author: HARPER, C. J.

text:
    FOIX v. MOELLER et al.
    (Court of Civil Appeals of Texas. El Paso.
    June 26, 1913.
    On Rehearing, Oct. 23, 1913.)
    1. Fbatjd (| 30) — Parties Liable.
    Each party to a fraudulent transaction is liable for the false representations of the others, made in pursuance of the mutual understanding- of the parties or in furtherance of the common plan, at least until the termination of the enterprise.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 35; Dec. Dig. § 30.]
    2. Principal and Agent (§ 156) — False Representations oe Agent — Liability oe Pbincipal.
    A principal is liable -for authorized false representations made by his agent, and for false representations made by the agent in the due course of his employment, made to induce one to purchase property, whether the principal or the agent knew the representations to be false or believed them to be true, where the representations were intended to and actually did induce the purchase.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. § 156.]
    3. Pkinoipal and Agent (§ 184) — Fraudulent Repbesentations — Liability oe Pbincipal.
    Where one was induced by false representations of a principal or his agent to purchase property, the liability of the principal for the damages sustained need not rest on the tort, but may be referred to the contract; such representations operating, as against the seller, as a warranty.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 701-703; Dec. Dig. § 184.]
    4. Fraud (§ 13) — False Representations oe Agent — Liability.
    An agent is not liable for the making of false representations unless he knew them to be false, or unless he made them as a positive assertion, calculated to convey the impression that he had actual knowledge, when in fact he was conscious that he had no actual knowledge.
    [Ed. Note. — Fohr other cases, see Fraud, Cent. Dig. §§ 3-5; Dec. Dig. § 13.]

      5. Fraud (§ 22) — False Representations op Agent — Liability.
    Where an agent, authorized to sell stock of a mining corporation, falsely stated. to a prospective purchaser that he was acquainted v/ith the mine and the incorporators, and that the corporation had good title, and thereby induced a purchase of stock and prevented the purchaser from making inquiry and thereby discover the truth, the agent could not defeat a. recovery on the ground of the purchaser’s negligence.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 19-23; Dec. Dig. § 22.]
    6. Fraud (§ 30) — False Representations— Persons Liable.
    An agent making false representations inducing one to purchase corporate stock is not responsible for the fraudulent representations of another, acting as the agent of a third person in the sale of the stock.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 35; Dec. Dig. § 30.]
    7. Trial (§ 143) — Evidence — Submission op Issues to Jury.
    Where the evidence is conflicting, the issue must be submitted to the jury, and a peremptory charge is erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.]
    8. Principal and Agent (§ 156) — False Representations op Agent — Liability op Principal.
    That one, induced by the fraudulent representations of an agent to purchase corporate stock, took the personal guaranty of the agent, did not relieve the principal from liability, provided the representations were made in the course of the agency or ratified by the principal by accepting the benefits of the sale.
    [Ed. Note — For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. § 156.]
    9. Fraud (§ 9) — Sale op Stock — Fraudulent Representations — Prospectus.
    A prospectus of a corporation, which gives information as to the property, machinery, and-appliances of the corporation and its financial condition, is a representation of fact, and, if false and the inducement for a purchase of stock, the corporation is liable for the damages sustained.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 8; Dec.. Dig. § 9.]
    10. Principal and Agent (§ 137) — False Representations op Agent — Liability op Principal.
    A principal, who ratifies the action of his agent in making false representations inducing a purchase of property, by taking the proceeds of the sale, except the commissions payable to the agent, is estopped from asserting that he did not authorize the agent to make the representations.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 492-494; Dec. Dig. § 137.]
    11. Fraud (§ 55) — Sale op Corporate Stock — Evidence—Admissibility.
    Where, in an action for fraud inducing a purchase of stock of a mining corporation, there was no question of the good faith of the officers of the corporation, and the matter of extension of time on deferred payments before title would pass to the purchaser was not pleaded as a defense, evidence that, after the termination of the rights of the corporation to the mine; an officer procured another option on the mine, under which he intended to protect stockholders, and that by reason of a revolution in the foreign country where the mine was located he could not avail himself of the option, was inadmissible.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 52; Dec. Dig. § 55.]
    12. Fraud (§ 55) — Sale op Corporate Stock — Evidence—Admissibility.
    In an action for fraud inducing a purchase of stock of a mining corporation, evidence as to how much money some of the defendants had put into the enterprise before or after the incorporation, for which they were never paid, was inadmissible because not excusing them from liability for the false representations.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 52; Dec. Dig. § 55.]
    13. Fraud (§ 50) — Evidence — Burden op Pro op.
    One suing for fraud inducing the purchase by him of property has the burden of proving it.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 46, 47; Dec. Dig. § 50.]
    14. Fraud (§ 52) — Evidence — Admissibility.
    A large latitude is permitted in the admission of evidence of fraud, and evidence of facts not themselves directly in issue is admissible where they are relevant to the issues made by the pleadings.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 48; Dec. Dig. § 52.]
    On Rehearing.
    15. Principal and Agent (§ 156) — Fraudulent Representations — Liability op Agent.
    Where an agent authorized to sell property made false representations and thereby induced a purchaser to believe the representations and prevented him from instituting any inquiry in relation to the facts, and the purchase was made in reliance on the information given by the agent, the agent was liable for the fraud, though he disclosed his principal.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. § 156.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by L. A. Foix against William Moel-ler and others. From a judgment granting insufficient relief, plaintiff appeals.
    Reversed and remanded.
    Goldstein & Miller, of El Paso, for appellant. Lea & Nagle, Jones & Jones, M. W. Stanton, and J. F. Weeks, all of El Paso, for appellees.

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

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

   HARPER, C. J.

This is a suit brought by appellant, L. A. Foix, to recover from William Moeller, A. J. King, W. L. Rynerson, K. F. Purdy, and the Purdy Gold & Silver Mining Company the sum of $2,000 as damages for certain alleged false and fraudulent representations practiced upon him by said parties, whereby he was induced to purchase 5,000 shares of the capital stock of the Purdy Gold & Silver Mining Company, paying therefor $2,000 on June 2, 1910, which stock he alleges, is absolutely worthless, but, relying' upon the false and fraudulent representations of appellees, he was induced to buy said stock and pay said price therefor, wherefore he was damaged in tiie sum of $2,000, with interest thereon from June 2, 1910, at the rate of 6 per cent, per annum, for which he prayed judgment against all of said defendants.

