author: RAINEY, C. J.

text:
    WILLETT et al. v. BROWNING ENGINEERING CO.
    (No. 7418.)
    (Court of Civil Appeals of Texas. Dallas.
    April 29, 1916.
    Rehearing Denied May 27, 1916.)
    1. Sales <&wkey;38(2) — Remedies oe Purchaser-Misrepresentation — 1 ‘Fraud . ’ ’
    Where a seller makes material misrepresentations, intending them to be relied on by the purchaser, the seller is guilty of “fraud,” though he believed the representations and the purchaser, having acted thereon, may recover.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 66; Dec. Dig. t&wkey;38(2).
    For other definitions, see Words and Phrases, First and Second Series, Fraud.]
    2. Sales <&wkey;355(l) — Remedies oe Buyer-Pleading— Sufficiency.
    In action on a note, given for the price of machinery to be used in a gravel pit, defendant’s answer averred that plaintiff’s agents in making the sale misrepresented the character of the machinery; that they were familiar with the pit, and that the machines purchased would perform the work expected; that defendants were unfamiliar with the machinery; and that they purchased relying on such representation. The answer further prayed a recovery of sums expended in attempting to operate the machinery and of amounts already paid. Held, that the answer was sufficient to apprise plaintiff of the defense of fraudulent misrepresentations, and to warrant the admission of parol evidence thereof, though the contract was written.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1025, 1027-1035; Dec. Dig. &wkey;355(l)J
    3. Sales <&wkey;355(l) — Actions — Breach oe Warranty.
    In such action, defendants’ answer held sufficient to warrant proof of breach of warranty.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1025, 1027-1035; Dec. Dig. &wkey;355(l).]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by the Browning Engineering Company against W. E. Willett and others, who counterclaimed. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Burgess, Burgess, Germany & Chrestman, of Dallas, for appellants. Thompson, Knight, Baker & Harris, of Dallas, for appellee.
   RAINEY, C. J.

Appellee sued appellants to recover on promissory notes given for machinery and to foreclose a lien given to secure the purchase price of same. Appellants answered, admitting the execution of the notes and the lien, but denied liability; that the contract of purchase of said machinery was procured by fraud and misrepresentations of plaintiff, and by reason thereof sought to recover back the purchase money paid on said machinery, and to recover damages for loss of profits by reason of tbe machinery failing to come up to the representations. The trial court sustained demurrers to said answer, and, the defendant refusing to amend, the cause was dismissed, from which action an appeal was taken.

Omitting formal parts, appellant’s answer made in part the following allegations, to wit:

“That plaintiff, through its representative and agent, was advised by defendants that defendants were wholly inexperienced in the handling of Browning Engineering Company’s machinery of the kind which plaintiff sought to sell them, and would have to rely Upon the representation made by said agents and representatives, whom defendants informed as to the place and kind of work they desired to do with said machinery and how the same was to be operated by defendants; that plaintiff was thfen and there advised of the character and nature of strippings and of gravel to be worked and removed by the proposed machinery, whereupon said agent told defendants that he knew the pit and the condition surrounding the same, and that it was unnecessary for him to go upon the ground; that the machinery would do the work in said pit in an efficient manner; that the plaintiff’s specifications and warranty in writing, heretofore referred to, covered the specifications of a part only of said machinery and the capacity thereof, but that plaintiff’s agent and representative made specific and direct representations to this defendant as to the work which plaintiff's machinery would do; that said plaintiff then and there, as a part of the contract, and directly influencing and intending to influence these defendants to enter upon said contract with, plaintiff, represented to defendants that said bucket and crane and every part of said machinery were strong, of heavy and good material, and were capable of and would strip and load not less than nine cars of gravel per day in the pit where the defendant was to use the same, and would handle the same at no greater cost than 3 cents per yard, which was a proper and reasonable cost of such work; that said representations were made by plaintiff and plaintiff’s agent as a guaranty and warranty of said bucket and crane, as well as every part of said machinery, and here defendants believed such representations and relied thereon; that, among other things not necessary herein to allege, said specifications and warranties on tbe part of plaintiff were to the effect that said locomotive crane would raise and rotate 11,500 pounds while running free on the track at a radius of 20 feet in working at the work for which it was purchased to do, to wit, in the gravel pit herein-before mentioned, and the defendants believed such specifications and warranties, and relied thereon; that plaintiff further warranted and represented and guaranteed to defendants that the water tank would supply the crane for a day without refilling; that the plaintiff and its agents further warranted, represented, and specified as a part of said contract that the hoisting, rotating, and traveling of said crane and bucket could be done simultaneously, one man controlling all tbe operations thereof, which defendants believed and relied upon.”

Tbe petition in section 11, subds. 1, 2, further alleges:

“(1) That, as well known to plaintiff and plaintiff’s agents and representatives, defendants had leased certain gravel pit in Dallas county, west of the city of Dallas, in defendant’s firm name of Acme Gravel Company, as co-partners, which gravel pit was known to plaintiff’s agent prior to and at the time defendants purchased said machinery, which said agent then and there knew the condition of the ground and the kind of work intended by these defendants for said machine to do, and then and there, as an inducement to these defendants to enter 'into said contract, represented to them that said machine would meet the specifications and the capacity and do the work successfully and satisfactorily upon and in that particular work and place, and these defendants believed and they relied upon, the representations, warranties, and guaranties made by said agents and representatives, and, relying thereon, entered into the contract as hereinbefore set out.
“(2) That, with full knowledge of all these conditions as well as defendants’ lack of knowledge of said machinery and knowing that defendants were relying thereon, plaintiff’s agents made such representations and warranties concerning said machinery, and these defendants In good faith, and relying upon said representations and warranties, entered upon said work after the machine was received in Dallas, expended their money in setting up the machine and transporting it to said gravel pit, in the sum of about $100, after which time they undertook to operate tbe same, employing labor, buying fuel, oil, etc., and expending all such sums of money as was necessary to fit said machine out for the woi’k and to operate the same as it was intended. They expended $273.87 for fuel, $1,-363.29 for labor, $19.63 fo-r oil, $273.88 for repairs, and in' addition thereto expended their own time for more than 90 days, which was the reasonable value of $10 per day, or a total of $900.”

In other sections and paragraphs the petition alleges the misrepresentations made and the damages sustained, and for which appellant seeks relief.

The action of the court in sustaining plaintiff’s demurrers 1, 2, 3, and 6 is assigned as error by appellant, which demurrers are as follows: (1) It excepts to all verbal specifications, guaranties, warranties, and representations alleged to have been made to defendants prior to or contemporaneous with the written contracts sued on, and says that no facts are alleged showing them to he part of the contract in question, or effective in any wise to qualify, alter, or vary the terms of the written instruments, and of this it prays judgment. (2) It excepts to all verbal specifications, guaranties, warranties, and representations subsequent to the execution of the written contract sued on, and says that no facts are alleged showing them to be based upon any sufficient consideration, or constituting same any part of the contract in question, or effective in any wise to qualify, limit, vary, or alter the said contract, and of this it prays judgment. (3) It excepts to the allegations made as to the knowledge of the plaintiff as to the character of the work proposed to be done by the machinery purchased from it by defendants as being immaterial and in no wise effective to modify, vary, or enlarge the contract sued on, or the obligations of the plaintiff thereunder, and of this it prays judgment. (6) It excepts to the allegations as to divers breaches of warranty by plaintiff, for that the alleged warranties and guaranties relied on, if verbal, constitute no part of the contract sued on, and, if contained in the contract sued on, are not pleaded with such definiteness, and certainty as to apprise the plaintiff of the provisions of the contract supposed to embrace tbe obligations claimed, and of this prays judgment..

The proposition submitted by appellant is:

“When fraud and false representations are employed by a seller to secure a contract of purchase from a purchaser, the facts rest in parol, and may be shown by parol evidence. In such cases, the general rule that parol evidence is not admissible to vary or contradict a written instrument does not apply.”

Appellee, in effect, concedes this proposition, but submits the following counter proposition:

“In the absence of pleadings properly charging fraud and false representations in the procuring of the execution of a contract of purchase, no complaint properly lies to the action of the court in holding, upon exception, that such issues are not in the case.”

While the appellants in their answer do not use the words “false” and “fraudulent,” they use language equivalent thereto. They, in effect, charge that appellee’s agent was informed of their inexperience in the handling of that kind of machinery, and would have to rely upon the representations made by him; that said agent was informed as to the place and kind of work they desired to do with said machinery, and how the same was to be operated by defendants, and was advised of the character and nature of the stripping and gravel to be removed, whereupon said agent told them that he knew the pit and the conditions surrounding the same, and it was unnecessary for him to go upon the ground, and that the machinery would do the work in said pit in an efficient manner; that the written specifications and warranties given by appellee only covered in part, but the agent made direct representations as to what the machinery would do; “that said plaintiff then and there, as a part of the contract, and directly influencing, and intending to influence, these defendants to enter upon said contract with plaintiff,” setting forth the representations of the capacity and strength of the machinery; that said representations were made as guaranties and warranties, which were believed by defendants and relied on by them; that in effect said warranties and guaranties had failed, and the machinery had failed to perform the services it was purchased to do. The object of pleading is to advise the opposite party of the, nature of the cause of action or defense; that is, there must be an explicit statement of facts—

“that tbe defendant may know what he is called upon to answer, and be enabled to make the proper defense, and that the tribunal having cognizance of the controversy may be apprised of the matter at issue, and be enabled to administer the proper remedial justice.” Towne, Tex. Pleading.

