — Motions for New Trial — Fundamental Error.
    In an action for specific performance, where the pleadings alleged a written contract, submission to the jury of whether plaintiff was entitled to recover on a verbal contract is fundamental error, which can be reviewed, though not set up in the motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1707-1712, 172A-1726; Dec. Dig. &wkey;>291.]
    2. Specific Performance c&wkey;U7 — Variance.
    Where the petition in an action for specific performance averred that defendant through its agent entered into a written contract to sell land, plaintiff cannot recover on proof of an oral contract and part performance.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 377-381; Dec. Dig. &wkey;117.]
    3.Principal and Agent <&wkey;22 — Proof of Agency — Declarations of Agent.
    Agency cannot be proven by the extrajudicial declarations of the alleged agent.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. <&wkey;>22.]
    Appeal from District Court, Ward County; S. J. Isaacks, Judge.
    Action by J. W. Ogburn against the Loop Land & Irrigation Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    B. W. Baker, of Barstow, for appellant. J. A. Buck and J. E. Starley, both of Pecos, for appellee.
   HARPER, C. J.

This suit was filed by ap-pellee, J. W. Ogburn, against E. L. Stratton and the Loop Land & Irrigation Company, appellants, for specific performance of a contract to convey land, tie alleged that on or about the 15th day of September, 1913, the said Stratton made and entered into a contract in writing to sell and convey to him, appellee, certain 80 acres of land for $600; that he paid $100 of the purchase price and tendered notes for the balance, as provided in the contract; that the said Stratton was at the time the duly authorized and acting agent of the defendant Loop Land & Irrigation Company; that after making the contract, said Stratton and said company each and both delivered to plaintiff the possession of the land, and that he had since made valuable improvements thereupon.

The defendant Stratton answered that he denied that he was the agent of the Loop Land & Irrigation Company at the time of making the contract, but merely held an option upon said land from said company, which the plaintiff knew; that he admits executing the contract, but that the land company claimed that his option had expired prior thereto; therefore, the company having failed and refused to make title to him, Stratton, he was thereby prevented from making title to the plaintiff; that the plaintiff had actual notice of the relations between the company and himself, and that at the time the contract was executed plaintiff and defendant Stratton both contemplated that title might not be made, and in view of such contingency inserted the provision in said contract that in case this defendant should fail to make title, then the $100 paid should be returned and be the end of the contract.

Defendant land company denied that Strat-ton was its agent, and alleged that it had in no manner represented him to be such; denied that said Stratton had authority to sell this or any other land belonging to it; that it in no way induced the attempted sale, nor the payment of the $100 to Stratton, nor did they deliver possession to him; that said Stratton was not the agent of defendant company, but simply had an option to purchase the land in controversy, which had expired prior to the date of the contract sued on; that it is not a party to the contract sued on, and is in no manner bound thereby; that there has never been any consideration tendered to it; that it did not authorize plaintiff to enter into possession of the land, and that any improvements placed thereon by him were without its knowledge or consent.

The trial court submitted the cause upon the following special issues:

“(1) Did the defendant Loop Land & Irrigation Company and the defendant Stratton, by their action and conduct, induce the plaintiff to believe that the defendant Stratton was the agent of the defendant Loop Land & Irrigation Company for the purpose of selling its lands on the 14th and 15th days of September, 1913? Answer: Yes.
“(2) Did the plaintiff enter into a verbal contract with the defendant Stratton, either on the 14th or 15th day of September, 1913, for the purchase of the land in controversy, and did the defendant Stratton at that time deliver the possession of the said premises to the plaintiff, and did plaintiff go into possession of same and make valuable improvements of a permanent nature thereon? Answer: Yes.
“(3) Did the plaintiff, at the time, rely upon a verbal contract with the said Stratton for the purchase of the said land and his possession and improvements thereof, if any, or did he rely upon his written contract of September 6, 1913 ? Answer: Relied upon his verbal contract of September 15, 1913.
“(4) Did the defendant Loop Land & Irrigation Company sell to the defendant Stratton, or permit the defendant Stratton to sell to others any of their lands after September 15, 1913? Answer: Yes.”

Upon the answers thereto, judgment was entered for plaintiff.,

Because the questions raised by the assignments were not presented and urged in a motion for new trial, appellee suggests that this court should not consider them under rule 23. The first and third assignments were not presented in the motion for new trial, and therefore will not be considered unless fundamental, as urged by appellant.

The first assignment is that the court erred in overruling special exception to special issue No. 2 submitted by the court. The proposition is that a verbal contract for the sale of real estate or the lease thereof for a longer term than one year cannot be enforced. Properly construed, the pleadings in this case declare only upon a written contract. The plaintiff’s first, second, and third amended original petitions are copied in the transcript. The first and second allege that on or about the 16th day of September, 1913, plaintiff and Stratton entered into a contract; that said contract was signed and a copy is attached to the petition, etc. The third alleges that on September 15, 1913, plaintiff and Stratton agreed upon the terms of a contract which was executed' in writing on September 16, 1913, and a copy is attached to the pleading, etc.

There is no allegation in any of the pleadings that could in any wise be construed to be a declaration upon a verbal contract. So it is apparent upon the face of the record that if plaintiff can recover at all, it must be upon a contract in writing executed by the defendant Loop Land & Irrigation Company, by its authorized agent, and it is further apparent upon the face of the record that the court submitted the case upon an issue not made by the pleadings unless the latter portion of special issue No. 3 submits the case upon the written contract. “Did plaintiff rely upon his written contract of September 16, 1913?” And if this submits the case upon the written contract, then the jury has in effect found against plaintiff by the finding that he relied upon his verbal contract. The question here is not, as seemed to be in the mind of the trial court, Which was relied upon by plaintiff, the written or verbal contract? but, Did plaintiff have any legal and binding contract with the defendant company in writing? Because he has pleaded no other. If he has a written contract executed by the company through its agent, he should be permitted to recover. If not, then he cannot recover under his present pleadings. This constitutes such fundamental error as to constitute cause for reversal, and need not have been set up in the motion for a new trial. Astin v. Mosteller, 152 S. W. 495; Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; San Antonio Traction Co. v. Yost, 39 Tex. Civ. App. 551, 88 S. W. 428.

The second assignment was sufficiently presented in the motion for new trial. It urges that the court erred in permitting the plaintiff to testify over objections that at the time of the making of the contract Stratton said that he was the agent for the Loop Land & Irrigation Company, and authorized to act for them. The reason given for the objection was that it was an attempt to establish the relation of agency by the declarations of the alleged agent. The rule is that evidence of the statements or admissions of the alleged agent is not admissible to establish his authority, and such evidence can never be used against the principal until the fact of agency has been established by other evidence. Cannel Coal Company v. Luna, 144 S. W. 721.