Plaintiff charges: That the appellee Moel-ler published in the El Paso Herald the following: “A Gilt Edged Investment. Of $4,-000.00 that will be worth $10,000.00 in a year from now, and pay 3%% interest per month.” That he read said advertisement, and, induced thereby, called on. Moeller and inquired what said investment was, and Moeller informed him that it was stock in the Purdy Gold & Silver Mining Company, which he offered to sell plaintiff, and, to induce him to buy it, stated to him: That said Purdy Gold & Silver Mining Company was a legitimate company, and the purchase of stock therein a safe and conservative investment; that he (Moeller) was acquainted with said mining company, its property, holdings, and with its incorporators, officers, and directors; that said mining company owned a mine in Sonora, Mexico, with which he was well acquainted ; that it was a fine mine, a large producer of silver, and that said company owned said mine and all equipment, machinery, and necessary buildings to operate said mine, and .was operating said mine, and taking ore therefrom yielding 1,000 ounces of silver to the ton, but the company desired to improve and enlarge its machinery, and install a larger mill and cyanide plant, and to that end had decided to sell a small quantity of its capital stock at 40 cents per share, par value thereof being $1.00 per share; that having known Moeller for years he relied upon his statements, and was greatly impressed with the advisability of buying the said stock, which facts he communicated to Moeller. Whereupon Moeller stated that he would send for the defendant King, who was in Douglas, Ariz., and who would bring the stock with him and explain further to the plaintiff about said company, its property, and its condition. That pursuant to Moeller’s request King came to El Paso, and Moeller arranged with him to meet plaintiff in Moeller’s office; Moeller being present and participating in the conversation, and reiterating and vouching for King’s statements, at which time and place King stated to plaintiff, and read from the prospectus of said company, to the effect that: “The Purdy Gold & Silver Mining Company owned the Roy and San Rafaelito mines in Sonora, Mexico, and the equipment, machinery, buildings, and appliances used in connection with the operation of said, mines; that said company was in fine financial condition, and said mine in fine shape, and that said company desired to sell a small part of its stock in order to enlarge its equipment and machinery.” That Moeller and King, in making the aforesaid statements, were acting for themselves and codefendants and being authorized so to do, and in pursuance of the common design and a conspiracy entered into between them for the purpose of giving said company the appearance of a bona fide company, and of sound financial strength for the purpose of selling stock therein. That King read from a prospectus of said company in the preparation of which the defendants King, Purdy, and Rynerson, as the incorporators, officers, and directors of said company assisted; and all of said defendants, with the knowledge of the said prospectus and the falsity thereof and the contents of which they knew, and should have known by the exercise of such care as it was their duty to exercise, accepted, ratified, and approved and knowingly permitted King and Moeller to circulate the same for the purpose of selling stock in said company, and were guilty of gross negligence in permitting King to circulate the same; and that said parties, as the incorporators of said company, and actively controlling its affairs and holding themselves out to the public as such, were charged with notice of the publication of the said prospectus, the falsity of the statements contained therein, and its use by said King in the sale of the stock of said company, and had they exercised such diligence as the law required of them, as such officers of said company, they would have known of the publication of the same, and wherein the same was false and misleading, and would have prevented the use of the same in the sale of the stock of said company, and were grossly negligent in failing so to do. That said prospectus repeatedly referred to the Roy and San Ra-faelito mines as the property of said company, and likewise referred to the mining machinery, equipments, and buildings used in connection therewith, and thereby purposely conveyed the meaning that said company owned said mines, mining machinery, equipments and buildings, and purposely failed to state the nature of its claim thereto — all for the purpose of deceiving plaintiff and inducing him to believe that said company owned said mines, equipments, buildings, etc.; all of which statements were false, in that said company never, at any time, owned said mines, but merely had an option to purchase the same and on which it had only paid $5,000, and that it owed on said contract, or option, the sum of $27,000, $9,000 of which became due on or before August 11, 1910, $9,000 on or before February 11, 1911, and $9,000 on or before August 11, 1911, and time was made the essence of said option, and the failure to make said payments, as they respectively became due, gave the owner of said mines the right to terminate said contract and forfeit the interest of said company in said property; and that said company did fail to make the $9,000 payment due August 11, 1910, on account of which the.owners of said mines forfeited said contract and took possession of said property, but plaintiff, relying upon the statements of said Moeller and King, and those contained in the prospectus, and believing the same to be true, and induced thereby, purchased the stock in question and was damaged in the sum of the amount paid therefor with interest. By trial amendment plaintiff pleaded that, in pursuance of the conspiracy between the incor-porators of said company, the stock of said company, not allotted to said parties, was put in escrow in the First National Bank of Douglas to facilitate the. sale of same by the said King, and under direction to said bank to deliver stock on the payment • of 30 cents per share, and that stock sold to plaintiff was a part of the stock thus put in escrow by said defendants, and that King and Moeller, in making statements and representations, and that said defendants in publishing said prospectus did so in pursuance of the common design and conspiracy entered into between them for the purpose of selling said stock.

The defendant the Purdy Gold & Silver Mining Company answered by general and special exceptions, general denial, and for special plea alleged that it did not execute the prospectus set up as an exhibit in plaintiff’s petition, and that it did not authorize any one to do so. And further alleged that the charter issued under the laws of Arizona did not authorize it to buy mines in the republic of Mexico, and therefore such acts were ultra vires and void, etc. No brief is filed in this court by said defendant corporation.

Defendant K. F. Purdy answered by general denial, and specially denied that he employed or authorized his codefendants, William Moeller and A. J. King, to act as his agents; and further denies that a sale of stock was made by the Purdy Gold & Silver Mining Company or by any agent of the said company, as alleged by the plaintiff. Further alleged that he (Purdy) had no knowledge of the sale of stock and received no benefit or thing of value growing out of same. That the plaintiff in fact made no absolute purchase of stock, but by an agreement between him and A. J. King, he (plaintiff) took a guaranty or indemnity against loss, with a covenant that King would at the expiration of one year return the money if plaintiff was not satisfied. That therefore defendant Pur-dy is not liable, and for further answer adopted the special allegations in the answer of the Purdy Gold & Silver Mining Company.

William Moeller answered by general denial and specially alleged that at the time the stock was sold to plaintiff, or at any other time, he had no interest in the Purdy Gold & Silver Mining Company, and that he was in no wise connected with the transaction as a principal, but acted solely as an agent for one A. J. King, who listed said stock with him, as a real estate agent and broker, for sale; and that he so informed the plaintiff at the time of the negotiations for sale, and further informed the plaintiff that he (King) could tell him all about the stock; that he introduced the said King to plaintiff; and that all the negotiations for the sale of said stock were conducted by said King with the plaintiff. And further alleged that the said plaintiff made no absolute purchase of stock, but a conditional one; that by agreement between him and A. J. King, he (plaintiff) took a guaranty or indemnity against loss, with a covenant that King would at the expiration of one year return the money if plaintiff was not satisfied; that therefore defendant Moeller is not liable.

W. L. Rynerson pleaded general denial, adopted the answer of defendant Purdy, that the prospectus .pleaded by plaintiff was not issued, signed, circulated, or promulgated by him or with his knowledge or consent, or by any one authorized by him.

Upon the conclusion of the evidence, the court peremptorily instructed the jury to return a verdict against plaintiff, and in favor of the defendants iVÍoeller, Purdy, and Ry-nerson, and in plaintiff’s favor against the defendant A. J. King for $2,000, with interest thereon from June 2, 1910, at 6 per cent, per annum, and in plaintiff’s favor against the defendant Purdy Gold & Silver Mining Company in the sum of $1,000, with interest thereon from June 2, 1910, at the rate of 6 per cent, per annum.

Having decided that this case must be reversed and remanded for new trial, we refrain from quoting from the evidence, except in so far as we deem it necessary in passing upon the points of law requisite for instruction to the trial court; and in passing on the assignments of error we pass upon the propositions which are likely to arise upon another hearing in trial court.

The first assignment charges that the trial court erred in refusing to give a special charge requested, which was a peremptory charge for the jury to find for plaintiff against William Moeller; the proposition being that the uncontradicted facts and admissions of Moeller show that he and defendant King were acting together in the sale of the stock, and that Moeller referring plaintiff to King as a person who knew all about the Purdy Gold & Silver Mining Company, its mines and property, and that he could and would tell plaintiff the facts about the property, and the evidence showing that the statements concerning the mine and the condition of the company made by each of them, he (Moeller) became bound thereby.

The first question is: Would Moeller be responsible if he should make false statements and representations about the stock to be sold as an inducement to the purchase thereof? And, second, if so, then would he be responsible for the false and fraudulent representations concerning the stock made by King, if he (Moeller) represented to the purchaser that he (King) knew all about the said company and its mines and referred plaintiff to him (King) for information?

The general rule is that, both in civil and criminal cases, each party to a fraudulent transaction is responsible for the acts and representations of the others done in pursuance of the mutual hnderstanding or in furtherance' of the common plan, at least until the termination of the enterprise. Wolf v. Perryman, 82 Tex. 119, 17 S. W. 772.

Eor material and false representations made by his agent, as fully as for such representations made by himself in person, the principal is responsible, if he authorized the agent to make them, or if they were made by the agent in the course of his employment as such. When so made by the agent, such representations are to be treated as, the representations of the principal, and whether the principal, if he made such representations, or his agent, if he made them, knew them to be false, or made them innocently, believing them to be true, is of no importance in determining the liability of the former for damages actually suffered, where the representations were intended to induce, and did induce, a buyer to purchase the property he otherwise would not have purchased of the principal.