This rule is applicable to any defense pleaded by defendant. Here the appellant, in effect, pleaded a legal fraud, sufficient to apprise the appellee of what facts he intended to rely on and of what relief he sought. Where a purchase is made and the seller makes material representations that are not true, but relied on by the purchaser, it is immaterial whether the seller believed them to be'true or not; if the purchaser relied thereon and is damaged, he is entitled to recover therefor, as such is a legal fraud. Kirby v. Thurmond, 152 S. W. 1102; Ranger v. I-Iearne, 41 Tex. 258.

Besides the defense of misrepresentations, the answer sought relief for breach of warranty. The allegations for breach of warranty were sufficient to admit proof.

The court erred in sustaining demurrers to the petition, and the cause is reversed and remanded.
      <&wkey;For other oases see same topic ana KJ5Y-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    BROUGHTON et al. v. GULF, C. & S. F. RY. CO. et al.
    (No. 7167.)
    (Court of Civil Appeals of Texas. Galveston.
    April 10, 1916.
    Rehearing Denied May 18, 1916.)
    1. Raileoads &wkey;400(l) — Negligence—Juey Question.
    Evidence held to present a question for the jury as to whether a railroad company operating its line on a street was negligent in driving cars against standing cars with such force as to cause such standing cars to strike plaintiff, who was crossing the track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365, 1367; Dee. Dig. &wkey;400(l).]
    2. Raileoads @=>400(10) — Contributory Negligence — Jtjky Question.
    Evidence held not to show that plaintiff was. as a matter of law, guilty of contributory negligence in crossing a railroad track near standing cars, which were struck by other cars and driven against him.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. § 1377; Dec. Dig. @=>400(10).]
    3. Raileoads @=>262 — Personal Injuries— Diability oe Company Peemitting Use by Other Dines.
    A railroad permitting the connecting carrier to use its tracks in delivering loaded cars, as required by Rev. St. 1911, arts. 6687, 6688, is not liable for injuries caused by the negligence of such connecting carrier on its track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 831, 832; Dec. Dig. &wkey;>262.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Action by W. IT. Broughton and another against the Gulf, Colorado & Santa Fé Railway Company and another. Judgment for defendants, and plaintiffs appeal.
    Affirmed in part, and reversed in part.
    J. W. Conger and Krause & Wilson, all of Bay City, for appellants. Terry, Cavin & Mills, A. H. Culwell, and John G. Gregg, all of Galveston, for appellee Gulf, C.-& S. F. Ry. Co. Gaines & Corbett, of Bay City, and Claude Pollard and E. IT. Crenshaw, Jr., all of Kingsville, for appellee Andrews.
   McMEANS, J.

W. H. Broughton, for himself and as next friend for his minor son, Ira Broughton, brought this suit against the Gulf, Colorado & Santa Fé Railway Company and the St. Louis, Brownsville & Mexico Railway Company, to recover damages on account of injuries received by his said minor son, a boy of about 13 years of age, alleged to have resulted from the negligence of the defendants. The recovery sought was $25,600, apportioned as follows: $20,000 for the boy for the personal injuries sustained, $5,000 for the father on account of the loss of his son’s services during minority, and $600 for medical expenses, etc. The statement of the pleadings of the plaintiffs as set out in their brief is accepted by the defendants as being substantially accurate and is adopted by us.

Plaintiffs alleged that the defendants, Gulf, Colorado & Santa Fé Railway Company, a corporation incorporated, organized, and existing under and by virtue of a charter from the state of Texas, owned and operated a line of railway through Matagorda county and the city of Bay City, Tex. (being an incorporated town), entering the corporate limits of the said city on Avenue J, at the north side of the city, and running practically north and south to First street; that said Avenue J was one of the public streets of the city, dedicated to the public (thus shown to have been dedicated by the map and plat of the said city of record), and that said public street had been accepted and used by the public both prior to and ever since the defendant Gulf, Colorado & Santa Fé Railway Company had built and constructed its tracks, both main line and switches, thereon; and that the public, with the legal right and with the knowledge and consent of the defendants, Gulf, Colorado & Santa Fé Railway Company and Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company, used said public street and the spaces between the tracks of the defendant Gulf, Colorado & Santa Fé Railway Company as a walkway at all times, both night and day.

Plaintiffs further alleged that the defendant St. Louis, Brownsville & Mexico Railway Company is a corporation duly organized and existing under the laws of the state of Texas, and owns and operates a line of railway, by and through its receiver, Frank Andrews, in and through Bay City and Mata-gorda couni,., Tex., entering the city of Bay City on the west on First street, and continuing through the said city on First street to Avenue J, where it crosses the line of railway owned by the defendant Gulf, 'Colorado & Santa Fé Railway Company; that the said railway companies have and own jointly the necessary connecting tracks and switches to enable them to make transfers from one road to the other as connecting lines; that on April 6, 1914, the defendant Frank Andrews, receiver for the St. Louis, Brownsville & Mexico Railway Company, having several cars of freight to deliver to its connecting line, the Gulf, Colorado & Santa Fé Railway Company, entered with its train of cars upon the line of the said defendant ISanta Fé Company, backing the train of cars upon the said main line and switches of the said company from its entry thereon at about Second street to and across Third, Fourth, Fifth, Sixth, Seventh, and Eighth streets, and intervening blocks; that one of the servants of the defendant Gulf, Colorado & Santa Fé Railway Company, at the south line of Sixth street (running east and west and lying at right angles with Avenue J), seeing the trains of cars being backed by the defendant St. Louis, Brownsville & Mexico Railway Company, opened the switch, and permitted said crew to enter with their train without the necessity of making a stop, and that said train was backed into said switch and across 'Sixth, Seventh, and Eighth streets and the block intervening at a reckless rate of speed of not less than 15 miles per hour, and without giving signal or warning of any kind, and without having a lookout upon said train to warn pedestrians or persons who might- be upon the track and in danger from the said train ; that the only persons in charge of said train, the conductor and brakeman, alighted from the said train at the south line of Sixth street and permitted the said train to pass on at such reckless rate of speed from Sixth street to and across Seventh and Eighth unattended, and further alleging that said defendant Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company, entered the tracks of the defendant Gulf, Colorado & Santa Fé Railway Company, under and by virtue of a contract and agreement with said company and with their consent and acquiescence.

Plaintiffs further alleged that the plaintiff Ira Broughton, a boy about 13 years of age, was en route from the business portion of the city of Bay City to his home, and traveling east on Seventh street he reached Avenue J, entering upon the said avenue at its juncture with Seventh street, he turned on Avenue J, going a short distance in this direction, when he saw coming from the north on the Gulf, Colorado & Santa Fé main track a train of cals, and believing it would be less dangerous to cross over the side track running parallel with the main line he crossed such side track just to the south of some two or three box cars standing thereon, and proceeding north on the east side of said cars in the spaces between the tracks to the north end of said cars, at which point he stopped to await the passing of the train going south which at that time was just opposite to where he stood only momentarily. Just at this time the train being backed in on the said track by the defendant St. Louis, Brownsville & Mexico Railway Company at a dangerous and reckless rate of speed, without a lookout, and without any warning whatever, collided with the cars standing upon the said side track, causing the cars to collide with the plaintiff Ira Broughton (who had momentarily stopped to await the passing of the other train from the north, as stated), knocking him down and running over his left foot, badly crushing the same, so that it was necessary to amputate it. Further, that, the plaintiff Ira Broughton’s attention was called to the passing train from the north, which he sought to' avoid, and the train from the south, being backed in without any warning whatever, did not attract his attention; that he had, upon entering the said tracks upon Avenue J, looked both to the north and to the south, and saw coming from the north some five blocks away the said Santa Fé train, but saw no train coming from the south.

A general demurrer to plaintiffs’ petition, urged by the Gulf, Colorado & Santa Fé Railway Company, was sustained by the court, and that defendant was dismissed from the suit, to all of which plaintiffs excepted. The case then proceeded to trial before a jury as between the plaintiffs and the defendant, St. Louis, Brownsville & Mexico Railway Company, and when the introduction of testimony had been concluded the court peremptorily instructed the jury to return a verdict for the defendant, which was done, and thereon a judgment was rendered for defendant, from which the plaintiffs have appealed.

