author: HALE, J.

text:
    FIRST NAT. BANK OF CANADIAN v. JONES et al.
    (No. 1478.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 12, 1919.
    Rehearing Denied March 12, 1919.)
    1. Appeal and Error '©==>500(1) — Matters Reviewable — Exceptions.
    Assignments of error based upon alleged action of court in overruling certain exceptions •cannot be considered, whore transcript contains no order showing that court ever considered or ruled upon exceptions.
    2. Estoppel ©=>118 — Permitting Mortgage oe Cattle — Evidence.
    In action to foreclose mortgage on cattle, •evidence held to sustain finding that a third person to whom cattle belonged had done nothing which would lead an ordinarily prudent person to believe that they belonged to mortgagor, and that mortgagor had a right to mortgage them.
    3. Bailment ©=21— Apparent Title oe Bailee.
    Mere possession by bailee of property is not sufficient to create any right in favor of third person who takes mortgage upon them.
    Appeal from District Court, Hemphill ■County; W. R. Ewing, Judge.
    Action by the First National Bank of Canadian against J. T. Jones and others. From a judgment for defendants, plaintiff appealed.
    Affirmed.
    H. E. Hoover and Newton P. Willis, both of Canadian, for appellant.
    Frank Willis, of Canadian, and Clinton C. Small, of Wellington, for appellees.
   HALE, J.

Appellant bank sued appellee Jones to recover upon a promissory note, for the sum of $7,866, and to foreclose a chattel mortgage upon certain cattle therein described, executed by the said Jones to secure payment of the note. By amended original petition he made H. D. Creath, T. J. Kelly, and J. K. Lunn parties defendant, upon the ground that they were claiming some interest in the mortgaged property. By agreement, Lunn was dismissed from the suit, and is not a party to this appeal. Appellee Creath ■answered, alleging in substance that he held a prior mortgage upon the cattle in question to secure a note in the sum of $14,450, dated April 16, 1917, which had been renewed July IS, 1917; that said debt was not paid; that his mortgage was recorded in Wheeler county at the time of the execution of the mortgage ; that he learned for the first time that the cattle had been removed from Wheeler county, since the institution of the suit or a few days prior thereto. He prayed for judgment and a foreclosure of his mortgage. Ap-pellee Kelly answered, alleging in substance that he was the owner-of all the cattle described in the plaintiff’s petition, except 40 cows and their increase, branded with a cross on the right hip; that he executed the mortgage declared upon by Creath. He prayed for judgment decreeing him the title and possession of the cattle, subject to Creath’s lien.

By first supplemental petition plaintiff replied to the answers of the defendants Creath and Kelly, first by general denial, and specially alleging that Creath’s mortgage did not cover the cattle in question; that they were not described in said mortgage; that appellant’s mortgage was taken in good faith, without any knowledge that the defendants had any claim whatever upon the cattle; that defendant Jones had been in possession of said cattle for a long time, holding them in Hemphill and Lipscomb counties, using them as his own, shipping some of them to market and having the proceeds of the sale thereof remitted to him in his own name, all of which was done with the actual knowledge of his codefendant Kelly; that there was no circumstance to put it upon inquiry as to the claim of said defendants; that the defendants permitted the said- Jones to handle the cattle as his own, clear of all liens, which fact misled plaintiff to its damage, and but for which it would not have loaned it money and taken said cattle as security; that the cattle were located in Hemphill county early in the spring of 1917, and had been in said county over four months, without any mortgage of record against them, or any indication of ownership in any other person than Jones; that if the defendant ever had any mortgage upon said cattle, it was recorded only in Wheeler county; that after the institution of the suit, and after defendant Jones had fled the country, defendant Kelly came to Lipscomb county, where the cattle were then located, and converted 86 cows and 40 calves, covered by plaintiff’s-mortgage of the value of $5,500; that the defendant Kelly knowingly permitted said cattle to remain in the possession of Jones and'without Oreath’s mortgage being filed in either Hemphill or Lipscomb counties, within four months after the removal of same from Wheeler county, which acts constituted fraud and misled plaintiff to its damage. The prayer was for judgment against Kelly for the value of the cattle converted by him, and that in the event the defendant Creath recovered said cattle, or any part of same, that it have judgment over and against defendant Kelly for such amount. Creath and Kelly filed their supplemental answer, alleging in substance that plaintiff’s mortgage covered 224 cows, branded J on the left hip, clear of incumbrance, except $8,000 to T. J. Kelly, and that plaintiff had actual notice of a prior lien upon said cows, which lieu is the lien owned by the defendant Creath. There was a trial before the jury, to whom the case was submitted upon special issues; the issues and answers thereto being as follows:

“(1) Were the cattle branded + on the right hip, taken by C. B. Haynie, the receiver in this case, the property of J. K. Lunn? Answer: Yes.
“(2) At the time J. T. Jones executed the mortgage dated October 25, 1917, to tbe First National Bank, did he own the 224 cows described in said mortgage as branded J on left hip? Answer: No.
“(3) If you answer the foregoing question in tbe negative, then state who owns said cattle. Answer: T. J. Kelly.
“(4) If you have stated that T. J. Kelly owned said cattle, then were the acts and conduct of the said T. J. Kelly with reference to said cattle such as to lead an ordinarily prudent person to believe that the said cattle belonged to J. T. Jones, or that he had the right to mortgage them? Answer: No.
“(5) Are tbe cattle involved in this suit branded J on left hip part of the same cattle described in the mortgage from Kelly to Creath, dated April 16, 1917? Answer: Yes.
“(6) Did the defendant Kelly own the cows and calves taken by him from the Jones place in Lipscomb county to bis place in Wbeeler county, at the time he took them in November, 1917? Answer: Yes.
“(7) At and before the time J. T. Jones gave the mortgage in controversy to the First National Bank, did the defendant Kelly know that tbe defendant Jones was handling the cattle in controversy, exercising complete control over the same? Answer: No.
“(8) Did T. J. Kelly so conduct himself as to reasonably induce the officials of the First National Bank to believe that J. T. Jones was the real owner of the cattle involved herein? Answer: No.
“(9) Did T. J. Kelly know that Jones bad mortgaged tbe cattle involved in tbis suit to the First National Bank of Canadian, Tex., prior to the time Jones abandoned tbe cattle? Answer: No.
“(10) Were the cattle claimed by the First National Bank under their mortgage against Creath and Kelly tbe property of T. J. Kelly, on October 25, 1917? Answer: Yes.”

Several other issues were submitted, which we think are immaterial under the view we take of the case.