In such a case, if the representations were fraudulently made, the liability of the principal need not be rested upon the tort, but may be referred to the contract, for, whether made innocently or deceitfully, such representations as against the seller operate as a warranty. Wimple v. Patterson, 117 S. W. 1034.

The same rule does not apply to the agent, when he avowedly acts, not for himself, but for one known by the purchaser to be his principal; his liability, under such circumstances, to the buyer, depends upon his own fraud or deceit practiced on the purchaser to induce him to enter into the contract. As stated by a writer in 20 Cye. 24: “It is well settled that, to support an action of deceit based on a false representation made by agent, it must be made to appear that he made them knowing them to be false, or must be made as a positive assertion calculated to convey the impression that he has actual knowledge of its truth when in fact he is conscious that he has no actual knowledge.”

In the instant case, if Moeller represented to Eoix that Purdy Gold & Silver Mining Company had good title to the mine, or made any other representations which were not mere expressions of opinion, and the purchase was made upon the faith of such representations, the mere fact that Moeller, or King, informed the purchaser that the bank at Douglas held the stock, and that the latter, after receiving this information, had sufficient time and opportunity to have inquired of the bank about the title, or other representations of fact, before he made the purchase, will not absolve the former from liability for the misrepresentation ; for if the representations were such as to induce the purchaser to believe them, and to prevent him from instituting any further inquiry in relation thereto, and he made the purchase relying upon the information on the subject that he received from Moeller, then the latter would be responsible for the fraud, and, too, even though he had disclosed the name of his principal.

If Moeller stated to Eoix that he was acquainted with the mine, knew the parties who had incorporated the Purdy Gold & Silver Mining Company, and that their title was good, such things were calculated to increase the confidence of Eoix in the statements of facts, if any, made by the said Moeller. The argument of appellee Moeller “that he gave sufficient information to put Eoix upon inquiry concerning title, etc., to-constitute constructive notice that the company did not own the mine, and that consequently he must be regarded as being aware of the falsity of the representations at the time he made the purchase,” is inapplicable to the facts of this case as we view them. The information, if given in the manner depicted by Foix, was calculated to mislead and deceive, and although Foix might have, by a letter of inquiry, discovered the true facts, yet, if he was prevented from doing so by the character of the representations themselves, it cannot be said with any degree of propriety that the deception under which he labored was the result of his own negligence. Campbell v. Hillman, 15 B. Mon. (Ky.) 508, 61 Am. Dec. 197.

As was stated in Wimple v. Patterson, 117 S. W. 1035, to constitute fraud which would make the agent personally liable, it is not only necessary that the representations should be untrue, but the agent should know it to be so at the time it was made, or that they were made as a positive assertion calculated to convey the impression that he had actual knowledge of the truth when, in fact, he was conscious that he had no such knowledge. If then Moeller as agent, when he sold the stock to Eoix, actually believed the statements be made, which induced the purchase, to be true, although untrue, yet, having been made in good faith, would not amount to a fraud, or subject him to any responsibility to the purchaser; and in no event would he be responsible for the fraudulent representations of defendant King, who, under the facts of this case, was the agent of the other defendants.

But these are all matters of fact for the jury to determine, and the evidence, being conflicting, should have been submitted under appropriate instructions by the trial court, but not in a peremptory charge, as requested by appellant, the refusal of which is made the subject of his first assignment, and it is therefore overruled.

What is said above disposes of the second, third, fourth, seventh, eighth, ninth, tenth, eleventh, twelfth, and the sixth and nineteenth assignments as they apply to defendant Moeller.

The fifth, sixth, thirteenth, and fifteenth assignments charge that the court erred in peremptorily instructing a verdict for defendants Moeller, Purdy, and Rynerson, as follows: “You are further instructed to find a verdict in favor of the plaintiff and against the defendants A. J. King and the Purdy Gold & Silver Mining Company. You will find against said defendant King in the sum of $2,000, with interest thereon from the 2d day of June, 1910, at the rate.of 6 per cent, per annum to this date. You will find against the defendant company in the sum of $2,000 and interest thereon from the 2d day of June, 1910, at the rate of 6 per cent, per annum.”

It appears from the record that defendant Moeller was the agent of King, and under the following testimony of Purdy and Ryner-son, to the effect that they incorporated and were the officers of the company, that they issued the treasury stock and placed it in the bank, and by the following writing authorized A. J. King to act as their agent: “Douglas, Arizona, March 17, 1910. First National Bank, Douglas, Arizona — Gentlemen: I herewith deposit with you the following certificates of stock in the Purdy Gold & Silver Mining Company (here follows an itemized list of the stock so deposited which includes shares bought by plaintiff), and I hereby authorize you to deliver to A. J. King any or all of the certificates, on payment of not less than 20e per share, and to deposit the proceeds to the credit of the Purdy Gold & Silver Mining Company. You are instructed to deliver any or all of the stock in your possession to Dr. K. F. Purdy, or to me on demand and without payment. These instructions are subject to change at any time on my written order. W. L. Rynerson.” The testimony further tends to show that Foix was influenced in deciding to make the purchase by the representations made by both Moeller and King.

Applying the well-settled principle of law above quoted, “that material and false representations made by the agent, or by himself in person, the principal is responsible if he authorized the agent to make them, or if they were made by the agent in the course of his employment as such. When so made by the agent, such representations are to be treated as those of the principal, and whether the principal, if he made such representations, or his agent if he made them, knew them to be false, or made them innocently, believing them to be true, is of no importance in determining the liability of the former for damages actually suffered, where the representations were intended to induce, and did induce, a buyer to purchase property he otherwise would not have purchased. Mitchell v. Zimmerman, 4 Tex. 81, 51 Am. Dec. 717. And it would make no difference that he (Foix) took the personal guarantee of defendant King, agent of the company. If Foix was influenced to purchase the stock by the representations of King, and the representations were made in the course of his agency, or if Purdy and Rynerson accepted the benefits thereof (Rynerson testified that he knew of the sale and checked out the money), they would be held to have ratified the sale. Though the representations made by King to induce the sale were not made in the scope of his authority, still they (Purdy and Ryner-son) would be liable to Foix for the moneys actually paid by him for the stock which was worthless.

Appellees invoke the rule laid down in Belo v. Fuller, 84 Tex. 450, 19 S. W. 616, 31 Am. St. Rep. 75, as applicable to the facts of this case. In the case cited the cause of inquiry was the publication of an article in a newspaper which reflected upon plaintiff, etc. In this case the prospectus was in the nature 'of personal representations of fact, which led to the sale of worthless stock in a mining company. In the one case the libelous matter in the publication was the matter complained of. In this case, the prospectus being false and having induced plaintiff to purchase, it became a matter of misrepresentation of a fact, upon which plaintiff acted to'his injury. In so far as the pleading and evidence in this case reveals the facts, they tend to prove that Purdy and Rynerson w;ere the real beneficiaries in the sale of the stock, except the commissions to be paid to King and Moeller, and if they (Purdy and Rynerson) ratified the actions of their agent by taking the proceeds of the sale and appropriating same to their own use, they cannot now be heard to say that they did not authorize King to make the misrepresentations which brought the proceeds of the sale; and it would not matter whether they knew of the false representations of King, if any, or not; they would be equally liable after ratification. Meinershagen v. Taylor, 169 Mo. App. 12, 154 S. W. 886.

The seventeenth assignment reads: “The court erred in peremptorily instructing the jury to find a verdict in.favor of the defendants Moeller, Purdy, and Rynerson, because the evidence supported the issue of conspiracy, pleaded by plaintiff as against said defendants and their codefendants, to sell the stock of said company, and plaintiff was entitled to have this issue submitted to the jury for their determination.”

There is no evidence that Moeller acted with Purdy and Rynerson in such manner as to constitute a conspiracy, so the court did not err'in refusing to submit the proposition complained of. If, however, upon another trial there should be any evidence that the parties defendant acted together in a common design to induce Foix to purchase the worthless stock, in that case the question of conspiracy shoul% be submitted to the jury.