Appellants by their first and second assignments of error complain of the action of the court in peremptorily instructing the jury to return a verdict in favor of the defendant. Both the Gulf, Colorado & Santa Fé Railway Company and the St. Louis, Brownsville & Mexico Railway Company have lines of railway in the city of Bay City and are connecting carriers, and jointly own a transfer track upon which shipments oi freight, brought into Bay City by one carrier and destined for points on the line of the other, are delivered. On April 6, 1914, the St. Louis, Brownsville & Mexico Railway Company brought into Bay City several carloads of freight destined for points on the line of the Gulf, Colorado & Santa Fé Railway Company, which, as was its duty to do, it delivered to said last-named railway company. In making the delivery the delivering carrier, by means of a locomotive, pushed the cars containing the freight over the transfer track and upon the track of the receiving carrier, and thence along the track of the latter upon Avenue J in said city, a public street and thoroughfare upon which the track was laid, until it reached a point on said avenue where there were several side or switch tracks, and had reached a point between Seventh and Eighth streets, which crossed Avenue J at right angles, when the cars of freight so pushed came in contact with two or more freight cars standing there. A short time before the cars came in' contact, Ira Broughton, a boy 13 years of age, on his way home, entered upon Avenue J from Seventh street, and proceeding north-wardly on Avenue J walked upon or near the railway track until he reached a point south of and near the two or more freight cars standing on the side track, when he changed his course, and passing to the eastward of and alongside the cars, stepped on or upon the edge of the track just north of the cars, and was standing there when the cars being delivered, coming from the south, came in contact with said standing cars, causing them to be thrown against young Broughton, thereby inflicting the injuries for which he seeks recovery.

Upon the issue of negligence of the defendant, the delivering carrier, as the proximate cause of the plaintiff’s injuries, testimony was introduced tending to prove that the tracks, and spaces between, of the Gulf, Colorado & Santa Fé Railway Company on Avenue J, and at the place where the boy was injured, were public thoroughfares, and used generally by the public as such, and to such an extent as to imply knowledge by and permission of the railway company to such use; that in pushing the cars to the place where the accident occurred the rate of speed at which they were moved was too rapid, considering the nature of the general use of the track as a public highway; that just before the moving cars came in contact with the standing cars the servant of the defendant who had theretofore been riding upon the front car, where the presence of persons upon or near the track could be observed by him, left the car; and that the cars proceeded without any one to keep a lookout until they came in contact with the standing ear.

Upon the issue of the contributory negligence of Ira Broughton, the boy himself testified, in substance, that when he entered Avenue J, and before he proceeded north-wardly on the track, he looked in both directions — north and south — to see if there were any cars approaching; that he did not see any approaching from the south, but did see a train of the Gulf, Colorado & Santa Fé Railway Company approaching from the north and on the track upon which he was walking; that he continued walking on the track, meeting the train, until it got near him, and that he then turned to his right, and left the track, and seeing that at the rate he was walking, and at the speed the train was approaching, both would reach the standing cars about the same time, he crossed the track on which the standing cars were, and proceeded on his way on the right hand or east side of the cars until he passed the northernmost, when he stopped oh the edge of the track, his attention being attracted to the train which was then passing him, and shortly thereafter the cars were knocked forward, struck and knocked him down, and injured him. He further testified, in substance, that at the time he left the track upon which the train was ap-preaching, and before he went upon the track upon which the two or more cars were standing, he did not again look to the south to see if cars were approaching. The inference from all the testimony is clear, we think, that the only time he looked for approaching cars from the south was when he first entered upon Avenue J. He says that he did not listen for the ringing of the engine bell or for the noise of running ears, hut that if he had the noise of the train which he was approaching would have prevented his hearing them.

In view of the foregoing we do not think it can be said that the defendant, in running the cars at the rapiu speed, as shown by the evidence, over the track of its connecting carrier at a place commonly used by the public as a thoroughfare, and without an employé stationed on the front of the car to give warning and keep a lookout, was not guilty of negligence as a matter of law; nor can we say that the plaintiff Ira Broughton, in entering and remaining upon the track where he was struck, was, in the circumstances detailed, guilty of contributory negligence as a matter of law. It follows, therefore, that it is our opinion that these issues should have been submitted to the jury, and that the giving of the peremptory instruction complained of was such an error as requires a reversal. Lee v. Railway, 89 Tex. 583, 36 S. W. 63; Choate v. Railway, 90 Tex. 88, 36 S. W. 247, 37 S. W. 319; Railway v. Key, 175 S. W. 492.

The third assignment of error complains of the action of the court in sustaining the general demurrer of the defendant Gulf, Colorado & Santa Fé Railway Company to the plaintiffs’ petition. So far as this appellee is concerned, the pleadings of the plaintiff alleged, in substance, nothing more than that the Brownsville train at Bay City, a junction point between the Brownsville road and the road of this appel-lee, having several loaded cars to deliver to this appellee, came with such ears over the interchange track between the two roads and onto the side track of this appellee for the purpose of delivering the cars; that while making such movement, through the negligence of the operatives of the tram, the appellant Ira Broughton was injured. There is not an allegation in the petition of any overt act of negligence on the part of this appellee. There is not an allegation that in making the delivery of the cars to this appellant the Brownsville road either assumed or was granted by this appellee any greater privilege than was necessary to accomplish the purpose. The statute specifically commands railroad companies to interchange loaded cars with each other at junction points. As is well known, it is a physical impossibility for one railroad to deliver loaded cars to the other without a train or engine of one of them going upon the trades of the other, and the statute commanding that these cars be transferred of necessity grants by implication the right to perform the acts necessary to accomplish this purpose.

The appellant predicates his case against this appellee upon that line of cases which holds that one railroad company, granting to another the use of its tracks without' legislative authority, is liable for the negligent acts of the other company. We cannot see the application of this doctrine to the instant case. The very theory upon which these cases turn is the lack of legislative authority, and our conclusion is that in this case there was not only the legislative authority, but a legislative command. Articles 6687, 6688, Revised Statutes 1911; Jolly v. M., K. & T. Ry. Co., 38 Tex. Civ. App. 332, 85 S. W. 837; Railway v. Jolly, 31 Tex. Civ. App. 512, 72 S. W. 871. In the above cases substantially the same conclusion was reached as here determined; and in the ease first cited a writ of error was denied by the Supreme Court. The assignment is overruled.

The judgment sustaining the general demurrer of the Gulf, Colorado & Santa Fé Railway Company is affirmed, and for the error indicated the judgment in favor of the St. Louis, Brownsville & Mexico Railway Company is reversed, and the cause remanded.

Affirmed in part. Reversed and remanded in part.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    NOA SPEARS CO. v. INBAU.
    (No. 5658.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1916.
    Rehearing Denied May 31, 1916.)
    1. Master and Servant <@=55 — Contracts of Employment — Construction—Satisfaction.
    A contract of employment, whereby plaintiff was to perform his duties as a dental laboratory man, according to the ability and to the satisfaction of defendant, did not bind the plaintiff to perform his duties as such for a less salary or to be faithful to his wife.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <@=>55.]
    2. Master and Servant <@=43 — Actions fob Discharge — Question for Jury — Satisfaction.
    In an action for breach of such contract by wrongful discharge during its term and for damages, held, that whether defendant was in good faith satisfied with ¡plaintiff’s performance of his duties was for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 57, 58; Dec. Dig. <@3=43.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by W. C. Inbau against the Noa Spears Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Boyle & Storey, of San Antonio, for appellant. Butler L. Knight, of San Antonio, for appellee.
   SWEARINGEN, J.

This is an action instituted by appellee, W. G. Inbau, in the county court of Bexar county, Tex., for civil cases, for breach of contract and for damages on a certain written contract of employment, dated August 1, 1913, and in his first amended original petition, filed in said cause on May 4, 1915, it is alleged, substantially: That plaintiff is a skilled and competent laboratory man, has had many years’ experience as such, and is familiar with the duties of a dental laboratory expert, embracing crown and bridge work and was so experienced on or about August 1, 1913. That on said date defendant, Noa Spears Company, was engaged in the business, of furnishing dental and surgical supplies to dentists and physicians, and employed skilled men to carry out such business, etc. That on or about said August 1, 1913, appellee was employed, by written contract, containing the following terms and conditions: Was employed as laboratory man for the term of one year from said date at a salary of $25 per week for the first 24 weeks, and $30 per week for the balance of the term, payable weekly at the end of each week, subject to terms and conditions in said contract imposed. The conditions imposed bound appel-lee to perform the duties of his said employment as laboratory man during the term of his contract according to his ability and to the satisfaction of the first party (the appellant) for the compensation named; and for such service the said appellant bound itself to pay to the appellee ás a bonus for faithful and satisfactory service during the term, at the expiration of the contract or termination thereof by mutual consent of the parties, $120, with interest thereon at 4% per cent, for a period of 9 months. That appel-lee duly entered upon and performed the duties of his employment according to contract, and performed the required services in a skillful, faithful, and proper manner and to the best of his ability and to the satisfaction of said appellant, and so continued the performance of said duties until on or about May 2, 1914, when appellant wrongfully discharged him and refused further to accept his services or permit further performance of his contract. That appellee was at all times ready, willing, and able to perform his part of the contract, and did so until discharged, since which time appellant refused to permit him to do so. Appellee prayed for salary alleged to be due him for the remainder of the term, namely, from May 2, to August 1, 1914, together with bonus of $120, and interest. That he had been damaged thereby the sum of $484.05, from which amount appellant was entitled to a deduction of $142.80, being amount earned by appellee from May 2 to August 1, 1914.

Appellant filed its answer, consisting of general demurrer and general denial, and specially answered, admitting the contract, but denied that appellee’s services were satisfactory, and averred that he was totally incompetent as a laboratory man, and did not fulfill his duties as such to the satisfaction of appellant as provided in said contract, and he was discharged by appellant as it had a right to do; that appellee could have secured other employment by the exercise of reasonable diligence, as it was his duty to do, and therefore was not entitled to recover.