For the reasons given above, the cause must be reversed and remanded; and it is so ordered.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    BRALY v. CONNALLY et al.
    (No. 1505.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 11. 1915.
    Rehearing Denied Nov. 25, 1915.)
    1. Usury @=>140 — Recovery oe Penalty — Parties.
    B., as shown by his contract with the maker of a note, and their practical construction thereof, not having paid it as agent of the maker, but acquired it as absolute owner by purchase for himself, the maker could not recover of the payee the penalty for usury paid, which under Rev. St. 1911, art. 4982, can be recovered only by the persons paying it, or their legal representatives.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. § 426; Dec. Dig. @=140.]
    2. Usury @=>142 — Recovery oe Penalty — Party Paying Usury — Evidence.
    Agreement of the maker of notes made with B. after B. acquired them from the payees, promising to pay to B. such notes, is admissible in an action by the maker against the payees for penalty for usury, as showing the understanding between the maker and B., as to whether B. acquired them as agent for the maker or for himself individually.
    [Ed. Note. — F'or other cases, see Usury, Cent. Dig. §§ 428-438; Dee. Dig. @=>142.]
    Appeal from District Court, Smith. County; W. R. Heath, Judge.
    Action by W. T. Braly against Walter Connally and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Appellant brought the suit to recover double usurious interest alleged to have been paid by him to appellees. The trial was before the court without a jury, and judgment was rendered in favor of appellees.
    The facts found by the trial court are supported by the evidence and are here adopted:
    “That W. T. Braly on February 3, 1911, executed and delivered to Elwood E. Carlton and Walter Connally his two certain promissory notes for the sum of $2,639.90 each, duo one and two years from date, respectively, bearing 10 per cent, interest per annum from date, the interest payable semiannually, and in case any installment of accrued interest was not paid when due, the accrued interest should become as principal and draw interest at the rate of 10 per ■cent, per annum; also for 10 per cent, of the amount of the accrued interest and principal to be added in case of suit, or if placed in the hands of attorney for collection, and that failure to pay the first note should mature both notes.
    “That to secure the payment of said notes, W. T. Braly executed deed of trust ou certain lands in Smith 'county, Tex.
    “That the notes were executed for a loan by Carlton and Connally to Braly of $4,479.77, and said amount was the real consideration for which the notes were executed.
    “That in the fall of 1912, the first of the notes having matured, Carlton and Connally sued on same in the district court of Smith county, Tex., and prayed for' a foreclosure of the deed of trust lion on the land to secure the payment of same.
    “That on January 9, 1913, while said suit was pending, J. A. Bulloch bought said notes and paid to Carlton and Connally $7,075.89, the amount of said notes, principal, interest, and attorney’s fees, and on said day Carlton and Con-nally transferred said notes to said Bulloch by indorsement without recourse.
    “That of the amount paid by Bulloch to Carlton and Connally there was $1,914.55 usury. (But Mr. Bulloch had no knowledge or notice of any usury in the amount.)
    “That in the transaction by which J. A. Bul-loch purchased the notes from Carlton and Con-nally, he was acting for himself and not as the agent of W. T. Braly.
    “That some time after the purchase of the notes by Bulloch from Carlton and Connally, Braly deeded to him (Bulloch) the land which was given to secure the payment of said notes, and J. A. Bulloch thereafter sold the said land.
    “That from the proceeds of the sale of the land J. A. Bulloch retained the amount he had paid Carlton and Connally, together with expenses in making the sale of the land, and gave to Braly one-half of the remainder.
    “That Carlton and Connally understood they were selling, and in fact sold, the notes to Bul-loch individually and not as the agent of Braly, and Bulloch took an assignment of the notes and lien to secure same from said Carlton and Con-nally in order that he might be subrogated to the rights of Carlton and Connally for his protection against certain judgments held against Braly by other parties, which judgments had been abstracted in Smith county and under which execution had been issued and levied on the said land.
    “That Braly never paid to Carlton and Con-nally anything on the notes held by them and transferred to Bulloch, but the payment made by Braly was made to Bulloch in satisfaction of the debt he (Braly) owed to Bulloch and not to Carlton and Connally.
    “That after the sale and transfer of the notes by Carlton and Connally to J. A. Bulloch, Carlton died, leaving a will, which has been duly probated, wherein Sid Carlton and R. Bergfeld were made his independent executors, without bond, and his said estate is being administered by them, independent of the probate court.
    “I find that any payment or satisfaction of the notes in question was made by Braly to Bulloch, the owner and holder of the notes, and not to Carlton and Connally, and that said Braly is not entitled to recover from Carlton and Connally any usurious penalty.”
    Nat. W. Brooks, of Tyler, for appellant. Simpson, Lasseter & Gentry and Marsh & Mcllwaine, all of Tyler, for appellees.
   LEVY, J.

(after stating the facts as above).

The propositions of appellant under assignments of error from 1 to 4 inclusively are to the point that the legal effect attaching to the contract between appellant and J. A. Bullock, in accordance with which J. A. Bullock purchased the notes from appellees, is that of making a payment of the usurious interest by J. A. Bulloch a payment in behalf of and by appellant and with funds furnished by appellant, and that the court erred in not giving it such legal effect and awarding him a judgment for the penalty sued for. The evidence shows that appellant was desirous of staying the rendition of any judgment in the pending foreclosure suit of appellees, and lacking the money to pay the notes, on January 9, 1913, orally agreed with J. A. Bulloch as follows: J. A. Bul-loch was to furnish money to the amount of the notes sued on, including interest then due, court costs and the attorney’s- fees provided in the notes, and to pay it to appellees for the purpose of acquiring the possession and ownership of the notes, and then to handle the land in suit in his own name, clear up and perfect existing deficiencies in tlie legal title to tlie land, and to pay tlie costs of so doing; to find a pureliaser for same, and sell it, and out of tlie proceeds of tlie sale to deduct in his favor and use all the money expended in clearing up the title and in making sale and the amount of the notes and the costs paid on the suit, and then to divide the net balance between himself and appellant. Appellant at the time executed to Mr. Bulloch a power of attorney giving him possession, control, and disposition of the land. It is clear that both parties have bound themselves by reciprocal obligations. Mr. Bulloch is bound by the terms of the agreement to acquire the notes from appel-lees with his own independent funds, and to himself thereafter handle the mortgaged land and sell it. The appellant is bound by the agreement to pay Mr. Bulloch the money so furnished to acquire the notes from and out of the proceeds of the sale of the land when it was sold, and compensation to the amount of one-half of the net balance. The agreement, though, is not by intention of the parties an absolute or conditional sale of the land by appellant to Mr. Bulloch with which to pay off the notes held by appellees. And it appears to be the purpose and intention of the parties, from the terms of the agreement, that Mr. Bulloch, in acquiring the notes from appellees with his own funds, should pursue the course or method of taking over and holding in ownership to the exclusion of all others, the notes so acquired until such time as they might be paid and liquidated by the proceeds arising from the sale of the land. And if in this respect the real meaning and intention of the parties is obscure, a resort to the understanding of the parties as to the method or mode that Mr. Bulloch should pursue in acquiring the notes, and their acts of practical construction placed upon the agreement, as appears in the record, relieves it from doubt. Looking to the record it appears that on January 9, 1913, Mr. Bulloch, out of his own money, paid to appellees the amount of the notes, principal, interest, and attorney’s fees, and the appellees transferred said notes to J. A. Bulloch “without recourse.” Mr. Bulloch testifies: “Mr. Carlton (appellee) had agreed to sell the notes to me beforehand,” and “I had an agreement with him (appellee) beforehand that I was to take up the notes if it became necessary.” After Mr. Bulloch furnished and paid the amount of the notes to appellees, and on January 20, 1913, the appellant executed to Mr. Bulloch a written instrument which describes the two notes given to appellees and their being secured by a deed of trust on certain land and the foreclosure suit of appellee thereon, and then continues as follows:

“And while said suit was pending, to wit, on January 9, 1913, the said Carlton and Connally transferred said notes to J. A. Bulloch, and at the time of the transfer there was due on said notes $7,075, which amount is just, due, and unpaid; and I hereby agree to pay said amount with 10 per cent, interest thereon from the date, to wit, January 9, 1913, and 10 per cent, additional on said amount if the same is not paid at maturity and is placed in the hands of attorneys for collection or suit is brought on same. The date when said indebtedness is to become due is the 20th day of January, 1913.”

It appears that on January 29, 1913, the appellant executed a deed to this land and other tracts of land to Mr. Bulloch. And it appears that on November 21, 1913, appel-lees transferred in writing their mortgage lien on the land to Mr. Bulloch. Mr. Bul-loch thereafter found a purchaser and sold the land, retained the amount of the notes together with the expenses in making the sale of the land, and gave to appellant one-half of the remainder. Thus it appears that Mr. Bulloch had pursued the course of purchasing the notes and having them transferred to him, and that appellant, knowing appel-lee had “transferred such notes to J. A. Bul-loch,” admitted the amount of the notes to be a just debt and agreed and promised to pay the same to J. A. Bulloch. The agreement therefore must be construed as manifesting the purpose and intention of the parties that Mr. Bulloch in his own behalf was to purchase the notes from appellees and to carry the same until paid to him by appellant through the proceeds of the sale of the land. And in such agreement of the parties the purchase of the notes by Mr. Bulloch and his holding same as absolute owner thereof would have the legal effect of making appellant liable thereon to Mr. Bulloch until liquidated and paid to Mr. Bulloch. And finding as a fact, as the court did, that Bulloch bought the notes, and for himself individually, it could not be properly said that such course and method of dealing with the notes was not contemplated and intended by the parties. The effect of the agreement and the facts found by the court, which have evidence to support them, would deny appellant a recovery, as concluded by the court. Under the statute, only “the person or persons paying same, or their legal representatives,” may maintain an action to recover of the payee the penalty for usury paid. Article 49S2, R. S. And, as ruled in Bank v. Lasa-ter, 196 U. S. 115, 25 Sup. Ot. 206, 49 L. Ed. 408, “the payment contemplated by the statute is an actual payment, and not a further promise to pay.”

