text:
    TEXAS & P. RY. CO. v. TIMBERLAKE.
    (No. 661.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 8, 1917.)
    1. Evidence <&wkey;472(4) — Opinion — Opinion on Mixed Question oe Law and Fact.
    In an action for damages to live stock in transit, the shipper’s testimony that ho saw the ears in which the cattle were loaded, that they had very little bedding, that he objected, to shipping the cattle in such condition, and that he knew from his experience how much it took to satisfactorily and adequately bed cars to ship cattle in, stating that it took 2% inches of sand and cinders, and that in his experience the cattle that were injured and those that were dead would not have been injured had the cars been properly bedded, was not inadmissible as an expression of opinion on a mixed question of law and fact.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 2189.]
    2. Evidence <&wkey;489 — Opinion — Qtjadeication oe Witness.
    In an action for damage to bulls in transit, where the shipper’s testimony showed that he was apparently qualified to state the market value of the crippled bulls on their arrival at a market, and his qualification was not challenged, he was properly allowed to state the market value of the crippled bulls at the market, since a witness need not state how he has acquired a knowledge of values unless the knowledge be challenged.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2274.]
    3. Evidence <&wkey;472(ll) — Opinion — Mixed Question oe Law and Fact.
    In an action for injury to bulls in transit, the shipper’s testimony that from his experience as a cowman and shipper he believed not having any bedding in the cars and standing on hard floors caused the cattle’s feet to swell, etc., was not inadmissible as an opinion on a mixed question of law and fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2195.]
    Appeal from El Paso County Court; Adrian Pool, Judge.
    Suit by Edgar Timberlake against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Russell & Gillett, of El Paso, for appellant. Hudspeth, Dale & Harper, of El Paso, for appellee.
   WALTHALL, J.

This is a suit brought by Edgar Timberlake, appellee, against the Texas & Pacific Railway Company, to recover damages alleged to have been sustained in a shipment of 119 bulls from Ft. Worth, Tex., to El Paso, Tex. Appellee assigned two grounds of negligence: First, that the bulls were loaded by appellant, over his protest, into three cars that were not properly prepared to receive said cattle, the cars being wet and muddy and unfit for use; second, that the train in which the bulls were carried stalled several times on appellant’s line of road in the vicinity of Cisco, and that on said account the train was violently and needlessly jerked, jolted, and shunted without regard to the safety of said bulls and with a reckless disregard of the consequences to the cattle. Appellee alleged that, as a result of the alleged condition of the cars and the handling of the train, the bulls were thrown down and about in said cars and against one another and injured, with the result that 2 of the bulls died of their injuries and 15 of said bulls were badly cut, bruised, scratched, and injured and their values depreciated. •Appellant pleaded the provisions of a shipping contract under which said cattle were shipped, the provisions of which we need not state; denied the acts of negligence charged; alleged that immediately before said cattle were loaded into the cars for shipment, they had been dipped in an arsenic solution which would likely result in some of them becoming sick and getting down in the cars and dying, and charged appellants with negligence in loading and transporting said cattle under said conditions; alleged that said cattle were in a weak and sick condition when delivered for shipment as a result of said dipping, and were overloaded into the cars by appellant and that, if any of them died or were bruised and injured in transportation, it was caused by the said dipping and overloading, and not by the rough handling charged. The jury found for the appellee and assessed his damages at $600 for which the court rendered judgment.

The court permitted Timberlake to state as evidence that the cars in which the cattle were shipped had not been properly bedded, and appellant assigns this as error, on tlie ground that the issue of a proper bedding was one of the issues of negligence charged, and was one of the issues in the case to be determined by the jury, uninfluenced by the statement or conclusion by the witness. Appellant insists that the statement of the witness involves a mixed question of law and fact. The statement of the witness was:

“I saw the ears in which these cattle were loaded at Ft. Worth. Two of the cars had very little bedding in them, and one not at all. The two had a little wet sand in them, probably a quarter of an inch. They put in a little prairie hay in the cars, but it was very light; they refused to bed them any more. I told the man on the dock that I would like to have had an opportunity to have better bedding in the cars; he says: ‘We have them right here to load them, and we are going to load them.’ I said: T certainly object to shipping them in this condition.’ One car had no bedding at all. They put in a little prairie hay in that car after I protested at not wanting to load the cattle at all in the condition of the cars. I know from my experience as a cowman and shipper what it takes to satisfactorily and adequately bed cars to ship cattle in. It requires, I should say, 2% inches of sand and cinders. Any kind of sand will do. The purpose of the bedding is to keep the cattle from being knocked down; to have something to support themselves. I do not think they could support themselves without bedding and in cases where they had much handling. Neither of these three cars were properly bedded. In my experience as a cowman and shipper of cattle, the 15 head that were injured and the 2 that were dead would not have been injured as they were if the cars had been properly bedded.”

The evidence was not the expression of an opinion on a mixed question of law and fact. In H. & T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S. W. 808, used by appellant in its brief, the witness was asked: “What is a reasonable time within which to transport a train of cattle from Llano to Fairfax, when they are transported with ordinary care and diligence.”

The Supreme Court said that:

“In answering, if he answered intelligently, the witness must have determined for himself what would constitute ordinary care, and then have deduced, from a consideration of all the elements that would, in Ms opinion, enter into the question of the time reasonably necessary for the transportation in the exercise of such care, a conclusion as to what that time should be.”

In that case, the elements of ordinary care and a reasonable time were involved in the question. It was not held as error in that case that the witness was permitted to give his opinion as to what would be a reasonable time in which to carry the cattle from Llano to Fairfax, hut the vice in the question was to permit the witness to embrace in Ms statement of reasonable time the ultimate conclusion as to negligence vel non or ordinary care. In that case, the court said:

“It is sometimes the ease that witnesses are permitted to state their opinions so as to involve the very conclusion the jury are to draw in giving their verdict.”

In the instant case, if the jury should find that appellant was guilty of negligence in bedding' the cars, there was yet an’ element of fact upon which the jury must have information; was the negligence the direct or. proximate cause of the injury to the cattle? could the appellant have reasonably anticipated from the lack of bedding, or from the way the cars were bedded, that injury to the cattle would probably result? To furnish to the jury that information, the. witness was permitted, after stating the purpose of bedding cars, and the way the cars were bedded, and that the cattle could .not support themselves without proper bedding, and what would be proper bedding for cars, that in his opinion the injuries to the cattle would not have occurred if the cars had been properly bedded. The statement of the witness was only an expression of opinion on supposable facts. The opinion is not on the facts as the witness stated they were, and, only inferentially involved the facts from which the jury were to draw a conclusion of proximate cause.

There is no merit in appellant’s second and third assignment, complaining of the action of the court in permitting the witness Timberlake to state the market value of .the crippled bulls upon their arrival in El Paso, as complained of the second assignment or the value of the cattle at Deming, in the third, on the ground that the witness was not shown to he qualified to answer questions as to market value at El Paso. The witness stated:

“There was a market value for bulls of that character here in El Paso. I was acquainted with what that market value was. * * * I did not find a sale for these cattle in El Paso. These 16 head of bulls did not have a market value in El Paso in the condition in which they were at that time. * * * I know what those 16 head were actually worth in El Paso at the time in the condition in which they actually did arrive.”

The witness then stated the values. The above shows that the witness was apparently qualified to state values. The record does not show that appellant further tested the qualification of the witness. A witness need not state how he has acquired a knowledge of values unless that knowledge be challenged. The court, in the charge, applied the El Paso values, which the proof shows to be less than the Deming values.

Appellant’s fourth ground of error is directed to the admission in evidence of the following, as being an opinion of a witness on a mixed question of law and fact:

“From my experience as a cowman and shipper, I believe not having any bedding in those cars and standing on hard floors caused their feet to swell. In my opinion, from my experience as a- cowman and shipper of cattle, the 15 head that were injured and the 2 that were dead would not have been injured as they were if the cars had been properly bedded.”

There was no error in admitting the evidence. Our views on a similar objection are expressed under a previous assignment. Also the record shows that under cross-examination by appellant, the witness stated:

“Some of tlie cattle at Baird had big knuckles, feet bruised up. Their knuckles swell when they have no bedding in the cars. I have never heard of the arsenic dip causing swollen knuckles, unless they swallow it, and then they die immediately. * * * There were three or four cattle bruised had enough at Baird to have swollen ankles. I know they had their ankles bruised by the way they walked.”

We have carefully examined the evidence, and find that the verdict of the jury is well sustained in their conclusion that the injuries to the cattle were the result of improper bedding and rough handling, rather than resulting from the arsenic dip as claimed by appellant in the fifth and seventh grounds of error.

The assignments are overruled.