A jury trial was had, which resulted in a verdict and judgment in favor of the plaintiff (appellee) in the sum of $341.25, with interest on $124.05 at 4% per cent, from August 1, 1914, and interest on $217.20 at 6 per cent, from said date, and all costs of suit.

The first assignment is:

“The court erred in not instructing the jury to return a verdict in favor of defendant, because under the contract sued upon in this case the defendant, had the right to discharge plaintiff at any time his services became unsatisfactory, and the defendant was the sole judge as to when. his services became unsatisfactory to it, in this, that the contract provided that plaintiff bound himself to perform his duties to. the satisfaction of the defendant, and the evidence showed beyond doubt that his services were unsatisfactory to the defendant.”

The first proposition submitted under this assignment is:

“Where a contract of employment between employer and employé for a definite term is dependent upon the employé performing his duties to the satisfaction of his employer, the latter is authorized to terminate the employment whenever dissatisfied with the services of the employé; the employer being the sole judge as to whether he is dissatisfied.”

The basis of this suit is this contract:

“This contract of employment this day made and entered into by and between Noa Spears Company, hereinafter styled first party, and Wm. C. Inbau, hereinafter styled second party, all of Bexar county, Tex., witnesseth:
“First. The first party employs the second party as laboratory man for the term of one year from date hereof, at the salary of twenty-five dollars ($25.00) per week, for the first twenty-four (24) weeks of this contract, and thirty dollars ($30.00) per week for the balance of the term of this contract, all of said wages payable weekly at the end of each week during the term hereof, subject to the terms and conditions hereinafter imposed.
“Second. The second party agrees and binds himself to perform the duties of his said employment as laboratory man, during the term of this contract, according to his ability and to the satisfaction of the first party, for the weekly compensation named in the first paragraph of «this agreement.
“Third. The first party agrees and binds itself to pay to the second party, as a bonus for faithful and satisfactory service during the term hereof, at the expiration of this contract or the termination thereof by mutual consent of the parties, one hundred and twenty dollars ($120.00), with interest thereon at the rate of four and one-half per cent. (4%%) per annum for a period of nine months.
“Executed in duplicate this 1st day of August, A. D. 1913. [Signed] Noa Spears Co., First Party, by C. C. Quillian, Jr., Secy. Wm. C. Inbau, Second Party. Witnesses: Glover Johns. C. W. Knight.”

A fair construction of this contract is that appellee bound himself “to perform the duties of his said employment as laboratory man * * * according to his ability and to the satisfaction” of appellant. What duties was appellee to perform? The duties of laboratory man. Those duties of laboratory man were evidently clearly understood by both parties to the contract, and the evidence in a general way describes the duties as laboratory man. It is clear from the evidence that the duties as laboratory man, which under this contract appellee owed appellant, did not include the duty of domestic fidelity by appellee to his wife. Neither does the contract bind appellee to perform his duties as laboratory man for a less salary in order to satisfy appellant. The contract did bind appellee to perform the duties of laboratory man to the satisfaction of appellant. There is evidence that appelleei did perform the duties of laboratory man to the satisfaction of the appellant. The president of the company testified:

“Inbau was a good workman. He did first-class work, and there never was any complaint about his work.”

It will be remembered that his work was all that was to be satisfactory, not his domestic conduct nor the amount of salary. There is no evidence that appellee wasted any of his employer’s time or neglected any of the duties as laboratory man. It is neither alleged nor proven that appellee wasted time or neglected his duties. The allegation in the answer is that appellee was totally incompetent as a laboratory man, and fails to allege that he wasted his employer’s time. The issue made by the pleadings, as limited by the evidence, is that submitted by the court, viz.: Did appellee perform his duties as laboratory man to the satisfaction of appellant? The jury found that appellee did perform his duties of laboratory man to tne satisfaction of appellant. There was evidence to support that finding.

Whether or not appellant was satisfied with appellee’s performance of the duties of laboratory man was the contested fact. Such an issue is by its very nature most difficult to sustain by that preponderance of evidence required of the plaintiff. But because it is difficult to prove does not, as claimed by appellant, destroy the right to prove it. The law is clear upon this proposition. Sanger v. Slayden, 7 Tex. Civ. App. 614, 26 S. W. 851, in quoting from opinion in Silsby Mfg. Co. v. Town of Chico (C. C.) 24 Fed. 893, said:

“But when the purchaser is in fact satisfied, but fraudulently and in bad faith declares that he is not satisfied, the purchaser is bound. To be dissatisfied is a fact, and cannot be pretended when as a fact it does not exist.” Fuller v. Downing, 120 App. Div. 36, 104 N. Y. Supp. 993; Grinnell v. Kiralfy, 55 Hun, 422, 8 N. Y. Supp. 623; Smith v. Robson, 148 N. Y. 252, 42 N. E. 677: Doll et al. v. Noble, 116 N. Y. 230, 22 N. E. 406, 5 L. R. A. 554, 15 Am. St. Rep. 398; Texas Life Ins. Co. v. Roberts, 55 Tex. Civ. App. 217, 119 S. W. 931; Crawford v. Mail & Exp. Pub. Co., 9 App. Div. 481, 41 N. Y. Supp. 325.
“Whether the defendant was really dissatisfied with the plaintiff’s services, or whether its expression of dissatisfaction lacked genuineness, was a question of fact for the jury.” Summers v. Colver, 38 App. Div. 556, 56 N. Y. Supp. 624; Hydecker v. Williams (Com. Pl.) 18 N. Y. Supp. 586, 12 L. R. A. (N. S.) 410, and the many cases cited.

There was evidence that appellant was, in fact, satisfied with appellee’s performance of the duties of laboratory man and that appellant, in bad faith, declared that he was not satisfied therewith. The issue’was properly submitted,to the jury.

The foregoing discussion substantially disposes of the second assignment. Both assignments are overruled.

There is no error shown, and the judgment of the trial court is affirmed.
      <@=Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    QUEEN INS. CO. et al. v. KELLER et al.
    (No. 5739.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 10, 1916.)
    1. Religious Societies <@=>31 (5) — Trustees— Administration — Powers of Member — Garnishment.
    It must be presumed that one member of the board of trustees of a church who, with the others, was plaintiff in a garnishment suit, had full authority to make application on behalf of all of them for writs of garnishment and to make the statutory affidavit.
    [Ed. Note. — For other cases, see Religious Societies, Cent. Dig. § 205; Dec. Dig. <@=>31(5).]
    2. Pleading <@=>297 — 'Verification—Sufficiency.
    If all plaintiff church trustees be regarded as several, any one of them could verify a pleading for the use of all, under specific provision of Vernon’s Say les’ Ann. Civ. St. 1914, art. 1829b.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 88S, 889; Dec. Dig. <@=>297.]
    3. Pleading <@=>297 — Verification—Sitem - CIENCY.
    A plea of privilege in behalf of two defendants, but verified only by one, is sufficient to make the plea available to both.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 888, 8S9; Dec. Dig. <@=>297.]
    4. Religious Societies <@=>31(5) — Administration-Powers of Church Trustees.
    If church trustees are joint, it will be presumed that one of them who made application and affidavit for writ of garnishment was authorized by all of them jointly to do so, since, if they were 0011:013(100 trustees, they had the power of corporation management, and, if they were trustees of an unincorporated church, they will be presumed to have the same powers as corporation directors.
    [Ed. Note. — For other cases, see Religious Societies, Cent. Dig. § 205; Dec. Dig. <@=>31(5).J
    5. Religious Societies <@=>31(4) — Actions— Presumptions.
    Where an application for writ of garnishment shows on its face that the affiant is a trustee of a church, his act will be considered as the act of the church itself.
    [Ed. Note. — For other cases, see Religious Societies, Cent. Dig. § 205; Dec. Dig. <@=>31(4).j
    6. Corporations <@=>670(8) — Foreign Corporations —Garnishment —Default —‘ ‘Resident.”
    Under Vernon’s Sayles’ Ann. Civ. St. J914, art. 2S2, providing for default against garnishees resident in’ the county if they fail to 'answer, a foreign corporation cannot enjoin .execution under a default judgment against it as garnishee, where it has a resident local agent.
    ■ [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2638; Dec. Dig. 3=^070(8).
    For other definitions, see Words and Phrases, First and Second Series, Resident.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit for injunction, by the Queen Insurance Company and another against C. A. Keller and others, trustees of the Travis Park Methodist Episcopal Church South. From an order denying temporary injunction, plaintiffs appeal.
    Affirmed.
    Lipscomb & Lipscomb, of San Antonio, for appellants. C. A. Keller, of San Antonio, for appellees.
   SWEARINGEN, J.

This is an appeal by the Queen Insurance Company and the National Fire Insurance Company from an interlocutory order of the district court refusing a temporary injunction.