By the sixth assignment of error appellant insists that the document of January 20, 1913, executed by appellant to J. A. Bulloch and agreeing and promising to pay to Bulloch the notes acquired from appellee, was inadmissible because not material to any issue. It is believed that the instrument was admissible as showing the understanding of the parties in respect to the method and course contemplated by the parties to be pursued by Mr. Bulloch in acquiring the notes from appellees.

By the ninth assignment of error it is insisted that the court erred in refusing and failing to find the facts requested. It is believed that the court’s findings were sufficient and substantially as requested by appellant.

It is concluded that there is no error in the ruling of the court respecting the evidence complained of in the fifth, seventh, and eighth assignments of error.

The judgment is affirmed.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    MATTHEWS v. SORRELLS & SEITZ.
    (No. 5554.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 8, 1915.)
    Judgment @=>255 — Pleading and Pboof.
    Judgment for plaintiffs in an action for destruction of grass by cattle cannot be sustained, the' complaint being based solely on defendant having taken down the fence, and there being no testimony in support thereof, but positive testimony to the contrary.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 445; Dec. Dig. @==>255. J
    Appeal from Gonzales County Court; J. W. Holmes, Judge.
    Action by Sorrells & Seitz against H. W. Matthews. Judgment for plaintiffs, and defendant appeals.
    Reversed and rendered.
    Romberg & Duncan, of Gonzales, for appellant.
   FLY, C. J.

This is a suit for damages instituted by appellees against appellant. It was alleged that appellees had a written contract with appellant by which they were to “cut, rake, and shock” the “Johnson grass” on 60 acres of land belonging to appellant during the year 1914, and, in consideration of the right to cut and use said grass, they obligated themselves to deliver to appellant one-third of all the grass harvested by them. It was further alleged that two cuttings of the grass were made by ap-pellees, and that they were prevented from making a third cutting by the fact that the cattle of appellant in an adjoining inclosure got into the inclosure rented by appellees and destroyed and consumed the grass. The basis of complaint against appellant is as follows:

“That after plaintiff had cut two crops of hay upon said meadow, and while the third was ready to cut, rake, shock, and market, defendant permitted and caused his stock of horses and mules, some 40 in number, to get into said meadow and utterly destroy same; that defendant’s stock were kept by him in a pasture joining the meadow, and there opened into said pasture from said meadow a gap or gate which was constructed by stretching several barbed wires attached to two poles and fastened at one end to the fence and to a large tree at the other end; that these gaps or gates were amply sufficient to turn defendant’s stock and had ever turned them until same were let down by some one and said stock permitted to enter into and upon the meadow aforesaid; that, on the first occasion of said stock being in said meadow, plaintiffs discovered them, and, turning them out, fastened up said gap so securely that it was impossible for stock to let it down or to break it down; that plaintiffs stapled said gap, or the wire with which same was fastened to the large tree to which it fastened, and, taking a large piece of barbed wire, wrapped it around' the middle of the pole that attached to the tree, and stapled said large piece of barbed wire to said tree by which means it was impossible for stock to make an entry into plaintiffs’ said meadow ; that shortly after plaintiffs had so securely fastened said gap they were again at the meadow and found some 40 or more head of defendant’s horses and mules in said meadow; that said gap was down, and it was plainly discoverable that same had been let down by some person ; and plaintiffs say that they have reason to believe, and do believe, and so believing allege, that defendant let or caused said gaps to be let down to the end his said stock could get the benefit of the grass on said meadow growing.”

The cause was tried by jury and resulted in a verdict and judgment in favor of appel-lees for $100.

It will be noted that the only ground of complaint against appellant is that the gap in the fence “had been let down by some person, and plaintiffs say that they have reason to believe, and do believe, and so believing allege, that defendant let or caused said gaps to be let down to the end that his said stock could get the benefit of the grass on said meadow growing.” It is not alleged that the cattle were fence-breakers and had torn down the fence and that appellant made no effort to restrain them, but the sole charge is that appellant deliberately had taken down or opened the gaps or passways leading into the 60-acre inclosure in order that the cattle might pass into said inclosure and consume the grass. There is not one particle of testimony tending to support the allegations of the petition, and, on the other hand, appellant swore positively and unequivocally that he had not opened the gaps nor authorized any one else to do so. llis tenant on the other place, where the cattle were kept, corroborated him in every particular, and all the testimony showed that appellant desired to prevent his cattle from trespassing on the 60-acre tract.

There is no testimony whatever to sustain the verdict of the jury, and the judgment will be reversed, and judgment here rendered that appellees take nothing, and that they pay all costs of this suit.


text:
    HOLCOMB et al. v. BLANKENSHIP et al.
    (No. 1533.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 18, 1915.)
    1. Justices of the Peace @=3l74r — Appeal-Pleading — Defense to Oeoss-Action.
    On appeal to the county court in an action on a note given in part payment for two mules, wherein defendant files a cross-action for damages for breach of warranty of the soundness of one mule, plaintiffs may plead purely as a defense to the cross-action settlement of the controversy by arbitration, thoush such defense was not presented in the justice court.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-698; Dec. Dig. @=>174.]
    2. Witnesses @=>74^-Competency — Arbitrator.
    An arbitrator is a competent witness to show what was in controversy before the arbitrators, what matters entered into their decision, and whether they were fair and impartial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 188; Dec. Dig. @=>74.]
    3. Appeal and Ekkob @=>263, 500 — Presentation Below — Instbuctions.
    Where it appears that objections to the charge were made but does not appear how the court ruled on the objections, or that appellants excepted to the court’s ruling as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, an assignment of the error complaining of the charge cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532, 2295-2298; Dec. Dig. @=>263, 500.]
    Appeal from Titus County Court; Sam Porter, Judge.
    Action by C. E. Holcomb and others against C. E. Blankenship and others. From judgment for plaintiffs, defendants appeal.
    Affirmed.
    The suit is by appellees against appellants on a promissory note for $60. The appellants plead failure of consideration of the note, and by cross-action sought recovery of damages for breaeh of warranty of the soundness of a mule.
    C. E. Holcomb owned two little mules, and appellees owned two larger mules; and in August, 1913, the parties exchanged or traded the mules, C. E. Holcomb paying a difference to appellees of $102 in money and his promissory note for $60, with B. F. Holcomb as surety thereon. Appellees at the time of the exchange expressly warranted the soundness of the mules to C. E. Holcomb. In October, 1913, one of the mules traded to C. E. Holcomb died from the effect of abscess or enlargement of the spleen. After the death of the mule C. E. Holcomb and the appellees agreed to leave to the decision of three disinterested persons the claim of C. E. Holcomb for breach of warranty. The arbitrators chosen by appellees and C. E. Holcomb after hearing evidence made final decision and report that C. E. Holcomb be allowed no damages for breach of warranty. There was evidence going to show that the disease from which the mule died was of some time standing, though latent and not known to appel-lees, and there is evidence tending to show that the disease originated subsequent to the date of exchange. There was evidence going to show a fair decision by the arbitrators, and there was evidence tending to the contrary. The jury decided all issues of fact against the contention of appellants.
    T. O. Hutchings, of Mt. Pleasant, for appellants. I. N. Williams and Geo. Bolston, both of Mt. Pleasant, for appellees.
   LEVY, J.

(after stating the facts as above).