Finding no reversible error, the case is affirmed.
      <5=mFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BOYCE, J.

license: Public Domain

text:
    UNION PAC. RY. CO. v. MILLER et al.
    (No. 1096.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1917.
    On Motion for Rehearing, Feb. 21, 1917.)
    1. Judgment <&wkey;447(l) — Equitable Relief-Vacation — Meeitoeious Defense.
    ' Where the invalidity of a judgment does not appear on the face of the record, but can be shown only by extrinsic evidence, one seeking to enjoin the judgment must show a meritorious defense to the original cause of action before relief can be granted.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 849.]
    On Motion for Rehearing.
    2. Appeal and Eeeoe <&wkey;832(4) — Rehearing —Grounds for.
    In a suit by appellant railroad company to enjoin a judgment rendered against it in the state court, the contention that it was a foreign corporation not doing business in the state, and so was not suable, cannot for the first time be raised on motion for rehearing, not being presented by the pleadings or urged below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3221.]
    Appeal from Donley County Court; J. C. Killough, Judge.
    Action by the Union Pacific Railway Company against William Miller and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    N. H. Loomis, of Omaha, Neb., and H. B. White, of Clarendon, for appellant. W. T. Link, of Clarendon, for appellees.
   BOYCE, J.

The appellees, William Miller, John Clymer, and W. T. Link, as plaintiffs in a suit filed by them against the appellant, Union Pacific Railway Company, a foreign corporation, recovered in the county court of Donley county, Tex., on the 5th day of February, 1913, a judgment by default against said railway company. The citation in that case appeared to be regular, and the return showed regular service on the railway company by service on T. J. Anderson, local agent. The judgment recited that said defendant had been “duly cited to appear according to law,” etc. This suit was brought by the appellant railway company in the county court of Donley county to enjoin execution of the above-described judgment, appellant alleging that no citation was served upon it in said cause; that it had no notice of the filing of said suit, and that the said T. J. Anderson, upon whom the citation in the case was served, was not its agent; that it had a meritorious defense to said original suit; and such other facts as were necessary to entitle it to relief against the execution of said judgment.

Upon the trial of the case no testimony was offered as to any defense the appellant might have had to the original suit, and the trial court, for this reason as well as others not necessary to here state; entered judgment against the appellant dissolving the temporary injunction theretofore granted, and denying relief against the execution of said judgment, and this appeal is from this judgment of the court.

Some confusion at one time existed in the decisions of this state as to whether or not in this character of case it would be necessary for one seeking to enjoin a judgment alleged to be void, to allege and prove that he had a meritorious defense to the original cause of action on which the judgment was rendered. Out of this confusion a rule of decision, based on a distinction between judgments where the invalidity appears from the face of the record and those where the invalidity is only made to appear by extrinsic evidence, has been evolved, which, it is claimed, will reconcile the apparent conflict. Whether this distinction may with good reason be applied to this class of cases or not, it seems to have obtained recognition by the Supreme Court, and the rule based on this distinction seems to be now well settled. August Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S. W. 303; Chambers v. Gallup, 30 Tex. Civ. App. 424, 70 S. W. 1009 (in which writ of error was denied by the Supreme Court); Collin County Bank v. McCall Hardware Co., 161 S. W. 950; Foust v. Warren, 72 S. W. 404; Western Lumber Company v. C., R. I. & G. Ry. Co., 180 S. W. 644; San Bernardo Town-Site Co. v. Hocker, 176 S. W. 644. The rule announced by these decisions may be stated thus: Where an injunction is sought against the execution of a judgment alleged to be void, it is not necessary to show a meritorious defense to the original cause of action in those cases where the invalidity of the judgment appears upon the face of the record; but, if extrinsic evidence is necessary to establish such invalidity, then it will be necessary for the plaintiff seeking the injunction to show a meritorious defense.

The application of this rule to the facts of this case, as above stated, is decisive of the case against appellant. It will'not be necessary to consider other questions presented, and the case will be affirmed.

On Motion for Rehearing.

Appellant, in its motion for rehearing, urges for the first time in this case that the judgment rendered against it in the original suit was void because it was not suable in Texas, being a foreign corporation, “not doing business in Texas.” We have not thought it necessary to examine the record to ascertain whether the statement made by appellant, in its motion for rehearing, that the undisputed evidence shows that at the time of the institution of the original suit the appellant was not doing business in Texas, is correct. Such fact does not appear from the record in the original case. It is not alleged in the petition for injunction; the basis on which the injunction was sought being the fact that the party on whom citation was served was not the agent of the appellant. So that such matter was not in issue under the pleading in this case, being suggested for the first time in the motion for rehearing, and we are not authorized to consider it

The motion is overruled.
      «fepFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


author: LANE, J.

text:
    HOUSTON BELT & T. RY. CO. v. PRICE et al.
    (No. 727.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 8, 1917.
    Rehearing Denied Feb. 8, 1917.)
    1. Railroads &wkey;?348(2) — Injury to Person on Track — Actions — Evidence — Suitet-ciency.
    In an action against a railroad for personal injuries to a minor alleged to have been caused by defendant’s negligence in blocking a street with its cars for more than five minutes in violation of an ordinance and in suddenly moving them upon plaintiff at a rate forbidden by ordinance and without warning while he was going around the cars, evidence held to support a verdict for plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1139.]
    2. Railroads <&wkey;304 — Negligence — 'Violation os1 Ordinance.
    If a railroad blocked a street with • its cars for more than five minutes in violation of a city ordinance, its act in so doing was negligence per se, and if such negligence, coupled with other alleged and proved negligent acts of defendant, was the direct and proximate cause of plaintiff’s injury, he could recover in the absence of contributory negligence on his part.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 964.]
    3. Appeal and Error <&wkey;1001(l) — Review-Findings.
    In an action for personal injuries, the appellate court is not authorized to disturb the findings of the jury based on sufficient evidence.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3928-3933.]
    4. Railroads &wkey;>351(5) — Action por Injuries — Instructions.
    Instruction, when read as a whole in light of all the facts and circumstances, held not subject to the objection that, in submitting the theory of a blocked crossing and the subsequent negligence on the part of defendant with reference to lookout, it imposed a greater duty to trespassers than that imposed by law under the circumstances.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1198.]
    5. Railroads <i&wkey;351(5) — Action por Injuries — Instructions.
    Instruction, when read as a whole in light of all the facts and circumstances, held not subject to the objection that the jury is permitted to find for plaintiff upon the theory that, even if 'the crossing was blocked for less than five minutes allowed by ordinance, there would be a duty on the part of defendant to anticipate the presence of trespassers at or near the point where plaintiff was injured.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1198.]
    6. Appeal and Error <&wkey;263(3) — Instructions — Exceptions—Necessity.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. ■ 2061, providing that charges are regarded as approved unless excepted to, where there was no exception reserved to the court’s action in refusing to submit special charges, the appellate court may not consider any error committed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1518, 1525.]
    Appeal from District Court, Harris County ; Charles E. Ashe, Judge.
    Action by Mrs. M. L. Price and others against the Houston Belt & Terminal Railway Company. From a judgment for the plaintiff Bonnie Pearson and for the defend? ant as against the other plaintiffs, the defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. Sam, Bradley & Fogle and Fred R. Switzer, all of Houston, for appel-lees.
   LANE, J.

This suit was instituted by Mrs. M. L. Price, joined pro forma by her husband, H. F. Price, for herself and in behalf of her minor son, Bonnie Pearson, against the Houston Belt & Terminal Railway Company, defendant, to recover damages for personal injuries alleged to have been suffered by said minor son by reason of the negligence of the servants and employes of said defendant company.

It is alleged by plaintiff that on the 9th day of November, 1908, Bonnie Pearson was a boy of eight years of age, the son of Mrs. M. ‘L. Price; that on said date the defendant company had its railway track and switches constructed on and across St. Emanuel street in the city of Houston; that on said date Mrs. Price, the mother of Bonnie Pearson, sent him to purchase bread; that in going to make said purchase he traveled northward on St. Emanuel street in the city of Houston until he reached a point where defendant’s tracks crossed said street; that at tins point lie found said street blocked by ears, which' had been placed thereon by defendant’s servants and employes, so that he could not cross said track; that said street had been so blocked for more than five minutes in violation of an ordinance of the city of Houston; that after arriving at said cars Bonnie waited for some time, and as said cars were not removed and said street opened, he went westward along the side of defendant’s track about 150 feet and undertook to go around the end of a string of cars standing on said track and over said street, and that as he was crossing said track said cars were caused to be moved at a high rate of speed, more than 6 miles per hour, contrary to an ordinance of said city of Houston; that they were suddenly thrown upon said Bonnie, and thereby he was permanently injured. It is further alleged that no bell was rung nor whistle blown, or other warning given of the movement of said cars; that defendant had no one on .the cars so moved, so as to give warning to Bonnie or óthers who might undertake to' cross its track while said street was so blocked. All these matters were alleged to have been negligence on the part of defendant’s employes, and the proximate cause of Bonnie’s injuries.

Defendant answered by general demurrer, general denial, and pleas of contributory negligence, both as to the act of Mrs. Price in sending Bonnie, her eight year old son, on the errand before mentioned, and also as to the conduct of Bonnie in crossing defendant’s track at the point and manner he did just prior to and at the time of the accident which resulted in his injury.

The case was tried before a jury which resulted in a general verdict for Bonnie Pearson for the sum of $6,250, and in favor of the defendant, Plouston Belt & Terminal Company, as against Mrs. M. L. Price, and her husband, H. F. Price. Such verdict was by the court approved, and judgment accordingly entered. The defendant company alone has appealed.

By appellant’s first assignment it is insisted that the court erred in not instructing a verdict for defendant, because there is no evidence showing negligence on the part of defendant as alleged by plaintiffs which was the proximate cause of the injury to Bonnie Pearson.

We have already shown that plaintiffs alleged negligence on the part of defendant in that it placed and permitted cars to block St. Emanuel street in the city of Houston for more than five minutes, in violation of an ordinance of said city; that while said street was so blocked defendant placed no one in such a position as to give those attempting to cross its track at or near the point where said street was blocked warning of the movement of said cars; that defendant caused its cars to be moved at such point at a higher rate of speed than six miles per hour, in violation of an ordinance of said city of Houston; and that each and all of such negligent acts were the proximate cause of the injuries suffered by Bonnie Pearson.

Mrs. Price testified that she lived about two blocks south from the point where defendant’s switch tracks crossed St. Emanuel street; that when Bonnie Pearson started from her home on his errand she noticed that defendant’s cars were standing on and across said street.

Bonnie Pearson, a boy eight years of age, testified that it was about ten minutes from the time he left his home and started on his errand until he got to the end of the string of standing cars where he was injured. He also testified that when he got to the point where said cars blocked said street he waited four or five minutes before he started to go around the end of said string of cars; that he saw no one on the cars or near the crossing; and that no one warned him of danger.

S. 0. Weaver testified that the ears had been standing across St. Emanuel street for about ten minutes at the time Bonnie was injured.

It was admitted that there was a city ordinance in force at the time of the accident in question making it unlawful for railway companies to leave its engines or cars standing upon or across any of the streets of said city so as to block them for more than five minutes, and that there was also an ordinance in force at such time making it unlawful for such companies to run its engines or trains within the corporate limits of said city at a greater rate of speed than six miles per hour.

The undisputed evidence shows that when Bonnie Pearson found said street blocked by said cars he undertook to go around the end of said standing cars to get across defendant’s track, so as to pursue his journey, and that while crossing said track one of defendant’s cars was suddenly backed upon him and one of his legs crushed off.

We think the allegations and proof of negligence on the part of defendant was sufficient to support the submission of the cause to the jury, and to support the verdict rendered. T. & N. O. Ry. Co. v. Brouillette, 59 Tex. Civ. App. 337, 126 S. W. 287; St. L. & S. W. Ry. Co. v. Bolton, 36 Tex. Civ. App. 87, 81 S. W. 123, at page 125; Railway Co. v. Watkins, 88 Tex. 20, 29 S. W. 232; Ft. W. & D. C. Ry. Co. v. Poteet, 53 Tex. Civ. App. 44, 115 S. W. 883, and authorities therein cited.

If defendant blocked St. Emanuel street for more than five minutes in violation of an ordinance of the city of Houston, its act in so doing was negligence per se, and if such negligence, coupled with other alleged and proven negligent acts of the defendant, was the direct and proximate canse of Bonnie Pearson’s injury, lie was entitled to recover, in the absence of contributory negligence on bis part.

These questions were determined by the jury, upon sufficient evidence, in favor of Bonnie Pearson, and against defendant, and we are not authorized to disturb the finding of the jury on such issues. Appellant’s first assignment is overruled.

After defining the terms “negligence,” “contributory negligence,” and “proximate cause,” the court gave the further instruction as follows:

“Guided by these instructions, if you find from a preponderance of the evidence that Bonnie Pearson on the day of the injury alleged in plaintiffs’ petition started on a lawful errand along St. Emanuel street to a point beyond the intersection of said street by. defendant’s track, and that he found said street blocked by the cars belonging to or operated by defendant, and that said street was so blocked by a standing car or cars, and if you further believe from the evidence that, owing to the time and circumstances of the blockade, if any, defendant’s agents in charge of the operation of its cars at the time in question, in the exercise of ordinary care in the discharge of their duties, might reasonably have anticipated that persons desiring to cross at the point alleged would be reasonably expected to be found at or near the west end of the string of cars in an effort to go around same, and that as a means of proceeding on his journey the said Bonnie Pearson went down and along said string of standing ears, if any, and attempted to cross the track of said defendant company at the end of said string of cars, if any, and if you further find from the evidence that at or about the time said Bonnie Pearson attempted to cross said track at the end of said string of cars, if you find that he did, the defendant’s agents and servants propelled said string, of cars in such a manner as to cause one of said cars to run over said Bonnie Pearson, and that at the time or about the time of propelling said ears, if you find they did, said defendant company’s agents and servants failed and neglected to use reasonable care to keep a lookout for persons who might be in a dangerous position on said track, and that said Bonnie Pearson thereby suffered the injury complained of, and if you further find that the failure, if any, on the part of defendant’s agents and servants to use reasonable care to keep a lookout as aforesaid, under all the facts and circumstances in evidence, constituted negligence on the part of the defendant’s agents and servants, and 'that such negligence, if any, was a proximate cause of the injury to the plaintiff, Bonnie Pearson, and he was so struck and hurt without fault or negligence on his part that caused or contributed to his injury, then you will find for the plaintiff Bonnie Pearson, unless you find for the defendant against the said Bonnie Pearson under the other portions of this charge or under special charges, if any, submitted by the court. * *. * But if, on the other hand, you do not. believe from the evidence that St. Emanuel street was blockaded at the time Bonnie Pearson attempted to cross defendant’s tracks at said point, if he did so attempt, or .that,. if blockaded, you do not believe it was blockaded for such length of time and under such circumstances as that the defendant’s operatives, in the exercise of ordinary care in the discharge of their duties, might have reasonably anticipated that persons desiring to cross at the point alleged would by reason of the blockade, if any, be found at or near the west end of the string of cars, in an effort to go around same, or if you do believe that the plaintiff Bonnie Pearson, in an effort to go around' the west end of said string of cars, if any, was run over by the same being propelled against him,. or do not believe that about the time of propelling said cars against the said Bonnie Pearson, if you find they did, the agents and servants of the defendant in charge of said cars failed to use reasonable care to keep a lookout for persons who might be in a dangerous position on said track, then, in either, any, or all of these events, you will let your verdict be in favor of the defendant.
“The court instructs you that there can be no recovery in this case if Bonnie Pearson, by negligence on his part, contributed to bring about the injuries sustained. The standard of care required of a minor in law is that he shall exercise ordinary care, by which is meant the degree of care which a person of ordinary prudence, of his age, intelligence, and experience, would have exercised under the same or similar circumstances, and a failure to exorcise that degree of care will be deemed negligence.
In this connection the court further charges you that, if you believe from the evidence that Bonnie Pearson, on the occasion in question, went down St. Emanuel street to the railroad crossing, and there found the crossing blocked, and thereafter moved alongside of the railway track to a point on the railway company’s property at the end of a string of standing cars, and that at such point he looked and could not see the end of the standing string, although noting that it extended over and beyond St. Emanuel street, and if you further believe that after so looking he attempted to cross the track, and if you further believe that such attempt .under the attending circumstances was negligence on his part, in that event you will return a verdict in favor of the defendant.
“Or, if you believe from the evidence that Bonnie Pearson attempted to cross the defendant’s track in order to go around a string of standing cars, and if you further believe that he went so near said standing string of cars as to make it more dangerous than had he gone across the track somewhat farther, and believe that in going as near as he. did to the end of the standing cars Bonnie Pearson was guilty of negligence, your verdict must be in favor of the defendant.”

Appellant insists that the court committed reversible error in submitting the first paragraph of the charge quoted: First, because in submitting the theory of a blocked crossing and a subsequent negligence on the part of defendant with reference to lookout the court imposed a duty to trespassers not imposed by law, and a greater duty than that so imposed, in the light of the attending circumstances ; second, because, under such instructions the jury is permitted to find in favor of plaintiffs upon the theory that, even if the crossing was blocked for a less time than five minutes, nevertheless there could be a duty on the part of defendant to anticipate the presence of trespassers1 at or near the point where plaintiff Bonnie Pearson was injured.

In the light of all the facts and circumstances in evidence, we do not think thé charge of the court when read as a whole is subject to the objections urged thereto.

IVe are not at liberty to consider any error, committed by the' court, if any, in refusing to submit any of the special charges requested by defendant, as there was no exception reserved to the .action of the court in so doing; Vernon’s Sayles’ Civ. St. 1914, art. 2061; Railway Co. v. Dickey, 187 S. W. 184; Saunders v. Thut, 165 S. W. 553.

We find no such error, if anjr, in the trial of this case as should require a reversal of the judgment rendered, and therefore the judgment of the trial court is affirmed.

Affirmed.
      cte^For other oases see same topic and KEY-NUMBER, in all Key-Numbered 'Digests and Indexes


author: GRAVES, J.

text:
    HAMMOND et al. v. HOFFMAN et ux.
    (No. 7297.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 25, 1917.)
    1. Judgment ®=»459 — Equitable Relief-In junctio n — Fraud .
    A petition alleging that a materialman represented to the property owners that he was seeking no lien in the action, and that he would give them time to pay any judgment he obtained, but that thereafter he obtained a judgment establishing and foreclosing a lien and bid in the property at the sale, which was not denied by defendant, is sufficient to authorize an injunction restraining defendant from dispossessing plaintiffs pending suit to set aside the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 872-878, 902, 903.]
    2. Injunction <S=u> 143(1) — Ex parte Proceedings — 'Validity.
    A temporary injunction against dispossessing plaintiffs pending a suit to set aside for fraud the judgment on which the property was sold can be issued upon an ex parte hearing.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 315.]
    3. Injunction <@=31 — Jurisdiction of Court Rendering Judgment.
    The court has jurisdiction upon a proper case made to enjoin in one case its own judgment rendered in another case.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 68.]
    Appeal from' District Court, Harris County; J. D. Harvey, Judge.
    Suit by W. H. Hoffman and wife against M. F. Hammond and another to set aside a judgment. From an order granting a temporary injunction, the defendants appeal.
    Affirmed.
   GRAVES, J.

This was a suit filed by W. H. Hoffman and his wife, V. V. Hoffman, in the Eightieth district court of Harris county against M. F. Hammond, as sheriff of that county, and J. B. .Collins, to set aside a judgment obtained in the same court prior to the filing of this suit, that is, in the fall of 1915, by the said J. B. Collins as plaintiff against the said W. I-I. Hoffman and V. V. Hoffman as defendants, in which foreclosure of a mechanic’s and materialman’s lien upon the homestead of said Hoffman had been awarded to said Collins for a $90 note he had against them. Said Hoffman and wife for cause of action in this suit for relief against the said former judgment, among other things, alleged, duly verified by affidavit: That plaintiffs owed said Collins a balance of $90 upon a plumbing contract for work done upon their home, which indebtedness he had sued upon in his said suit against them, and had therein fixed and foreclosed such mechanic’s and material-man’s lien against their said homestead, and that he had actually sold out and bought in said homestead under execution process obtained upon his said judgment — the sheriff having made deed of said property to him upon said sale — for the sum of $75. That prior to obtaining said judgment against them, the said Collins had told plaintiff Mrs. V. V. Hoffman, her husband being then ill and she being required to attend to their business, that he neither claimed nor would ask to establish or foreclose any lien against their said homestead in that suit. That no judgment fixing a lien upon their said homestead-would be taken therein, and that if judgment for his debt in that suit were taken, he would give them ample time within which to pay off said debt, and would place said plumbing in first-class condition, remedying all leaks in joints and connections. That plaintiffs believed» and relied upon said statements, and in consequence thereof made no defense to said suit against them, nor even employed an attorney therein, and did not know said lien had been established and foreclosed therein until said Collins attempted through said sheriff to actually dispossess them of their said homestead.

After setting up this cause of action, plaintiffs pleaded for injunction preventing their dispossession from said premises in any way by process or procedure growing out of said judgment against them, and that said judgment be set aside, and for general relief.

Their amended petition was filed March 24, 1916, on which date the judge of said, court entered thereon the' following order:

“The foregoing petition having been presented to me, the clerk will issue the injunction as herein prayed for upon plaintiffs’ giving bond in the sum of one hundred dollars ($100.00), conditioned as prescribed by law.”

From said order the defendants J. B. Collins and M. F. Hammond, as sheriff of said Harris county, have appealed to this court by filing their appeal bond in the trial court, and their transcript of said proceeding in this court within the 15 days allowed by law. There is no other record here than said transcript, which contains only the plaintiffs’ amended petition, the court’s order thereon, and said appeal bond, nor have any briefs for either party been filed here.

If the allegations of plaintiffs’ petition were true, and no answer was filed denying them, the trial court’s injunction was properly issued. That it was upon ex parte hearing is no objection. S. W. S. Ins. Co. v. Ferguson, 131 S. W. 662. It is, of course, too well settled to require the citation of authorities that a court has jurisdiction, upon a proper case-made, to enjoin in one case its own judgment in another case.

In this state of the record, no reason is presented for disturbing the judgment and order of tbe trial court, and it will be in all things affirmed.

Affirmed.
      other cases see same topic and KEY-NUMBER in ail K'ey-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    RANDALS v. PECOS VALLEY STATE BANK.
    (No. 665.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 1, 1917.
    Rehearing Denied Feb. 22, 1917.)
    1. Bills and Notes <®=^460 — Plea in Abatement — Parties—Nonjoinder.
    In action on note, there was no defect in parties by failure to join as defendant one not a party to the note in suit, but who had been maker of a prior note on which defendants were sureties, and when such note became due refused to execute renewal note, leaving defendants to execute such note alone.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 143A-1443.]
    2. Parties <®=»84(2) — Misjoinder oe Parties —Plea in Abatement.
    Where the makers of a note are sued thereon, if they desire to recover against a stranger to the note primarily liable therefor, the proper method is to make him a party to the suit. [Ed. Note. — Eor other cases, see Parties, Cent. Dig. §§ 136, 138, 141, 142.]
    3. Principal and Surety <§=>185h-0EtiGHT oe Surety Against Principal —Judgment — Eepect.
    Action by payee of note against makers and judgment rendered therein constitute no bar to an action by defendants against a third person primarily liable on note.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 524^538.]
    Appeal from District Court, Reeves County ; S. J. Isaacks, Judge.
    Action by the Pecos Valley State Bank against Ben Randals and another. Judgment for plaintiff, and defendant named appeals.
    Affirmed.
    Ben Randals and Jno. B. Howard, both of Pecos, for appellant. J. A. Buck, of Pecos, for appellee.
   HIGGINS, J.

On January 30, 1913, W. O. S. Pawkett, as principal, Ben Randals and J. W. Parker, as sureties, executed and delivered to appellee two promissory notes. In renewal of said notes the said Randals and Parker on October 4, 1915, executed and delivered to appellee their note in the sum of $1,515.90. Pawkett did not sign this renewal note; his sureties, Randals and Parker, being unable to secure his signature thereto. Appellee filed this suit against Randals and Parker to recover upon the renewal note. Parker made no defense. Randals answered by a plea in abatement that:

“There is a misjoinder of parties of which the plaintiff, the Pecos Valley State Bank, is aware of and knew, in this: That the note mentioned in the sixth paragraph of plaintiff’s petition in the sum of $1,515.90 is a note that this defendant and the defendant J. W. Parker are sureties, and that the said W. O. S. Pawkett is primarily liable thereon, which the said plaintiff was well aware of and knew, and that the said Pawkett is and should be a party defendant to this suit.”

He also answered to the merits. A verdict was returned and judgment rendered against Randals and Parker.

Randals appeals, assigning as error the action of the court in refusing to submit to the jury the issue presented by the plea in abatement. There is no error. Pawkett was not a party to the instrument sued, and the undisputed facts are as stated. So there was nothing to submit to the jury upon the plea. Manifestly he was neither a necessary or proper party to the bank’s suit. If Randals desired to recover over against Pawkett, he should have made Pawkett a party to the suit for that purpose. There is nothing now to prevent him from recovering against him when he pays the judgment herein rendered. He and Parker have Pawkett’s note to them to cover the indebtedness which they assumed to the bank. They can maintain suit upon this note. The present proceeding does not in any wise bar them from recovering thereon against Pawkett.

Affirmed.


author: FLY, O. J.

text:
    FIRST NAT. BANK OF BIG SPRINGS v. HARTZOG.
    (No. 5794.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1917.)
    1. Pleading <@=>8(6) — Conclusion—Defense to Action.
    Petition to set aside judgment on a note pleaded a conclusion in pleading that plaintiff “has a good and legal defense.”
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. § 17.]
    2. Judgment <§=460(1) — Suit to set Aside-Pleading.
    A petition to set aside judgment on a note failed to allege that the note was not valid, executed for valuable consideration, that the consideration had failed in whole or in part, that plaintiff had any offset, or had paid anything, or what his defense was, except that the conclusion that plaintiff had good and legal defense was pleaded. The petition failed to show that the judgment was obtained by fraud, accident, or mistake, but disclosed that plaintiff made an offer to settle the claim on the note by giving another note, failed to do so, and left the place where court was being held without arranging the matter. There was no allegation that defendant or its attorneys agreed to continue the case if the note was not given, or agreed to notify plaintiff or his attorney before judgment was taken. Held, that the petition failed to state a cause of action, and was detaurrable, since it showed neglect of his affairs by plaintiff and failed to show any fraud by defendant.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 879, 886.]
    3. Judgment <S=»447(1) — Vacation eor Accident, Fraud, or Mistake.
    A court of equity will not set aside a judgment obtained through accident, fraud, or mistake, unless defendant in the judgment has a meritorious defense to the action, which must be fully set forth and clearly proved.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 849.]

      Appeal from District Court, Calhoun County; W. W. McCrory, Judge.
    Action by J. O. Hartzog against the First National Bank of Big Springs. From a judgment for plaintiff, defendant appeals.
    Judgment reversed, and cause dismissed.
    Wilson & Hamilton, of Port Lavaca, for appellant.
   FLY, O. J.

This is an action instituted by appellee to have a judgment set .aside at a term following that at which it was rendered against him. The court set aside the judgment.

The petition shows that the original suit was instituted on a promissory note executed by him and J. O. Setzer, and it is not alleged that the note was not a valid one, executed for a valuable consideration, nor that the consideration had failed in whole or in part, nor that appellee had any offset to the same, or had paid anything on it, or what his defense was to the note.

There is nothing pleaded as to the defense, except the conclusion that “he has a good and legal defense.” Not only this, but the petition discloses that appellee was probably seeking for delay alone, for he proposed to appellant, before the original judgment ■was rendered, that he would give another note for, not only alL the principal and interest, but also all the expenses connected with the attempt to collect the original note. The petition also fails to show that the judgment was obtained by fraud, accident, or mistake, but discloses that appellee made the offer to settle appellant’s claim by note, and failed to give said note, and left the place where the court was being held without arranging the matter. There is no allegation that appellant or its attorneys agreed to continue the case if the note was not given by appellee, or that they agreed to notify appellee or his attorney before judgment was taken. The allegations show that the judgment ■ was rendered on the last day of the term. The allegations of the petition show neglect of his affairs by appellee, and fail to show any fraud upon the part of appellant.

The petition fails to. state a cause of action, and the .general demurrer should have been sustained. Ratto v. Levy, 63 Tex. 278; Robbie v. Upson (Tex. Civ. App.) 153 S. W. 406; Guerra v. Guerra (Tex. Civ. App.) 158 S. W. 191; Rogers v. Dickson (Tex. Civ. App.) 176 S. W. 865.

It would seem from the evidence that appellee, not only in the preparation of his pleadings, but in the presentation of his facts, did not deem it essential or important to show the grounds of his defense to the note, for there is no testimony whatever showing any kind of defense. A court of equity will not set aside a judgment obtained through accident, fraud, or mistake, unless the defendant in the judgment has a meritorious defense to the action, and that defense must be fully set forth and clearly proved. Pom-eroy, Eq. Jur. §§ 836-871. As said by the Supreme Court in Harn v. Phelps, 65 Tex. 592;

“To entitle the appellants to the relief now sought it is necessary that they should show that they were prevented from urging, against the judgment of which they complain, objections which would, or ought to, have prevented its rendition, and that this prevention resulted from fraud, accident or the act of the adverse party, without fault or negligence on their part.”

The judgment is reversed, and the cause dismissed.
      <S=>For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and'Indexes


text:
    DOOLEN et al. v. HULSEY et al.
    (No. 1090.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1917.
    On Motion for Rehearing, Feb. 21, 1917.)
    1. Fraud 11(1) — Misrepresentations — Expression op Opinion — Note.
    Representations that notes indorsed to purchasers without recourse were “good,” or “good as gold,” are not necessarily statements of opinion, but if made and intended to be accepted as statements of fact, they are actionable if fraudulent.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 12.]
    2. Biles and Notes <@=>293 — Indorsement without Recourse — Remedies op Indorsee —Fraud.
    A holder of notes indorsed without recourse cannot recover against his indorser on the notes, though he was induced by fraud to purchase them, but his remedy is by rescission of the contract and recovery of the price or by action for damages.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§.662-664.]
    3. Fraud <@=>49 — Bills and Notes — Remedies op Indorsee — Issues.
    The holder of notes indorsed without recourse cannot recover damages for fraud without pleading and proving the value of the property given: in exchange for the notes.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 44, 45.]
    4. Mortgages <@=>516 — Foreclosure Sale-Purchase <by Vender.
    Where purchasers of land assumed the mortgage thereon and later sold the land to others, who also assumed the original mortgage and gave second vendors’ lien notes, the first purchasers, as between the purchasers from them and parties dealing with the land subsequently, are only secondarily liable for the first mortgage, and after they had indorsed the vendors’ lien notes without recourse, they could, as against the holders of those notes, purchase the property at the sale on foreclosure of the first mortgage.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1518.]
    5. Mortgages <@=>535(1) —< Foreclosure — Rights op Purchaser.
    Where the owners of land subject to mortgage sold it and indorsed without recourse the vendors’ lien notes • received by them as a second iien, the rights they acquired by purchase of the land at the sale on foreclosure of the first mortgage did not pass to the holders of those notes under the doctrine that the acquisition of a subsequent title will inure to the benefit of the prior grantee, since that doctrine is founded on estoppel.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1556.]
    On Motion for Rehearing.
    6. Appeal and Error @=>1173(1) — Disposition of the Case — Partial Reversal.
    Where judgment was rendered in favor of one defendant and against others and no complaint was made on appeal as to the judgment in favor of that defendant, that part of the judgment will not be reversed on reversal of the judgment against the other defendants, if the presence of the successful defendant is not necessary in the subsequent proceedings.
    I Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4567, 4569, 4656.]
    Appeal from District Court, Childress County; J. A. Nabers, Judge.
    Suit by G. W. Hulsey against J. H. Doolen and others. Judgment for the plaintiff against three of the defendants, and those defendants appeal.
    Reversed and remanded, but on rehearing affirmed as to the defendant against whom judgment was not rendered.
    See, also, 188 S. W. 1009.
    Jos. H. Aynesworth and W. B. Howard, both of Childress, for appellants. M. J. Hathaway, J. W. Davidson, and Fires •& Diggs, all of Childress, for appellees.
   BOYCE, J.

The appellants Milam and Doolen, together with appellee Mowrey were the owners of the south one-half of section 502, block H. W. & N. Wj. Railway Company, in Childress county, Tex., subject to a deed of tr-ust to secure the payment of a note for $2,750, in favor of the Reynolds Mortgage Company, which note and deed of trust had been executed by their vendor and payment assumed by the said Milam, Doolen, and Mowrey, in the deed of conveyance to them. Milam, Doolen, and Mowrey conveyed the land to W. A. Cantrell, in consideration of his assumption of the note to the Reynolds Mortgage Company, the execution by the said Cantrell of four notes, each for the principal sum of $458.65, payable to the said Milam, Doolen, and Mowrey, and also the transfer, and delivery by the said W. A. Cantrell of four vendor’s- lien notes, executed by C. E. Whatley, payable to W. A. Cantrell, each for the principal sum of $625, which said notes so executed by the said Whatley were a second lien on certain land in Kaufman county, Tex. A vendor’s lien was retained in the deed to the said W. A. Cantrell, to secure the payment of all of said notes. The said W. A. Cantrell conveyed said land to W. D. Cantrell, who assumed payment of the note to the Reynolds Mortgage Company and also the payment of the four notes executed by W. A. Cantrell, above described.

The said Milam, Doolen, and Mowrey, on May 12, 1914, transferred to the appellee, G. W. Hulsey, the four notes executed by W. A. Cantrell, above described, and two of the notes executed by Whatley. A written transfer of the notes was duly executed and delivered to the said Hulsey, whereby the said parties conveyed to the said G. W. Hulsey said notes, together with all rights, titles and interest held by them in the land on which said respective notes were a lien. The said assignments of said notes contained this statement: “And we do hereby bind ourselves that said notes are the second lien on said land,” etc.

The Wlhatley notes and two of the Cantrell notes, so delivered to Hulsey, were indorsed by Milam, Doolen, and Mowrey, without recourse; the other two Cantrell notes so delivered were indorsed without recourse by Mowrey alone, and were not indorsed in any manner by Milam and Doolen. There was testimony, however, that it was the intention that all of the notes should be indorsed by said parties without recourse, and that the delivery of two of the notes without such in-dorsements by Milam and Doolen was by mistake, and as the jury found that such was the intention of the parties, the transaction will be treated as if all the notes' had been indorsed with recourse. One of the series of notes executed by Whatley and secured by a lien on the Kaufman county land was paid, and the other note was indorsed without recourse by Milam, Doolen, and Mowrey, and sold in June, 1914, to appellee 'C. W. Cecil, who took the same in part payment for a stock of goods sold to Milam and Doolen. Hulsey, as a consideration for the transfer and assignment of said notes, delivered to him as above recited, conveyed to Milam and Doolen 160 acres of land in Childress county, Tex., and, as just stated, Cecil took the note that was delivered to him in part payment for a stock of goods sold by him to Milam and Doolen. Milam and Doolen settled with Mowrey for his interest in said notes independently of the consideration therefor received from Hulsey and from Cecil; and, as no judgment was rendered against Mowrey and no complaint made of the action of the court with reference thereto, it will not be necessary to further mention him in this opinion.

On January 3, 1914, suit was filed in Coleman county, Tex., against Whatley, to foreclose the first lien on the land in Kaufman county. W. A. Cantrell and C. E. Whatley were parties to this suit. Judgment was rendered in said court on April 7, 1914, foreclosing the said lien, and said land in Kaufman county was sold and bought in by the plaintiffs in the Coleman county suit at such sale on the first Tuesday in July, 1914. It was not shown when citations were served, nor whether lis' pendens notice of the pend-ency of said suit had been filed; neithe.r does it appear when Milam, Doolen, and Mowrey first had any knowledge of said suit.

The Reynolds -Mortgage Company’s note matured shortly after the transfer of the notes to Hulsey. Said Mortgage Company, on September 2, 1914, transferred and assigned said notes to C. W. Kiersey. The land was advertised and sold at trustee’s sale and bought in by Kiersey on October 6, 1914. Kiersey conveyed the same by special warranty deed to H. H. Pennell, who conveyed the same to Milam, Doolen, and Mowrey. As the jury found that these conveyances constituted one transaction, the rights of the parties may be determined in the same manner as if the land had been bought in by Milam and Doolen at the trustee’s sale. Mi-lam and Doolen, on the 7th day of November, 1914, executed their note for $2,500 to the Childress' Loan & Investment Company, securing payment of same by a deed of trust on said land.

G. W. Hulsey brought this suit on the four notes executed by Cantrell and two notes executed by Whatley, above described, making the Cantrells, Whatley, Milam, Doolen, Kiersey, Mowrey, C. W. Cecil, the Childress Loan & Investment Company and H. H. Pen-nell, who was trustee in the Childress Mortgage Loan & Investment Company mortgage, defendants, alleging the foregoing facts, which facts we find were established upon the trial; and, in addition thereto, that Milam and Doolen, as air inducement to said Hulsey to make the conveyance of the land to them, represented that the said notes “were as good as gold,” and in effect that said representations were falsely and fraudulently made for the purpose of inducing, and that they did induce, the said Hulsey to accept said notes and convey his said land in Childress county, in payment therefor. He further alleged that no information was given him to the effect that a suit was then pending to foreclose the lien on the Kaufman county land, nor that the first lien on the Childress county land would soon mature; that Milam, Doolen, and Mowrey, by reason of their assumption of the payment of the Reynolds Mortgage Company note, were legally bound to pay the same and protect said land against the Reynolds Mortgage Company lien, preserving the security for the benefit of the notes transferred to the plaintiff; that the mortgage debt of the Reynolds Mortgage Company was acquired by Kiersey for the benefit of the said Milam and Doolen, the money being furnished by the said Milam and Doolen, either in person or by some one else at their request, and title at said sale was also acquired for their benefit; that by reason of such sale the lien of the Reynolds Mortgage Company deed of trust was extinguished, and that Milam and Doolen then held said land subject to the lien to secure the payment of the notes transferred by them to plaintiff; that by reason of such premises, the defendants Milam, Doolen, and Mowrey became liable to pay the full aiiiount of said notes, principal, interest, and attorney’s fees, and plaintiff was entitled to a foreclosure of his lien as a first lien on said Childress county land.

The defendant C. W. Cecil answered, and by cross-bill alleged that the defendants Mi-lam, Doolen, and Mowrey delivered the said C. E. Whatley note to him, representing that the maker of said note, C. E. Whatley, and indorser thereof, W. A. Cantrell, were good and solvent; tbat the said note was a lien on black land worth $100 an acre, and that the note was good, etc., making practically the same allegations with reference to the note transferred to him, and with reference to the fraud perpetrated upon him and as to his resulting rights, as was made by the said Hulsey in his petition, except that it was alleged that the said C. W. Cecil was induced to pay for said note by transfer of stock of goods.

Upon the trial evidence was introduced establishing the facts already stated, and in addition evidence, in support of the allegations of fraud made by the plaintiff Hulsey, and by the defendant Cecil; there being testimony that in the sale to Hulsey the said Milam and Doolen had represented said notes to be as good as gold, and that in the sale to Cecil they had represented that said note transferred to him was good. Milam and Doolen offered evidence controverting the evidence offered by Hulsey and Cecil as to these representations. No evidence was introduced as to the value of the Childress county land, nor as to the value of the Kaufman county land, and it was admitted by Hulsey and by Kiersey that the notes were represented to them as being second lien notes. It was also shown that H. H. Pennell, learning of the maturity of the Reynolds Mortgage Company note, had conferred with Milam and Doolen with reference to their liability for a deficiency judgment on the Reynolds Mortgage Company note, and arranged with the said Milam and Doolen to take up the Reynolds Mortgage Company note and carry a loan of as much as $2,500 against the land. The purchase of the Reynolds Mortgage Company note, the sale of the land, conveyance to Milam and Doolen, and execution of their note to the Childress Loan & Investment Company, was made in pursuance to this arrangement. The jury found, on the conflicting evidence, that Mi-lam and Doolen had represented to Hulsey that the notes were as good as gold; that he relied on these representations, and that they were false, and he was thereby induced to trade his farm for said notes. The jury also found that Milam and Doolen represented to Cecil that the note transferred to him was good and Cecil thereby induced to take said note. They also found that these representations made to Hulsey and Cecil were false.

Upon these findings and the facts above stated, the court entered judgment for the heirs of Hulsey, he having died pending the suit, against O. E. Whatley, W. A. Cantrell, J. H. Doolen, and W. T. Milam, for the principal, interest, and attorney’s fees due on the notes ©xeeutqd by O. E. Whatley; and against the defendants W. A. Cantrell, W. D. Cantrell, J. H. Doolen, and W. T. Milam, for the amount, principal, interest and attorney’s fees due on the notes executed by W. A. Cantrell. The court also entered judgment in favor of C. W. Cecil against Whatley, Doolen, and Milam for the amount of principal, interest, and attorney’s fees due on the note executed by Whatley and transferred to Cecil. The judgment also foreclosed the vendor’s lien retained in the deed from Milam, Doolen, and Mowrey to W. A. Cantrell against the Childress county land, directed the sale of same in payment of said judgment, and adjudged that said lien constituted a first lien on said land, and that the lien created by the Childress Loan & Investment Company deed of trust was subject to and should be postponed until the full payment of the said judgment in favor of Hulsey’s heirs and C. E. Cecil. The said Milam and Doolen and the Childress Loan & Investment Company have appealed from said judgment to this court.

Appellants Milam and Doolen contend that the statement above referred to that the notes were “good,” or “as good as gold,” could not be made the basis of an action for fraud. This contention is made on the assumption that the statement is necessarily an expression of opinion rather than a statement of fact. Even as expression of opinion, circumstances might exist which would render such a statement actionable, but the authorities are abundant to the effect that such statements are not to be necessarily regarded as a statement of opinion, but that, if made and intended to be accepted as a statement of fact, they will be actionable if falsely and fraudulently made to the same extent as any other material misrepresentation inducing the execution of a contract. Benton v. Kuykendall, 160 S. W. 438; Ingram v. Abbott, 14 Tex. Civ. App. 583, 38 S. W. 626; Ruling Case Law, vol. 12, p. 293; Cyc. vol. 20, pp. 71, 72; Crane v. Elder, 48 Kan. 259, 29 Pac. 151, 15 L. R. A. 797; Andrews v. Jackson, 168 Mass. 266, 47 N. E. 412, 37 L. R. A. 402, 60 Am. St. Rep. 390; Bish v. Beatty, 111 Ind. 403, 12 N. E. 523.

However, where the notes are indorsed without recourse, as in this case, we are @f the opinion that the cause of action is not on the note or the contract of indorsement, for by the very terms of the contract, such recovery is precluded (Daniel on Neg. Inst. § 670; Tiedeman on Commercial Paper, 260), but the remedy is either for rescission or in an action for damages on account of the fraudulent misrepresentation inducing the contract, as in any other case of contract procured by misrepresentations. Lissner v. Stewart, 147 S. W. 610; also authorities first above cited.

Appellee, in support of the judgment, cites the following authorities: Ingram v. Abbott, 14 Tex. Civ. App. 583, 38 S. W. 626; McFarling v. Carey, 149 S. W. 766; Daniels on Neg. Insts. § 730, 5th clause, and section 739a. We do not regard section 739a, Daniels on Negotiable Instruments, nor the authorities there cited, as being applicable here because the text and cases cited refer to an express contract of oral warranty, made at the time of th'e delivery of the paper. There is no contention that there was any express agreement of warranty in this case. The fifth paragraph of section 730, cited from Daniels on Neg. Insts., states, with reference to the liability of the assignor of the legal title to negotiable instruments — and ordinarily the liability of a vendor of commercial paper without indorsement and an indorser without recourse is the same — that he warrants by implication—

“that he had no knowledge of any facts which proved the paper, if originally valid, to be worthless, either by the insolvency of the principal or by having been paid, or otherwise by having become void and defunct.”

We do not think that the author intended to state that one guilty of misrepresentations as to the solvency of the parties or as to the value of the paper could be held to the payment of the note on the contract of in-dorsement or as a warrantor. A reference to th’e cases cited in the text discloses that they were either suits for rescission or for damages for deceit. The matter is somewhat more fully considered by the author in subsequent paragraphs of his work. Sections 7^7-739, and the reading of the text and the authorities there cited shows that the author had reference to a liability on account of fraud, and that is, either for a rescission of the contract and repayment of the consideration, or for damages. As an illustration of the holding of the authorities cited by the author, we refer to the fact that he cites 2 Parsons on Notes and Bills, p. 41, and we find by reference to such authority that th'e law is stated thus:

“In all cases where the assignor of a bill or note knows it to be of no value and the assignee receives it in good faith, paying a valuable consideration of any kind, the assignor may be compelled to repay or return the consideration thus received.”

If the language used in the opinion of this court, in the case of McFarling v. Carey, 149 S. W. 768, in the concluding paragraph of the opinion on motion for rehearing, is to be construed as announcing that the assign- or would be liable on the note or contract of indorsement, we have concluded that such statement is too broad. The authorities in support of the statement there made by the court are all cases where the suits were brought either for rescission of contract or for damages on account of fraud. In any event, the Supreme Court has granted a writ of error in that case, and it cannot be regarded as controlling authority. It was expressly held In the case of Lissner v. Stewart, 147 S. W. 610, that the cause of action was not on the contract, and a reference to all of the Texas cases where this question has been before the court, except possibly the case of McFarling v. Carey, supra, shows that such suits were brought either for rescission or for damages for fraud.

The pleadings of Hulsey, and of Cecil, and the evidence introduced on the trial, might perhaps be sufficient to justify a judgment for damages on account of fraudulent misrepresentation, with the exception that there is no allegation as to the value of the land conveyed to Hulsey, or as to the value of the stock of goods sold by Cecil in exchange for the respective notes transferred to them; neither is there proof of such facts. If the suit is to be regarded as one for damages on account of the fraudulent misrepresentation, this is absolutely necessary, as the recovery would be the difference in the value of the property given in exchange for the note and the value of the note received. George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 450.

We are of the opinion, therefore, that it was error for the court to enter judgment against appellants Milam and Doolen for the principal, interest, and attorney’s fees due on the notes. This error is suggested by the very general terms of the second assignment and propositions made thereunder of the appellants Milam and Doolen, and would, in any event, he fundamental, and requires a reversal of the case. \

We do not agree with appellees’ position that Milam and Doolen, on account of their assumption of the payment of the Reynolds Mortgage Company note, were in law bound to protect the land against said mortgage in favor of the holder" of the vendor’s lien notes taken when they sold the land to Cantrell. When they sold the land to Cantrell, taking his notes and Whatley’s notes in part payment therefor, and when Cantrell assumed the payment of the Reynolds Mortgage Company note, in so far as Milam and Doolen were concerned, he became the principal obligor, the land itself -was the primary fund for the payment of the Reynolds Mortgage Company’s indebtedness, and Milam and Doolen, as between their vendee and parties dealing with the land subsequently, were secondarily liable only. Harris v. Masterson, 91 Tex. 171, 41 S. W. 482; Newby v. Harbison, 185 S. W. 642; Long v. Patton, 43 Tex. Civ. App. 11, 93 S. W. 519. Milam and Doolen transferred the vendor’s lien notes which they had taken against the Childress county land, to Hulsey and Cecil, but they were transferred as second lien notes, so that, as we view it, the land remained the primary fund for the payment of the indebtedness, and the Reynolds Mortgage Company note would constitute a first lien thereon, and Milam and Doolen, having transferred the second lien notes, without recourse, and as second lien notes, would not be liable to protect the second lien against foreclosure of the first lien. So that were it not for any change that the alleged fraud might make with reference to the position of the parties, we do not understand why Milam and Doolen, upon foreclosure of the first lien, might not become the purchasers of the land.

Neither do we understand how the doctrine that the acquisition of a subsequent title will inure to the benefit of a prior grantee applies in this case, for such doctrine has its foundation in estoppel. Baldwin v. Root, 90 Tex. 553, 40 S. W. 3. It is true that Milam and Doolen transferred whatever title they may have had to Hulsey; but by the very transfer the existence of the first lien against the land was mentioned, and they warranted that the lien transferred was a second lien; and when the land was sold at trustee’s sale, under the first mortgage, whatever light was thus transferred to Hulsey would be foreclosed. Hampshire v. Greeves, 104 Tex. 620, 143 S. W. 147. So that, unless some doctrine of equity would interpose to preserve the lien in favor of Hulsey, by reason of the fraud that had been perpetrated upon him, in the sale of the notes to him — and we have been referred to no such doctrine, and are not called upon to decide whether any such exists — Milam and Doolen would, in our opinion, acquire good title to the land at the purchase at trustee’s sale under the first deed of trust. In any event, if by any means a lien could be given to Hulsey and Cecil under the circumstances, the subsequent mortgagees of Milam and Doolen could, not have their lien postponed if they had no knowledge of the facts which would create such lien in the first instance.

The judgment will be reversed, and the cause remanded.

On Motion for Rehearing.

As no complaint is made by any of the parties to this appeal as to the judgment of the court below in favor of the defendant Mowrey, and a proper disposition of the case - on another trial is not dependent upon the further presence in the case of the said defendant, we have concluded to affirm the judgment as to such defendant and reverse it as to all others only. Hamilton v. Prescott, 73 Tex. 565, 11 S. W. 548; M., K. & T. Ry. Co. v. Enos, 92 Tex. 577, 50 S. W. 928; Wimple v. Patterson, 117 S. W. 1037.
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author: PHILLIPS, C. J.

text:
    RUCKER v. BARKER.
    (No. 2502.)
    (Supreme Court of Texas.
    Feb. 28, 1917.)
    1. MASTER AND SERVANT t&wkey;305 — INJURIES TO Third Persons — Servant Exceeding Authority.
    If a precinct constable employed by defendant to keep order on the grounds of his medicine show was acting within the general scope of his duties as the defendant’s employé when he arrested plaintiff and ejected him from a tent, defendant was responsible for the constable’s action, although it was in excess of actual instructions.
    [E'd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1223, 1224.]
    2. Pause Imprisonment <&wkey;31 — Liability op Master — Sufficiency of Evidence.
    In an action against the proprietor of a medicine show for false imprisonment of plaintiff by defendant’s constable, evidence held to warrant a finding that the constable made the arrest because of defendant’s instructions and in his capacity as defendant’s employé and not pursuant to his authority as a peace officer of the precinct.
    [Ed. Note. — Por other cases, see False Imprisonment, Cent. Dig. § 108.]
    3. False Imprisonment @=»4 — Malice.
    Where defendant’s constable unlawfully and violently arrested plaintiff and ejected him -from defendant’s medicine show, malice would be imputed to the constable because of the unlawful nature of the act.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. § 16.]
    4. False Imprisonment <&wkey;35 — Exemplary Damages — Acts of Agent.
    If defendant proprietor of a medicine show was a party either expressly or tacitly to the violent and unlawful conduct of his constable in arresting and ejecting the plaintiff from the show and causing his imprisonment, a verdict for exemplary damages was warranted.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. § 112.]
    5. False Imprisonment <@=^31 — Actions — Sufficiency of Evidence.
    In an action against the proprietor of a medicine show for false imprisonment of plaintiff by defendant’s constable, evidence held to justify a finding of tacit participation by the defendant in the constable’s violent and unlawful conduct in arresting plaintiff.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. § 108.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Suit by A. M. Barker, as next friend of John Dyer, a minor, against H. D. Rucker. From a judgment of the Court of Civil Appeals (151 S. W. 871) affirming a judgment for plaintiff, in the district court, defendant brings error.
    Affirmed.
    O. L. Stribling, of Waco, and W. F. Ramsey, of Dallas, for plaintiff in error. Hamilton & Kibler, of Waco, and J. A. Kibler/of San Francisco, Cal., for defendant in error.
   PHILLIPS, C. J.

The suit was by A. M. Barker, as next friend of John Dyer, a minor, against H. D. Rucker for the recovery of damages for Dyer’s false imprisonment by one J. J. Roberts. Rucker was the proprietor of a medicine show conducted at the time in the city of Waco in a tent. Roberts was a deputy constable of the Justice Precinct, and likewise in the employ of Rucker to preserve order on the show grounds at night. On the night of the occurrence out of which the suit arose, Dyer, who had purchased a reserved seat in the tent, became engaged in an argument with another patron as to which was entitled to the seat he was occupying. Roberts was called. He was directed by Rucker to settle the dispute, or to stop it. He approached Dyer and requested that he vacate the seat, which Dyer refused to do. As to what then occurred the record is in conflict, but according to young Dyer’s testimony, which it was the province of the jury to credit, he was, without cause, dragged by Roberts from his seat and out of the tent, —Roberts being assisted by one Crawford, — ■ was struck in the face, thrown down, and turned over to the police to be locked up for disturbing the peace. At the time Dyer refused Roberts’ request to vacate the seat, Rucker was standing near, in a position to see Dyer and Roberts, and close enough to hear them., According to Roberts, after. Dyer refused to vacate the seat, he turned to Rucker about the matter; and it was then that Rucker told him to stop, or settle, the dispute. Dyer was carried past Rucker in being dragged from the tent, but Rucker made no effort to interfere with the treatment to which he was being subjected by Roberts.

Upon special issues the jury found that Dyer, before the assault and arrest by Roberts, had not been guilty of any conduct calculated to disturb those present in the tent. Also, that Roberts in making the arrest did so under the instructions of Rucker, or while acting within the scope of his duties under Rucker’s employment, and not upon his own volition as a peace officer. A verdict in the plaintiff’s favor for $1,000.00, actual damages, and $250.00, exemplary damages, was returned. The Court of Civil Appeals affirmed the judgment. 151 S. W. 871.

It is urged by the plaintiff in error that there is no evidence sustaining the finding .that Roberts, in making the arrest, was acting under Rucker’s direction, or within the scope of his employment under Rucker; and further, that there is no evidence warranting a finding against Rucker for exemplary damages.

We think both, in the state of the proof, were jury questions. It was not necessary for Rucker to have authorized the specific acts which Roberts committed in his treatment of Dyer in order to be liable in actual damages for Roberts’ conduct. If Roberts at the time was acting within the-general scope of his duties as Rucker’s employé, Rucker was responsible for his action, though it was in excess of Rucker’s actual Instructions. It was a question of fact as to whether Roberts was acting upon his own volition as a peace officer, or as Rucker’s employe. According to Roberts’ own testimony, he took no steps toward the arrest until he had consulted Rucker, and only after Rucker had directed him to stop, or settle, the dispute. This, alone, would warrant the finding that Roberts made the arrest because of Rucker’s instructions and in his capacity as Rucker’s employé.

Under the finding that Dyer had committed no breach of the peace, the arrest was unlawful. The conduct of Roberts was violent and excessive according- to Dyer’s version. Because of the unlawful nature of his act, malice would be imputed to Roberts in its commission. If Rucker was a party, either expressly or tacitly, to the violent and unlawful conduct of Roberts, the verdict for exemplary damages was warranted. It may be inferred from the record that the arrest was made in Rucker’s presence. He saw the treatment to which Dyer was being subjected by Roberts. He had given the original instructions to Roberts. He necessarily knew that such was the manner in which Roberts was executing them. He stood by and made no effort to restrain Roberts. This was proof, under the circumstances, of tacit participation in Roberts’ conduct.

The judgments of the District Court and Court of Civil Appeals are affirmed.
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text:
    WARREN v. WILLSON, Chief Justice, et al.
    (No. 2487.)
    (Supreme Court of Texas.
    Feb. 28, 1917.)
    1. Courts <&wkey;207(4) — Certification or Questions — Mandamus.
    Where a decision of the Court of Civil Appeals in a case in which its jurisdiction is final is in conflict with the decision of another Court of Civil Appeals, mandamus will issue from the Supreme Court to require the Court of Civil Appeals, to certify the questions as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1623.
    [Ed. Note. — For other eases, see Courts, Cent. Dig. § 752.]
    2. Courts <&wkey;207(4), 247(7) — Certification of Questions — Conflict of Decisions.
    While the Court of Civil Appeals under Vernon’s Styles’ Ann. Civ. .St. 1914, art. 1623, is required to certify questions if its ruling is in conflict with the decision of another Court of Civil Appeals, it is not required, and cannot bo compelled by mandamus to certify, question on the ground that its ruling is in conflict with a Supreme Court decision; the propriety of certifying such conflict being left to the determination of the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 752.]
    3. Courts <&wkey;247(7) — Conflicting Decisions — Certification of Questions.
    Decision of Court of Civil Appeals that husband could withdraw and appropriate wife’s bank deposit, notwithstanding agreement with her and with bank that such deposit was her individual property, held in conflict with prior decision of another Court of Civil Appeals, holding that one contracting with wife, the husband acquiescing, could not question validity of contract, as the husband’s authorization would be implied, and it therefore was incumbent on Court of Civil Appeals to certify questions to Supreme Court, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1623.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 752.]
    Application for mandamus by Cassandra Warren against Samuel P. Willson and others, judges of the Court of Civil Appeals, Sixth District, to compel said court to certify questions..
    Writ granted.
    Hunter & Hunter, of Ft. Worth, for plaintiff.
   PHILLIPS, C. J.

This is a mandamus proceeding to require the honorable Court of Civil Appeals for the Sixth District to certify to this court for determination certain legal questions involved in the case of Waggoner Bank & Trust Company, Appellant, v. Mrs. Cassandra Warren, 152 S. W. 691, Ap-pellee, upon the ground that the court’s ruling is in conflict with decisions of this court, decisions of its own, and those of other Courts of Civil Appeals.

The case is one of which the jurisdiction of the Court of Civil Appeals is final. This being true, and the motion to certify having been duly made, it became the duty of the court, under article 1623, to certify the questions if its ruling thereon was in conflict with a decision of another Court of Civil Appeals. In such a case we may require the certification by mandamus. McCurdy v. Conner, 95 Tex. 251, 66 S. W. 664. We have no authority, however, to compel a Court of Civil Appeals to certify a question upon the ground that its ruling is in conflict with a decision of the Supreme Court. The propriety of certifying such a' conflict is left to the determination of that court. Article 1623 (the Act of 1899) is the only statute we have making it the duty of the Courts of Civil Appeals to- certify questions to the Supreme Court in case of conflict, and it confines the duty to only those rulings which are in conflict with a decision of “some other Court of Civil Appeals.” Smith v. Conner, 98 Tex. 434, 84 S. W. 815; T. & P. Ry. Co. v. Willson, 101 Tex. 269, 106 S. W. 325; Newnom v. Neill, 101 Tex. 42, 104 S. W. 1040; McKay v. Conner, 101 Tex. 313, 107 S. W. 45.

We shall, accordingly, only consider whether the ruling complained of conflicts with cited decisions of other Courts of Civil Appeals.

This is the case: Mrs. Warren, a married woman, but who separated from her husband on the next day, called at the appellant bank, on November 17, 1910, accompanied by her husband, and presented to its cashier a draft upon a New York bank for $1,500.00, her separate property and so known to be by the cashier at the time, having the cashier pay her thereon $200.00 in money, place $600.00 to her husband’s credit in the bank’s commercial department, and credit the remainder, $700.00, to an account in her individual name in its savings department. The cashier gave her a pass-book, in which her deposit was noted, and advised her that the money could not be withdrawn from the bank without the pass-book being brought or sent to the bank. On the outside cover of the passbook, this was printed:

“Take care of this book. It must be presented when money is deposited or withdrawn. Be sure that no unauthorized person secures possession of it. If lost or stolen, notify the bank at once.”

In the book were printed rules governing deposits’and payments in the bank’s savings department, declaring the pass-book to be the voucher of the depositor, and'that all payments made to persons producing it should be valid payments; and, further, that all drafts drawn upon the account must be made by the depositor, or by his or her order in writing, and upon production of the passbook, but that all payments made to the person producing the pass-book should be good and valid. Mrs. Warren relied upon the statement made to her by the cashier that no part of the amount placed to her credit in the savings department could be withdrawn save upon production of her passbook, and would not have made the deposit had she known that the bank would permit her husband to withdraw the money without producing it. She retained the pass-book in her possession until March 20, 1911, when she sent it by mail to the bank with the request that it forward her a draft for the amount of the deposit. She was advised by the bank that in December the entire amount had been paid to her husband upon two separate checks drawn by him in her name.

In the trial court, Mrs. Warren recovered judgment, on the ground that the bank’s payment of the money under the conditions stated was not binding upon her.

In reversing this judgment and rendering judgment in the bank’s favor, the ruling of the Court of Civil Appeals was, that although the deposit was made by Mrs. Warren on the faith of the bank’s contract that the money could not be withdrawn except upon the production of her pass-book, in making the contract Mrs. Warren should be held to have acted as the 'agent of her husband, and the contract was of no force as against his right to resume the control of the money. The effect of the ruling is, that although the contract was made by the wife with, evidently, the husband’s full concurrence, it was not a valid contract, because of his power to control the wife’s separate property, and the bank was therefore not liable for its violation.

It is asserted that the ruling is in conflict with the decision of the court of Civil Appeals for the Fourth District in O’Connell v. Storey, 105 S. W. 1174. There, a married woman had negotiated a contract with another by which she was to render certain personal services. She rendered the services with the acquiescence of her husband. In the suit to recover their value according to the agreement, it was held that the defendant would not be heard to question the validity of the wife’s contract; that in such a case the law would impute the husband’s authorization of the contract, and, when fulfilled by her, hold the other party to the performance of his part of it.

If the contract of a married woman with reference to her personal earnings, which, by the law in force at the time, were under the husband’s control, is enforcible in her interest when performed by her, because of the husband’s imputed authorization of the contract, it is evident that her contract, made with the husband’s concurrence and implied authorization, in relation to a personal bank deposit, alike subject, under the existing law, to the husband’s management, is, when performed by her, equally valid against the other party availing himself of its benefits.

The conflict between the two decisions is apparent. The mandamus will therefore be allowed for the certification of the ruling in question.
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