On November 26,1915, appellants filed their original petition, and, among other facts, averred substantially that: On June 2,. 1914, ■Louis Oge, J. N. Brown, H. E. Hildebrand, J. V. Spring, T. M. Dechman, A. B. Stephens, and C. A. Keller, trustees of the Travis Park Methodist Episcopal Church South, had filed suit No. B-8133 against Mrs. M.. P. Field for debt represented by four promissory notes aggregating $1,200 principal. On the same day the said trustees filed the following application for writs of garnishment against the appellant insurance companies:

“No. B-8134.
“Louis Oge et al., Trustees of Travis Park Methodist Episcopal Church South, v.
Mrs. M. P. Field.
“In the District Court, Fifty-Seventh Judicial District, Bexar County, Texas.
“Application for Garnishment.
“Now comes A. B. Stephens, one of the plaintiffs in the above-styled cause, now pending in the district court, Fifty-Seventh judicial district, and applied for writ of garnishment to issue to the Queen Insurance Company of New York and the National Fire Insurance Company of Hartford, Conn., and represents unto the court:
“(1) That on the 2d day of June, A. D. 1914, plaintiffs Louis Oge, J. N. Brown, H. E. Hildebrand, J. Y. Spring, T. M. Dechman, A. B. Stephens, and C. A. Keller, trustees of Travis Park Methodist Episcopal Church South, sued Mrs. M. P. Field, defendant in the above-styled and numbered cause, upon four promissory notes for the sum of $1,200 principal, $15.96 interest, and $121.59 attorneys’ fees, and all costs of suit, that such debt is just, due, and unpaid, and that defendant, Mrs. M. P. Field, has not, within his knowledge, property in her possession within this state subject to execution, sufficient to satisfy such debt.
“(2) Plaintiffs say they have reason to believe and do believe that the garnishees, Queen Insurance Company of New York and the National Fire Insurance Company of Hartford, Conn., both of which are private foreign corporations, and doing business in the city of San Antonio, in Bexar county, Tex., and of which Fred J. Johnston and Arthur C. Burnett, both residents of Bexar county, Tex., are local agents of said garnishees above named, are indebted to said Mrs. M. P. Field, defendant, or that they have in their hands effects belonging to said defendant.
“(3) Plaintiffs say that the writ of garnishment applied for herein is not sued out to injure either the defendant or the garnishees.
“[Signed] A. B. Stephens.
“Subscribed and sworn to before me this 2d day of June, A. D. 19Í4.
“[Seal.] Ira B. Hill,
“Notary Public, Bexar County, Texas.”

Writs of garnishment were legally served upon the agents of appellant companies resident in Bexar county, Tex. The garnishment suit was docketed as No. B-8134. Appellant companies filed no answer in the garnishment suit. On February 10, 1915, the court rendered a decree in the garnishment suit No. B-8134 in favor of the trustees against both the garnishees, the appellants herein, for the sum of $1,406.79, being the amount of the judgment previously awarded the trustees against Mrs. M. P. Field in suit No. B-8133, and ordered that execution might issue for same. It was for a temporary injunction against the issuance of this execution that appellants prayed in their petition filed November 26, 1915, and it is the court’s order refusing this temporary injunction of which appellants now complain in this appeal.

Appellants complain that the trial court should have granted the temporary injunction because the judgment in the garnishment suit No. B-8134 was null and void, and assign three propositions as reasons why the garnishment judgment was void. The first proposition is:

“That the writ of garnishment directed to the plaintiffs herein in the garnishment suit was void because no proper or valid application or affidavit was made therefor previous to the issuance thereof; ‘that, such void writ being the only process by which it was attempted to clothe the court with jurisdiction over the garnishees, the court did not have the power to enter a valid judgment by default.”

The second proposition is:'

“That, assuming that A. B. Stephens actually possessed the requisite authority to make the affidavit for the writ of garnishment in behalf of his cotrustees, the affidavit, and hence the writ, were void, and did not confer jurisdiction upon the court to enter the default judgment, because it did not appear therein, either by affirmative statement or by way of recitation, that the said A. B. Stephens had such authority.”

It will be observed that A. B. Stephens, one of the trustees and one of the plaintiffs, made application for the writ of garnishment on behalf of all the trustees, naming them; that A. B. Stephens alone made the affidavit. Appellants contend that the affidavit can be made only by the plaintiff in the main suit to which the garnishment suit is auxiliary, or by an agent or attorney, and, if by an agent or attorney, the capacity of affiant and Ms authority must appear in the' application or affidavit itself, and that the application and affidavit here considered are wholly wanting in these particulars. Appellants further contend that the trustees could only exercise the power vested in them as a body by a unanimous joint action.

There is no merit in the propositions and reasons of appellants. It must be presumed that A. B. Stephens, one of the trustees and one of the plaintiffs, had full authority to make the application on behalf of all the plaintiffs for the writs of garnishment, and that he had authority to perform the ministerial act of making the statutory affidavit.

If all the plaintiffs be regarded as several, then article 1829b, Vernon’s Sayles’ Tex. Civ. Statutes, authorizes one of several plaintiffs to make affidavit to pleadings for use of all the plaintiffs.

{3] A plea of privilege made in behalf of two defendants, but verified by only one was sufficient to make plea available for both defendants. Jones v. Austin, 6 Tex. Civ. App. 505, 26 S. W. 144. One of several plaintiffs made affidavit that all plaintiffs were apprehensive — sufficient. Williams v. International Grain & Stock Board, 99 Mich. 80, 57 N. W. 1090. One member of firm made affidavit — sufficient. Dodson v. Warren, 162 S. W. 952.

If, as contended by appellants, the trustees are joint, then it will be presumed that Stephens was authorized by all of them jointly to make this application for garnishment in behalf of all of them and to perform the ministerial act of making the affidavit; for, if the plaintiffs were trustees of a corporation they had the power of managing the corporation, and if they were trustees of an unincorporated church, they will be presumed by the courts to have the same powers as directors of private corporations. Clark v. Brown, 108 S. W. 421; Id., 102 Tex. 323, 116 S. W. 360, 24 L. R. A. (N. S.) 670.

Since the application shows on its face that Stephens was a trustee, his act will be considered as the act of the Methodist Episcopal Church itself.

For a clear and learned exposition of the law here pronounced see the case of American Soda Fountain Company v. Stolzenbach, 75 N. J. Law, 721, reported in 68 Atl. 1078, and annotated in 16 L. R. A. (N. S.) 703, 127 Am. St. Rep. 822. This court held that the affidavit of a treasurer was sufficient. Le Tulle M. Co. v. Markham, 94 S. W. 416.

Appellants’ third proposition is as follows :

“That the court did not have the power to render such default judgment, because plaintiffs were both foreign corporations, and at the time of the rendition of such judgment were not ‘residents’ of Bexar county, Tex., as was necessary, under article 282, Vernon’s Sayles’ Civil Statutes, to support such default judgment.”

This proposition has been decided adversely to appellants in the case of Lash v. Morris County Bank, 54 S. W. 806, and again in the case of Harris v. Cozart Grain Company; 178 S. W. 733.

We conclude that the trial court did not err in its order refusing a temporary writ of injunction.