After the appeal of the case to the county court the appellees plead, as a defense to the cross-action for damages, settlement of the controversy by arbitration. This was not pleaded in the justice court. The appellants objected to the plea and the court overruled the objection. This ruling of the court is made the basis of assignment of error number one. The objections urged to the plea are that it set up a new cause of action for the first time in the county court, and that B. F. Holcomb as a joint maker and obligor in the note was not a party to such arbitration. The objections may not, it is thought, be without merit if the record would bear the construction urged by appellants. It is concluded, though, that the record does not warrant the construction urged, and the assignment must be overruled. According to the record it was conclusively shown that B. F. Holcomb was not interested in the mules or the trade for them, and was not a joint ob-ligor, but was merely a surety on the note of O. E. Holcomb. Under the evidence of C. E. Blankenship appears the statement, “B. F. Holcomb had no interest in the trade and is only surety on the note.” B. F. Holcomb does not in his evidence claim to be interested in the trade or exchange of the mules. O. E. Holcomb in his evidence claims that he was the owner of the mules and made the trade B. F. Holcomb, being only a surety on the note, and having no interest or claim in the mules, and not being a party to the trade, had no legal concern with an action for breach of the warranty. The warranty oi soundness of the mules being to O. E. Holcomb, he could recover in a personal action against the warrantors the damages for a breach of warranty. It would follow, therefore, that O. E. Holcomb and his warran-tors could effect a settlement concerning the breach of the warranty by arbitration of the three disinterested persons, and that it could be pleaded as a defense against C. E. Holcomb in his cross-action for damages. The plea was not in the nature of an action for recovery by appellees on the award of the arbitrators, as insisted, but was purely a defense in bar of recovery by appellant O. E. Holcomb. The court in his charge treated the plea of arbitration purely as defensive matter, and did not permit an affirmative recovery by appellees thereon. It is concluded that appellees may plead, as done, the settlement by arbitration against the cross-action for damages. Mfg. Go. v. Hertzberg, 92 Tex. 528, 50 S. W. 122. The plea of settlement by arbitration in respect to damages for breach of warranty was entirely independent of and did not affect the appellants’ further plea of failure of consideration of the note sued on. And in the record it appears without dispute that the note sued on was executed in part payment for the two mules, and not alone for the one mule that died. One of the mules is living and not diseased. There was, therefore, a fdilure of each appellant, as principal and as surety, to establish a total failure of consideration for tlie note.

It is concluded that the objections to the evidence complained of in assignments Nos. 2, 8, 4, and 5 do not constitute reversible error. An arbitrator is a competent witness to show what was in controversy before them, what matters entered into the decision, the award or decision of the arbitrators, and respecting the fairness and impartiality on the part of the arbitrators. Appellees could prove by the appellant Holcomb that he agreed to the arbitration. Pleading the arbitration as a defense, the appellees were required to prove it, being oral, by witnesses. And while some parts of the.evidence complained of may not, under strict rules, be deemed relevant and material, still it would not warrant a reversal of the judgment.

The complaint against the charge of the court cannot be considered, because it does not appear by the record that exception was taken to the ruling of the court. It appears that objections to the charge were made, but it does not appear how the court ruled on the objections, nor does it appear that appellants excepted to “the ruling of tlie court” as required by article 2061, Vernon’s Sayles’ Statutes.

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

      other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests ana Indexes


author: HODGES, J.

text:
    SMITH v. TEXAS & P. RY. CO.
    (No. 1507.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 24, 1915.
    Rehearing Denied Dee. 9, 1915.)
    1. Appeal and Error <§=>285 — Presentation op Grounds op Review — Motion pok New Trial — Fundamental Ebkob.
    Where defendant, by supplemental petition, excepted generally to plaintiff’s cause of action as set forth in all his pleadings, and specially excepted to plaintiff’s first supplemental petition and asked for judgment on the pleadings, which tlie court in effect granted by treating the exceptions as general and special demurrers and sustaining them and on plaintiff’s failure to amend entering judgment dismissing the suit, the error was fundamental, reviewable without specific assignments; hence it was immaterial that plaintiff made no motion for new trial as the basis for his assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1684-1090; Dec. Dig. <§=> 2S5.]
    2. Pleading <§=>228 — Demurrers — Admissions.
    In determining, on exceptions, whether plaintiff’s pleadings, taken in their entirety, show a cause of action, the court must regard as true all material facts stated.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. <§=>228.]
    3. Release <§=>35 — Injuries to Peoperty— Flowage oe Land.
    Where it did not appear from plaintiff’s petition to recover for damages from an overflow of his land caused by a dam built in a creek by defendant, that the damaging accumulation of water was a continuing condition and not occurring at such intervals as would make separate consideration of successive injuries the most practicable for measuring the damages, and it appeared that the dam alone was not a nuisance, and was not located on plaintiff’s land, a former suit settled by a release by plaintiff, which recited that defendant had paid plaintiff $400, and that plaintiff agreed to deed a couple of acres of the land to defendant, and that the suit be dismissed, and _ that all complaints, claims, and causes of action not sued on were thereby released, did not bar a subsequent action for damage from overflow.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 82; Dec. Dig. <§=>35. ]
    Appeal from District Court, Fannin County; ¿Ben,’ H. Denton, Judge.
    Action by W. H. Smith against the Texas & Pacific Railway Company. From a judgment sustaining exceptions to plaintiff’s pleadings and dismissing the suit on plaintiff’s failure to amend, he appeals.
    Reversed and remanded.
    Cunningham & McMahon, of Bonham, for appellant. Head, Dillard, Smith, Maxey & Head, of Sherman, for appellee.
   HODGES, J.

In May, 1914, the appellant filed in the district court of Fannin county, his original petition, alleging, in substance, the following facts: That he was the owner of about 78 acres of land situated in Fannin county, a part of which was in the Simpson survey and a part in the Wilson Gilbert survey, and that Powder creek forms its northern boundary line; that on the —-* day of February, 1913, the defendant, the Texas & Pacific Railway Company, erected a dam across Powder creek. That by reason of the erection of this dam the channel of said creek was kept filled with water, and during the months of February, March, April, and May, 1914, the water ¡flowing down the creek would have been discharged without injury to plaintiff’s land, but was caused by the dam to run across the plaintiff’s farm, cutting two channels — one about 500 yards long and about 30 feet wide, and the other about 200 yards long and 30 yards wide — washing the soil from said channels and submerging about two more acres of plaintiff’s land. It is further alleged that by reason of the overflows and washings set out above a crop of corn growing on the land had been destroyed. The plaintiff asked for damages in the sum of $2,800.

The appellee, defendant below, in an amended original answer, replied by general and special denials, and specially pleaded that in August of 1913 the plaintiff was in possession of and claiming ownership of the same tract of land described in his petition; that long prior to that time the defendant had erected its dam across Powder creek some distance below the land of plaintiff, and was maintaining it there as a permanent structure, at the same place, of the same height, and in the same position in which it is now maintained; that the construction of this dam was prior to the year 1912; that on or about the 2d of April, 1913, the plaintiff instituted a suit in the justice court of precinct No. 1 of Fannin county, claiming damages in the sum of $150 on account of the overflow of his land and injury to the crops resulting from the erection of the dam; that it was the desire of the plaintiff and the defendant to settle all complaints and claims resulting from the erection and maintenance of the dam and the overflow of the land, and for that purpose the defendant paid to the plaintiff the sum of $400 and received a deed to the two acres of the land which had been damaged prior to that time. The instrument referred to is set out in full, and is as follows:

“Know all men by these presents: That, whereas W.'H. Smith and his wife N. J. Smith, of the said county of Fannin, state of Texas, own a certain tract of land in the J. P. Simpson survey in Fannin county along the south side of Powder creek, extending along said creek to the west margin of the road; and, whereas, the Texas & Pacific Kailway Company own a portion of said Survey on which is situated a pond known as Bonham Tank Pond; and, whereas, the waters of said pond and creek have overflowed a portion of the land owned by the said Smith, said overflow being claimed to have resulted from the negligence of the Texas & Pacific Railway Company in the construction and maintenance of its dam below said land; and whereas, the said Smith did, on or about the 2d day of April, 1913, institute a suit in the justice court, precinct No. 1, Fannin county, against the said Texas & Pacific Railway Company for $150.00, damages to said land so overflowed and the crops growing thereon, said damage being alleged to have accrued during the year 1912; and whereas it is the desire of the said Smith and the said Texas & Pacific Railway Company to settle all complaints, claims and causes of action, including the cause of action sued upon, and the said parties have agreed upon a settlement, to wit, that the Texas & Pacific Railway Company pay to the said Smith the sum of four.hundred and no/100 dollars ($400.00) and the said Smith deed to the said Texas & Pacific Railway Company the two acres of land hereinafter described, it being understood and agreed that the said suit will be dismissed at the costs of said Smith, and that all complaints, claims and causes of action .not sued upon are hereby released and discharged in consideration of said payment: Now. therefore, in pursuance of said agreement, we, W. H. Smith and N. J. Smith, the wife of the said W. H. Smith, of the county of Fannin, state of Texas, for and in consideration of the sum of four hundred and no/100 ($400.00) cash in hand paid by the Texas & Pacific Railway Company, the receipt of which is acknowledged, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Texas & Pacific Railway Company all that certain' tract and parcel of land, being a part of the J. P. Simpson survey in Fannin county, Texas, and being more particularly described as follows. [Here follows description of land not involved.]”

Other special defenses were pleaded, not, necessary to notice. In reply to this the plaintiff filed his first supplemental petition, denying some of the facts alleged, hut admitted the execution of the instrument quoted above, and made it an exhibit to his supplemental petition.

The defendant in his supplemental answer excepted generally to the plaintiff’s cause of action as set forth in all of his pleadings — both his original and supplemental petitions. It further specially excepted to the first supplemental petition because it admits the execution of the deed, and that instrument shows a release of the damages sued, for. It asked for judgment upon the ground that the pleadings show no cause of action. 'The court treated these exceptions as general and special demurrers, sustained them, and, upon the failure of the plaintiff to amend, entered a judgment dismissing the suit. Treating this order as a judgment upon the pleadings rather than a dismissal of the suit for want of the legal sufficiency of the pleadings, the error, if any, was fundamental, and must be considered, even in the absence of any specific assignments. For that reason it is immaterial that the appellant made no motion for a new trial as the basis for the assignments set out in his brief.

The only question presented in this appeal, is, Do the pleadings of the plaintiff, when taken in their entirety, show a right to recover any portion of the damages sought? In passing upon that question we must regard as true all of the material facts stated: That the dam across Powder creek was erected in February of 1913; that it so obstructed the flow of the waters through the creek during the months of February, March, April, and May of 1914 that they were diverted and caused to wash the land and destroy the crops referred to in the appellant’s original petition. These averments, if true, show an actionable injury and a right to a judgment for damages. To defeat that right the defendant relies, upon what is referred to as the “deed of release,” which it pleads, and which the supplemental petition of the plaintiff admits was executed by him as alleged. The proposition urged by the appellee is that this instrument contains the terms of a settlement of all damages to the plaintiff’s land which had resulted, or might thereafter result, from the erection and maintenance of the dam. The contention of the appellee is that, the dam being a permanent structure, its construction and the resulting injuries gave to the appellant but one cause of action, and that this cause of actipn had been adjusted in the deed relied on. As supporting that contention, the appellee refers to the case of Rosenthal v. T., B. & H. Ry. 'Co;, 79 Tex. 325, 15 S. W. 268. That suit was one to recover damages for a depreciation in the value of a lot resulting from the construction of a railroad and the operation of trains on a street in front of the property. It was alleged that the damages resulted: First, from a faulty construction of the railroad embankment so that it obstructed the flow of water, causing it to stand in pools near the lot; and, second, from the noise, dust, and smoke caused by the operation of the trains. After quoting from a Massachusetts case, Justice Gaines, in rendering the opinion, said:

“The controlling rule in actions for injuries resulting from similar nuisances would seem to be to adopt in each case that measure of damages which is calculated to ascertain, in the most certain and satisfactory manner, the compensation to which the plaintiff is entitled. When the injury is liable to occur only at long intervals, or when the nuisance is likely to be removed by any agency, the damages which have occurred only up to the time of the action will be allowed ; but if the nuisance is permanent and the injury constantly and regularly recurs, then the whole damage may be recovered at once. In a case like this the resulting depreciation in the value of the property is the safest measure of compensation. Here it may be inferred from the evidence that the injury recurs upon each considerable rainfall, and continues during a stage of offensive stagnation until the water evaporates.”

In Austin & N. W. Ry. Co. v. Anderson, 79 Tex. 427, 15 S. W. 484, 28 Am. St. Rep. 350, the plaintiff sought a recovery for damages resulting from the construction of a railroad bed and culverts in such a manner as to cause the water from ordinary rains to collect in large quantities and to be so diverted as to cause a washing of the soil from the adjacent land. The defendant pleaded that the suit was barred because filed more than two years after the construction of the roadbed and culverts. After discussing some authorities, the court said:

“We conclude from the authorities that where a nuisance is permanent and continuing the damages resulting from it should all be estimated in one suit; but where it is not permanent, but depends on accidents and contingencies, so that it is of a transient character, successive actions may be brought for injury as it occurs, and that an action for such injury would not be barred by the statute of limitation, unless the full period of the statute had run against the special injury before suit. The-building of the embankment and the culverts, as alleged was not of itself a nuisance; it was no invasion of plaintiff’s rights — they were not put on his land. They became a nuisance only at intervals by diverting water from rainfalls from its usual flow upon plaintiff’s land. The embankment and the culverts were permanent, but the nuisance was not; there was no constant and continuing injury. It may be that where land is destroyed and its value before destruction is recovered as damages, there can be but one recovery. The soil and improvements might be renewed, however, in which case other suits might lie for damage to its renewed state. But suppose the land is only injured or the crops occasionally destroyed by rains, the just and rational rule, as adopted in this state, is that successive actions may be brought for the injuries as they occur. Railway Co. v. Helsley, 62 Tex. 593. AVe agree with the court below in its holdings upon this subject.”

The same rule is announced by the Supreme Court of Iowa in Harvey v. Mason City, 129 Iowa, 465, 105 N. W. 958, 3 L. R. A. (N. S.) 973, 113 Am. St. Rep. 483, and by the Court of Civil Appeals at El Paso in So. Port. Cement Co. v. Kezer, 174 S. W. 661. In the Iowa ease the court quotes as follows from Troy v. R. R. Co., 23 N. H. 83, 55 Am. Dec. 177, a New Hampshire decision:

“Whenever the nuisance is of such character that its continuance is necessarily an injury, and where it is of a permanent character that will continue without change from any cause except human labor, there the damage is an original damage, and may be at once fully compensated.”

The court continues:

“This definition we still think correct, but a failure to carefully construe and apply it has led to some apparent inconsistencies in this and some other courts. It will be observed from a reading of the quoted paragraph that the term ‘permanent,’ so often made use of in connection with the right to recover original damages, has reference not alone to the character of the structure or the thing which produces the alleged injury, but also to the character of the injury produced by it. In other words, the structure or thing producing the injury may be as permanent and enduring as the hand of man can make it, yet if the resultant injury be temporary or intermittent, depending on future conditions which may or may not arise, the damages are continuing, and successive actions will lie for successive injuries. This thought, which is clearly implied in the quoted definition, is further elaborated in the same ' case (Troy v. R. R. Co., supra) as follows: ‘But where the continuance of such act is not necessarily injurious, and where it is necessarily of a permanent character, but may or may not be injurious, or may not be continued, then the injury to be compensated in a suit is only the damage that has happened.’ Stating the same rule in somewhat different form, it has also been said that, ‘when such structure is permanent in its character and its structure and maintenance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened, and there can be as many successive recoveries as there are successive injuries.’ ”

The judgment of the trial court can be sustained only upon the conclusion that the facts pleaded and admitted by the appellant bring this case within the rule allowing but one cause of action. It may be conceded that the dam is a permanent structure, but it does not follow that the nuisance resulting from its construction is permanent or continuing. The dam alone is not a nuisance. It was not located upon the appellant’s land, and its construction invaded no legal right of his. The nuisance arose when the waters were obstructed so as to overflow and wash the appellant’s land. In order to bring this case within the rule applied in the Rosenthal Case, we must be able to say from the fact stated that this damaging accumulation of water caused by the dam was a continuing condition, and did not occur at such intervals as would make the separate consideration of successive injuries the best and most practicable method for measuring the damages. It may be that Powder creek is a very small stream which remains dry the greater part of the time, and that the obstructed flow becomes injurious only when excessive rains fall. There is nothing in the pleadings of the appellant which indicates the contrary. If that be true, then the appellant is not confined to one cause of action, but may recover in successive suits for the injuries as they occur. The principle to be applied in cases of this character is not governed by any hard and fast rule to which the courts are required to adhere, but by the end to be accomplished — that of measuring by the most satisfactory standard the damages to which the Injured party is entitled.

For the reasons stated, the judgment is reversed, and the cause remanded.
      <g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    RAINEY v. OLD.
    (No. 1488.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 10, 1915.
    Rehearing Denied Nov. 25, 1915.)
    1. Malicious Peosecution <@=>72 — Probable Cause — Malice and Intent — Insteuction.
    In an action for malicious prosecution, an instruction that the burden was on plaintiff to establish that defendant made the complaint in the criminal proceedings without probable cause, and with malice and intent to injure plaintiff, was not bad as requiring plaintiff to prove all three elements thus depriving him of the benefit of the presumption of malice and intent which arises from the want of probable ■cause, since the want of probable cause is merely the basis for an inference of fact, and does not establish malice and intent as a matter of law.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 168-173; Dee. Dig. <@=>72.3
    2. Malicious Peosecution <@=>72 — Malice— Intent — Insteuction.
    While such instruction was open to criticism for legal redundancy, it was not misleading, as tending to inform the jury that defendant could be actuated with malice while without intent to injure plaintiff.
    [E'd. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 168-173; Dec. Dig. <@=>72.]
    3. Malicious Peosecution @=>72 — LANDLORD’S Lien — Instruction—Propriety.
    In a suit for malicious prosecution, where defendant had instituted criminal proceedings on a charge of the theft of a bale of cotton which plaintiff had sold under an alleged landlord’s lien on the crop of his tenant, but as to which defendant had a lien for certain advances to plaintiff, an instruction that the relation of landlord and tenant did not exist between plaintiff and his tenant was not objectionable because taking the issue of plaintiff’s lien from the jury, or as limiting plaintiff’s lien right to advances to the tenant only when it also covered rents, where the evidence showed that plaintiff, at the time of selling, was in the position of a mortgagee without possession or the right thereto, or that he had no landlord’s lien.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 168-173; Dec. Dig. <@=>72.3
    4. Malicious Peosecution <@=»59 —Landlord’s Lien — Collateral Issue.
    Such issue as to plaintiff’s lien was collateral to the main issue, and could be considered by the jury only on the question of plaintiff’s right to sell the cotton and defendant’s probable cause in instituting the criminal proceedings.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 125-137; Dec. Dig. <@=>59.]
    5. Landlord and Tenant <@=>110 — Growing Crop — “Abandonment.”
    Where a tenant left the land rented while the crop was yet ungathered, for the purpose of moving from the state, but contracted with a third person to gather and dispose of the crop for him, the leaving was not an “abandonment” of the crop giving the landlord the right to possession of the land and crop and to have the latter gathered and sold.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 366-369, 371; Dec. Dig. <@=>110.
    For other definitions, see Words and Phrases, First and Second Series, Abandonment.!
    6. Malicious Prosecution <@=>72 — Probable Cause — Instruction.
    In a suit for malicious prosecution, the instruction that in determining defendant’s probable cause for making the criminal complaint, the jury should consider only such facts as were known to defendant at the time he made the complaint, and that they should not consider any facts not then known to defendant which tended to, or which would, exonerate plaintiff from the charge of theft, was not misleading as limiting the jury on the question of defendant’s malice to facts known by him when instituting the criminal proceedings, when as a fact he appeared and testified against plaintiff at the trial, after ascertaining facts exonerating plaintiff.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §'§ 168-173; Dec. Dig. <@=>72.3
    7. Appeal and Eeror <@=>1068 — 1¿Harmless Error — Instruction—Cúre by Verdict.
    The refusal to charge in such suit that the jury should consider plaintiff’s attorney’s fees in defending himself against the criminal charge as an element of damages was harmless, where the jury by finding for defendant impliedly found that the essential elements of malicious prosecution, to wit, malice and want of probable cause, were not proved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dee. Dig. <@=>1068.3
    8. Appeal and Eeeoe <@=>739 — Assignment of Error — Duplicity.
    An assignment of error that the court erred in refusing to give plaintiff’s special charges numbered 1 and 2 cannot be sustained regardless of the correctness of either special charge standing alone, since such assignment must be considered as duplicitous, or as complaining that the court erred in refusing to give both charges.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3034r-3036; Dec. Dig. <@=> 739.3
    Appeal from District Court, Bowie County; W. T. Armistead, Judge.
    Action by Hugh Rainey against W. M. Old. Judgment for defendant and plaintiff appeals.
    Affirmed.
    J. S. Crumpton, of Texarkana, and O. B. Pirkey, of New Boston, for appellant. Johnson & Boswell, of New Boston, and O. A. Wheeler and J. Q. Mahaffey, both of Tex-arkana, for appellee.
   HODGES, J.

The appellant sued the ap-pellee for damages for an alleged malicious prosecution. This appeal is from a judgment in favor of the defendant below. The petition alleged, in substance, that in October, 1912, the defendant maliciously and without probable cause filed in the justice court in Bowie county a complaint, charging the plaintiff with the theft of a bale of cotton, and thereafter appeared and prosecuted the suit. The filing of this affidavit and the appearance of the defendant as a witness for the state and the final discharge of the plaintiff are admitted; but it is claimed in defense that, under the facts as known to the defendant at the time the complaint was filed, there was good cause for believing that the plaintiff had committed the offense of theft as charged, and that the defendant acted in good faith and without malice. The facts show that Rainey, the appellant, for the year 1912 had leased a tract of land from Mrs. Mollie Sturgeon which contained more land than he could cultivate; that Mrs. Sturgeon had authorized him to sublet a portion of this land to others. The second paragraph of the petition contains the following language:

“That during the spring of the year 1912 the plaintiff, Hugh Rainey, as the tenant in. possession of the said farm and also as the agent of the said Mrs. Mollie Sturgeon, the owner thereof, did sublet a certain portion of said farm, to wit, about 80 acres of land, to one Wood Richardson, who was to plant and cultivate a crop, and this plaintiff was to receive one-fourth of all the cotton and one-third of all corn raised thereon by the said Wood Richardson, said amount being the rents contracted to be paid by the said Wood Richardson to plaintiff as rents for the use of said premises for the said year.”

It is further alleged that in August following Wood Richardson, the tenant above referred to, abandoned the crop and premises, and removed from the state without paying the rents and advances due; that the plaintiff had, prior to that time, furnished supplies to the value of $16.95 to Richardson to enable him to make and gather a crop on the rented premises; that in order to protect himself plaintiff gathered about 1,500 pounds of the cotton, had it ginned and baled, and subsequently sold it for the sum of $55; that the money received from this sale was deposited in a local bank as follows: $18.75 to the credit of Mrs. Sturgeon for rents; $16.95, together with $8.70, to the plaintiff’s credit for his advances and for services in gathering the crop; and $15.60 to the credit of the defendant, Old. It is averred that the defendant, knowing these facts, did maliciously and with the intent to injure the plaintiff make the complaint, charging plaintiff with the theft of that bale of cotton. The testimony was undisputed that Richardson rented 38 acres of land, a part of the Sturgeon farm, for the year 1912, for which he was to pay the usual third and fourth of the crops grown, and that he made this contract with Rainey. It is further shown that in the early part of the year Richardson became indebted to Rainey in the sum of $16.95 for supplies and money. It is also undisputed that the defendant, Old, sold Rainey a team, and furnished him supplies, amounting in the aggregate to between $150 and $200, to enable him to cultivate the rented premises, and that Old took as security a mortgage on the crop of Richardson and the stock sold. During the latter part of August or the first of September, after the crops were grown, but before harvesting began, Richardson announced his purpose of moving to the state of Louisiana, and had a settlement with Rainey, which resulted in the admission by Richardson of a debt due Rainey of $16.95. The evidence shows that before leaving the state Richardson entered into a contract with one Tom Collins, whereby he engaged the latter to gather the cotton crop at the customary price for such work and to turn the cotton over to the defendant, Old. Rainey objected to Collins’ going on the premises and taking possession of the crop, but he and Old subsequently agreed upon one Edgar Graham as the party who should take charge of the crop and gather it. According to the testimony offered by Old, when Richardson left he was notified of that fact by Rainey, who suggested that he (Old) take charge of the crop. This is disputed by Rainey. They both agree, however, that Graham was subsequently agreed upon as the proper party to gather the cotton, that Graham did gather a part of the first bale, and Rainey and his family a part. According to the testimony offered by Old, Rainey was hired to pick the cotton. This is also disputed by Rainey. But it is undisputed that Old paid Graham for his services in gathering the crop, and tendered payment to Rainey. Old says he employed Rainey to haul the bale of cotton to the gin. It was carried to the gin by Rainey the next day after this conversation took place. At Rainey’s instance the cotton was branded “Rainey & Richardson.” Upon learning that fact, Old objected, and an altercation took place between him and Rai-ney, resulting in some bad feeling. The next day Rainey, without the knowledge or consent of Old, carried the cotton to market and sold it and deposited the money in the manner set out in his pleading. Upon learning that Rainey had sold the cotton, Old consulted the assistant county attorney, with the view of prosecuting Rainey for disposing of mortgaged property. He was informed that such a prosecution would not lie; that the facts did not show that offense. The assistant county attorney informed Old that if Rainey was guilty of anything, it was theft. Old testifies that the attorney advised him to make a complaint to that effect. The attorney denied having given any such advice. After the complaint had been made, Rainey was arrested in a formal way, and after the cause remained upon the docket two or three weeks, an examination was held and he was discharged. That ended the prosecution.

After a preliminary statement and definitions, the court gave as a part of his instructions to the jury the following:

“(7) You are further charged as the law applicable to this case that before the plaintiff can recover, the burden is upon him to show, by a preponderance of the evidence, that there was not a probable cause for the making of the said complaint by the defendant charging the plaintiff with theft, and without probable cause the said defendant, W. M. Old, was actuated by malice, with intent to injure the plaintiff, Hugh Rainey, when he made said complaint against him, charging him with the theft of the cotton, and prosecuted him therefor, if he did so.
“(8) In this connection you are further charged that malice cannot be inferred from the fact that a complaint was made by the said W. M. Old against the said Rainey, nor can the want of probable cause be inferred from the discharge of the plaintiff, Hugh Rainey, on the charge of theft, because both the want of probable cause and malice, as above defined, must be established by the plaintiff by a preponderance of the evidence before he can recover.
“(9) If under the foregoing instructions you are satisfied from a preponderance of the evidence that the defendant, W. M. 01d; was actuated by malice in making the complaint of theft and prosecuting the same as alleged, and the same was without probable cause, the plaintiff is entitled to recover such actual damages,” etc.

The appellant complains that these instructions were erroneous in imposing upon him the duty of establishing “malice and an intent to injure” in addition to the want of probable cause. The argument is made that “malice and an intent to injure” may be inferred from the absence of a probable cause for the prosecution, and for that reason proof of both malice and the absence of probable cause is not required. The rule, as stated in the cases referred to below, imposes upon the plaintiff, in actions of this character the burden of proving both the absence' of a probable cause for the prosecution and malice on the part of the prosecutor. Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Ramsey v. Arrott, 64 Tex. 320; 26 Cyc. pp. 23, 24, 50 and 51, and cases cited in notes.

It is true, as stated by counsel for appellant, malice may be inferred from the want of probable'cause; but the want of probable cause is merely the basis for an inference of ■ fact, and malice does not follow as a matter of law.

In the seventh paragraph quoted above the court tells the jury that the burden rested upon the plaintiff to prove “that the defendant was actuated by malice with intent to injure,” etc. The-intent to injure is an essential part of the definition of malice, and the court had, in substance, so instructed the jury. While the language used amounts to legal redundancy, it is not likely that it so misled the jury as to cause the rendition of a verdict against the appellant. It is hardly probable that the jury were convinced that the defendant was actuated by malice, but that he had no intent to injure. In the ninth paragraph, where an application of the law is made to the facts, the jury were told to find for the appellant if they believed the defendant was actuated by malice in making the complaint, and that the same was without probable cause, omitting the words “with intent to injure,” which appears in paragraph 7.

At the instance of the appellee the court gave the following special charge:

“In this case I charge that the relation of landlord and tenant did not exist between Hugh Rainey and Wood Richardson so as to give Hugh Rainey a landlord’s lien on Richardson’s crop for the year 1912 to secure advances made to Richardson by Hugh Rainey during said year.”

The objection to this charge is:

First, “that the issue as to whether or not the plaintiff had waived his lien for advances was controverted and an issue for the jury; second, that the charge was misleading and liable to confuse the jury in limiting the rights of the plaintiff in said crops to advances only when the uncontroverted proof shows that he had a lien for rents.”

The existence or nonexistence of a landlord’s lien was, of course, merely collateral to the main issue, and could be considered by the jury only in passing upon Rainey’s right to sell the cotton and in viewing the circumstances as they may have appeared to Old when he made the complaint. As the record stands, it was immaterial whether Rainey had a lien upon Richardson’s cotton or not, in so far as his legal right to sell it is concerned. If it be conceded that he did have a landlord’s lien, he occupied the status of a mortgagee out of possession, and holding under conditions which did not give him the right to assume possession.

Counsel for the appellant contend that Richardson had abandoned the premises and his crops, and that this authorized Rainey, as the landlord, to take possession of both the premises and the crops, and to have the latter gathered and sold. The proposition that the landlord may take possession of abandoned crops and exercise such rights is doubtless correct; but that state of facts does not exist in this instance. The undisputed testimony shows that about the last of August or the first of September Richardson left the premises and moved to another state; but the testimony is equally as conclusive in showing that, before leaving, Richardson contracted with Tom Collins to gather his crop and turn it over to Old. The vacation of the premises by Richardson is not, of itself, equivalent to an abandonment of the crops. He had a right to place an agent in charge of the crops for the purpose of harvesting them. Collins was prevented from carrying out the undertaking by the opposition of the appellant, who objected to Collins’ going on the premises. There is no evidence that Collins was an unfit person, or that there was any just ground for the opposition. The contract between Collins and Richardson was not a subletting of the premises which required the assent of Richardson’s landlord, but was a mere contract of employment, Collins to be merely a hired hand, Richardson’s representative, and not a tenant on the premises. That the cotton when gathered was by Richardson’s order to be delivered to Old was also undisputed. This gave to Old, as a matter of law, the right of possession, subject to such claims as might exist in the hands of other parties. Rainey would have no more right to forcibly and without legal process take the cotton from the possession of one to whom Richardson had consigned it than he would to take it from Richardson. It is true that the issue as to whether or not Rainey-had waived whatever lien he may have held for the advances made to Richardson was controverted, and it may he that the court invaded the province of the jury as to that fact. But had the court told the jury that Rainey had no legal right to the possession of the cotton, he would not have exceeded the proof.

Counsel for appellee contend that both the pleadings and the evidence show that Rainey was not the landlord of Richardson. They point to that portion of the pleadings which we have quoted, wherein Rainey alleges that he rented as the agent of Mrs. Sturgeon. They also refer to the following portion of Rainey’s testimony:

“I rented to him, Richardson, as the agent of Mrs. Sturgeon, 38 acres of land for him to work that year. Our agreement was that he was to have those 38 acres. I was the agent for that land for Mrs. Sturgeon, because I had rented the land from her and had to see after it. In renting for her I was her agent.”

This, it is contended, shows conclusively that Rainey rented to Richardson for Mrs. Sturgeon and as her agent. If that be true, then he was not the landlord of Richardson. Viewed in either light, we think the assignment should be overruled.

At the instance of the appellee the court gave the following special charge:

‘‘In determining whether or not W. M. Old had probable cause for making the complaint against plaintiff, you can take into consideration only such facts as were known to W. M. Old at the time he made the complaint, and cannot take into consideration any facts not then known to said W. M. Old which tended to exonerate, or which do exonerate, the plaintiff from the charge that he committed theft in hauling the bale of cotton to market and selling- the same.”

The objection assigned is:

“Because the same is misleading, and the purpose of it is to limit the province of the jury as to the question of malice to the facts in possession of defendant at the time of making the complaint, when the proof shows that, after ascertaining all the facts incident thereto, then some three weeks thereafter he followed up said prosecution by appearing in court and testifying against the plaintiff.”

It will be observed that the court limits the jury to the consideration of the facts stated only in determining the issue of probable cause for making the complaint. It places no restrictions upon the jury in considering all the material facts in passing upon Old’s conduct in subsequently appearing as a witness in the ease. The charge also is confined to the issue of probable cause, and has no reference to malice. It was not contended, in the objection urged before the trial court, that Old acted hastily and without first having used reasonable diligence to ascertain all of the facts which would tend to exonerate appellant. The assignment is overruled.

The appellant also contends that the court erred in refusing to charge the jury to consider attorney’s fees paid by Rainey in defending himself against the criminal prosecution as an element of damages. That question is presented in objections to the main charge and in assignments based upon the refusal of the court to give certain special charges requested by the appellant. Inasmuch as the verdict of the jury should properly be referred to a finding that the two important elements necessary to support a suit of this character—the want of probable cause and malice—were not shown, whatever defect there may have been in the charge of the court on the measure of damages is of no importance. It is inconceivable that under the testimony submitted on the trial below the verdict against the appellant should be referred to the failure of the court to affirmatively charge that attorney’s fees were recoverable as damages. The contention cannot be sustained.

There are other assignments, complaining that the court refused certain special charges ;■ one, that the court refused to give plaintiff’s special charges numbered 1 and 2. Without reference to the correctness of either of these charges standing alone, the assignment cannot be sustained. We must either treat it duplicitous !.n presenting more than one proposition or question, or as complaining that the court erred in refusing to give both charges. Viewed either way, the assignment cannot be sustained.

The fourth assignment is based upon an incorrect quotation from the record, and the proposition urged is not relevant.

There are other questions presented, not necessary to be discussed.

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


text:
    SANDERS et al. v. BLEDSOE.
    (No. 1506.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 9, 1915.
    On Motion for Rehearing, Nov. 25, 1915.)
    1. Appeal and Ekkob <§=»100 — Temporary Injunction—Oeder Dissolving.
    An order overruling a motion to dissolve a temporary writ of injunction is not appealable within Rev. St. 1911, art. 4644.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 67CM380; Dec. Dig. <©=» 100.]
    On Motion for Rehearing.
    2. Appeal and Error @=j790 — Review — Costs—Adjudication.
    Where the continuing of a final injunction to a specified date as prayed for in the petition constituted a final disposition of the case, and there was an appeal from such order, but the injunction had expired in the meantime by its own limitation, leaving nothing but the question of costs to be determined, the Court of Civil Appeals will not entertain jurisdiction.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 47, 3132, 4383, 4384; Dec. Dig. @=^790.]
    Appeal from ’ District Court, Harrison County; H. T. Lyttleton, Judge.

      Action between John C. Sanders and others and W. IP. Bledsoe. Appeal from an order overruling a motion to dissolve a temporary writ of injunction.
    Case dismissed.
    See, also, 173 S. W. 539.
    Lane & Lane, of Marshall, and G. W. Bar-cus, of Waco, for appellants. J. H. T. Bibb, of Marshall, for appellee.
   HODGES, J.

The record shows that this appeal is from an order overruling a motion to dissolve a temporary writ of injunction. Orders of this kind are not ap-pealable within the provisions of the statute. Article 4644, Rev. Civ. St. 1911; Welborn v. Collier, 151 S. W. 655. This court is without jurisdiction, and the appeal is therefore dismissed.

On Motion for Rehearing.

At a former day of this term we dismissed this appeal, upon the ground that it was prosecuted from a nonappealable order. In 'their motion for a rehearing, however, counsel for appellants have convinced us that it is from a final judgment, and not from an order overruling a motion to dissolve a temporary injunction. We were mislead by the novel proceeding which the judgment shows took place upon the trial. The judgment contains the following recitals:

“And thereupon came on for hearing the defendants’ motion to dissolve said injunction, and the court, after having- heard said motion and the evidence and the argument of counsel, is of the opinion that the intervener, the National Grand Lodge of United Brothers of Friendship and Sisters of the Mysterious Ten of North America, South America, Europe, Asia, and Africa, is the owner of the judgment involved herein, and through its National Grand Master and finance committee are entitled to control said judgment, and that the intervener and the plaintiff, W. F. Bledsoe, are entitled to the relief prayed for.
1 “It is therefore ordered,. adjudged, and decreed by the court that said motion of the defendants to dissolve said injunction be, and the same is hereby, overruled, to which ruling the defendants then and there excepted.
“It is further ordered, adjudged, and decreed that the injunction heretofore granted on the 27th day of November, 1914, as modified on the 26th day of February, 1915, be, and the same is, continued in full force and effect until the 1st day of August, 1915, to which ruling of the court the defendants then and there excepted.
“It is further ordered, however, that this judgment shall not, in any wise, affect the rights of the National Grand Lodge of the United Brothers of Friendship, etc., or the proper officers thereof, from enforcing or collecting said judgment at any time.”

It is only by reference to the plaintiff’s original petition that it could be ascertained that continuing in force the temporary order theretofore granted until the 1st day of August, 1915, was a final disposition of the ease, and not the mere continuation of a temporary restraining order, leaving an application for a perpetual injunction open for the final hearing. We find, however, that the plaintiff in his original petition only asked for an injunction until the 15th day of August. It is evident from the terms of the judgment that the injunction has expired by limitation, and the question raised on this appeal can be considered only for the purpose of determining which party is liable for costs. This court will not entertain jurisdiction for that purpose. Robinson v. State, 87 Tex. 562, 29 S. W. 649.

The judgment heretofore entered, dismissing the appeal, will be set aside, and the case dismissed.
      <@=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    RAY v. CARTWRIGHT.
    (No. 1526.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 26, 1915.
    Rehearing Denied Dec. 16, 1915.)
    1. Set-Oee and Countekclaim ®=»44t--Joint Liability.
    In a suit on a note a pleading in set-off and reconvention for various items including damages for breach of a contract made with defendant by “plaintiff and other interested parties” was subject to demurrer, as a joint debt or liability cannot be set off against a separate debt nor a separate debt against a joint one.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 82-96, 98, 99; Dec. Dig. <@=>44.]
    2. Bills and Notes <@=>473 — Equitable Defenses — Pleading.
    In a suit on a note an answer which failed in its object of setting up a counterclaim could not be held good as stating an equitable remedy independent of the statute allowing offsets, where it failed to aver insolvency of the plaintiff.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1503-1507,1555; Dec. Dig. <©=>473.]
    3. Set-Oee and Countekclaim <©=^35 — Un-liquidated Damages.
    Under Rev. St. art. 1329, forbidding a set-off for an unliquidated demand in a suit on a certain demand, defendant in a suit on a note could not set off a demand for unliquidated damages founded on breach of independent covenant..
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 58-64; Dec. Dig. '@¿=>35.]
    Appeal from Shelby County Court; J. S. Stephenson, Special Judge.
    Action by R. K. Cartwright against R. M. Ray. From a judgment sustaining demurrer to the answer, defendant appeals.
    Affirmed.
    S. H. Sanders, of Center, for appellant. T. H. Postell, of Center, for appellee.
   LEVY, J.

This suit was by appellee in the justice court on a note for $50 given to him by appellant for the rent for the year 1914 of appellee’s half interest in a farm. From a judgment against him in the justice court the appellant appealed to the county court. Appellant admitted the execution of the note to appellee, but pleaded in set-off and reconvention a counterclaim embracing items of improvements made on the farm in December, 1912, and at various stated times iñ 1913, to the value of $178.60, which was alleged to be owing him, in the nature of damages, for breach, previous to the making of the rent note, of a contract of sale of the land made in 1912 with appellant by “plaintiff and other interested parties.” Both the justice and the county courts sustained a demurrer to this pleading of appellant, and the appeal is to revise the ruling of the county court sustaining the demurrer.

First, the appellee has filed a motion to perfect the transcript by including therein the omitted original pleading of counterclaim filed by appellant. In view of the trial judge’s order appearing in the motion upon and respecting the original pleading of appellant, it is believed this court is confined, in determining the demurrer, to the perfected transcript showing the original pleading of the appellant.

It is concluded that the court did not err in sustaining the demurrer to the appellant’s original pleading in set-off and reconvention. According to the pleading the claim of appellant was not a separate debt or liability, due in the same right with the debt sued on, against appellee, but was a joint claim or liability against appellee and “other interested parties,” not parties to the record, for damages for breach of a previous contract independent of the subsequent rental note. It is the rule that a joint debt or liability cannot be set off against a separate debt nor a separate debt against a joint one. Allbright et al. v. Aldrich, Adm’r, 2 Tex. 166; Wise v. Ferguson, 138 S. W. 816. And as an equitable remedy, independent of the statutes allowing offsets, it fails in sufficiency of allegation for the want of averment of insolvency of the appellee. Henderson v. Gilliam, 12 Tex. 72; Hanehett v. Gray, 7 Tex. 649. And under the statutes the defendant is not permitted to set off against a certain demand unliquidated damages founded on breach of independent covenant. Article 1329, R. S.; Carothers v. Thorp, 21 Tex. 359.

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