The first three assignments in appellant’s brief are based upon the alleged action of the court in overruling certain exceptions; but, since the transcript contains no order showing that the court ever considered or ruled upon the exceptions, these assignments must be disregarded. We will not undertake to consider the assignments in detail, or in the order presented. Appellant attacks the claim of ownership asserted by Kelly and the validity of Oreath’s mortgage, asserting that it is void as to appellant because the cattle are defectively described, and because of the failure of Creath to file the mortgage in Hemphill county within the statutory period. If it be true that Kelly is the owner of the cattle, and by his acts or failure to assert his claim at the proper time he is not estopped from claiming the cattle as against appellant, it will not be necessary to consider the question of the sufficiency of the mortgage and its registration. As shown, the jury found that the cattle covered by appellant’s mortgage .were the property of Kelly on October 20, 1917, when they were mortgaged to appellant by Jones, and that Kelly urns not chargeable with any acts or conduct with reference to the cattle which would lead an ordinarily prudent person to believe that they belonged to Jones, or that he had a right to mortgage them. The jury further found that Kelly did not know that Jones had mortgaged the cattle to appellant prior to the time Jones abañdoned the cattle and fled the country. The testimony bearing upon this issue' comes mainly from appellee J. 3. Kelly and is in substance this:

“I made arrangements with Jones for him to take care of this bunch of cattle. He agreed to do this before I traded for tbe. cattle — take care of them for me through tbe summer. He was to keep them somewhere over about Kelton, southeast of Wbeeler. I rented some grass out there. I rented some more grass around the Kelton neighborhood. He only bad a little grass there at bis home section and a half section leased, and I bad a section and a half at my home place that I thought we could use until the winter was over. The cattle stayed on tbe place we moved them to from Collingsworth county something like 30 or 40 days. We put them over on tbe Gageby then. We did not keep them a great while over there. Then we moved them across the river in the next county — Lipscomb county. They were summered on Gageby and in Lipscomb county. I was living on Sweet-water at that time, about 7 miles west of Wheeler. It was about 60 miles to where we kept them in Lipscomb county. I made several trips up to Lipscomb county; two or three trips I think, maybe four, to see the cattle. I owned the cattle myself. I did not sell any part of them to Jones. I didn’t consent for Jones to mortgage them to the First National Bank of Canadian, or to any one else. I owned them on the 25th day of October, 1917, and the cattle that were mortgaged to the First National Bank of Canadian were mine. I did not know anything about Jones mortgaging them at that time. The first time I learned that Jones had mortgaged them to the bank was between the 6th and 8th of November. I did not know anything about the mortgage until Jones had left the country. He was gone when I came up here and heard it. I drove these cattle down on Sweetwater.. They are the same cattle I got from Scott; that is the same lot of cattle. I don’t know what went with the balance of them. The cows had the J brand on left hip and were branded “Lazy S” on the right hip. Some of the calves were branded with a tally bar. They were branded in Wheeler county after they left Collingsworth county. I guess they were branded under my instructions. I told them to brand them whatever they could to hold them. I told them to put that bar brand on the young stuff; that X had a lot in the same brand at home. They were just holding brands. As to how long I intended to keep them in Lipscomb county, I calculated to ship them out but there was not grass enough to fatten them. X didn’t ship any of them out. It was too dry and not enough grass. The J brand was not on the cattle at the time I executed the mortgage to Creath; that brand was1' put on in Wheeler county at the stock pens at Shamrock, en route from Col-lingsworth county to Wheeler county. I am^ not certain they were branded in Shamrock.' When I was up hero (Hemphill county) in the fall of 1917, I heard that Jones had mortgaged some of them to the bank here at Canadian, and I went to the bank and investigated this matter with the officials of the bank. I talked with Mr. Isaacs one of the officers of the bank. I discussed the proposition with him. There was nothing said about the brand on the cattle that he had taken a mortgage on. I asked him about the brands that were on them, and he looked for the papers and said that the papers were somewhere else. I then went out to where the cattle were, saw Jones, and he told me he put in about 50 head of stuff. I then went back and saw Isaacs, and told him I found things better than I expected to. Jones had some other cattle up there. He told me at that time he had bought some other cattle. * * * I didn’t know he [Jones] had put it [the J brand] on them. Yes; J stands for Jones or Jeff; J doesn’t stand for Kelly. As to my permitting him to put a brand on the cattle that indicated his ownership, I didn’t tell him what to put on them. It was put on; yes, sir; and is on there yet. I had agreed that these cattle should be branded with a slash later on. I expected to put a slash on them. I was over here-at the courthouse about 40 minutes before the lawsuit was over that Jones had with Aires, suing him for damages to these particular cattle. I would not say that I heard part of the evidence in the case. I was not here at the time the evidence was being given, and at the time Jones was claiming that these cattle were his. I came up in the afternoon. I think the evidence was all in when I came to the courtroom. I didn’t know that Jones had sued Aires for damages to the cattle until that day. I don’t know when that was ; I guess it was about a year ago now. I didn’t know he had sued him for damages in this suit. I told him not to monkey with that (Aires) section of land; we had tried that section of land once before. Yes; I know he had brought suit to recover damages. When I was here in the courtroom, knowing that a suit for damages alleged to have been sustained to my cattle, I didn’t make any inquiry with regard to the damage to the cattle. I don’t know whether I told anybody in this county that these cattle belonged to me or not. If I did, I had no occasion to. * * * I could not tell you the date that I had the conversation with Isaacs. It was awhile before Jones ran away. I went up to .Lipscomb county several times, and went up there on that occasion, and I looked through the cattle at that time, and I didn’t come back and tell Mr. Isaacs that it was all right; that I thought Jones had the number of steers that he had mortgaged to Isaacs. I told Isaacs that evening that things were in better shape than I expected. Isaacs told me that Jones had mortgaged him 100 head of yearling steers. As to my stating in that first conversation with Isaacs that I didn’t think he had the steers, I knew that he didn’t have them. The bunch that I had were heifers and steers. If he had that many steers, it was just likely I’told Mr. Isaacs he had bought them, if he had that many. I went up there and looked through the cattle, and came back and told Mr. Isaacs that it was better than I had expected; that he had turned in more cattle and put in other cattle belonging to a man right across the -fence; some of these were cows, and there wore some steers and ‘one year olds past.’ I could not say how many. They were scattered through the cattle, and there were a number of strays and cross cattle. I do not know how many. 'Jones claimed there were 50 head; most of them cows. I don’t know how many yearlings I saw there at that time;. I didn’t tally them out. ⅜ ⅜ * Could not toll how many cattle were in there; there were a lot of strays. Could not tell whether they were Jones’ or not; I knew they were not mine. I saw some of my own cattle there; don’t know how many, but enough to take it for granted that the bunch was there. I didn’t tally them and don’t suppose I saw them all. It was a rough country. I rode around amongst the majority of them; that must have been up in August, and not in June. I don’t think it was that early. It could have been; I know it was in the summer. As to whether or not it is a fact that in a conversation with Isaacs in the Canadian State Bank, in which conversation he told me that he had gotten a mortgage from Jones on these cattle and upon these yearlings, and whether or not I told Isaacs I didn’t think Jones had that many yearlings, I probably did. That was about the number that was in that bunch. I don’t think I told Mr. Isaacs in that conversation that the greater number of the cattle belonged to me, and that I had known Jones for quite a while; that I wanted to render Jones some assistance. According to my knowledge, I didn’t tell him that. I didn’t have any trade with Jones about the cattle; he was just to handle them for me — find grass for them. I moan by handling that he was to take care of them.”
“Q. You never at any time said to any man in Hemphill county where you were passing through, and never told Mr. Isaacs when you were talking to him about having a mortgage on these steers, that you owned a lot of the Jones cattle did you? A. I think I gave him a hint; as to the kind of hint I gave him, I didn’t feel liker accusing him until I thought it was necessary. Yes; I went back and told Mr. Isaacs that it was all right. Now, I am getting up in a suit and attempting to take these identical cattle away from Mr. Isaacs. Yes, sir. Q. Do you admit that you had a hint that Jones was mortgaging and shipping the cattle? A. No, sir; no shipping about it. Yes; in other words, I had a hint, but I didn’t want to expose a man unless it was necessary. Q. In other words, you admit that according to the statement now that you had reason to believe that Jones was handling these cattle in a way that put a suspicion in your mind as to his right to mortgage them? A. He claimed he was not mortgaging them. Q. In other words, you had enough to put you on inquiry, but you let Jones talk you out of it, and you went back and told Mr. Isaacs that it was all right; is that, a fact? A. I didn’t tell him it was all right. Tes; I told him that Jones had the cattle. He had more cattle than I figured on him having. I don’t know whether that eased up Mr. Isaacs or not. I could not give you the first time I went over there; it was probably in the early spring; no, •it must have been up in the summer. I think I was over there three times. As to whether or not I went up there after I was here and hoard of the lawsuit he had with Aires, I started up there that time and found Jones here. I didn’t ask Jones to tell me what kind of a suit he had instituted on my cattle. No, sir; he told me what he had gotten into. He told me that he had sued Aires for damages to these cattle. I heard the case argued after it was all over. I was sitting out there in the courtroom during a part of the argument of the case, but I do not think I heard any of the evidence put on. I didn’t hear Jones testify that these were his cattle, and that he brought them from Collingsworth county. I heard a part of the argument in the case. Do not remember whose argument I heard. I was interested enough to find out what it was all about, and made inquiry after it was all over about it. I found out from Jones, but didn’t inquire of anybody else. I didn’t have anything to do with the Aires pasture, or the Aires suit. I told him to let that section of land alone. * * * As to my having a suspicion at that time that Jones had mortgaged that bunch, I didn’t know hardly what to think. I thought that Jones was perfectly honest, and I wanted to see about it. I did have an intimation that he had mortgaged Mr. Isaacs my cattle. I did have such an intimation. As to what I meant by stating to Mr. Isaacs that 100 head was about the number that should have been in that bunch, I meant that it was about the number of cattle; but I could not swear that it was the cattle. Tes, sir; after I saw the cattle, I called back and told Mr. Isaacs that everything was in good shape. I didn’t call at the clerk’s ofiice to see what cattle Jones had mortgaged Isaacs. I asked Isaacs about it, and he didn’t have the mortgage, and told me it was on record in this other county. I didn’t go to the other county at that time. Tes; I had a suspicion that Jones had mortgaged the cattle. I have testified to that. I talked with Isaacs; then went over into Lipscomb county, where the cattle were, and had a talk with Jones, and Jones satisfied me. I never went to the records to see whether in truth and in fact Jones was mortgaging my cattle, although I had a suspicion that he was.. Isaacs didn’t tell me anything about the brands; he told me he would have to look for it [the mortgage], and he went and looked for it, and could not find it.”