The judgment is affirmed.
      <@=»Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    AMERICAN EXCH. NAT. BANK OF DALLAS et al. v. COLONIAL TRUST CO.
    (No. 1604.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 6, 1916.
    Rehearing Denied April 20, 1916.)
    1. Records <S^>7 — Recordation—“Filed.”
    Under Rev. St. art. 6824, requiring that a mortgage or deed of trust to be given priority shall be filed with the clerk to be recorded as required by law, and article 6791, providing that an instrument shall be deemed as recorded and effectual as notice from the- time it was deposited for record in the county clerk’s office, and article 6828, providing that it shall be deemed of record when delivered to the clerk of the proper court to be recorded, an instrument is “filed with the clerk” to be recorded as required by law when it is delivei'ed to the clerk and by him received in his official custody, regardless of whether it is then entered in the record books.
    [Ed. Note. — For other cases, see Records, Cent. Dig. § 6; Dec. Dig. <S=>7.
    For other definitions, see Words and Phrases, First and Second Series, File.]
    2. Records —Recordation—Payment of Fees.
    Under Rev. St. art. 3862, providing that no county clerk shall be compelled to file or record any instrument until payment or tender of all legal fees thei’efor, and in view of articles 6792 and 6789, the clerk is merely entitled to demand such fees when the instrument is offered for record, but, if he fails to demand them immediately, and retains the instrument in his custody pending notification of the necessity of paying the fees, the instrument is nevertheless filed for record, and operates to give notice to all persons of its existence.
    [Ed. Note. — For other cases, see Records, Dec. Dig. <@=^5.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by the Colonial Trust Company to foreclose a judgment lien against tbe American Exchange National Bank of Dallas and others. Judgment for plaintiff, and defendants appeal.
    Modified and affirmed.
    The suit was brought by the Colonial Trust Company to foreclose a judgment lien owned by W. J. Moon and to have such judgment lien declared to be first and prior to the lien of a deed of trust on the same land executed by W. J. Moon to Nathan Adams, trustee. The trial was before the court, whose decision awarded priority to the lien of plaintiff’s abstract of judgment. The question on appeal is solely respecting the priority of liens by reason of notice.
    S. C. Trimble sold and transferred to the Colonial Trust Company, a corporation, for a valuable consideration, a judgment he had obtained in an action for debt in the district court of Hill county against W. J. Moon od May 5, 1914. On June 2, 1914, an abstract of the Judgment was filed, recorded, and indexed according to legal requirements in the county clerk’s office in Hill county. The .Judgment is still subsisting and unsatisfied. The secretary and treasurer of the trust company testified that:
    “At the time of the transfer of the Trimble judgment herein sued on to the Colonial Trust Company I did not have any notice or knowledge of the execution of the deed of trust by W. J. Moon to Nathan Adams, trustee.”
    It does not appear what officer acted for the trust company in purchasing the Judgment, nor does it appear that any officer of the trust company did or did not have notice of the deed of trust at the time of the judgment lien. On May 27, 1914, W. J. Moon executed a deed of trust on certain lots in Hillsboro, Tex., to Nathan Adams, trustee, to secure payment of two notes which constituted a pre-existing debt reduced to the form of two notes, due by W. J. Moon to the American Exchange National Bank. W. J. Moon at the date of the deed of trust was the owner of the lot in fee simple. The deed of trust was signed, acknowledged, and delivered by W. J. Moon to Nathan Adams, trustee. The date of filing and recording the deed of trust in the county clerk’s office is dependent upon' the evidence next given. It appeared on May 28, 1914, the assistant cashier of the bank forwarded the deed of trust by mail to the county clerk of Hill county, with the following letter:
    “Dear Sir: We beg to hand you herewith for record deed of trust of W. J. Moon to Nathan Adams, trustee, for the benefit of this bank and W. O. Womack. When recorded kindly return to us, advising amount of your fee, and we will remit you promptly to cover same.”
    The deed of trust, together with the letter, was received in the county clerk’s office on May 29, 1914. The deputy clerk testified that upon receiving the letter he opened it and took out the deed of trust and indorsed on the back of it the following: “Piled for record this 29th day of June, 1914, at 9 o’clock a. m.” — and then signed it officially. Noticing at once, as he says, that he had inadvertently written the word “June” in the indorsement, he scratched that word out, and wrote in its place and above it the word “May.” Very shortly afterwards the dpputy clerk marked out the entire indorsement above mentioned on the deed of trust. He explained that he marked out the indorsement because he discovered upon reading the letter that the recording fee had not been inclosed, and because it was the custom and rule of the office not to file for record or record any deed of trust or other instrument of that kind without the recording fee being paid in advance. The deputy clerk, after making out the indorsement, then indorsed on the back of the decid of trust the following figures, which indicated the date of its receipt: “5-29-14”- — and placed the deed of trust in a pigeonhole in the shelving in the office. And at once on May 29, 1914, the deputy clerk mailed1 to the bank at Dallas, which was received by it the next day, a postal card, saying:
    “In compliance with the laws of the state of Texas. (section 2459, R. S.), all fees for work done in the county clerk’s office are due and payable when the instrument is filed. The amount of fee for recording the instrument sent this office for record on 5/29/14 D. T., W. J. Moon to American Exchange National Bank, is as follows: $1.50. Upon receipt of the above amount the instrument will be filed and recorded in regular order; otherwise it will be returned after 10 days.”
    The deputy clerk testified that:
    “At the expiration of the 10 days, or on the 8th or 9th of June, I put the deed of trust in an envelope with a letter to the American Exchange Bank, stating that as per the notice of the 29th, in which was stated that we would return it at the expiration of 10 days if the filing fee was not sent, that I was returning it to them. The deed of trust was returned and not filed. Then they promptly returned it the following day. The money for the filing was received on June 9th in the morning mail, and the deed of trust was filed at 9 o’clock that morning.”
    The deed of trust has also the indorsement on it “Piled for record at 9 o’clock a. m. June 9, 1914,” and signed officially in the name of the clerk by the deputy. And the certificate appearing on the deed of trust made in the name of the clerk by the deputy recites:
    “That the foregoing instrument of writing, together with its certificate of authentication, was filed for record in my office the 9th day of June, A. D. 1914, at 9 o’clock a. m., and duly recorded the 9th day of June, A. D. 1914, in volume 20, page 198, of the records of said county.”
    The deed of trust was held and remained in the possession and custody of the county clerk at and before and during the filing, recording, and indexing of the abstract of judgment on June 2, 1914. The testimony shows that on June 10, 1914, the -bank mailed a letter to the county clerk, inclosing a check of same date for $1.50, being the recording fee of the deed of trust. The clerk received the check and cashed it. According to the evidence offered by the bank, the deed of trust had been duly entered of record at the time the clerk returned it, and the recording fee was remitted after the record and on June 10, 1914.
    Smith, Robertson & Robertson, of Dallas, for appellants. Wear & Prazier and J. J. Averitte, all of Hillsboro, for appellee.
   LEVY, J.

(after stating the facts as above). [1] The appellant bank predicates error in subordinating the lien of its deed of trust, which was prior in point of execution, to that of the judgment lien of the trust company, which was junior in point of creation. And the question is dependent, it is thought, upon whether or not the bank continued and protected the priority of the deed of trust by having the deed of trust, as required by article 6824, R. S., “filed with the clerk, to be recorded as required by law,” at the time of the creation of the judgment lien. The requirement of tlie article, in order to continue and protect the priority of the deed of trust, is simply that it he “filed with the clerk, to be recorded as required by law,” at the time of the creation of the subsequent lien. And in this respect the article seems to be similar to other provisions of the statute which deem an instrument as recorded and effectual as notice from the time it “was deposited for record” in the county clerk’s office (article 6791) and “when delivered to the clerk of the proper court to be recorded” (article 6828). The term “filed with the clerk, to be recorded as required by law,” therefore should be regarded, it is thought, as intended to mean and be the equivalent of the words “deposited for record in the county clerk’s office,” or “delivered to the clerk, to be recorded.” Hence an instrument is “filed with the clerk,” within the meaning of the article, when it is delivered to the clerk and by him received in his official custody. Holman v. Chevaillier, 14 Tex. 337; Snider v. Methvin, 60 Tex. 487; Lessing v. Gilbert, 8 Tex. Civ. App. 174, 27 S. W. 751.

Now, according to the evidence here, the clerk, acting by the deputy, after making a demand for his recording fees, indorsed on the back of the instrument the date of its receipt by him in his office, and held and retained such indorsed deed of trust in his official custody with intention and purpose to actually enter of record,- if the recording fee was remitted, at any time during the time so held. If the acts of the clerk operated to be in legal effect a filing of the deed of trust for record, then the clerk may not destroy the status of the deed of trust by his subsequent acts. Article 8862 provides:

“No county clerk shall be compelled to file or record any instrument of writing permitted or required by law to be recorded, until after payment or tender of payment of all legal fees for such filing or recording has been made.”

By this article the clerk is merely authorized to demand in advance “all legal fees for such filing or recording” of the instrument. The words “compelled to file or record,” as used, evidently have reference only to doing the services required by law in each respect of making entry on the file register and of recording; for it is made the duty of the county clerk when an instrument is “deposited” in his office for record to; (1) Make a memorandum thereof on the file register (article 6789); and (2) record it; and (3) do the indexing (article 6792). While the clerk may under this article have the personal privilege of requiring payment of his fees, he is not, as seen, forbidden to receive and retain in his office custody for record an authorized instrument until there is payment or prepayment of the recording fee. Therefore, if he has the legal right to refuse to receive an instrument in his official custody unless the fees for recording be paid to him in advance, it must, it is thought, be immediately

or seasonably exercised upon the tender of the instrument for record. By so doing and refusing to receive the instrument in his official custody for record the legal effect would not attach of being deemed filed for record. But, when the clerk receives and retains the instrument in his official custody, it is filed within the meaning of the law. It is not intended by the article to clothe the clerk with the power of making or defeating rights respecting registration. And it would be within the power of a clerk to make or defeat rights if the article be not construed, as above. Under this article as so construed, therefore, the clerk may refuse to receive in his official custody an instrument for record unless his recording fees are paid or tendered in advance. If the clerk, though, receives and retains the instrument in his official custody awaiting payment of his fees, he, in legal effect, waives his personal privilege of requiring payment, and must file and record, as required by law, the instrument so received. In this case the clerk did not refuse to receive from the bank the deed of trust, nor undertake to mail it back to the bank during the course of the day, but indorsed on the instrument the date of its receipt by him in his office, and held and continued possession of it in his official custody. The clerk’s indorsing on the deed of trust the date of its reception, and holding and retaining it in his official custody with intention to actually enter of record if the recording fee was remitted, would constitute, it is thought, the instrument as filed within the meaning of the law. And, the' deed of trust being in legal contemplation filed with the clerk, it operated to give notice to the trust company. Throckmorton v. Price, 28 Tex. 606, 91 Am. Dec. 334; Carlisle v. King, 103 Tex. 620, 133 S. W. 241, 804.

It is believed the judgment should be modified so as to give priority to the lien of the deed of trust, and as so modified will be affirmed. The costs of appeal will be taxed against the Colonial Trust Company.

Modified and affirmed..
      <@^»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    EL PASO SASH & DOOR CO. v. CARRAWAY.
    (No. 509.)
    (Court of Civil Appeals of Texas. El Paso.
    May 4, 1916.
    Rehearing Denied May 25, 1916.)
    Courts <&wkey;91(l) — Decision- — Following Higher Court.
    Where the assignments of error raise only the constitutionality of an act which the Supreme Court has held constitutional, the Court of Civil Appeals will affirm.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313, 325; Dec. Dig. &wkey;01(l)J
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by E. M. Carraway against the Et Paso Sash & Door Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Turney & Burges and R. C. Walslie, all of El Paso, for appellant. Lea, McGrady & Thomason, of El Paso, for appellee.
   HARPER, C. J.