The eighteenth assignment charges that: “The court erred in permitting the defendant Purdy to testify that after the Purdy Gold & Silver Mining Company’s rights to said mine, under said contract, had been terminated and forfeited, the said Purdy procured another option on said mine, under which he intended to protect the shareholders of the old Purdy Gold & Silver Mining Company, and that, by reason of the revolution in Mexico, he was unable to avail himself of said option, all as shown by plaintiff’s bill of exception No. 1, because said matters transpired long after the alleged fraud had been perpetrated upon plaintiff, and plaintiff would not be required to waive the fraud that had been perpetrated upon him and take stock in another company as a satisfaction for said fraud, and such facts, if true, constitute no defense to this action and was calculated to prejudice the rights of the plaintiff before the jury.”

Being no question of good faith upon the part of the officers of the corporation, and the matter of extension of time on the deferred payments to be made before title could be had not being pleaded as a defense to plaintiff’s cause of action, the court erred in admitting the testimony complained or.

The nineteenth assignment complains that “the court erred in permitting the defendants Purdy and Rynerson to testify' as to moneys advanced by them out of their own pocket for the benefit of the company, as the same did not tend to prove any fact constituting any defense to plaintiff’s cause of action, and was calculated to prejudice his rights before the jury, all as shown by plaintiff’s bills of exception Nos. 2 and 3.”

The question of how much money Ryner-son and Purdy put into the enterprise, before or after the incorporation, for which they were never paid, does not tend in any way to excuse them from liability to plaintiff, if the jury upon another trial find that under the facts then proven, applied to the rules of law above enunciated, they are liable to plaintiff for damages, if any suffered by him.

The issue in this case being fraud, the burden of proving it is upon the plaintiff. Prom its very nature, it is usually impossible to prove it by direct and positive testimony, and for this reason a large latitude is permitted in admission of evidence on such an issue. Evidence of facts, not themselves directly in issue, is admissible where such facts are relevant to the issues made by the pleadings. Such facts may be in time remote from the principal fact; but, when taken together and connected with other facts, they may form links in an unbroken chain of circumstances extending back to the timé of the occurrence of the main fact and establish its existence by showing that each link in the chain of facts extending from it was but the sequence of which it was the present or proximate cause, and these observations apply to all the parties, both plaintiff and defendants.

Appellees Purdy and Rynerson plead and testify that they had no interest in the stock in question, and they contend that in order to hold them personally liable it was incumbent upon the plaintiff to prove such facts as would be necessary to hold a director of a corporation personally liable. This is approximately a correct statement of the law, but we do not feel that he would be justifiable in holding that there is no such evidence in this record, and certainly there is no such showing in evidence as would justify a holding at this time that there would not likely be such evidence upon another trial of this case; and unless we could so hold this case would not be affirmed as to these defendants. These defendants are in the position of promoters, and a stricter rule applies to them than to Moeller, which rule is enunciated in Dickerman v. Northern Trust Co., 176 U. S. 204, 20 Sup. Ct. 311, 44 L. Ed. 423.

For the reasons given above, this cause must be reversed and remanded for a new trial, and it is so ordered.

On Rehearing.

Having concluded that the opinion of the court is subject to one of the criticisms made in the motion for rehearing, we make the following correction:

Beginning at “In the instant case,” if Moel-ler made misrepresentations of facts which would render him liable under the rule of law quoted in the original opinion (20 Cyc. 24), and the purchase was made upon the faith of such representations, the mere fact that Moeller, or King, informed the purchaser that the bank at Douglas held the stock, and that the latter, after receiving this information, had sufficient time and opportunity to have inquired of the bank about the title, or other representations of fact, before he made the purchase, will not absolve the former from liability for the misrepresentation, for if the representations were such as to induce the purchaser to believe them, and to prevent him from instituting any further inquiry in relation thereto, and he made the purchase relying upon the-information on the subject that he received-from Moeller, then the latter would be responsible for the fraud, and, too, even though he had disclosed the name of his principal..


source: Caselaw Access Project

author: SPEER, J.

license: Public Domain

text:
    HOLBERT et al. v. SANZENBACHER et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 28, 1913.
    Rehearing Denied Oct. 18, 1913.)
    Sales (§ 429) — Contracts — Warranty — Failure to Return for Breach of Warranty.
    Where a horse sold under a guaranty did not conform thereto, but the buyers did not return or offer to return it to the seller as required by the contract, the seller, not guilty of any fraud inducing the purchase, was not liable to the buyers for damages, though their notes for the price had been sold to a third person, who recovered thereon.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1224-1229; Dec. Dig. § 429.]
    Appeal from District Court, Clay County; P. A. Martin, Judge.
    Action by Henry Sanzenbaeher and others against A. B. Holbert and others. From a judgment for plaintiffs against certain of the defendants and in favor of other defendants, the former defendants appeal.
    Reversed and remanded.
    Wm. J. Berne, of Ft. Worth, for appellants. Taylor & Humphrey and W. T. Allen, all of Henrietta, and Bryan & Spoonts, of Ft. Worth, for appellees.

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

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

   SPEER, J.

This suit was brought by Henry Sanzenbaeher, L. C. Thaxton, G. C. Thax-ton, W. H. Douglas, E. J. Cowles, M. Lerner, Harray Scaling, Otto Polzin, A. Wolf, H. C. Zachery, and Carl Graff, constituting the Plenrietta Horse Improvement Company, against A. B. Plolbert, F. B. Holbert, Merchants’ & Planters’ Bank of Henrietta, and the First National Bank of Manchester, Iowa, to cancel certain notes, and in the alternative for damages arising out of a certain transaction in which 'the Holberts sold to the plaintiffs a certain stallion for breeding purposes. There was a jury trial resulting in á verdict and judgment for the plaintiffs against the Holberts for the sum of $2,500, but in favor of defendant banks. The Hol-berts alone appeal.

The Holberts first sold to appellees a stallion known as Abbey King. In this sale a written warranty of the horse was given, stipulating in effect that if the horse did not meet the terms of the said warranty he was to be returned to them and another horse given in exchange, and in accordance with the terms of this contract the horse Abbey King was returned to the Holberts, and another, Silver Tip, was given in exchange. Upon making this exchange the parties entered into the following guaranty contract: “Guaranty contract of A. B. Holbert, Importer and Dealer in all European Breeds of Draft, Coach and Trotting Stallions and Mares. Greely, Delaware County, Iowa, Feb. 15, 1911. In selling stallion horse Silver Tip to a company at Henrietta, Texas, and surrounding towns and their vicinities, it is specially understood by the persons who .have subscribed the shares in said horse, Silver Tip, that A. B. Holbert agrees to and binds himself to fulfill only the following guarantee on said horse Silver Tip. (10530) 1154. (1) Because I believe there are few truly sound stallions, A. B. Holbert gives notice that he guarantees no stallion sound, but guarantees all serviceably sound as serving stallions. (2) If said horse should not prove himself a 50 per cent, foal-getter after a fair trial on sure breeding mares, said purchasers shall return him to Greely, Delaware county, Iowa, or North Ft. Worth, Texas, and receive another horse of equal value that is supposed to be sure, and in no ease can they exchange for a horse of less value. (3) Parties in purchasing this horse and accepting this guarantee, contract that said horse shall be handled by an experienced, careful, kind, judicious stallioner, and caretaker, and he shall have a good box stall and yard not less than 40x50 to run in. (4) In case of exchange under any of the clauses and contracts hereto, horse must be returned as sound, as fat and in as good condition as when sold, or exchange shall not be available. (5) The seller of said horse shall not be bound by the conditions of this guarantee unless the purchaser submit to him a monthly report during season, in writing, showing the condition of this horse, the number of mares tried and reserved each month from date of purchase. This contract expires and the seller is released from any further obligations to the purchaser after April 1st, 1912. It is understood by the purchasers that the above-described stallion is not insured at this date, and, in consideration of the above guarantee, they, individually and collectively, agree* and bind themselves to have the life of said stallion insured for a period of not less than one year, for not less than $1,200, for which amount, in the event of the death of said horse during the next ensuing three years from this date, the said A. B. Holbert agrees to replace him with a horse of equal value at his barns at Greely, Iowa, or North Ft. Worth, Texas. Note: Each part to this purchase by accepting this slip accepts the above as complete and full terms of this purchase, and you are to take notice that salesmen are forbidden to in any way change the printed form of this guarantee, and if changed, will not be accepted as changed by the firm. [Signed] A. B. Holbert. On behalf of the purchasers, we, the undersigned, for ourselves and our associates, accept the above terms of purchase and sale. [Signed] W. H. Douglas. L. C. Thaxton. Henry Sanzenbaeher.”

The evidence shows that Silver Tip was not a good foal-getter and did not measure up to the written guaranty above quoted. But the evidence further shows without dispute that the horse was not returned to the Hol-berts, nor was there any offer to return him by the appellees under the terms of the contract. The evidence fails to show any fraud in the matter of procuring the written contract of exchange, or even to suggest that the instrument did' not contain the exact agreement of the parties. Under the undisputed facts the trial court should have instructed a verdict in favor of the appellants. Haynes v. Plano Mfg. Co., 36 Tex. Civ. App. 567, 82 S. W. 532; Oltmanns Bros. v. Poland, 142 S. W. 653, and authorities there cited. The case of Oltmanns Bros. v. Poland, last cited, is peculiarly applicable to and decisive of this case. The reasoning in that case commends itself to us, and it would be a superfluity to reproduce its language here. The judgment of the district court is therefore reversed, and the judgment here entered that should have been entered below; that is, that the appellees take nothing as against appellants.

Reversed and rendered.


author: DUNKLIN, J.

text:
    HANKS v. LESLIE et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 14, 1913.
    Rehearing Denied Oct. 18, 1913.)
    1. Husband and Wife (§§ 257, 267) — Community Property — Crops on Wife’s Separate Estate.
    Crops grown upon the wife’s separate estate are community property, which, under Rev. Civ. St. 1911, art. 4622, can be conveyed by the husband alone.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§, 896, 904-908, 910, 929-938; Dee. Dig. §§ 257, 267.]
    2. Husband and Wife (§ 267) — Community Property — Conveyances by Wife — Consent of Husband. u
    A deed executed by. the wife alone conveying community property, if executed with the consent of the husband, gives good title.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 929-938; Dec. Dig. § 267.]
    3. Husband and Wife (§ 272) — Community Property — Conveyances by Wife — Abandonment by Husband.
    Where the husband has abandoned the wife, leaving her no means of support, she may make a valid conveyance of community property without his consent for the purpose of supplying herself and family with necessaries.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1003-1007; Dec. Dig. §, 272.]
    4. Husband and Wife (§ 267) — Community Property — Chattel Mortgage by Wife-Record — Constructive Notice.
    Where a wife, with the consent of her husband, executed a chattel mortgage upon crops grown on her separate estate, the record of such a mortgage was not constructive notice to a creditor of the husband of the execution thereof by the wife with the husband’s consent and authority, since a purchaser cannot be required to search for conveyances made by an agent in his own name in the absence of record evidence of the appointment, and therefore the mortgage was not valid against the creditor, although it would be against the husband.
    [Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. §§ 1003-1007; Dec. Dig. § 267.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Garnishment by A. R. Hanks upon a judgment against T. B. Gallegley, in which I.. Leslie was garnishee, and P. E. Pope intervened, claiming the property. Judgment for the intervener, and the plaintiff appeals.
    Reversed, and judgment rendered for the plaintiff.
    J. M. Moore, of Cleburne, for appellant, W. H. Spinks, of Alvarado, for appellees.

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

   DUNKLIN, J.

I. Leslie rented a farm, the separate property of Mrs. Annie Gallegley, wife of T. B. Gallegley, for the year 1912. For the use of this farm the tenant agreed to pay one-third of the corn and one-fourth of the cotton raised by him during the year. This rental amounted to 3 bales of cotton and 25 bushels of corn. A. R. Hanks, who held a judgment against T. B. Gallegley, procured the issuance and service of a writ of garnishment upon Leslie to subject this cotton and corn to the payment of the judgment. The garnishee answered, alleging the rental contract above mentioned, and the fact that he held the amount of cotton and corn mentioned, which belonged to Mr. and Mrs. Gallegley, as rentals. He further alleged that P. E. Pope was claiming a mortgage lien upon the cotton and corn, and prayed that Pope be made a party to the suit that his rights might be determined. Pope then intervened, alleging a mortgage lien upon the crops superior to the lien created by the service of the garnishment. Upon the trial it was shown that Pope held a promissory note executed by Mrs. Annie E. Gallegley, together with a mortgage executed by her upon the rents on the farm for the year 1912, neither of which instruments were signed by her husband. These instruments were executed and delivered to Pope February 1, 1912, and the mortgage was filed for record as a chattel mortgage August 3, 1912. The writ of garnishment was issued August 26, 1912, and served upon the garnishee August 27, 1912. The only contested issue upon the trial of the case and upon appeal here is whether the garnishment lien or the inter-vener’s mortgage lien should have priority over the other. The case was tried by the court without the assistance of a jury, and judgment was rendered in favor of the in-tervener upon the issue just stated, from which judgment the plaintiff, A. R. Hanks, has appealed.

The uncontroverted testimony established the fact that Mr. and Mrs. Gallegley were living together as husband and wife in the town of Alvarado at the time the mortgage was executed. They had a daughter who was then sick and in need of medical treatment, and the money borrowed from 'inter-vener was for the purpose of meeting the expenses of such treatment and for the support of the family. The execution of the note and mortgage by Mrs. Gallegley was by and with the consent of her husband.

It is well settled by the authorities of this state that crops grown upon land which is the separate property of the wife are community property. Conner v. Hawkins, 66 Tex. 639, 2 S. W. 520. Under article 4622, Revised Statutes 1911, the husband alone can dispose of community property. It was shown by the testimony of the husband that the only reason he did not execute the note and mortgage was that it was not deemed necessary so to do, in view of the fact that the farm was the separate property of his wife. •

The only evidence introduced by plaintiff was his judgment against T. B. Gallegley and the \yrit of garnishment with the officer's return showing its service, and no evidence was introduced by intervener to show that prior to the service of the writ plaintiff had actual knowledge of the mortgage and of the circumstances under which it was' executed. Thus it will be seen that the question upon which our decision must turn is whether or not the record of the mortgage "was constructive notice to plaintiff of its execution, and of the fact that Mr. Gallegley had authorized his wife to execute it.

It is well settled that a deed to land, the community property of the two spouses, executed by the wife alone, but with the •assent of the husband, will convey title. Thomas v. Chance, 11 Tex. 634; Neighbors v. Anderson, 94 Tex. 487, 61 S. W. 145, 62 S. W. 417. It is also a familiar rule that, when the husband has abandoned the wife, leaving her no means for her support, she, for the purpose of providing herself and family with necessaries, may make a valid conveyance of community property without his consent, and in Zimpleman v. Robb, 53 Tex. 274, it was held that a deed made by her under such circumstances and duly recorded has priority over a subsequent deed executed by the husband.' Necessarily this decision implies that the purchaser from the husband was chargeable with notice that he had a wife; that he had abandoned her; and that in his absence her necessities might require a sale by her of community property without hs consent. In Roos v. Basham, 41 Tex. Civ. App. 551, 91 S. W. 656, the Court of Civil Appeals for the First District held that a conveyance of land, title to which stood in the name of the wife, but which was in fact community property, executed by the wife alone, with the knowledge and consent of the husband, while they were living together as husband and wife, and duly recorded, was superior' to a subsequent conveyance of the same property by the husband and wife. In that decision it is stated that there was an absence of proof that the subsequent purchaser at the time of his purchase was ignorant of the former deed and of the husband’s knowledge and assent to its execution by the wife. In other words, the effect of the decision is that the record of the deed from the wife alone was constructive notice of its execution and of authority from the husband to the wife to execute it. From our investigation it seems that no writ of error was prosecuted from that decision to our Supreme Court.

In the case of New England Nat. Bank v. N. W. Nat. Bank, 171 Mo. 307, 71 S. W. 191, 60 L. R. A. 256, the Supreme Court of Missouri held that a chattel mortgage made by an agent in his own name, with no record evidence of his agency, or by the owner in a fictitious name, is not constructive notice to any subsequent purchaser from the owner. We are of the opinion that this decision is sound, and that the manifest reason and justice underlying it are applicable with equal force in this case. As between T. B. Gallegley and the intervener, no doubt the mortgage was valid, 'because in executing it Mrs. Gallegley was acting as the authorized agent of her husband. Plaintiff was chargeable with notice of the marriage relation existing between Mr. and Mrs. Gallegley, and of the fact that .they were living together as hus-> band and wife. Whetstone v. Coffey, 48 Tex. 269. But we can perceive no better reason for holding that notice of these facts would be notice that the husband had delegated to the wife authority to execute the mortgage than that he had delegated the same authority to some other person. It would be unreasonable to say that one desiring to purchase property would in the exercise of reasonable diligence be required to examine the records for conveyances by the owner through some agent in his name only in the absence of record evidence of the appointment of the agent. Such an investigation would be interminable. See Sweeney v. Taylor, 41 Tex. Civ. App. 365, 92 S. W. 442; Brothers v. Mundell, 60 Tex. 240; Overstreet v. Manning, 67 Tex. 657, 4 S. W. 248.

It will be noted that in the case of Roos v. Basham, supra, the title to the community property conveyed by the wife stood in her name. Thus the legal title was vested in her, although the power to convey it was by the statute vested exclusively in the husband. Stiles v. Japhet, 84 Tex. 91, 19 S. W. 450; Speer’s Law of Married Women, § 116. Some of us are of opinion that this fact would materially distinguish that case from the ease at bar, for the reason that the deed to the wife was a necessary link in the chain of title to the purchaser from the wife, and the fact thus appearing, that the husband had elected to constitute her trustee of the title, was sufficient to excite inquiry by a person of reasonable prudence, which, if pursued, would have led to a discovery of the conveyance by the wife, and of the fact that the same was with the consent of the husband. However, we all concur in the conclusion that the plaintiff in this case was not chargeable with constructive notice of the execution of the mortgage by Mrs. Gallegley, and of the fact that the same was with the consent and authority of her husband. Hence vve are of the opinion that the judgment should be reversed and here rendered in favor of appellant, establishing the priority of his lien over that of the mortgage lien of appellee Pope.

Reversed and rendered.


text:
    TEXAS & PACIFIC COAL CO. v. CHOATE.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 28, 1913.
    Rehearing Denied Oct. 18, 1913.)
    1. Master and Servant (§ 278) — Injury to Servant — Negligence — Evidence — Sufficiency.'
    In an action for injuries to an employs by the fall of the cage in which he was lowered to his work in a mine, evidence held to support a finding that the appliance of the engine controlling the movement of the cage was defective, and that the employer was negligent in permitting it to so remain.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    2. Damages (§ 216) — Personal Injuries — Instructions.
    A charge on the measure of damages for a personal injury, which directs the jury to assess the damages at such a sum as will reasonably compensate plaintiff for physical pain and diminished earning capacity from the time of the filing of the suit and as long as the diminution shall exist, directs the jury to award such a sum as paid presently will compensate plaintiff for the injuries sustained, and is correct.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Action by J. D. Choate against the Texas & Pacific Coal Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    John W. Wray, of Ft. Worth, for appellant. J. R. ’Stubblefield, of Eastland, for appellee.

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

   SPEER, J.

J. D. Choate, an employ® in the service of the Texas & Pacific Coal Company, received an injury through the alleged negligence of that company in permitting a cage in which he was being lowered to his work to fall to the bottom of the shaft. The precise ground of negligence alleged, and upon which the recovery in this case was had, was that of a defective throttle; the-throttle being that portion of the engine by which the movement of the cage was controlled. In this action by the injured employ® a verdict and judgment was entered in his favor, and the defendant has appealed.

The principal contention of appellant is that the trial court should have instructed a verdict in its favor for the insufficiency of the evidence to support a finding of negligence in the respect indicated. But we overrule this assignment.

Oliver Thomas, an employ® of appellant at the time of the injury and at the time of the trial, testified: “At the time of the injury Choate got on the cage that day with some material, to go down, and gave me the signal to go down. I started him down, and he got down a third of the way, and I tried to shut the steam off, and I failed, and then I tried to put a little more force, and failed again, and then I hit the throttle with both hands, and she stuck fast, and I tried to reverse and I couldn’t reverse it, and then I hit the throttle again, and it closed that time. I didn’t shut the steam off because I couldn’t, because the throttle stuck; that is, the throttle would not work. The first effort that I made to shut off the steam was just an ordinary push, the .same as we always give on a throttle. The second effort was a little heavier push, and the third effort, I struck it with both hands. If I weighed 130 pounds, I put 130 pounds against the lever, the third time — I threw my weight against it. .When the throttle refused to work I tried the reverse. If I could have reversed the engine it would have stopped, or at least stopped a fraction of a second, and started back the other way. I did not reverse it because I couldn’t.”

J. W. Stewart testified: “I know something about the condition of the throttle, on the hoisting engine, at shaft No. 2 of the defendant, at or about the time the plaintiff* is said to have been injured. I was working at shaft No. 2, and the engine was new, and I observed that the throttle seemed to be stiff. A short time before Choate was injured the engineer, Joe Yarborough, called me into the engine room, and operated the throttle for me to see how it was working. It seemed to work stiff, and Yarborough seemed to be using much force to operate the throttle. It seemed to require much more strength than usually required to operate it. I did not carefully inspect the throttle, but from the manner of its operation it was my opinion that the trouble was with the throttle, that it was too stiff. After the engine was installed by the company’s master mechanic, and by him turned over to the operating employés to run, said engine and throttle were not in good running order when I observed its operation.”

George Brown, a witness for appellant, testified: “I operated the new engine and in getting the throttle open; it was stiff to get open. You had to use both _ arms to get it open, but after you got it open it seemed all right. That was not confined to opening up in the morning, or starting fresh in the morning or evening. That was all of the time; every hoisting that was done was like thát. That was not the same throttle that came with that engine. That-was a pretty hard winter, and the throttle at No. 11 got bursted, and they came over and got that throttle, which came with the engine and took it to No. 11 and put it on No. 11 engine, and sent for a new one for that engine in the place of it.”

The evidence showed that the shaft where the injury occurred had been used about two months, and that whatever defect existed in the machinery had existed for a considerable time prior to the accident. It is true that appellant’s witnesses denominated the defect as a mere stiffness in the throttle due to the newness of the machinery. But the court expressly directed the jury, if .they found this to be true, that 'appellee had assumed the risk, and to return a verdict for the appellant. But the jury were not bound to accept the opinion of these witnesses, hut were authorized to find, as they did, that the throttle was defective, and that appellant was negligent in permitting it to remain so. The circumstances attending the injury show that the defect was more serious than appellant’s contention would admit.

It is insisted that the court erred in his charge on the measure of damage. It is as follows: “In case you should find a verdict for the plaintiff, you would assess his damages at such a sum as in your judgment would reasonably compensate the plaintiff for physical pain, if any, suffered by him and the diminution, if any, of his earning capacity from the time of the filing of this suit, and as long as such diminution, if any, shall exist, that were the direct and proximate result of the negligence, if any, of the said defendant.” The point is made that the recovery should be of such a sum as paid now would compensate appellee for his injury. This is the rule. But it is quite clear to us that the charge does not announce otherwise. In F. W. & D. C. Ry. Co. v. Morrison, 93 Tex. 527, 56 S. W. 745, cited by appellant, the instruction was so worded as to permit the jury to award to the plaintiffs the total amount which they would have received from the deceased had he not been killed. This was manifestly error. But the obvious meaning of the charge under review, and the jury doubtless so understood it, was that the damages returned in the verdict should be for such a sum as paid now would reasonably compensate the plaintiff for the injuries sustained.

The evidence supports the verdict on the issues submitted. There is no error in the record, and the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    CRINER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1913.)
    Ceiminal Law (§ 1098) — “Statement oe Facts” — What Constitutes.
    A stenographic report of the trial of a case, made out in the form of questions and answers and including the objections and argument of counsel on both sides on the objections, together with the remarks and rulings of the court, cannot be considered as a statement of facts on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2863, 2865; Dec. Dig. §, 1098.]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Sanko Criner was convicted of forgery, and he appeals.
    Affirmed.
    Miller & Miller, of Athens, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

The appellant appeals from a conviction for forgery with the lowest penalty prescribed by law fixed as his punishment.

There is no statement of facts with the record. There is the stenographer’s report of the trial of the case, made out in question and answer form, including objections, arguments of attorneys for both sides on the objections, the remarks and rulings of the court, and such other matters as are taken down by court stenographers on the trial of the case. This, we presume, is intended as a statement of facts.

Under the statutes of this state and the many and uniform decisions of this court, this document cannot be considered by this court as a statement of facts. Hargrave v. State, 53 Tex. Cr. R. 148, 109 S. W. 163; Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927; Baird v. State, 51 Tex. Cr. R. 324, 101 S. W. 991; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 565; King v. State, 57 Tex. Cr. R. 369, 123 S. W. 135; Kemper v. State, 57 Tex. Cr. R. 356, 123 S. W. 131; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Choate v. State, 59 Tex. Cr. R. 266, 128 S. W. 624: Many other cases might be cited, but we deem it unnecessary.

The questions attempted to be raised by appellant cannot be considered in the absence of a statement of facts.

The judgment is therefore affirmed.


author: HARPER, J.

text:
    HAYNES v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied Oct. 15, 1913.)
    1. Disturbance oe Public Assemblage (§ 10n0 — Evidence—Admissibility.
    In a prosecution for disturbing a congregation assembled for religious worship, evidence that, before accused moved into the community, some one had shot into the church was inadmissible, as it did not tend to show who committed the offense in question.
    [Ed. Note. — For other cases, see Disturbance of Public Assemblage, Cent. Dig. § 13; Dec. Dig. § 10.*]
    2. Criminal Law (§ 784*) — 'Trial—Sufficiency of Instructions — Circumstantial Evidence.
    In a prosecution for disturbing a congregation assembled for religious worship, where one witness testified that she recognized accused and his companion at the time, and other witnesses recognized the horses which the culprits rode as those of accused and his companion, the evidence was so positive that a charge on circumstantial evidence was unnecessary.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1883-1888,1922, 1960; Dec. Dig. § 784.*]

      3. Criminal Law (§ 814) — Instructions— Applicability to Evidence.
    Evidence, in a prosecution for disturbing a congregation assembled for religious worship, held insufficient to raise the issue of whether one of the persons who made the disturbance was not riding on a horse and the other on a mule, so as to require an instruction thereon asked by accused, who with his companion were both riding on horses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    4. Criminal Law (§ 814) — Instructions— Applicability to Evidence.
    Where the evidence, in a prosecution for disturbing a congregation assembled for religious worship, showed that the people were assembled in the church for worship, that accused saw them there, and that some one threw a jug through the window, an instruction that the jury should acquit if they should believe that accused threw the jug not knowing the people were assembled for worship, was properly refused.
    [Ed. Note. — For other, cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    5. Disturbance op Public Assemblage (§ 15) —Trial —Instructions —Applicability to Evidence.
    Where the evidence in a prosecution for disturbing a congregation assembled for religious worship showed that a jug was thrown through .the window by one of two persons acting together, and accused admitted that he was with a certain companion, it was not error to refuse to instruct that if accused did not throw the jug, he must be acquitted, for if either threw the jug, both would be guilty.
    [Ed. Note. — For other cases, see Disturbance of Public Assemblage, Cent. Dig. §§ 17, 18; Dec. Dig. § 15.]
    6. Disturbance op Public Assemblage (§ 1) — Congregation Assembled por Religious Worship — Presence of Minister.
    In a prosecution for disturbing a congregation assembled for religious worship, where people assembled at the church for worship were disturbed, the mere fact that the minister failed to come did not alter the character of the assemblage.
    [Ed. Note. — For other cases, see Disturbance of Public Assemblage, Cent. Dig. §§ 1-5; Dec. Dig. § 1.]
    7. Criminal Law (§ 800) — Instructions— “Willfully.”
    In a prosecution for disturbing a congregation assembled for religious worship, where the instructions defined the word “willfully” as meaning with evil intent, or without reasonable grounds for believing the act to be lawful, it was not necessary to give any other instruction defining the word, nor was it necessary to carry the definition forward in each paragraph of the instructions wherein the word was used.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. § 800.

    For other definitions, see Words and Phrases, vol. 8, pp. 7468-7481; vol. 8, pp. 7835, 7836.]
    8. Disturbance op Public Assemblage (§ 1) — Congregation Assembled for Religious Worship. '
    The law protects a congregation, assembled for religious worship, from disturbance so long as any one of them remains on the ground.
    [Ed. Note. — For other cases, see Disturbance of Public Assemblage, Cent. Dig. §§ 1-5; Dec. Dig. § 1.]
    9. Disturbance of Public Assemblage (§ 11) — Evidence— Sufficiency.
    Evidence, in a prosecution for disturbing a congregation assembled for religious worship, held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Disturbance of Public Assemblage, Cent. Dig. § 14; Dec. Dig. § 11.]
    10. Criminal Law (§ 655) — Trial—Conduct of Triad — Instructions.
    That the trial court led accused to believe that a requested charge would be given which the court failed to give, and accused argued before the jury that that was the law, while the prosecution insisted it was not, was not ground for reversal, where the instruction was one that there was no error in refusing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.]
    11. Criminal Law (§ 1064) — Appeal and Error-Reservation of Objections — Motion for New Trial.
    Objections not appearing in accused’s motion for new trial cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    Appeal from Tyler County Court; A. G. Reid, Judge.
    Bob Haynes was-convicted of disturbing a congregation gathered for religious worship, and he appeals.
    Affirmed.
    Joe W. Thomas, of Woodville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

This is a companion case to that of Lee Laird v. State, 155 S. W. 260, recently decided by this court. Appellant and Laird were charged by information with disturbing a congregation gathered for religious worship, convicted, and his punishment assessed at a fine of $25.

The first three bills of exception complain of the action of the court in refusing to permit him to prove that more than a year prior to this occurrence, and before appellant had moved into the community, some one had shot into the Cherokee churchhouse. That some person other than defendant may, at some time prior thereto, have committed a crime against this property would tend to elucidate no issue in this case, and would not tend to show who committed the offense on this occasion. There was no evidence offered as to who did the shooting, and no evidence placing such person in proximity to the church on this occasion. Therefore the court did not err in excluding the testimony.

One of the main contentions of appellant is that the court erred in refusing to charge on circumstantial evidence, and in refusing his special charge presenting that issue. A short synopsis of the testimony offered by the state is as follows:

Miss Ada Barnes testified: “I was at Cherokee church about November 4, 1911; we got there about 7 o’clock; we had just arrived, and I had stopped on the front step of the church, and was standing there at the time the jug was thrown through the window, and when I heard the crash of the jug through the window immediately thereafter, just as soon as a person riding fast could travel the distance from the window that was broten to the corner of the house, I saw Bob Haynes and Lee Laird pass the corner of the house, within about six feet of where I was standing. I saw their faces and recognized them, and I also recognized the horses as the horses of Lee Laird and Bob Haynes. The moon was shining very bright. Lee Laird was riding Bob Haynes’ horse, and Bob Haynes was riding Lee Laird’s horse. Lee Laird’s horse is a gray, and Bob Haynes’ horse was a sorrel. There was only those two when they ran by where I was standing. I saw Lee Laird and Bob Haynes again about 15 minutes after the throwing of the jug, they came back towards the church from the direction they had gone, as they rode by after the throwing of the jug. There was to the best of my recollection six of us at the church at the time, myself, my sister Pearl, my brother Arthur, Miss Nellie Lockhart, Lillian Platt (now Davis), and Lee Vinson. We were there for the purpose of attending church; my father had told us there would be preaching there that night. We were conducting ourselves in a lawful manner.”

Miss Nellie Lockhart testified: “I was at Cherokee church November 4, 1911. I was sitting by the window that the jug came in at in about three feet of the window. I was not facing the window, but 1 turned when the jug -came in at the window and saw two persons riding off, they were riding a gray horse and a sorrel horse. I did not recognize the parties on the horses; they had their backs to me. There was only two of them, and neither was riding a mule. It was a bright moonlight night. Some 19 minutes after the jug was thrown in at the window, Bob Haynes and Lee Laird came up to where we were standing a little distance from the church, and Lee Laird was riding a gray horse and Bob Haynes a sorrel. We were at the church for the purpose of attending preaching; this happened in Tyler county, Tex.”

Arthur Barnes testified: “I was at Cherokee church November 4, 1911. There was six of us went there to preaching. I do not know who threw the jug; they were riding fast. I saw two parties come by after the jug was thrown in at the window; the horses they were riding were Lee Laird’s and Bob Haynes’. I did not recognize the parties on the horses. The horses were a sorrel and a gray horse, and I saw Laird and Haynes a few minutes after the jug was. thrown in at the window, and they were riding horses like the parties were riding when the jug was thrown in at the window.”

Under every decision rendered by this court since its organization, this testimony would not call for a charge on circumstantial evidence. Miss Ada Barnes testifies positively she recognized the parties at the time, and the other witnesses testify to such facts and circumstances as would make the case one of positive testimony. Even the defendant’s witnesses testify to such facts. Lee Vinson testified for defendant; “I was at Cherokee ckurchhouse on the night of November 4, 1911. There were six of us. We went there to attend preaching. I was there with Pearl Barnes, now my wife. It was a bright moonlight night. I heard the jug strike the window. I was sitting inside the church. I jumped up and ran to the door, when the jug crashed through the window, and saw the parties riding off. I could not tell who it was; they were riding fast. I could not tell whose horses it was. It might have been mules. I did see Lee Laird and Bob Haynes about 10 minutes after the jug was thrown., Lee Laird and Bob Haynes came up to where we were about 10 minutes after the jug was thrown; they came from the direction that the parties had gone that ran by at the time the jug was thrown. I saw them again a while afterwards. They passed, us on their horses. Laird was riding a gray horse and Haynes was riding a sorrel ball-faced horse.” This witness was the only one present on the occasion that appellant introduced. Por a long list of authorities holding that such testimony as this does not call for a charge on circumstantial evidence, see Branch’s Crim. Law, § 203, one of the rules stated being that if the facts proven are in such close juxtaposition to the factum probandum as to be equivalent to direct testimony, a charge on circumstantial evidence is not required (citing Wheeler v. State, 15 Tex. App. 612; Montgomery v. State, 55 Tex. Cr. R. 504, 116 S. W. 1160; Holt v. State, 9 Tex. App. 582; Baldwin v. State, 31 Tex. Cr. R. 589, 21 S. W. 679; Adams v. State, 34 Tex. Cr. R. 471, 31 S. W. 372; Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Smith v. State, 90 S. W. 638).

The appellant requested the court to charge the jury: “You are instructed by the court that if you believe from the evidence that the party who threw the jug through the window at Cherokee church on the date alleged in the information in this case was riding a mule, or if you have a reasonable doubt that the jug was thrown by a party riding a horse, in either event you will acquit the defendant.” He earnestly insists that the evidence raises this issue, and it was error to refuse this charge. It is seen by the testimony of all the witnesses.-present on the occasion (heretofore copied) who testify as to the animals that the parties were riding horses, one a gray and the other a sorrel-horse. Now, what is the testimony appellant claims raises this issue? Herman Poole testified that Monday morning he examined the ground near the broken window, and “found a track wMcli looked like a mule track,” but said be would not swear it was a mule track. Prof. G-ine Nowlin testified be examined tbe ground Monday morning after the jug was thrown on .Saturday night, and “he found but one mule track between the road and the house; that he was raised on a farm and knew a mule track from a horse track; that the track found was about 10 feet from the broken window.” He added: “I would not swear positively that the track X saw near the window was a mule track.” Willis Bowen testified for defendant that he examined the tracks on Sunday morning, and could not tell whether the tracks were made by a mule or horse; there was an old mule that grazes near the church, running around there. The only other evidence offered was the testimony of Clarence Parks and Budd McAlister, who testified that 2% miles from this church they saw Hardy Marshall and Louis Jordan, and one of them was riding a inule and the other a horse, but no witness places these boys nearer than 2% miles of the church. In rebuttal the testimony of Hardy Marshall was introduced, who testified to meeting these boys and stated they were on their way to Joe Goodes to a singing, and other witnesses testify they saw them at the singing. He also testifies they did not go near the church that night. This is all the testimony on that issue, and in the light of the positive testimony offered by the state that the persons who threw the jug were riding a sorrel horse and a gray horse, the court did not err in refusing the special charge. It may be said that there was no testimony raising that issue.

The defendant asked several charges instructing the'jury that if appellant did not know the people were assembled there for religious worship, to acquit even though they believed he threw the jug. The testimony is unequivocal that these people at the church had gone there to attend religious worship, assembled there for that purpose, and if appellant threw the jug, they were disturbed by such act. Appellant’s testimony, while he denies throwing the jug, shows beyond question that he knew these people were there at the church; one witness says one of them dropped his hat and he (witness) picked it up and handed it to him. Under such circumstances the court did not err in refusing the special charges on that issue.

The testimony shows beyond question that the two persons who rode by the church were acting together. Appellant, while admitting that he and Laird were together, says neither of them threw the jug. Under such circumstances the court did not err in refusing to instruct the jury that they must believe beyond a reasonable doubt that appellant, Haynes, in person threw the jug, or they would acquit him. Under the evidence, if either he or Laird threw the jug, both would be guilty.

There was no testimony calling for special charges Nos. 4, 5, and 6. The testimony of all the witnesses show that the persons assembled at the church had gone there to attend divine services, and the fact the minister did not come would not alter nor change the purpose for which they had gathered and assembled at the church.

In his charge the court defined the term “willful” thus: “The word ‘willfully’ as herein used means with evil intent, or without reasonable grounds for believing the act to be lawful.” Having thus defined the term, it was not necessary to give the special charge 'defining the Word, and neither was it necessary to carry the definition forward in each paragraph of the charge wherein the word was used.

It is the law of this state that the law protects a congregation assembled for religious purposes so long as any one of them is on the ground, and the court did not err in so instructing the jury, and especially is this time in this case when we read the entire charge of the court. The evidence is, in our opinion, ample to support the verdict. We think the part hereinbefore copied will evidence that fact without a recitation of any other portion of it.

The complaint is made that the court led appellant to Relieve he would give one of the special charges requested, which the court failed to give, and which appellant says he insisted before the jury was the law of the case, and which the county attorney insisted was not the law, worked injury to his client, and for this reason, the case should be reversed. The court states in approving the bill that no such complaint was made at the time of the trial, and it was first complained of in the motion for a new trial. If the charge requested had been the law of the case, of course, the failure of the court to have given it would be error; but, as we have held herein that the court did not err in refusing to give the charge, the matters stated are not such as would entitle appellant to a reversal of the judgment.

Owing to the earnest insistanee of appellant’s counsel, we have taken up each and every bill of exception and ground in the motion for a new trial, and passed thereon. But those grounds that the able counsel presented in his oral argument before this court and presented in the brief, which do not appear in the motion for new trial, cannot be considered by us, and, finding no error pointed out in the motion for new trial, nor in any bill of exceptions filed herein, the judgment is affirmed.