Aires testified that Kelly talked with him about Jones putting the cat.tle in the Aires pasture, but didn’t say anything about owning the cattle. Isaacs testified that he had one conversation with Kelly after- the loan was made, in which he told Kelly about making the loan to Jones and taking a mortgage on 100 head of yearlings, and that Kelly only said, “Where did he get them yearlings?” Isaacs testified further as follows:

“I had another conversation with Mr.' Kelly before the loan was made. He was in the bank talking, and told me he was looking for Mr. Jones’ cattle down here that was at Mr. Aires’ at that time. I don’t know whether he just said he was looking after Jones’ cattle or not. We were talking, and he said he was helping Jones out; that he thought he was a good man, had known him a long time; that Jones had 320 acres of land in Wheeler county, and that he had sold him or traded him some cattle for, and he said that he owed a bank over there, and that he was looking for this thing — was interested in it; that he [Jones] was going to make good. He was talking about the cattle /that were at the Aires place. I understand it was Jones’ cattle; I never once thought of them being anybody else’s. I understood he was assisting him in carrying the debt, or something of that kind.”

This testimony, in our opinion, would not warrant us in holding that Kelly is es-topped from claiming the cattle as against the bank’s mortgage, and fully sustains the jury in its findings that Kelly did nothing which would lead an ordinarily prudent person to believe that the cattle belonged to Jones, or that he had a right to mortgage them. Mere possession by a bailee of property is not sufficient to create any right in favor of a third party who takes a mortgage upon it, and the rule announced in the following cases applies here: Blum v. Merchant, 58 Tex. 403; Stratton-White Co. v. Castleberry, 15 Tex. Civ. App. 149, 38 S. W. 835; Watkins Land Mortgage Co. v. Howeth, 1 Tex. Civ. App. 277, 21 S. W. 315. The testimony quoted above, taken most strongly against Kelly, does not show that the bank is in a position to claim estoppel against him, as the loan was made upon the strength of representations made by Jones, without the knowledge of Kelly, before its execution. Under the testimony of Isaacs, detailing the conversation between himself and Kelly, prior to the time the bank made the loan, the jury might have concluded that Kelly was estopped; but, their finding being to the contrary, there is sufficient evidence to sustain it, and to show that the bank is not in a position to urge the defense of estoppel. Anderson v. Walker, 93 Tex. 119, 53 S. W. 821; McLaren v. Jones, 89 Tex. 131, 33 S. W. 849; Waxahachié National Bank v. Beilharz, 94 Tex. 493, 62 S. W. 743.

Having concluded that appellant bank is not entitled to recover as against Kelly, the assignments attacking the sufficiency of Creath’s mortgage and his right to 'recover are immaterial. If the cattle belonged to Kelly, Jones had no right to mortgage them, and the bank could acquire no greater right than its mortgagor had at the time the mortgage was executed. The bank is therefore not entitled to attack Creath’s mortgage upon any ground.

The several assignments based upon the refusal of the court to submit certain special issues are overruled, as we think the matters therein are included in the issues already submitted.

We find no reversible error, and the judgment is affirmed.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    CITY OF SAN ANTONIO et al. v. BESTEIRO et al.
    (No. 6191.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1919.
    Rehearing Denied March 5, 1919.)
    1. Bicenser <©=14(2) — Regulation and Licensing oe Automobiles.
    Plaintiffs’ business of leasing or hiring driv-erless automobiles to the general public held, to be of a public nature, to contemplate and in fact make use of the streets of defendant city, and to affect the public welfare, so as to be subject to license and reasonable regulation by the city, under Gen. Laws 1917, c. 90, § 25 (Vernon’s Ann. Civ. St. Supp. 1918, art. 7012⅛¾, and chapter 207, § 23, subd. 2 (Vernon’s Ann. Pen. Code Supp. 1918, art. 820r), and San Antonio Charter, §§ 90, 98, 99.
    2. Licenser <®=»14(2) — Regulation and Licensing op Driverless Automobiles — “Private Use.”
    The business of renting driverless automobiles to the public for temporary use over the streets of defendant city is not the “private use” by an individual of his property over which the police power of the city cannot be exercised.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Private Use.)
    3. Appeal and Error <®=5l79(l) — Review-Issues Not Determined by Trial Court.
    Issues pleaded, but not ruled upon by the trial court, are not properly before the court on appeal for review.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by M. Besteiro and others against the City of San Antonio and others. From an order granting a temporary injunction, defendants appeal.
    Order reversed and cause remanded.
    R. J. McMillan, of San Antonio, for appellants.
    Lewright & Douglas, of San Antonio, for appellees.
   SWEARINGEN, J.

This suit was instituted by M. Besteiro, L. J. Overcash, and R. Sere against the city of San Antonio, Tex., Sam C. Bell, mayor, as mayor of said city, J. R. Lambert, Sr., Andres Coy, Phil Wright, and L. Heuermann, as commissioners of said city of San Antonio, for the purpose of enjoining the city and its mayor and commissioners from enforcing an ordinance adopted and enacted by the city of San Antonio on July 29, 1918, entitled:

“An ordinance for the licensing and regulation of driverless automobiles, hired or leased to the public for use on or over the streets or thoroughfares of the city of San Antonio.”

The city interposed a general demurrer to the sufficiency of the petition, and specially answered. The general demurrer was overruled at a hearing upon the application for a temporary injunction, and evidence was introduced. The trial court held that the character of the business conducted by the appellees, described in the pleading and proven by the evidence, was not such as to be subject to license and regulation by the city of San Antonio because, in the opinion of the trial court, the business was private, the conduct of which does not affect the public safety or welfare. Accordingly a temporary injunction was granted, restraining the city and its commissioners from enforcing the ordinance. From this interlocutory order appellants have appealed.

The nature of the business is thus de- ■ scribed in appellees’ first amended petition:

“In (September, 1917, plaintiffs began business in said city of San Antonio at .No. 735 East Houston street and since that date plaintiffs have carried on their business at said place, upon premises leased and controlled by them, in which the city of San Antonio owns and has no interest whatsoever. Plaintiffs have been conducting, and are now conducting, their business at said place as the owners of certain Ford automobiles, 55 in number, which they keep and maintain at said place for the use of the public at large, upon reasonable prices, terms, and conditions. Plaintiffs never furnish a driver to operate any such automobile, but they rent or hire their said cars to such persons as apply therefor and as satisfy plaintiffs and their agents that they are competent and able properly to run said cars and are financially responsible, and are trustworthy. Plaintiffs and their agents have at all times used due care in deciding or determining whether or not to hire or rent their said cars to members of the public applying for the rental or hire thereof.
“Since plaintiffs first began to engage in said business of hiring or renting cars without drivers, to the public at large, they have made more than 10,000 rentals, and, as far as plaintiffs know and believe, up to the present time not one personal injury accident has resulted from the operation of their said cars by the said lessees or bailees thereof; moreover, plaintiffs have knowledge ef only three instances in which, persons operating said cars under lease or bailment contract with plaintiffs have injured the property of third persons. Plaintiffs do not rent or hire their said cars to married women save and except with the written approval and consent of their husbands, nor do plaintiffs hire or rent their said cars to persons under 21 years of age.
“Owing to the care with which plaintiffs have conducted their said business and to their constant attention to the upkeep and proper conduct of said business, they have succeeded in building up, and are now doing, a very extensive business, and their said cars are being daily used and driven by members of the public at large, not agents, servants, or employes of plaintiffs, and plaintiffs are now affording to the public, especially those financially unable to purchase and maintain cars of their own, a superior facility for both business and pleasure use. Plaintiffs’ said cars are constantly being rented or hired by United States Army officers and* others in the service of the United States government, who are temporarily stationed in or near the city of San Antonio, Tex. A very large portion of the business thus transacted by plaintiffs is done by them with persons who make use of said hired or rented cars in going to and from Leon Springs, Kelly Field, and other places outside of the city of San Antonio, Tex., which are not accessible by street car. Said business of plaintiffs is now lucrative and profitable, principally because of the prudence and economy with which plaintiffs are conducting same.
“Plaintiffs have never sought, obtained, nor exercised, nor are they now exercising or making use of, any franchise or other special privilege or immunity; on the contrary, their said business, is one of common right in which any member of the public at large is entitled to engage at any time as of right, and plaintiffs now have in said city of San Antonio, Tex., various competitors engaged in the same line of business.
“Plaintiffs do not themselves, either in person or by servants, agents, or employes, make use of or operate any of their said cars upon any of the streets or alleys of the city of San Antonio, Tex. Plaintiffs do not operate any of said cars for hire, either as jitneys, as special service ears, or otherwise. Every person who hires or rents any of said cars from plaintiffs ■ is always required to drive and operate said car for himself, and without assistance or aid of any kind from plaintiffs, their agents, servants, and employés, taking said cars from plaintiffs’ said place of business and returning same at the end of the time contracted for by said person renting or hiring same.”

The nature of the business is, by the evidence, substantially proven as alleged:

“As to the manner of running this business, we run Ford cars without drivers, renting them. We have no drivers. These cars are not operated on the streets of the city for the carrying of passengers. Wo do not permit our cars to be used as service cars, or jitneys. If a man tries to make use of them in that way we call them in. In the contract which we make with parties renting our cars it is stipulated that the ears are to be used by them personally.
“As to the number of rentals we have made of cars since we have been in the business, it is around 15,000, I guess about 14,900, say 15,000.
“Our place of business is No. 733 East Houston street. We lease that property, lease it from Mrs. Finlay. We were at No. 735 about four months, and we moved to No. 733, taking a two-year lease on No. 733 East Houston street. We have never used or occupied any of the city property, plazas, or other places, for ■our business; we confine our entire business to leased premises. We will not deliver a car out on the street for a man; we never put a car out on the street. The party must himself get in and drive it out; they must show us that they can handle the car in our lot before they go out. This past week we took three or four men out of cars that could not handle them.
“As to whether we have had personal injury accidents in the 15,000 rentals or hirings of cars, not a single personal injury has been reported to us. There have only been four or five property claims presented as a result of accidents all put together.
“As to whether we require a deposit from parties who rent our cars, we do, we require from $25 on up. For instance, if a man wants a car to go to Lavernia, I tell him the deposit we require. Of enlisted men in the army we require $20 deposit, and officers and men of good standing in San Antonio, sometimes we let them out without a deposit — not in all cases.
“I have a printed form of the contract which we require of parties renting our cars, but haven’t it with me; I can get one.
“As to how many automobiles and trucks we were running at the time we brought this suit originally, last summer, we were operating 57, I think. At the present time we are operating about 23 or 24 cars.
“As to whether we rent our cars to married women, or to minors, we do not; we never rent to a boy under 21 years old, nor to a married woman, unless she has a letter from her husband.
“As to whether our business is principally to civilians, or to officers and privates, it is an indiscriminate business; I suppose 60 per cent, of our business is with army people.
“As to where the people drive our cars, all I know is what they say. The cars are for their own personal use, of course; a great many officers going from Kelly Field to Ft. Sam Houston, a great many of them use cars when they are taken from here, transferred from here, they keep them all'day long, and some go to New Braunfels.”

Section 99 of the San Antonio charter contains express authority from the Legislature to license, regulate, and inspect all business carried on in San Antonio whenever and wherever the commission shall deem such regulation, inspection, and license necessary or proper for the good order, public health, public safety, or general police regulation of said city.

The city has, by the enactment of the ordinance herein assailed, exercised the power given it by the above section of its'charter. The section of the charter itself is not claimed to be in violation of the Texas Constitution. The contention is that the business of appellees is a private and not a public one over which alone the police power can be exercised. In our opinion, the business affects the general public as the pleadings and evidence clearly disclose. The appellees for their own profit offer numbers of automobiles for use to the general public for hire. It is apparent that the general public welfare requires that reasonable precaution be taken to protect tlie using public against dangerous machines, and that precautions be' taken to prevent injury and inconvenience to the traveling public by the indiscriminate use of these automobiles, and it is also apparent that this business may be used for immoral purposes. In fact,’ the testimony of appellees’ witness shows that the appellees themselves, realizing the danger from careless use of their automobiles and the possibility of use for immoral purposes, have undertaken to exercise a police power themselves, and to that end have established rules by which it is sought to rent to only careful and competent lessees, and refuse to rent to single ■fromen, and will rent to married women only when joined by their husbands. The' nature of the business is public. The public safety and welfare may require its regulation.

The argument that appellees in effect sell their automobiles, and that the entire, transaction is completed upon their own private property, is unsound. The business of renting automobiles to the public for temporary use over the streets of San Antonio is not the private use by an individual of his property.

In addition to this authority to exercise police power over appellees’ business, granted the city in section 98 of the charter, the general laws of the state expressly grant the city the authority to regulate the business conducted within it of offering automobiles for hire. General Laws of 1917, p. 426, § 25 (Vernon’s Ann. Civ. St. Supp. 1918, art. 7012½¾. General Laws of 1917, p. 474, § 23, subd. 2 (Vernon’s Ann. Pen. Code Supp. 1918, art. S20r). There can be no doubt that appellees’ business is to offer automobiles for hire to be used upon the streets of San Antonio.

Then again, the authority, of the city of San Antonio to regulate the úse of its streets is granted in section 90 of its charter. This power to regulate the use of its streets is not denied by appellees, but they contend that in their business they do not use the streets. They insist that they lease the car on their own premises, and the lessee exercises the rights of an owner, and as such has the inalienable right to drive the car upon the streets. It is true the lessee has the right to drive a car upon the streets, and that he cannot be charged a license by the city, for the state laws forbid. In the present case, no effort is made to license or regulate this individual lessee. The license and regulation here attempted is that of the business of ap-pellees. The contention that the use of the streets forms no part of the business conducted by appellees is sophistical. The chief element of value to this business is that their automobiles can and will be used upon the streets of the city. If the use of their automobiles should be confined to appellees’ private property, the city could exercise the police regulation granted in section 99. But the business is not to limit the automobiles to use only on appellees’ private property. The quintessence of the business is to obtain a rental from the use of the city’s streets by its automobiles. That this use of the streets is contemplated, intended, and forms the real thing of value to appellees’ business is so obvious as to pretermit discussion. The business of appellees is to derive a profit for themselves by the operation of their automobiles over the streets of San Antonio just as the street railway, jitney, and service car companies do. The fact that these last-mentioned companies have the driving done by employés and the appellees have it 'done by lessees does not change the result that appel-lees’ business is to burden the streets in the conduct of its business. There is greater necessity, it seems to us, for the city to regulate this use of the streets when the driving is done by lessees instead of employfiis. Where the automobiles are driven by em-ployés over whom the employer has supervision and control, there is likely less danger to the public,, and the immoral uses possible can bé more readily checked than where the automobiles are promiscuously, if not indiscriminately, let to the public. Since the business contemplates and does in fact make use of the streets, the business is subject to license and regulation by the city.

The authority of the city to regulate the jitney and service car companies in their use of the streets, has been often attacked with the Bill of Rights, the Constitutions both of Texas and the United States, and also with the rule that even the police power of a municipality must be exercised in a reasonable manner commensurate with the necessity therefor. But all such attacks have failed.

The right of regulation conferred upon the city of San Antonio by sections 90 and 99 of the charter and by General Laws 1917, p. 426, § 25, and General Laws 1917, p. 474, § 23, subd. 2, have been thoroughly discussed by the opinions written for this court by its Chief Justice in the Green, Peters, and Crad-dock Cases. Greene v. City of San Antonio, 178 S. W. 7; Peters v. City of San Antonio, 195 S. W. 989; Craddock v. City of San Antonio, 198 S. W. 634. We can add nothing to the discussions found in the cases cited except to say that appellees’ business falls within that class affecting the public welfare and is subject to the city’s regulation. Like the exercise of all police power, it must be reasonable.

Since the trial court did not rule upon the issues pleaded, to the effect that the license fee was a tax, and not a license fee; that the requirement of a statement of assets and liabilities was unreasonable; that the requirement • of bonds and the amounts thereof was unreasonable; and that other stipulations in the ordinance were unreasonable — those questions are not properly before us for review. The trial court’s holding that the nature of appellees’ business was such that the city had no authority to regulate that business, we think, is error.

The order granting the temporary injunction is reversed, and the cause remanded.
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author: MOURSUND, J.

text:
    AULTZ et al. v. ZUCHT et al.
    (No. 6167.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 26, 1919.)
    1. Appeal and Error <&wkey;736 — Assignments op Ebror.
    An assignment of error embracing more than one ruling of the trial court cannot be considered.
    2. Appeal and Eeeoe <&wkey;725(2) — Assignments op Eeeoe — Specifying Objections.
    Assignment of error complaining of overruling of motion to strike out an amended answer was deficient in failing to show what change was made in the pleading.
    3. Pleading <&wkey;420(l) — Amendment—Time— Waiver op Objections.
    Agreement, after amendment had been permitted, that the court should render final judgment on the pleadings and evidence before the court, waived an objection relating to the time of filing the amended pleading.
    4. Trade-Marks and Trade-Names <&wkey;l— Use of Business Name.
    Words, such" as “Union Painless Dentists,” may become so associated with the business or avocation of certain persons in a certain locality, as to lose their primary meaning and come to signify the business carried on by such persons and constitute a trade-name.
    5. Trade-Marks and Trade-Names &wkey;>21— Use op Business Name.
    That the same name may have been used in other cities by other persons will not deprive users of protection against its use in the city in which it has been used exclusively by them until it has come to stand for their business.
    6. Trade-Marks and Trade-Names <&wkey;>93(3) —Evidence.
    Evidence held to support finding that the words “United Painless Dentists,” in view of circumstances surrounding their use, were so similar to the words “Union Painless Dentists” as to mislead the public and to make the use thereof constitute unfair competition.
    7. Trade-Marks and Teade-Names <&wkey;>87— Ownership op Name — Transfer.
    That partners in the dental business under a trade-name permitted a corporation organized by them to use such name in the business of dealing in and manufacturing dental supplies, which constituted no competition with their practice of dentistry, did not prevent them from asserting their right to the use of such name in conducting the dentistry business, as against persons infringing thereon in conducting the dentistry business.
    8.Corporations <&wkey;372 — Charter — Sur-plusage.
    Provisions in a charter purporting to authorize a corporation to engage in a business in which corporations are not authorized to engage can be treated as surplusage.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Suit by A. D. Zucht and others against A. A. Aultz and another. From a decree for plaintiffs, defendants appeal.
    Affirmed.
    Chambers & Watson, of San Antonio, for appellants.
    Don A. Bliss, of San Antonio, for appellees.
   MOURSUND, J.

This is a suit by A. D. Zucht, 1. L. Feller, and. Lottie Zucht, as partners, against A. A. Aultz, and W. T. Tivy, alleging that about twelve years prior to the filing of the suit plaintiffs had adopted and continuously thereafter used, • in the city of San Antonio, the trade-name, “Union Painless Dentists”; that they had. built up a good business and acquired an extensive good will under said trade-name; that about six months prior to the institution of the suit the defendants, for the purpose of deceiving the public and inducing the belief that they were the persons carrying on said business, adopted an imitation of said trade-name, calculated to effect such purposes; that they placed in front of their location a sign which was an exact imitation of plaintiffs’ sign, except that the word, “United,” was used in the place of “Unión”; that defendants also placed an advertisement in the telephone exchange directory appropriating plaintiffs’ said trade-name. They prayed for an injunction restraining defendants from using the name, “United Painless Dentists,” and for damages.

Defendants answered by general demurrer, special exceptions, a general denial and a special plea defying infringement.

The ease was heard on August 3, 1918, in vacation, on application for a tepaporary injunction,' and after the testimony bad been introduced, and after plaintiffs had. been permitted to amend their supplemental petition, the judge announced that he would grant the preliminary injunction prayed for. Thereupon all parties agreed and consented that a final decree should be entered in vacation, which was accordingly done.

By the first assignment of error complaint is made of the overruling of several special exceptions. It is well established that assignments of this kind, embracing more than one ruling of the court, cannot be considered.

Complaint is made of the overruling of a motion to dismiss the case, which motion contains six grounds relied on for the relief prayed for. The assignment is submitted as a proposition, but contains several propositions, if the grounds alleged can be held to constitute propositions. It is not briefed so as to be entitled to consideration. The grounds alleged, if true, would only authorize a judgment against plaintiffs on the merits, and not warrant a dismissal.

The issue, whether the evidence shows that they parted with the trade-name, and therefore have failed to establish their alleged ownership thereof, can only be raised by an assignment attacking the evidence as insufficient to support the judgment.

The court permitted plaintiffs to file an amended first supplemental petition after the testimony had been introduced and the case closed. The statement under the assignment does not contain the pleading objected to, and it is not shown that defendants were injured by its filing. The next assignment complains of the overruling of a motion to strike out the amended first supplemental answer, but the statement thereunder is also deficient in failing to show what change was made in the pleading. The assignments, as briefed, show no error prejudicial to defendants. It seems, further, that after the amendment had been permitted it was agreed that the court should render final judgment on the pleadings and evidence before the court. This constitutes a waiver of an objection relating to the time of filing the amended pleading.

By the last assignment complaint is made of the judgment'as unsupported by the evidence in various particulars stated in the assignment. We will briefly state our conclusions with respect to such of the points raised as are deemed material.

The words, “Union Painless Dentists,” may become so associated with the business or avocation of certain persons, in a certain locality, as to lose their primary meaning and come to signify the business carried on by certain persons and constitute a trade-name. The statutes relating to trademarks have no application in this suit, which is not based on the exclusive property right in a certáin device or name, but upon unfair competition in a certain business. It is also well settled that the fact that the same name may have been used in other cities by other persons will not deprive appellees of protection against its use in the city in which it has been used exclusively by them until it has come to stand for their business. These points we regard as settled by the decisions. Cohen v. Nagle, 190 Mass. 4, 76 N. E. 276, 2 D. R. A. (N. S.) 964 and note, 5 Ann. Cas. 553; Cobe v. Lovan, 193 Mo. 235, 92 S. W. 93, 4 ; L. R. A. (N. S.) 447 and note, 112 Am. St. Rep. 480.

The evidence supports the finding that the words, “United Painless Dentists,” in view of the circumstances surrounding their use, are so similar to the words, “Union Painless Dentists,” as to mislead the public, and to make the use thereof constitute unfair competition from which appellees are entitled to be protected. Morgan Sons Co. v. Ward, 152 Fed. 690, 81 C. C. A. 616, 12 L. R. A. (N. S.) 729 and note.

The evidence supports a finding that appellants abandoned the name, “Texas Painless Dentists,” giving as a reason that one of them, Dr. Tivy, was prejudiced against the word, “Texas,” and .established their business about one block from that of appellees, under the name, “United Painless Dentists,” and caused a large sign, surrounded by electric lights, to be suspended in front of their place of business, which in every detail was the same as a sign used by appellees, except that the word “United,” was substituted for that of “Union”; that there was confusion in the delivery of the mail; and that an advertisement had been placed in the telephone directory by appellants wherein the word, “Union,” was used instead of “United,” although the word, “United,” appeared on a copy of the sign in the same advertisement. There was some dispute about whether the printer was to blame for this, or Dr. Tivy, one of the appellants. Taking the testimony as a whole, the court was warranted in finding that the purpose of appellants, in adopting the name, was to secure' some of appel-lees’ business. There is considerable conflict between the authorities concerning the use of names of this character, which are largely descriptive of the kind and character of business being conducted; but there appears to be ample authority to the effect that when the use of even such a name is made in such a manner as to indicate the intent and purpose on the part of the user to deceive the public, and thereby obtain the benefit of the good will of the person whose name is infringed on, the courts will protect against such unfair competition. Many authorities are collated in L. R. A. 1917C, p. 95S.

The issue which has given us most trouble is the one relating to ownership of the trade-name. There can be no doubt that such name for 12 years has been used by ap-pellees in carrying on the dental business in San Antonio; but in May, 1913, they caused to be filed to the office of the Secretary of State an instrument purporting to create a corporation known as “Union Painless Dentists” with powers described as follows:

“The purpose for which this corporation is formed is for the manufacture and installation of bridges, crowns, plates, and fillings for the teeth and for the mouth, and the manufacture and installation of artificial dentures for the teeth and for the mouth, and for the manufacture, regulation and installation of appliances for orthadonis, and for the cleaning and extracting of teeth and preparation of the teeth, gums and mouth for the reception of the above named articles, dentures, and appliances, and for the purchase and sale of goods, wares and merchandise used in such business.”

Appellees were the incorporators and were named directors. The evidence shows that the stock was issued, but does not show that officers were ever elected. Appellees were informed that the statutes did not authorize an incorporation to carry on the dental business, and did nothing further than to have one sign painted on their window which read, “Union Painless Dentists, Incorporated,” and to pay the franchise tax as it accrued. They never conducted the business of buying and selling dental supplies, nor did they engage-in the business of manufacturing teeth and other articles for sale to -dentists. The other signs, and notably a large sign, surrounded by electric lights, which was duplicated by appellants, except for the substitution of the word, “United,” for “Union,” still bore the name, without the word “Incorporated.” It is contended by appellants that the matters above set out should be held to show an assignment of the trade-name to the corporation, and therefore to negative ownership thereof by appellants. There is good authority for holding that the provisions in a charter which are not authorized by law will be treated as surplusage. Mora-witz on Private Corp. § 32; Galveston Land & Imp. Co. v. Perkins, 26 S. W. 258. All provisions purporting to authorize the corporation to engage in the practice of dentistry are void, and can be treated as surplusage. The powers actually granted were never exercised by the corporation. The efforts of ap-pellees to incorporate for the practice of dentistry could not change their relation of partners with respect to such business. They are liable as partners for negligence therein. This question has been heretofore discussed by us in the case of Staacke v. Boutledge, 175 S. W. 444, in which the leading cases are quoted from. We conclude that the partnership consisting of appellees never became dissolved, and continued the practice of dentistry according to its particular methods, up to the date of the trial, using at all times the trade-name, .“Union Painless Dentists.” The partners by their acts conferred on a corporation the right to use such name in the business of buying and selling goods, wares, and merchandise used in the dentistry business. They could confer no more, for that part of the charter relating to the practice of dentistry is void. It has been held that the use in a wholesale business of a name used by others in a retail business of the same nature cannot be enjoined, for the reason that there is no such competition as will warrant the granting of protection by the courts. Regent Shoe Mfg. Co. v. Haaker, 75 Neb. 426, 106 N. W. 595, 4 L. R. A. (N. S.) 447. It has also been held that persons practicing dentistry under a certain name are not entitled to restrain the use of the same name by an incorporated company engaged in the manufacture of dental goods. Longenecker v. Longenecker Bros. (Sup.) 140 N. Y. Supp. 403. ’ In the case of Nolan Bros. Shoe Co. v. Nolan, 131 Cal. 271, 63 Pac. 480, 53 L. R. A. 384, 82 Am. St. Rep. 346, it was held that the failure, for a period of ten years, of a retail shoe dealer to protest against the use by a wholesale concern, dealing in the same goods, of a trade-name which conflicted with that of the retailer, would not deprive him of the right to restrain the use of such name in a rival retail business established by one who previously conducted the wholesale business. It follows that the fact that appellees permit a corporation to' use their trade-name in a certain business, which constitutes no competition with the practice of dentistry, will not prevent them from asserting their right to the use of such name in conducting the dentistry business, as against persons who infringe thereon in conducting the dentistry business.

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


author: WALTHABL, J.

text:
    BOSTICK v. HANEY.
    (No. 934.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 20, 1919.)
    1. Pleading <§=>214(1) — Demurrer — Admission.
    In considering ruling sustaining demurrer to answer, Court of Civil Appeals must assume truth of every fact alleged.
    2. Pleading <§=204(5) — Pleading Good in Part.
    In suit to recover rental value of premises, held by defendant, who' was in possession under agreement with plaintiff’s grantor, answer alleging facts of defendant’s possession and plaintiff’s notice of agreement between defendant and plaintiff’s grantor, etc., held not subject to general demurrer; facts barring suit for rents prior to certain date.
    3. Frauds, Statute oe <§=>150(2) — Agreement Not to be Pereormed in Year — Possession oe Land.
    In suit by vendee to recover possession from one claiming under agreement with vendor, an answer which did not affirmatively call for possession for longer than one year, nor allege that agreement could not be performed and possession concluded within one year, held, on demurrer, not within the statute of frauds.

      4. Pleading ⅞=3228 — Demurrer.
    1 To sustain general demurrer to answer is a final judgment of the court on all the issues raised, and is just as effective as a judgment on the full hearing.
    5. Pleading <&^>223 — Demurrer — Relief from Making Proof.
    Where general demurrer to answer was sustained, defendant was left without answer, and plaintiff relieved of the burden of making proof of any matter pleaded.
    6. Judgment <®==>106(7) — Judgment by Default-Absence of Answer.
    Plaintiff, in absence of answer, general demurrer having been sustained to that filed, was ■entitled to judgment by default.
    Appeal from Gaines County Court; T. O. Stark, Judge.
    Suit by John Haney against F. A. Bostick. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Morrison & Morrison, of Big Springs, for appellant.
    G. E. Lockhart, of Tahoka, for appellee.
   WALTHABL, J.

John Haney filed this suit against F. A. Bostick in the county court of Gaines county, on April 30, 1918, and alleged that he had, on April 30, 1915, in good faith, purchased from M. M. Pumphrey certain lánds described situate in Gaines county, and that at the time of said purchase he believed that he would receive the possession thereof, and that by reason of the conveyance of said land to him by said Pumph-rey he became the owner of said land in fee simple and was entitled to the possession thereof. Haney further alleged that at the date of his purchase Bostick was in possession of the land, and continued to remain in possession and refused to deliver possession, to his damage; that the reasonable rental value of said lands from the date of his purchase to the time of filing suit was and is the sum of $750 for which he sues, and prayed for general and special relief. Bostick answered by general demurrer, general denial, and by special answer denied that Haney was entitled to recover rents or damages from him on account of possession of him of said premises, and alleged that he was rightfully and lawfully in possession at the time Haney purchased from Pumphrey, holding same openly and adversely to Pumph-rey, and which fact was known to Haney at the time of his purchase. As grounds for holding possession, briefly stated, Bostick alleged that he had exchanged the lands in which he was then in possession with one McIntosh prior to the purchase of said lands by Pumphrey, and that in said exchange he (Bostick) had been misled and deceived by McIntosh by fraud and misrepresentations as to the value of the lands taken in exchange for his said lands, setting out the facts, and all of which facts Bostick alleged he had advised Pumphrey before the sale to Haney. Bostick further alleged that Pumph-rey gave consent to and agreed with him to hold possession of said premises and use same in consideration that he would care for, hold, and keep same in good condition and repair until the question of his right to recover said lands of McIntosh should be determined; that he was in possession under said agreement with Pumphrey at the time of Haney’s purchase from Pumphrey, and continued to hold possession under said agreement and to care for and maintain same up to April 2, 1918, when his said controversy with McIntosh was determined adversely to him (Bostick) by judgment in the district court of Gaines county; that, while the decision as to said controversy with McIntosh was against him (Bostick), his (Bostick’s) right of possession under and by the terms of said judgment was to terminate and Haney’s begin on July 1, 1918, at which time he surrendered possession to Haney; that, when Haney purchased said premises of Pumphrey, he had notice of his possession, and that Haney never had possession or the right of possession of said premises prior to July 1, 1918; that said judgment determined the question of the right of possession to said premises and right to demand rents prior to July 1, 1918. Bostick pleaded the statute of limitation of two years.

Haney, by supplemental petition, pleaded a general demurrer, special exceptions, and other answers not necessary to state. The court sustained appellee’s general demurrer to the answer to which ruling appellant excepted, declined to amend, and gave notice of appeal from the court’s order sustaining the general demurrer.

The court, however, proceeded with the trial, appellant not being present or participating, impaneled a jury, heard appellee’s evidence, and submitted to the jury the issue of the rental value of the premises for the two years prior to April 30, 1918, to which the jury answered, “$415'.50.” Judgment was entered in appellee’s favor for the amount stated, and interest thereon from April 30, 1916, at the rate of 6 per cent, per annum, and awarded execution. Appellant filed a motion to set aside the verdict and judgment and defer a further trial until a hearing was had on his appeal from the order sustaining the general demurrer. The motion was heard and overruled, and appellant excepted and again gave notice of appeal. A statement of facts is not found in the record. Appellant’s grounds of error are fully set out in bills of exception. Appellant also filed assignments of error.

We will not undertake to follow appellant in tiie various assignments of error and the propositions thereunder. Many of the matters complained of may not arise on another trial. The order of the court in sustaining the general demurrer to the answer, we think, was error. In considering the ruling of the court sustaining the demurrer, we must assume that every fact alleged was true as alleged. If as alleged, appellant was in possession of the land purchased by appel-lee prior to and at the time of the purchase, and was so in possession under an agreement with Pumpfarey, appellee’s grantor, and for the consideration stated, and that under said agreement he was to remain in possession until the matters alleged were determined, and that appellee, at the time of his purchase, had notice of such agreement for possession, that the matters alleged were determined by judgment of the district court against appellant’s contention, but that the judgment of the court also fixed July 1, 1918, as the date upon which appellant should surrender the possession to appellee, and concluded the agreement for appellant’s possession on July 1, 191S, by the terms of the said judgment, and also by its terms determined the question of the rents adversely to appellee for any period of time prior to July 1, 1918, and that he did surrender possession at that time, we can seen no reason why such state of facts would not bar a suit for rents prior to July 1, 1918. If Bostick was in possession of the premises at the time of purchase by appellee, and under an agreement with appellee’s grantor giving him possession for a definite' period of time, or until the happening of an agreed contingency, and for a consideration deemed valuable in law, and the agreement for possession is not in contravention of the law, good morals, or public policy, appellee, in such event, would not be entitled to possession.

The agreement, as stated, does not appear to be in contravention of the statute of frauds, as claimed by appellee, that is, it does not appear affirmatively on the face of the answer that the period of possession under said agreement was for a longer term than one year, nor does it appear that, when made, it was not to be performed and the possession concluded within one year from the making of the agreement. New York & Texas Land Co. v. Dooley, 33 Tex. Civ. App. 636, 77 S. W. 1031, and cases cited.

■ Appellant alleged that as between appellant and appellee the question of rents was determined by the terms of the said judgment, and that appellant under said judgment was not liable for rents on account of his possession prior to July 1, 1918. The allegations in the answer as to the issues made in the suit, the parties thereto,' and judgment referred to are not as clear as they might be, but the answer, we think, was not on that account subject to the general demurrer.

Appellant had also pleaded the statute of limitation of two years and a general denial. The petition claims rent for a period of more than two years prior to the filing of the suit, and is not based on a contract in writing. The effect of the general demurrer was to admit the truth of the facts alleged in the plea. To sustain the general demurrer to the answer is a final judgment of the court on all the issues thus raised, and is just as effective as a judgment on the full hearing would be. Bomar v. Parker, 68 Tex. 435, 4 S. W. 599. The effect of sustaining the general demurrer was to leave the appellant without answer and relieve the appellee of making proof on any matter pleaded. Appellee, in the absence of an answer, was entitled to judgment by default.

While the judgment recites that appellant announced ready for trial on the merits, the facts are made to appear in a bill of exceptions, and it seems therefrom that appellant made no announcement on the merits, and took no part in the trial after the demurrer was sustained.

For errors discussed, the case is reversed and remanded.

      <S=»For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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