This was a suit wherein E. M. Carraway, plaintiff, sued the El Paso Sash & Door Company, defendant, for $6,-000, on account of injury to plaintiffs arm, plaintiff alleging that on January 12, 1914, plaintiff was in the employ of defendant as a common laborer, working in connection with one Jose Garcia, another day-laborer in the employ of the El Paso Sash & Door Company ; while plaintiff and his colaborer, Jose Garcia, were in the discharge of their duties as servants of defendant, plaintiff received personal injuries due to the negligence of his fellow employé, Jose Garcia; that plaintiff was injured on account of Jose 'Garcia, his colaborer, dropping a cabinet on his arm, and on account of the dropping of said cabinet on his arm his arm had to be amputated; that the El Paso Sash & Door Company had in its employ more than five persons, fellow servants of plaintiff. Defendant answered by general demurrer, and further answered by special demurrer that plaintiff’s petition showed that if plaintiff, E. M. Carraway, was injured, as alleged by him, it was on account of an act of a fellow servant and fellow employé, and pleaded other defenses not necessary here to state; and it was urged in support of said demurrers that the act of the Legislature of Texas, chapter 179, passed by the Thirty-Third Legislature (Vernon’s Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz), providing for what is known as the Texas Employés’ Insurance Association, doing away with the defense, amongs.t others, that the injury was caused by the negligence of a fellow servant and fellow employé, is unconstitutional and void; that, the law being unconstitutional, plaintiff could not recover. Said general and special demurrers were overruled, to all of which defendant in open court excepted, and at the close of the evidence defendant presented a charge and motion, asking for perelnptory instruction in favor , of defendant, said charge being presented for the reason that the uncontradicted evidence showed that plaintiff, if injured, was injured by the act of a fellow employé. The act of the Thirty-Third Legislature doing away with the defense of fellow servants, being unconstitutional and void, the common law would still remain in force, and no recovery could be had on account of injury caused by an act of a fellow servant. The, said charge was refused, and upon submission a verdict was returned against the defendant for $4,750, on which judgment was entered, from which this appeal is perfected.

The parties entered into the following agreement:

“If section one of part one, of the act of the Thirty-Third Legislature of the state of Texas (chapter 179) providing for what is known as the Texas Employés’ Insurance Association, doing away with the defense, amongst others, that, injury was caused, by negligence of a fellow em-ployé, is unconstitutional and void, then it is agreed that this cause shall be reversed and rendered, but if that part of said act is held constitutional, then this cause is to be affirmed.
“It is further agreed that the facts which were proven on the trial of this case are sufficient to entitle the plaintiff to recover,, unless the fact of plaintiff being injured by the act of a fellow servant should debar him.”

' By its assignments, appellant urges simply that the act of the Thirty-Third Legislature, chapter 179, is unconstitutional and void: Eirst, because it does not apply to all alike, in that it exempts from its operation domestic servants, farm laborers, common carriers, cotton gins, and persons not having in their employ more than five persons; second, it takes away the employé’s right to sue, without his consent, and providing that an employer can he absolved from liability for insurance, without the consent of the em-ployé, and the employé required to proceed against the Insurance Association, and for various other reasons. Since, by the several assignments and propositions, we are only asked to pass upon the constitutionality of the act, and since the Supreme Court in the ease of Charlie Middleton v. Texas Light & Power Company, 185 S. W. 556, not yet officially reported, has rendered its opinion, holding the statute, in its several provisions, constitutional, the cause must be affirmed; and it is so ordered.
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J. WAUTHALD, J.

text:
    HOUGHTLING v. EUBANK.
    (No. 567.)
    (Court of Civil Appeals of Texas. El Paso.
    May 11, 1916.
    On Rehearing, June 8, 1916.)
    1. Vendor and Purchaser ¡@==?13 — Requisites oe Contract — Consideration eor Sale.
    By a written instrument defendant agreed, in consideration of $1, to convey within a fixed period certain land to any one designated by plaintiff upon the payment of a stated sum to defendant. Held, there was no lack of consideration, since that instrument fixed the price to be paid.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 14; Dec. Dig. <®=j13.]
    2. Contracts <@=wl0(5) — Mutuality—Sale oe Land.
    Although plaintiff tendered his' check for $1 upon the above instrument’s execution, the writing was lacking in mutuality, being merely an unaccepted offer to sell.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 21; Dec. Dig. <@¿310(5); Vendor and Purchaser, Cent. Dig. § 89.]
    3. Vendor and Purchaser <S=»16(1) — Requisites oe Contract — Revocation oe Option.
    Plaintiff tendered his check for $1" upon the above instrument’s execution, and later tendered the additional specified sum and demanded a deed, but between such dates defendant had notified plaintiff that conveyance of the land would be refused. Held that, since the ihstru-merit lacked mutuality, defendant was at liberty to thus withdraw his offer to sell at any time prior to its acceptance by plaintiff.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 17 ; Dec. Dig.
    4. Vendor and Purchaser <&=»349 — Action foe Breach of Contract by Purchaser-Pleading.
    Since the instrument here involved is merely an offer to sell, the petition, in order to state a cause of action, should allege sufficient facts to show an acceptance of such offer.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1033, 1039-1042; Dec. Dig. <g^>349.]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    Action by J. A. Eubank against L. W. Houghtling. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    ■Smith & Spiller and Perkins & Perkins, all of Snyder, for appellant. Rosser & Boyd and Higgins & Hamilton, all of Snyder, for appellee.
   WALTHALL, J.

This is a suit for damages, brought by appellee against appellant for an alleged breach of a contract. The contract is as follows:

“I have this day received from J. A. Eubank the sum of one dollar, for and in consideration of which I agree that at any. time before the 22d day of November, 1914, when he pays to me the further sum of $1,450 net to me, I will furnish an abstract showing perfect title and will convey by warranty deed to said J. A. Eu-bank, or any person or parties he may direct, and with any consideration expressed therein, that said parties may desire, the following described land in Lincoln county, Oklahoma: [Here follows plat, and description of the land.] I further authorize said J. A. Eubank to continue his efforts to dispose of the land for me until I withdraw same from his hands by giving him thirty days’ notice in writing; said notice to be effective at the expiration of thirty days from date of same.' Dated November 13, 1914.
“[Signed] L. W. Houghtling.”

Appellee pleaded the contract, and alleged that he offered to pay to appellant the $1 consideration mentioned therein, but that appellant refused to accept same; that in addition to the consideration recited in the contract of option, which was by appellee tendered to appellant, appellee had purchasers for said lands at a sum not less than $1,-500, with whom he could have closed the deal and obtained the $1,450 for the appellant and a consideration for himself to make the said contract, of which appellee then informed the appellant; that he found the $1,450 within the time of the contract, and was willing to buy the land, but that appellant refused to deed it to him; that he procured purchasers in the persons of Wells & Lee, who were ready, willing, and able to buy the land and pay to appellant the said sum of $1,450 net to him within the time mentioned in the contract, and offered to do so, but that appellant refused so to do, and put it beyond his (appellant’s) power to carry out and perform said contract by leasing the land to others before the option contract expired by its terms; that appellee could have sold the land for a profit of $950 to Wells & Lee, or could have purchased the property for $1,-450 and have sold same for a reasonable market value of $2,400; that appellee offered to perform the contract and appellant refused to perform. Appellee pleaded, in the alternative, that he had found the money with which to purchase the said land for the sum of $1,450, and was ready, willing, and able to do so for himself, and offered to do so, but that appellant refused to execute the deed and furnish the abstract, to appellee’s damage $950, for which he prayed judgment.

Appellant answered by general demurrer and special exceptions, general denial, admitted making the contract, but says that appel-lee represented to him that the contract was an agency contract, and that he signed same in the belief that it was an agency contract, and an appointment of appellee as agent of appellant to sell the land for him, alleged fraud, in making false representations, and in withholding information he should have imparted to appellant, and that by reason thereof appellee is estopped from claiming under the contract. Appellant alleged that the contract is without mutuality, that the sum of $1,450 had never been tendered; that the reasonable market value of the land was not $2,400, but was $1,450; that the right to sell the land was not given to appellee exclusively, but that he expressly reserved the right to sell the land.

The case was submitted to the jury on special issues. While some of the issues submitted to and found by the jury are not raised by the pleadings, the issues submitted and found necessary to a decision of the case are substantially as follows: Eubank did not represent to Houghtling, before Houghtling signed the contract sued upon, that there was written or printed in the contract, a reservation in favor of Houghtling of any or all oil rights in the land therein described; nor did Eubank represent that the can-tract gave him (Eubank) a prior right to sell the property as agent for Houghtling, or that Houghtling, notwithstanding the contract, would have the right to dispose of said property without any liability to him (Eubank), nor did Eubank represent to Houghtling that, notwithstanding the contract, Houghtling was reserving the oil rights in said premises in said contract; that Eubank offered to give Houghtling a check for $1, signed by himself, at the time Houghtling signed the contract; that the amount of cash paid at the time of trial that would equal the difference between the amount stated in the contract and the cash market value of the land, with perfect title and warranty deed within the option period, is $800. Upon these findings the court entered judgment in favor of Eubank against’ Houghtling for $800. ' ■ '

As stated by appellant and shown by the evidence, although not one of the issues submitted to and found by the jury “there can be no question that appellant revoked the contract”; that is, he refused to deed the land, and so notified appellee, within the time stated in the contract that he would convey, and before Eubank had indicated his acceptance of the offer to sell, and before Eu-bank offered to pay the §1,450 mentioned as the price to be paid for the land. In the first part of the contract, Houghtling, the owner of the land, agreed with Eubank that if he (Eubank), at any time between the 13th and the 22d days of November, 1914, shall himself pay or have another to pay to him (Houghtling), the sum of §1,450, in addition to the §1, the price agreed upon in the contract, he (Houghtling) will make a deed to the land and furnish the abstract. The latter part of the contract in no way qualifies the former part, but is an appointment of Eubank as an agent to sell the land, and, as we construe it, at the price fixed in the contract.

The contract does not lack consideration as the price to be paid for the land is fixed by the terms of the contract. Does it lack mutuality? Houghtling offered to accept §1,450 for his land, if paid within the time stated. Eubank does not in the writing (called the contract) accept the offer to sell, nor agree to pay the amount stated within the time fixed for the consideration to be paid. Eubank does not in his pleading allege that he accepted Houghtling’s offer to sell the land at the price stated, nor was the issue submitted to or found by the jury that he had accepted the offer made in the writing and agreed to pay the consideration, before Houghtling withdrew the offer and revoked the contract. Until Eubank should accept Houghtling’s offer and agree to pay the consideration within the time fixed in the writing, it lacked mutuality; it was only an offer to sell without an acceptance to buy. Until Eubank should accept the offer, he was bound to nothing. An offer imposes no obligation until it is accepted according to its terms. Had Eubank accepted the offer, either in the body of the writing or at any time before the offer to sell was withdrawn, he would then have exercised his option to buy, and by so doing would have added mutuality to the writing, which otherwise was lacking, and without it there was no contract. Houghtling was at liberty to withdraw his offer at any time before acceptance. The rule is stated in Minneapolis & St. L. Ry. Co. v. Columbus Rolling Mill Co., 119 U. S. 151, 7 Sup. Ct. 169, 30 L. Ed. 377. In that case the court uses this language:

“So long as the offer has been neither accepted nor rejected, the negotiation remains open, and imposes no obligation upon either party; the one may decline to accept, or the other may withdraw his offer; and either rejection or withdrawal leaves the matter as if no offer had ever been made.”

Appellant does, not raise the question of the sufficiency of the petition in its failure to allege an acceptance of the offer to sell, unless it is embraced in the general demurrer. If we are not in error in the construction which we place on the contract, that it is simply an offer to sell, the writing containing no acceptance, the petition should allege sufficient facts to show a completed contract, before there could be a breach or a cause of action for its breach. As stated, no obligation rested on appellant until there was an acceptance of his offer to sell. Before he could be made liable in damages for his refusal to convey, it must appear that before he withdrew his offer to sell, and refused to convey, and within the time of his offer, appellee accepted the offer, and within the time offered to pay the consideration. These facts are not alleged in the petition. While the issues of acceptance and offer to-pay the consideration and the time of it were not submitted to nor found by the jury, the evidence is clear and undisputed that Houghtling withdrew his offer to sell before-Eubank accepted the offer, or offered to pay the consideration for the land.

We are of the opinion that the petition states no cause of action, and that the undisputed facts clearly show that appellee has. no cause of action that could be stated, should the case be reversed and remanded. Judgment- should have been for appel--. lant. The case is reversed, and here rendered for the appellant

HIGGINS, J., concurs in the result

On Rehearing.

WAUTHALD, J.

In. his motion for rehearing, appellee insists that we are in error in the opinion in our statement that appellant revoked his offer to sell before Eubank indicated his acceptance to buy. We think we are not in error in the statement. It is. true, as claimed, that after I-Ioughtling had indicated his unwillingness to convey at the-offer of §1,450, Eubank then offered to pay §1,750 for the land, a new offer, and Ilought-ling agreed to accept, and then declined to convey. But the suit was not on the §1,750, offer and acceptance. It was on the §1,450 offer by Houghtling, which, as we still understand the undisputed evidence shows, was withdrawn, or, at least, Houghtling’s unwillingness to convey under that offer indicated before any acceptance; hence the §1,-750 offer by Eubank, and its acceptance by-Houghtling; Had the suit been on the §1,750= offer, and the proof and the result on the trial the same, and no issues made other than were, made in this suit, we think appellee’s, position would be tenable.

The motion is overruled.
      <3^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (gsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    WHITE et al. v. FERRIS et ux.
    (No. 622.)
    (Court of Civil Appeals of Texas. El Paso.
    May 18, 1916.)
    1. Injunction @==>122 — Verified Petition.
    Verification of the petition for injunction, required by Rev. St. 1911, art. 4649, is insufficient; it being merely that affiant stated that she believes the statement of every allegation of fact relied on in the petition to be true.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. <S=122.]
    2. Injunction <®=3l22 — Temporary Injunction-Verification of Petition.
    Rev. St. 1911, art. 4649, providing that no writ of injunction shall be granted unless a verified petition be presented, applies to a temporary injunction granted on the allegations of the petition alone.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. <@=^122.]
    8. Appeal and Error <@c^>192(2) — Review-Granting Temporary Injunction — Objection Not Made Below.
    Under Rev. St. 1911, art. 4649, authorizing the appeal from granting of a temporary injunction to be heard on the bill and answer and any evidence admitted, and dispensing with necessity of brief, the sufficiency of the verification of the petition to authorize the granting of the writ may be questioned for the first time •on appeal.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 1221,1223, 1226; Dee. Dig. <§=»192(2); Pleading, Cent. Dig. § 1415.)
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by A. G. Ferris and wife against J. C. 'White and others. From an order granting a temporary injunction, defendants appeal.
    Reversed and remanded.
    F. C. Knollenberg and Leigh Claris, both of El Paso, and W. O. Hamilton, of Dallas, for appellants. E. C. Wade, Jr., of El Paso, for appellees.
   Statement of Case.

HIGGINS, J.

A. G. Ferris and wife sued J. C. White, J. B. Paden, and Texas Bank & Trust Company, to recover title and possession of a promissory note in sum of $1,000, executed by plaintiffs in favor of I. E. Elder, which had been indorsed by Elder and had passed into the possession of defendants. A temporary injunction was sought restraining defendants from negotiating the note. The petition was verified by one of the plaintiffs in this language:

“Before me, the undersigned authority, on this day personally appeared Frances I. Ferris, one of the plaintiffs in the above entitled and numbered cause, and, being by me sworn, on oath, stated that she believes the statement of every allegation of fact relied upon in the foregoing petition as a canse of action to be true.”

The application for the injunction was set down for hearing, and defendants ordered to appear and show cause why the injunction should not issue, as prayed for. White and Paden answered by what they designated as .a motion to refuse injunction, consisting of exceptions to the sufficiency of the petition; also filed a general. denial. One of the exceptions is addressed to the sufficiency of the affidavit to the petition. The bank answered that it had no interest in the note, and held same subject to the order of the court. Additional matter is contained in the bank’s answer, but it is not pertinent to a consideration of this appeal. Upon the hearing a temporary injunction was issued as prayed for, and defendants White and Paden prosecute this appeal therefrom. The court’s order upon its face discloses that the hearing was had and the writ issued simply upon the allegations contained in the pleadings.

Opinion.

The petition was not verified in the manner required by article 4649, Revised Statutes. Smith v. Bank, 152 S. W. 449; Collier v. Smith, 169 S. W. 1110.

The appellees do not contend in their brief that the affidavit is sufficient, but call our attention to a number of early decisions, wherein it was held that the petition need not be verified. Eccles v. Daniels, 16 Tex. 137; Johnson v. Daniel, 25 Tex. Civ. App. 587, 63 S. W. 1032; Hamblen v. Knight, 60 Tex. 36. The inapplicability thereof is apparent when it is considered that the question there considered was the propriety of issuing an injunction upon final hearing and judgment upon an unverified petition.

The hearing in this ease was not final, and the order is interlocutory. The court’s action was not based upon evidence adduced in support of the allegations in the petition, but the allegations alone formed the basis of the court’s action. The recitals in the order so disclose. Railway Co. v. Mosel, 180 S. W. 1138.

There is no merit in the suggestion of appellee that the sufficiency of the affidavit cannot he questioned for the first time in this court. Conceding that the record does not disclose the court’s attention to have been called to the exception, nevertheless, it was improper to grant the writ based alone upon the allegations of the petition unless properly verified. And upon appeals from orders of this nature the correctness of the court’s action is before us for review upon the whole record. It is not even necessary to assign error, to brief or to argue the cause. Article 4645, R. S.; Ft. Worth, etc., v. City of Ft. Worth, 106 Tex. 148, 158 S. W. 166, 48 L. R. A. (N. S.) 994; Commissioners, etc., v. Nichols, 142 S. W. 37; Sutherland v. Cabiness, 146 S. W. 331; City of Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 460.

For error in granting the writ upon the allegations of a petition insufficiently verified, the injunction granted in the court below is dissolved, and the cause is reversed and remanded.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes