author: ■.BUCK, J.

text:
    MERRIMAN v. SWIFT & CO.
    (No. 8859.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 20, 1918.
    Rehearing Denied May 25, 1918.)
    1. Bills and Notes <§=462 (1) — Actions — Complaint.
    A complaint, alleging that defendant executed and delivered certain checks to plaintiff drawn upon a named bank, payable to plaintiff’s order and in amounts and on dates specified, was not subject to general demurrer.
    2. Appeal and Error <⅜^>742 (1) — Assignments op Error — Sufficiency.
    An assignment of error, not complaining of any action of the court nor disclosing the basis of appellant’s contention of error, and followed by no proposition, is- insufficient and will not be considered.
    3. Bills and Notes <§=462 (1) — Actions— Complaint — Sufficiency — “Indebted” —‘ ‘Indebtedness. ’ ’
    A complaint, alleging that defendant executed certain checks for a valuable consideration and delivered them to plaintiff, and that •‘defendant is indebted to the plaintiff thereon and by reason thereof,” is not insufficient as failing to allege a promise to pay; “indebted” being defined as having contracted or incurred a debt, and “indebtedness” being a sum of money due by certain and express agreement (quoting Words and Phrases, Second Series, Indebted— Indebtedness).
    4. Evidence <§=420 (7) — Parol Evidence Varying Written Instrument.
    In an action on a check, evidence by defendant of an oral agreement that he was not to be required to pay until financially able was inadmissible as affecting a written instrument.
    5. Bills and Notes <§=422 (1) — Presentiment — Waiver.
    Failure to present a check for payment is no defense, where presentment was not made because of defendant’s own request.
    Appeal from District Court, Tarrant County; Bruce Voung, Judge.
    Action by Swift & Co. against M. Merri-man. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Graves & Houtehens, of Ft. Worth, for appellant Isaacs, Agerton & Isaacs, of Ft. Worth, for-appellee.
   ■.BUCK, J.

Appellee sued appellant on nine flecks, aggregating $1,178.74, the dates of which ran from December 7, 1912, to June 9, 1¾13. After alleging that plaintiff was a corporation, with a permit to do business in the state, with its domicile in Tarrant county, and that defendant resided in Hardeman county, the charging portion of the petition is as follows:

“For cause of action, plaintiff represents that on the respective dates hereinafter mentioned the defendant made, executed, and delivered to plaintiff at Ft. Worth, Tarrant county, Tex., certain checks, drawn upon the Exchange National Bank of Ft. Worth, Tex., said bank being in some of said checks referred to as the Exchange National Bank of North Ft. Worth, Tex.; said checks being signed, executed, and delivered by the defendant M. Merriman to and in favor of this plaintiff, payable to the order of this plaintiff, and being in amounts and executed and delivered on dates as follows:
Check No. Date of Execution of Check. Amount.
31 December 7, 1912 $ 122 36
35 December 21, 1912 168 73
37 ’ December 28, 1912 142 28
44 January 4, 1913 101 b4
46 January 15, 1913 122 08
January 18, 1913 146 88
8 May 23, 1913 115 50
20 June 2, 1913 159 32
7 June 9, 1913 100 00
Total . $1,178 74
“The first six of said checks were drawn upon the Exchange National Bank of North Ft. Worth, and the remaining three thereof were drawn upon the Exchange National Bank of Ft. Worth,, Tex.
“Plaintiff says that it received said checks for a valuable consideration, and presented same in due course of business to the bank on which same were drawn for payment, and payment thereof was refused by said bank, and said checks have never been paid by or through said bank or otherwise.
“Plaintiff says that it is now the owner and holder of said several cheeks, and same are past due and wholly unpaid, and the defendant is indebted to the plaintiff thereon and by reason thereof in the aggregate sum of $1,178.74, with interest on each check since the date thereof.”

In the prayer for relief plaintiff asked that it “do have and recover from the defendant, M. Merriman, for the amount of the aforesaid debt, with interest thereon, for costs of suit,” etc. Defendant urged a general demurrer, and specially excepted to plaintiff’s petition on the grounds: (1) That it nowhere alleged that defendant promised, either expressly or impliedly, to pay any amount to plaintiff, or that defendant became liable to plaintiff in any amount; (2) that it appeared from said petition that plaintiff’s cause of action, if any, was barred, both by the two years, and the four years’ statute of limitation. He acknowledged that he executed the checks mentioned in plaintiff’s petition, but denied liability thereon. He further alleged that he executed the cheeks conditionally, and that by agreement with plaintiff’s creditman and agent, Mr. Cunningham', it was understood and agreed that defendant would not be liable thereon unless he became financially able to pay said checks, and that it was further agreed that the checks would not be presented to the bank upon which they were drawn until he (the defendant) was so financially able and should sa notify said Cunningham; that the checks were all postdated, and each was delivered •to plaintiff on a date prior to that shown on the check; and that he had never been financially able since tbe issuance of said checks to pay tbe same. Tbe court overruled tbe general demurrer and tbe special exceptions, and, after tbe evidence was concluded, instructed a verdict for plaintiff. From tbe judgment based thereon, tbe defendant has appealed.

Tbe first assignment is directed to tbe overruling of tbe general demurrer. We think in tbis action there was no error. While tbe petition is not so full or detailed as it might be, we think it is sufficient. We have examined every decision relied on by appellant to support tbis assignment, and do not think tbe petition in tbis case is subject to tbe criticism made in a single case cited. Appellants cite Jennings v. Moss, 4 Tex. 452; Frazier v. Todd, 4 Tex. 461; Malone v, Craig, 22 Tex. 609; Whitaker v. Record, 25 Tex. Supp. 382; Reeves v. Miller, 28 Tex. 578; Flaxman v. Rice, 65 Tex. 430; Colbertson v. Beeson, 30 Tex. 76. For instance, in tbe Jennings Case tbe petition fails to allege tbe execution by defendant of tbe note sued on. In Frazier v. Todd and Flaxman v. Rice tbe ownership of tbe note by plaintiff was not alleged. In Malone v. Craig it was not shown to whom tbe notes were executed. But none of these deficiencies is here shown. Hence ■we overrule tbis assignment.

We do not think the second assignment is sufficient to require consideration, it being as follows:

“Based upon paragraph 2 of defendant’s amended motion for new trial (Tr. p, 14). Plaintiff must allege, in his petition, some act of defendant creating a legal liability on his part, and a petition which relies upon an implied contract as the basis of a cause of action must specifically aver such implied contract and defendant’s liability thereon, and must not leave it to inference to be deduced from other facts pleaded, and a petition in such a case, which fails to make a specific allegation of the implied contract and defendant’s liability thereon is bad as against a special exception.”

No proposition follows this assignment, nor is tbe assignment adopted as a proposition. Tbe assignment does not complain of any action of tbe court. Rule 30 for Courts of Civil Appeals; Article 1612, Vernon’s Sayles’ Tex. Civ. Stats; Poland v. Porter, 44 Tex. Civ. App. 334, 98 S. W. 216; Pullman v. Hoyle, 52 Tex. Civ. App. 534, 115 S. W. 318, Willis v. Hatfield, 63 Tex. Civ. App. 582, 133 S. W. 929; I. & G. N. Ry. Co. v. Boykin, 85 S. W. 1164; Kilday v. Perkins, 90 S. W. 215. Tbe reference to tbe page of tbe transcript is equally barren, for there we find, in paragraph 2 of tbe motion for new trial, only that:

“The court erred in overruling defendant’s special exception No. la, as more fully appears in defendant’s bill of exception No. 2.”

Thus again we are sent on tbe quest to find what appellant’s claim of error is. Tbe court should not be required to indulge in tbis “puss wants a comer” game to discover tbe basis of an appellant’s contention of error. But we think tbe assignment should be overruled on its merits, anyway. We think tbe allegations that tbe defendant executed the checks, for a valuable consideration, and delivered them to plaintiff, who is now tbe. bolder and owner thereof, and who presented said cheeks to tbe bank on which they were drawn, by which payment was refused, “and tbe defendant is indebted to tbe plaintiff thereon and by reason thereof,” coupled "with tbe other allegations contained in tbe petition, substantially allege a promise to pay, if not in express terms, at least impliedly. “Indebted,” in tbe dictionary, is defined as “having contracted or incurred a debt.” “Indebtedness, or debt, is whatever one owes, or in a purely technical sense is that for which an action of debt will lie; a sum of money due by certain and express agreement.” W. & P. vol. 2, p. 1026, citing Hornbeck v. Davidson, 33 Ind. App. 609, 71 N. E. 916; 1 Bouvier, Diet. 786. In the respect that tbis petition does contain the allegation of indebtedness by defendant to plaintiff, it is to be distinguished from that shown in Graves v. Drane, 66 Tex. 658, 1 S. W. 905, in which case it was held that tbe petition was good as against a general demurrer but would have been subject to special exception.

We do not think any issue which properly ought to have been submitted to the jury was presented by reason of defendant’s claim that the understanding was that defendant would not have to pay or be liable on these checks unless defendant was financially able to meet them and to deposit the money in the bank with which they could be paid. “Parol evidence is not admissible as a rule to affect the terms of a check.” 5 R. O. B. 495. Such a contention, if allowed, would be contradictory of the instruments.

The consideration being established without controversy, as here, and there being no claim of fraud, accident, or mistake, it would be violative of the rule that one may not by parol contradict or vary the terms of a written instrument to permit the drawer to show that the check was to be payable only upon conditions not expressed in the instrument. Roundtree v. Gilroy, 57 Tex. 176; Self v. King, 28 Tex. 553; 17 Cyc. 592 ; 3 R. C. L. p. 868. In this case the checks were given for meat purchased by appellant, who was a butcher, and he makes no contention there was any failure of consideration. Franklin v. Smith, 1 Posey, Unrep. Cas. 240; Riley v. Treanor, 25 S. W. 1054; Dwiggins v. Merchants’ Nat. Bank, 27 S. W. 172; Bailey v. Nat. Bank, 61 S. W. 530; Rockmore et al. v. Davenport, 14 Tex. 602, 65 Am. Dec. 132 Nor is there any allegation or proof of fraud, accident, or mistake.

Since the evidence shows that the/reason certain of the checks were not presented for payment to the bank upon which they were drawn was because the appellant had phoned appellee’s agent not t> so present them, that the funds to pay them had not yet been deposited in- the bank, appellant is in no position to complain of the appellee’s failure to present them for.payment. Lewis v. Bank, 37 Tex. Civ. App. 241, 83 S. W. 423; 7 C. J. 969; 8 C. J. 685, 962.

The judgment of the trial court is affirmed. Affirmed.

CONNER, C. J., not sitting.
      jg^sFor 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:
    WOLFMAN & KATZ v. CALLAHAN.
    (No. 6060.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 5, 1918.
    Rehearing Denied June 27, 1918.)
    1. Brokers <§=354 — Right to Commission — Conditional Sale.
    A broker’s commission is earned when the principals execute a contract of sale, notwithstanding it is a conditional contract, and the seller cannot thereafter object that the purchaser was not ready, willing, or able to buy.
    2. Brokers @=>64(1) — Right to Commission-Conditional Sale.
    Where broker secured purchaser with whom his principal executed a sale contract, the mere fact that purchaser afterwards refused to comply with terms of the contract did not release the principal from liability to the broker.
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by R. G. Callahan against Ben Wolf-man and John Katz. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    W. H. Kennon and H. A. Hirshberg, both of San Antonio, for appellants. W. P. Lob-ban, of San Antonio, for appellee.
   SWEARINGEN, J.

This is a suit for broker’s commission by R. G. Callahan, appellee, against Ben Wolfman and John Katz, appellants. The cause was submitted to the court without a jury, and judgment was rendered against appellants for $370.

The petition alleged the usual and customary commission, and that appellants accepted appellee’s services knowing that he was in the business of broker for hire and knowing that appellee expected to receive the usual and customary commission and that appellants expected to pay it. The petition fully alleged the broker’s services and that appellants executed a contract for the sale of their land to the purchaser procured by appellee, which contract was also executed by the said purchaser. The appellants demurred to the petition, and after a general denial specially answered that the commission was not earned until the sale of appellants’ land was consummated or a contract entered into, specif-üjt performance of which could be enforced, anti that the contract of sale executed was not such a contract. The evidence, without conflict, established all the allegations of the petition, leaving the interpretation of the sale contract the sole question for our determination.

The first assignment complains that the court erred in overruling the general demurrer. The second assignment assails the judgment because contrary to the law and evidence. The proposition under both assignments resolves itself into the contention above stated, that the contract of sale was conditional, specific performance of which could not be enforced. Counsel for appellants, in argument, claim the rule adopted in such cases in England and Maryland, uamely, that the broker’s commission is not earned until the sale is consummated, and that the sale is not consummated until the seller receives payment for his land. Riggs v. Turnbull, 105 Md. 135, 66 Atl. 13, 8 L. R. A. (N. S.) 824, 11 Ann. Gas. 783.

The English and Maryland rule is not the rule in Texas, which follows the rule adopted in Massachusetts and most of the other states, viz.: That the broker’s commission is earned when the seller and purchaser execute a contract for the sale. The execution of such a contract estops the seller from objecting that the purchaser was not ready, willing, or able to buy. Seidel v. Walker, 173 S. W. 1170, and authorities therein cited; Roche v. Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. A 510, 79 Am. Dec. 345; Stanford v. Wilie, etc., 178 S. W. 991; 4 R. C. L. § 49.

We do not feel required to define what character of contract is necessary for a consummation of the trade, for the reason that the contract executed by the seller and buyer in the instant case, in our opinion, was sufficient to obligate the purchaser to buy and pay the agreed price for appellants’ land. The fact that the purchaser refused to comply with the terms of the contract of purchase does not release the sellers, appellants, from their liability to appellee.

Both assignments are overruled.

The judgment is affirmed.


author: GRAVES, J.

text:
    WALKER-SMITH CO. v. BILAO.
    (No. 7585.)
    (Court of Civil Appeals of Texas. Galveston.
    May 24, 1918.
    Rehearing Denied June 13, 1918.)
    1. Sales <§=>422 — Action for Breach ojp Contract — Findings.
    In an action for damages from the failure to deliver certain canned goods ordered by plaintiff, held that there was no error in refusing to find the increase in the price of the goods when the seller told plaintiff that it did not intend to comply with its contract, over the contract price.
    2. Sales <§=^422 —Breach—Findings—Construction.
    In such action, a finding “that both of the parties to said contract construed same to mean that said goods could be delivered, and said contract enforced against plaintiff at any time up to and including November 30, 1916,’’ was not an attempt, without support in the evidence, to determine that both parties actually treated the contract as a continuing one after the date of the seller’s express repudiation.

      3. Sales <©=3175 — Action foe Breach of Contract — Divisible Contract.
    Where the buyer of goods to be delivered throughout the fall of a year, merely through a mistake as to goods tendered being intended for him, did not receive them, the seller would not be free from liability upon the whole or any part of its contract.
    4. Appeal and Eero® <©=3931(3) — Presumption — Finding Necessary to Support Judgment.
    In such case, if a finding that the contract was entire and indivisible was essential to the validity of the judgment for plaintiff, and the court did not specifically state such conclusion, if there was evidence in the statement of facts upon which such finding might have been based, it will be presumed when necessary to support the judgment.
    5. Sales <©=398 — Rescission of Contract-Right of Seller.
    Where a buyer of goods for delivery during the fall of a year neither repudiated nor rescinded the contract by his mere mistaken refusal to accept a delivery of goods tendered, the seller had • no right to refuse performance and ex parte to declare the contract rescinded in its entirety.
    6. Sales <©=3418(¾) — Seller’s Breach of Contract-Amount of Recovery.
    Where a seller breached its contract for ilie sale and delivery of goods during a certain fall, a recovery upon the basis of the market value of all the goods on the last day of the delivery period was proper.
    Error from Harris. County Court; Murray B. Jones, Judge.
    Suit by Stephen D. Bilao against the Walker-Smith Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Cole & Cole, of Houston, for plaintiff in error. P. C. Del Barto, of Houston, for defendant in error.
   GRAVES, J.

The judgment below in this cause was recently affirmed without written opinion. In response, however, to the very earnest motion of counsel for plaintiff in error asking it, and despite the heavy volume of business steadily pressing for attention, the court has pleasure in now filing the requested opinion.

Stephen D. Bilao, a retail grocer in Houston, Tex., brought this suit in the court below to recover of Walker-Smith Company, wholesale grocer in the same city, damages for the latter’s failure to deliver 172 cases of canned goods ordered from them by him in March, 1916, to be delivered during the fall, that is, in September, October, or November of the same year. The trial was had before the court without a jury, and judgment ren dered in Bilao’s favor for $154.26, representing the amount found by the court to be the difference between the contract price of the goods as a.whole and their reasonable market value on November 30, 1916, the last day of the period during which delivery thereof was to be made. Interest from the date of the judgment was also allowed.

The wholesale company appeals, through writ of error, upon a number of assignments. After a careful consideration of them all, together with the record on file, the conclusion is reached that the correctness of the trial court’s judgment depends on whether or not Bilao’s action with reference to the portion of the goods sent to his store on October 7, 1916, amounted upon his part to a refusal to comply with or a repudiation of the contract, in whole or in part. The trial judge’s findings of fact and law were:

“The court finds: that on or about March 14, 1916, the plaintiff ordered from the defendant, and the defendant contracted and agreed to sell to the plaintiff, certain goods and merchandise known as ‘canned goods,’ more particularly described as follows: [Betting out the different kinds of articles, the number of cans, and price per dozen of each], which said goods and merchandise were fay the terms of the contract to be delivered to the plaintiff by the defendant during the fall of 1916; that is, at any time during- the months of September, October or November, 1916. That the contract price for said goods was $264.54.
“I find on or about October 7, 1916, the defendant sent a small portion of said goods to the plaintiff at his place of business, he being engaged in the retail grocery business at Houston, Tex., and that said goods so sent were not received by the plaintiff, for the sole reason that plaintiff was mistaken as to the identity of said goods, he thinking that same were intended for his brother, who has the same initials as plaintiff, and who also was engaged in the retail grocery business in Houston, Tex., and had ordered a small bill of goods of a similar character to those ordered by the plaintiff from the same party, -that is, from this defendant, all of which was known to the plaintiff at that time.
“I find as a fact that there was no mutual rescission of the contract between the plaintiff and defendant, and no repudiation of same on the part of plaintiff, and that plaintiff was at all times during the fall of 1916 ready, able, and willing to accept, receive, and pay for said goods ordered by him from the defendant.
“I further find that on October 9, 1916, and frequently prior thereto, plaintiff had inquired from defendant concerning his said order, and informed the defendant that he desired to have said goods delivered as soon as possible, and that on the date last mentioned defendant told plaintiff that it did not intend to comply with its contract as. to the delivery of plaintiff’s goods, but I find as a fact that both of the parties to said contract construed same to mean that said goods could be delivered and said contract enforced against the plaintiff at any time up to and including November 30, 1916.
“I further find that the market value of the said goods and merchandise ordered by the plaintiff from the defendant had increased in value after same were so ordered, and I find as a fact that the max-ket value of said goods and merchandise on November 30, 1916, was $418.-80. and I find that, by reason of the breach of said contract by the defendant and its failure to deliver said goods according to the said contract, plaintiff was damaged in the sum of $154.-26. J
. “Conclusions of Law.
“Upon the foregoing and all the facts of tfciiP case, I find as a matter of law that the plaintiff did not rescind or repudiate the contract, and that the defendant, in failing to deliver said goods and merchandise according to said contract, repudiated and breached the same, and thereby became liable to plaintiff for the damages sustained by him, and that plaintiff should have and recover judgment against the said defendant for the sum óf $154.26, same being the difference between tbe contract price of said goods and tbe market value of said goods at the expiration of the time in which said goods might have been delivered, that is, November 30, 1916: and I further find plaintiff should also recover interest in said judgment from November 30, 1916, at the rate of 6 per cent, per an-num and all costs of court.”

We have examined the statement of facts, and are of opinion that, when properly interpreted, these findings were all justified by the evidence. They are accordingly adopted by this court, from which it follows that we do not think well taken the assignments of plaintiff in error, attacking different ones of those made as not being supported by the testimony, and complaining of a refusal to go further and find what increase in the price of the goods over that named in the contract there was, if any, on October 9, 1916; a finding as to the status of prices upon the date just mentioned could only have been material in the event there had been, on or before that date, and wholly aside from the admitted repudiation at that time by Walker-Smith Company of all obligation upon its part under the contract, such unjustified refusal to comply with either the whole or a part of it by Bilao also as entitled the wholesale company to treat the contract at an end as of that date; but the court found, as we think properly, that he was guilty of no such action. Hence there was no error in refusing the requested finding.

This sentence from the findings made is assailed as being an attempt, without foundation in the evidence, to determine as a fact that both parties actually treated the contract as a continuing one after October 9, 1916:

“I find as a fact that both of the parties to said contract construed same to mean that said goods could be delivered, and said contract enforced against the plaintiff at any time up to and including November 30, 1916.”

We do not so interpret it. When the context is considered, it seems to us the court merely meant to say the parties generally, and without confining that attitude to the time subsequent to October 9th, understood their contract as meaning that the seller had all of the fall of 1916 in which to make delivery of the goods. So construed, the finding is neither inconsistent with the facts proven, nor indeed with the position of either, litigant as to what their contract really was.

Much of the ably written brief of plaintiff in error is devoted to a discussion of whether or not the contract was divisible, Ithe contention being that it was so, that Bilao (vithout justification refused a substantial portion of the goods tendered him on October 7, 1916, thereby committing such a breach of his duty to receive them as relieved the company entirely from further liability under the contract, or in any event took- the part of the goods it then offered to deliver out of it. The trouble with this position is that it assumes as a premise two facts not shown: First, that the contract was divisible; and, second, that Bilao refused the portion of the goods alleged to have been tendered him on October 7th. If he did not in fact refuse them at all, but merely through a mistake as to their being intended for him did not receive them, as we have said the court upon amply sufficient evidence, found, manifestly the wholesale company would not be freed from responsibility upon the whole or any part of the contract, and it would be unnecessary to further determine whether it was divisible or not. If the view be taken, however, that a finding that the contract was entire and indivisible was essential to the validity of the judgment, then, since the court did not specifically state a conclusion concerning the, matter, nor indicate anything to the contrary, if there was evidence in the statement of facts upon which a finding to that effect might have been based, such a finding would be presumed, because necessary to support the judgment. Railway Co. v. Purcell, 91 Tex. 585, 44 S. W. 1058; Puster v. Anderson, 2 Tex. Civ. App. 626, 66 S. W. 685; Hooks v. Mfg. Co., 57 S. W. 685. That there was evidence in the record upon which the court might have found the contract to be an entirety cannot, we- think, be doubted, even if the fact that such was its nature is not a plain and reasonable inference from what he did expressly find.

The determined fact being, then, that Bilao neither repudiated nor became a party to a rescission .of the contract, his mere mistake alone, under the circumstances found by the trial court, as to the portion of the goods sent to his store on October 7th, gave the wholesale company no right to refuse performance and, ex parte, declare the contract rescinded in its entirety. Leonard v. Kendall, 190 S. W. 788; Elliott, Contracts, vol. 3, pars. 2027, 2028; Kilgore v. Ass’n, 90 Tex. 139, 37 S. W. 598; 6 R. C. L., Contracts, pars. 384-386. As under the old saw, it takes two to make a bargain, so, we think, in the circumstances here at least, it took two to unmake one.

Plaintiff in error did not plead any equitable considerations through which it claimed to be entitled to relief in any degree from the full legal consequences of having repudiated Bilao’s entire order immediately after and solely because of his mistake in not thinking the portion of the goods so sent intended for him, such, for instance, as, that it acted in good faith in believing him to have then refused both the part offered and the balance of the order, and that as a consequence it did not thereafter, and on November 30tb, keep and have these particular-goods on hand, and, further, either could not at that time procure them at all, or would have had to buy them in the market at higher prices than those stipulated in its agreement with Bilao. If such matters had been set up in mitigation of or offset to the damages claimed against it by reason of tbe rise in price of tbe goods it bad agreed to deliver, a different case would bave been presented; but having renounced its contract solely because of a mere mistake, tbe court below rightly beld it liable for tbe consequences.

Neither dO' we think there was any error in allowing a recovery upbn tbe basis of the market value of all tbe goods on November SOth tbe last day of tbe period during which delivery thereof was to be made. In such cases, we understand tbe rule to be that the buyer may treat tbe seller’s ad interim renunciation of the contract as inoperative, await tbe expiration of tbe time within which it was to be performed, and then bring his suit for damages, measuring them by the difference between tbe prices named in tbe contract and those prevailing upon tbe last day for delivery. Walker Grain Co. v. Denison Mills Co., 178 S. W. 555; Brewer v. Neatherly, 162 S. W. 1185; Palestine Cotton Seed Oil Co. v. Corsicana Cotton Oil Co., 25 Tex. Civ. App. 614, 61. S. W. 433; 9 Cyc. p. 698, with numerous citations of au-tborities in tbe footnotes, also page 637 (E).

Since tbe conclusions stated determine.tbe merits of tbe appeal, it has not been thought necessary to discuss each assignment separately. None of them in our opinion point out reversible error, and an order affirming tbe judgment below has been entered.

Affirmed.
      <§=>BV other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=3For other oases see same topic and KEY -NUMBER in all Key-Numbered Digests and Irdexes


text:
    WINDSOR et al. v. FREEMAN.
    (No. 6066.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 19, 1918.)
    Trespass to Try Title <®=s>6(1) — Plaintiff's Title.
    Under Vernon’s Sayles’ Ann. Civ.. St. 1914, art. 7733, par. 4, as to plaintiff’s possession, • plaintiff could not maintain trespass to try title, where prior to suit he had conveyed the land by warranty deed, although his deed reserved vendor’s lien to secure several notes, and provided for reconveyance by purchaser if plaintiff could not secure possession for the purchaser.
    Appeal from District Court, Hidalgo County ; V. W. Taylor, Judge.
    Suit by Lester Windsor and others against J. D. Freeman. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Glasscock & McDaniel, of McAllen, for appellants. Dougherty & Dougherty, G. C. Robinson, .and H. S. Bonham, all of Beeville, for appellee.
   SWEARINGEN, J.

Tbe appellants, Lester Windsor, John Closner, J. G. Fernandez, and C. E. Hammond, brought this suit in the form of trespass to try title and for damages against J. D. Freeman, and specially pleaded the chain of 4itle and in the alternative title by limitation. The property involved was a block of land in the town of San Juan upon which was a waterworks plant. This property was sequestered by appellants. The trial was by the court without a jury. Judgment was rendered against appellants in their suit for title and possession, and also against them for $1,135 for the value of the personal property converted by appellants 'by the sequestration, and title to this converted personal property was, by the decree, vested in appellants. All costs were adjudged against appellants.

During the introduction of the evidence of title in appellants it developed that prior to the filing of the suit the appellants had executed and delivered.a warranty deed to F. C. Platt, by which the land in this litigation was conveyed, together with other lands. The deed reserved a vendor’s lien to secure several notes. The deed also contained a clause, stating that Freeman was in possession of the waterworks block under claim of ownership, which possession and claim was to be acquired by the vendors, who are the appellants, or, if not acquired, then the ven-dee, Platt, was obligated to reconvey to'his vendors by quitclaim and receive a credit of $1,500' on the notes executed for the purchase price of this waterworks lot, and the other lands conveyed by the said .deed. None of the vendor’s lien notes were matured at the time of the filing of this suit, and no recon-veyance had been made to the grantors, who are the appellants. When the evidence indisputably revealed that appellants were not entitled to the possession of the property sued for, judgment was rendered against them.

All of the assignments from various angles assail the correctness of the court’s decree that appellants were not entitled to possession of the property, and did not own it, because of the deed to Platt, A trespass to try title is. a statutory procedure, and fourth paragraph of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7733 (5250) (4687) requires the petition to state that the plaintiff was in possession of the premises or entitled to such possession. This allegation must be proven. After appellants sold the-land to Platt, which was prior to the institution of this suit, they were neither in possession nor entitled to possession. Stephens v. Motl, 82 Tex. 81, 18 S. W. 99; State v. Dayton Lumber Co., 106 Tex. 41, 155 S. W. 1178; Carey v. Starr, 93 Tex. 508, 56 S. W. 324; Edrington v. Newland, 57 Tex. 627. The clause in the deed, which required appellants to pay the costs of quieting title, did not entitle appellants to possession of the land; peither did the promise of Platt, the vendee, to reconveyj by quitclaim deed, for no such deed has beenl executed. The court properly held that appellants could not prevail in this suit under the evidence.

Dependent upon the contention of appellants that they.owned the land and wore entitled to the possession thereof, it is urged that the judgment for $1,135, in favor of ap-pellee for the value of the property sequestered hy appellants is error. There is evidence that appellee owned the personal property and • was in rightful possession of the waterworks plant; that appellants did not own it, and were not entitled to possession thereof. Notwithstanding this, appellants took possession of same and converted it to their own use. There is also evidence of value that' will sustain the amount found by the court.

We overrule all the assignments.

The judgment is affirmed.
      <5fes>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    C.-R.-C. LAW LIST CO. v. ROWE.
    (No. 8806.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 20, 1918.)
    1. Exceptions, Bilí, op @==>32(3) — Statement ox Pacts — Defects—Lack of Judge’s Sig-natuke.
    Purported bills of exception did not become part of record by signature of successor of presiding judge, who was living at time bills were presented for approval.
    2. Appeal and Error @=569(3) — Record — Statement of Pacts — Signature—Authority of Judge.
    Purported statement of facts did not become part of record by signature of successor of presiding judge who was living at time of presentation of statement for signature.
    3. Appeal and Error @=544(2) — Bills of Exception — Statement of Pacts.
    Where there are no proper bills of exception and no fundamental error apparent of record, the judgment of trial court will be affirmed on appeal without consideration of case on its merits.
    Appeal from Tarrant County Court; I. T. Valentine, Judge.
    Action between the C.-R.-C. Law List Company and S. O. Rowe. Judgment for latter, and former appeals.
    Affirmed.
    Dedmon, Potter & Pinney, of Ft. Worth, for appellant. Wm. L. Evans and Capps, Cantey, Hanger & Shott, all of Ft. Worth, for apipellee.
   BUCK, J.

In this case the bills of exception upon which the assignments are based are not signed end approved hy the trial judge. Prom the caption of the transcript and the statement of facts it appears that George E. Hosey presided at the trial. The hills of exception and the statement of facts are approved by I. T. Valentine. If we can presume from this state of the record that in the interim between the trial and the presentment of the bills of exception and the statement of facts for approval Judge Hosey was succeeded in the office of the judge of the county court of Tarrant county for civil cases by Judge Valentine, still, if Judge Hosey was still living at the time of the presentment for approval, the bills of exception and statement of facts should have been approved by Judge Hosey, though at that time he was not the judge of said court. A bill of exception must be signed and approved by tbe judge trying the cause. Storrie v. Shaw, 96 Tex. 618, 75 S. W. 20; articles 2065 and 2066, Vernon’s Sayles’ Tex. Oiv. Stats. A bill of exception not signed by the trial judge, when living (except a bystander’s bill), is no part of the record. Land v. Klein, 21 Tex. Civ. App. 3, 50 S. W. 638; Ry. Co. v. Holt, 30 Tex. Civ. App. 330, 70 S. W. 591; Rabb v. Goodrich & Son, 46 Tex. Civ. App. 541, 102 S. W. 910. No assignment being presented suggesting error which we would be authorized to consider in the absence of a proper bill of exception, and no fundamental error being apparent of record, we are constrained to affirm the judgment below, without a consideration of the case on its merits.

Judgment affirmed.


text:
    ADAMS v. CARTER et al.
    (No. 6113.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 12, 1918.
    Rehearing Denied June 24, 1918.
    Writ of Error Denied June 26, 1918.)
    Covenants @=122 — Breach—Evidence.
    Evidence held insufficient to show breach oi vendors’ covenant to deliver peaceable possession of land, and to defend against paramount claims, incumbrances, and adverse possession.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by W. T. Adams against T. W. Carter and others. Prom an order dissolving temporary injunction, plaintiff appeals:
    Affirmed.
    James B. Wells, James A. Graham, and Ira Webster, all of Brownsville, for appellant. R. B. Greager, of Brownsville, for ap-pellees.
   SWEARINGEN, J.

The appellant, W. T. Adams, brought this suit against T. W. Carter, Lemuel Carter, P. T. Carr, and Wm. S. West to recover damages suffered by appellant and caused by appellees’ breach of covenant to deliver peaceable possession of lands sold to appellant, and for damages for preventing sale of the land by appellant to one It. T. Stuart. Appellant prayed the court to issue a temporary injunction to prevent the sale of the lands under the terms of the trust deed executed by appellant in favor of Wm. S. West, trustee, for the benefit of the other appellees, which sale was at that time advertised and would be made unless enjoined. A temporary restraining order was issued hy the court; but upon a hearing in chambers, wherein evidence was heard from both parties, the court dissolved the temporary injunction. This order, dissolving the temporary injunction, appellant brings before us, by appeal, for review.

It should be stated as a part of the history of tlie proceedings in this case that Win. S. West, the trustee, to execute the powers of the deed of trust, alone answered. The other parties to the suit, who were the beneficiaries in the deed of trust, though served with notice, did not answer nor appear; but these said beneficiaries moved the court to remove the cause to the federal district court, alleging! diversity of citizenship, that the suit involved the title to land, and that the cause against the beneficiaries was sev-erable from that of, the trustee. Upon 'the filing of this motion and the bond required by the statute, the state court entered an order of removal of the entire cause to the federal court. After this order of removal, appellant filed his bond and perfected .his appeal to this court from the order dissolving the temporary injunction.

The lands were advertised to be sold on June 4, 1918, and this court was requested to issue its original temporary injunction to prevent this sale and to preserve the status quo for protection of our jurisdiction. This original temporary injunction was issued as prayed.

Appellee filed in this court a motion to dismiss appellant’s appeal for the reason assigned, that the order of removal by the state court, pursuant to the filing of the motion and bond for removal, automatically deprived the state courts of jurisdiction of this cause, even though the record had not been filed in the federal court. This motion to dismiss was overruled by this court for the reason that it appeared from the pleadings and proof that this was not a removable cause, inasmuch as the plaintiff in the trial court was a citizen of the state of Mississippi, and that the defendants, who claimed diverse citizenship, were citizens of Missouri. Railway v. Kiser, 136 S. W. 852; Railway v. Matlock, 141 S. W. 1069. And we were of the opinion that the petition for removal did not assert a cause of action against the beneficiaries under the deed of trust which was severable from that asserted against the trustee, who holds the legal title to the land. Miller v. Clifford, 133 Fed. 880, 67 C. C. A. 52, 5 L. R. A. (N. S.) 49. We were of the opinion that under the facts the state court was not divested of jurisdiction. M., K. & T. Ry. v. Smith, 164 S. W. 885; Railway v. Bacon, 236 U. S. 305, 35 Sup. Ct. 357, 59 L. Ed. 592; City of Montgomery v. Telegraph Co. (D. C.) 218 Fed. 471.

The original petition alleged that on February 12, 1910, T. W. Carter, Uemuel Carter, and Peyton T. Carr, by general warranty deed, conveyed to appellant a certain tract of land, 'containing 9,694.5 acres situated in Cameron county, Tex.; that by this warranty deed the said Carters and Carr obligated themselves to convey and to forever deffend the title and possession to all of the said land, and to deliver the actual possession thereof to appellant, and covenanted that the same was unincumbered and wholly free from the adverse claim and possession of all persons; that at the time of the execution of the deed Henry Turner and Josiah Turner, Jr., were in actual possession of all the land, claiming that they were the owners of an undivided one-half thereof; that they were married and resided upon the land with their families, and had resided upon the said land claiming same continuously for more than 35 years, and that notwithstanding all the efforts of appellant, he has been unable to enter into the actual possession of said land, or any part thereof. From this failure of appellees to deliver actual possession of the property, appellant alleges that he has suffered damages which flow from several sources, viz.: (a) He could not sell the property, thereby not only losing a large prospective profit, but was about to-lose the partial payments made on the purchase price of the land, the interest and taxes paid, and would probably suffer a deficiency judgment against him. (b) In his efforts to secure the actual possession of the land,, which appellees obligated themselves to deliver and defend, he had necessarily spent large sums of money for his own expenses,, costs of guards, agents, court procedure, and attorneys. The petition alleges in effect that appellees ought not to be permitted to-force appellant to pay the notes given by him for the deferred payment of the purchase price, because of this failure of appellees to-comply with their covenant to put appellant in actual possession of the land, and further substantially alleges that the damages suffered by appellant ought to be offset against the amount of the purchase-money notes; that this offset is a right to which appellant is lawfully entitled, but also because appel-lees are nonresidents of this state and have no property in Texas. It is also alleged that the agent of appellees knew when he induced appellant to purchase that Henry and Josiah Turner, Jr., were in actual adverse possession of the land claiming it as their own,, but that said agent withheld this information for the purpose of deceiving appellant; that this deception was fraud which induced appellant to purchase the land. Appellant does not seek a rescission of the sale, but asks for damages for the fraud. The petition alleges that the purchase price he contracted to pay for the land was about $26-an acre, and that the actual and market value of the land is $59 an acre. It is also alleged that the property was purchased for resale, which appellees knew, and that & sale was actually procured by appiTki'V. to one R. T. Stuart, but prevented ⅜ :1<<- wrongful acts of appellees. AppropriuV -olief was prayed for, as well as that Uk -,ale under the deed of trust be stopped.

The following, statement of the substance of one .of appellant’s allegations is made out of its logical order in order to emphasize it in accordance with our idea of its material bearing upon our disposition of this ease-The allegation is that appellant filed a suit’ in trespass .to try title against Henry and Josiah Turner, Jr., and their wives, in which answers were filed hy the defendants; that the trial resulted in a judgment against the Turners vesting the title and possession of all this land in appellant. As above stated, the beneficiaries in the deed of trust, T. W. Carter, Lemuel Carter, and P. T. Carr, did not answer, but instituted removal proceedings. The trustee, Wm. S. West, answered by general demurrer and a general and special denials. He specially answered alleging the execution of the warranty deed by the said Carters and Carr, the payment of part of the purchase price, and the execution by appellant of the notes for the deferred payments. The notes' were described and maturity alleged. The deed of trust was alleged as well as the advertisement of the sale of the lands in pursuance of the terms of the deed of trust. Fraud of the •agent was denied. It was alleged that the Turners had no valid claim to the land and that their possession was not adverse, but on the contrary that appellant could at any time have obtained exclusive pedal possession of the lands sold, and did in fact without contest obtain a judgment for the land and a writ of possession, which judgment is a final judgment. It was denied that a sale to Stuart was prevented.

It was alleged that with full knowledge of the character of the possession of the Turners appellant made partial payment on the notes, paid the interest, and obtained grants of numerous extensions of the maturity of the said notes and never once complained of any adverse possession, by reason of which appellant is estopped to claim damages, or to resist the payment of the notes.

The execution of the warranty deed, the notes, and the deed of trust, the various written agreements for extending maturity of the notes was admitted. Partial payment on the amount of the notes and interest, and payment of taxes, was also proven without •dispute. All the notes were past due. The evidence ¿Iso shows that Henry Turner and Josiah Turner, Jr., and their families were in actual possession of a part of the land, and had been using same continuously as their homes for 35 years at the time of the sale, .and that they were enjoying such possession at the time of the hearing of this cause. There is undisputed evidence that the said Turners claimed to own one-half of the land fry inheritance from their mother; but the evidence shows that Anataeio Trevino willed this land to his daughter, Tomasa, who married Josiah Turner, Sr., which will was duly probatdd. The mother of Henry Turner and Josiali Turner, Jr., was a daughter of Trevino but" was pretermitted by the will. It further appears that in 1906 Henry Turner and Josiah Turner, Jr., joined by their wives, •conveyed their interest in the land in controversy 'to their uncle, in consideration of other lands which they received from their uncle, Josiah Turner, Sr. Prior to the sale to appellant in 1910, both Henry Turner and Josiah Turner, Jr., had attorned to T. W. •Carter, Lemuel Carter, and P. T. Carr, and evidenced that they occupied the land as tenants of the Carters and Carr by a written lease. In 1906 both Henry Turner and Josiah Turner, -Jr., executed a confirmation deed to Josiah Turner, Sr., in which they at-torned to him as their landlord. Josiah Turner, Sr., was the gran ter to the Carters and Carr.

In 1914 a forcible detainer suit by appellant against Henry Turner and Josiab Turner, Jr., was settled by agreement of the parties, which agreement was evidenced by a written agreement, by tbe terms of which the said Turners attorned to appellant as their landlord and bound themselves to surrender possession of the property to appellant at the expiration of the term of the lease period. In 1915 appellant instituted the trespass to try title suit alleged against Henry Turner and wife and Josiah Turner, Jr., and wife. The defendants employed an attorney and filed answers in that suit consisting of general demurrer, plea of “not guilty,” and special pleas of limitation of three, five, and ten years. Upon a trial, December 6, 1917, judgment was rendered for appellant, by which he was aw.arded the land and a writ of possession. No appeal was taken from that judgment. Appellant never attempted to go into possession of the land except by his tenants, two of whom were the said Turners, whose tenancy was reduced to writing at the times above mentioned. At one time surveyors were prevented by Henry Turner and Josiab Turner, Jr., from making some kind of a survey until guards were employed by appellant, after which the survey was made.

There is no evidence to support the plea of fraud, which induced appellant to purchase, nor is there any evidence that the sale to Stuart was prevented by the Carters and Carr.

From the foregoing allegations and evidence we conclude that T. W. Carter, Lemuel Carter, and Peyton Carr did covenant to deliver peaceable possession of all tbe Iand ’to appellant, and did covenant against paramount claims, incumbrances, ■ and adverse possession. We find, however, that this covenant was not broken. The. decree in the trespass to try title suit conclusively shows there was no paramount adverse title. The various tenancy agreements conclusively show the possession of the said Turners was only that of tenants. Upon the execution of the tenancy agreement in 1914, ■ when the forcible detainer suit was settled, appellant was in actual possession of the land through his tenants, Henry Turner and Josiah Turner, Jr. Since the vendors were guilty of no breach of any covenant, there is no reason why they should not be permitted to have the contract expressed in the deed of trust performed strictly in conformity with the terms therein expressed. The deed of trust authorizes the sale of the land by the trustee if default is made by appellant on the payment of the notes when due. The notes were due and unpaid.

In our opinion the trial court properly dissolved the temporary injunction restraining the sale by the trustee.

The judgment of the trial court is affirmed.
      (g^LoFor otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKDIN, J.

text:
    ANDERSON v. WILSON.
    (No. 8850.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 27, 1918.)
    1. Pleading <§=205(2) — General Demurrer —Questions Raised.
    A general demurrer did not raise the objection that the temporary writ of injunction expired by operation of law at the return term of the court, and that, as the suit was for injunction only, a cross-action would not lie, and without a special exception such objection was waived.
    2. Injunction <§=>260 — Wrongful Issuance oe Weit — Right to Damages.
    If a fence was defendants’ property at the time plaintiff had writ of injunction issued to prevent removal thereof, defendant was entitled to file cross-action for damages for the wrong'.
    3. Injunction <§=260 — Suit Pending — Time.
    Where plaintiff sued to prevent defendants’ interference with a fence although the writ of injunction became functus officio at the convening of the term of court at which it was returnable, and plaintiff kept the property, the suit was still pending, and a cross-action could be filed.
    4. Injunction <§=261 — Wrongful Deprivation of Property — Action for Conversion.
    Defendant in injunction suit, wrongfully deprived of his property by the writ by a plaintiff, who claims the property as Ms own, may treat the suit as a conversion and sue for the value of the property.
    5. Trial <§=351(5) — Instructions—Duplication.
    It is not error to refuse a special issue substantially covered by an issue submitted in the court’s main charge.
    6. Appeal and Error <§=218(2) — Preservation of Exceptions — Special Issues.
    An assignment of error to the refusal of an issue reguested will not be considered, when no objection was made in the trial court to such refusal.
    Appeal from District Court, Archer County; Wm. N. Bonner, Judge.
    Suit by J. L. Anderson against D. F. Wilson and another, wherein Wilson filed a cross-action. Judgment for defendants, and for Wilson in the cross-action, and plaintiff appeals.
    Affirmed.
    Kay Akin, of Wichita Falls, for appellant. Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.
   DUNKDIN, J.

This suit was instituted by J. D. Anderson against D. F. Wilson and Isaac Mobley for an injunction to restrain the defendants from removing a fence inclosing a pasture which plaintiff then held under a lease from Falls county. ' Wilson had formerly been in possession of the same land under a similar lease, and, under a Maim of ownership of the fence, was proceeding to remove it, when he was prevented from so doing by a temporary writ of injunction is- - sued at plaintiff’s instance on April 27, 19U, the date upon which the suit was instituted. The order granting the writ was made by the district judge in chambers, and by the terms of the writ defendants were restrained from tearing down or removing the fence or in any manner interfering with it “until the further order of said district court to be holden ⅜ ⅜ * on the first Monday in October, 1911, the same being the 2d day of October A. D. 1911, when and where this writ is returnable.” In the petition filed by plaintiff the temporary writ was prayed for, and there was a further prayer that upon final hearing of the case on its merits the temporary writ be made perpetual.

The suit remained on the docket, untried and undi^iosed of, until April 2, 1913, when the defendant Wilson filed his first amended original answer, in which he urged a general denial to plaintiff’s petition, and in addition to that defensive pleading he also filed a cross-action against plaintiff for damages as for a conversion of the fence; such cross-action being predicated upon a claim by Wilson of ownership and right of possession of, the fence, coupled with further allegations to the effect that the act of plaintiff in depriving him of the use of it was wrongful and amounted in law to a conversion. On April 4, 1917, plaintiff filed an answer to the cross-action, consisting of a general demurrer and a general denial. On the same day that demurrer was overruled, and the cause tried on its merits, resulting in a judgment denying plaintiff a recovery against the two defendants, and in favor of Wilson on his cross-action against the plaintiff for the value of the fence. From the judgment on the cross-action, plaintiff has appealed.

Appellant insists that the temporary writ of injunction expired by operation of law at the return term of court mentioned in the writ, and that, as the suit was for injunction only, the cross-action for that reason would not lie. No special exception to the petition was filed presenting that objection; the only exception presented being a general demurrer, in which the only contention urged was that the allegations c-> ■!.<> <■<! in the cross-plea showed no cause u ,i-'fi<><i against the plaintiff.

We are of the opinion that the general demurrer was insufficient to raise the objection now urged to the cross-action, and that in the absence of a special «exception presenting the objection the same was waived. Gibson v. Singer Sewing Machine Co., 147 S. TV. 285. Furthermore, if, as found by the jury, the fence was the property of the defendant, and not of plaintiff:, at the time of the issuance of the writ of injunction, defendant was, through the medium of the writ, wrongfully deprived of the right of en-ioyment of it, and we perceive no valid reason why he should not be allowed to reconvene for damages for such wrong. Texas & N. O. Ry. v. White, 57 Tex. 129. Nor can it be said that the suit instituted by plaintiff was no longer pending when the plea in re-convention was filed and when the ease was tried. Even though it could be said that the writ of injunction became functus officio at the convening of the term of court to which it was made returnable, still plaintiff did not deliver or offer to deliver the property to the defendant, but kept and enjoyed it, and still retained it, and denied defendant’s right thereto up to and during the trial.

Defendant had the right to treat such wrongful deprivation of his property as a conversion and to sue for its value. And in this connection it is to be noted further that the plea in reconvention was not upon the bond for injunction, but was against plaintiff only, for a wrongful conversion of the property through means of the injunction writ.

Another assignment of error is presented to the failure of the court to submit to the jury appellant’s requested special issue reading: “Was the wire in question owned by Tj. F. Wilson, or was it owned by Falls county?” This assignment is overruled for two reasons: First, because it was substantially covered by an issue submitted in the court’s main charge; and, second, no objection was made in the trial court to the refusal of the trial judge to submit the issue in the form requested. G. T. & W. Ry. v. Dickey, 108 Tex. 137, 187 S. W. 189.

All assignments of error are overruled, and the judgment is affirmed.

Affirmed.
      <S=For other cases see same tocio and KKY-NUMBEB. in all Key-Numbered Digests aiid Indexes


author: TALBOT, J.

text:
    LINGWILER v. LINGWILER.
    (No. 8134.)
    (Court of Civil Appeals of Texas. Dallas.
    June 22, 1918.)
    1. Injunction <©=>122 — Right to Remedy— Veuipication op Petition — Sufficiency.
    ■ ,, Duller Vernon’s Sayles’ Ann. Civ. St. 1914, art.' 4049. requiring verified petition as requisite to injunction, verification “according to affiant’s best belief” insufficient.
    2. Injun- ucsn <©=>122 — Verification of Petition -i >BV 01ÍCE.
    Vernon’-s Sayles’ Ann. Civ. St. 1914, art. 4639, authorizing such temporary orders in divorce as. are deemed necessary and equitable, does not dispense with requirement of article 4649 that petition in divorce suit for injunction be verified.
    3.Injunction <®=>26(6) —Right to Remedy-Existence op ijegal Remedy.
    Husband having sued for divorce in one county was not entitled to injunction restraining the wife from suing for divorce in another county and secreting the children, since the husband could avail himself of such matter in any suit brought by wife.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Suit by George W. Lingwiler against Mrs. Earl Lingwiler. Decree for plaintiff, and defendant appeals.
    Reversed, and injunction dissolved.
    Lea, McGrady & Thomason, of El Paso, and Adams & Stennis, of Dallas, for appellant. M. M. Parks, of Dallas, for appellee.
   TALBOT, J.

This suit was instituted by the appellee in the district court of Dallas county against the appellant for divorce, custody of the minor children and partition of the community property. After alleging the grounds upon which the divorce was asked and that appellee was better qualified in every way to -care for, maintain, and educate the children, appellee charged, in effect, that it was his belief that appellant had left her home in Dallas county and gone to the county of El Paso, taking the minor children of herself and appellee with her for the purpose of trying to establish the six months bona fide residence there and of suing appellee for a divorce in that county, and that unless the court should grant a writ of injunction restraining appellant from doing so she will sue appellee for a divorce in said El Paso county, and, before the trial of this suit, she will either secrete the said children or possibly have them removed out of the state of Texas to prevent the appellee from having their custody decreed to him. The prayer of the petition is that the court cause to be issued a writ of injunction restraining the appellant pending this suit from bringing any suit for divorce or for the custody of said minor children in any district court of El Paso county, Tex., and from secreting or removing said children out of this state; that a decree dissolving the bonds of matrimony existing between appellee and appellant, and awarding appellee the custody, control, and maintenance of said children and partitioning the community property of appellee and appellant be rendered. Upon the filing of the appellee’s petition and on, to wit, May 7, 1918, Hon. E. B. Muse, judge of the Forty-Fourth judicial district, without notice to appellant, commanded the issuance of the injunction as prayed for, and within the time prescribed by law appellant perfected an appeal from said order to this court.

The first ground urged for a reversal of the court’s order granting the writ of injunction is that the petition upon which it was granted is not verified as required by law. The affidavit to the petition, omitting the formal parts, is as follows:

“George W. Lingwjler, plaintiff, after being duly sworn by the undersigned authority, says on oath that the facts set forth in the foregoing petition are true according to his best belief.”

This affidavit, under the statute and several decisions of the appellate courts of this state, is clearly insufficient to authorize the action of the court and alone entitles appellant' to a dissolution of the. in junction granted. Our statute (article 4649) provides that no writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge, verified by affidavit, and this 'statute has not been complied with in an affidavit which shows that the affiant swore to the facts set up in the petition upon information or belief. This court had occasion in the recent case of Graves v. M. Griffin O’Neil & Sons, 189 S. W. 778, to pass upon an affidavit for injunction similar to the one here in question, and we there pointed out that the test of the sufficiency of the verification required by the statute referred to, according to the decision of the appellate courts of this state, is that “the affidavit of the facts sworn to must be so direct and unequivocal as that an indictment for perjury would lie, if the oath is falsely made,” citing Pullen v. Baker, 41 Tex. 419; Moss v. Whitson, 130 S. W. 1034; Clarey v. Hurst, 136 S. W, 840; Smith v. Banks, 152 S. W. 449. That the affidavit must state the facts alleged are true, and that such statement must be positive and not based upon hearsay is affirmed in Railway Co. v. Pietzsch, 10 Tex. Civ. App. 572, 30 S. W. 1083. The affidavit to appellee’s petition not being in compliance with the statute the injunction prayed for should have been refused.

The contention of appellee to the effect that, since the trial court or judge thereof under article 4639 of Vernon’s Sayles’ Civil Statutes may make such temporary orders respecting the property and parties' pending a suit for divorce, as shall be deemed necessary and equitable, it was not necessary that ap-pellee’s petition should have been sworn to at all to authorize the court to grant the in-junctive relief sought, cannot be maintained. The statute invoked in support of the contention does not embrace within its purview the granting or ordering of the injunctions, whilst the statute requiring the verification of the petition seems to comprehend every character of suit in which relief by injunction is asked, and is mandatory. The. exact language of the statute is as follows:

“No writ of injunction shall be granted, unless the applicant therefor shall present his petition to the judge, verified by his affidavit taken before some officer .authorized to administer oaths, and containing a plain and intelligible statement of the grounds for such relief.”

The appellant further contends that no right was shown why appellant should be enjoined from filing a suit against appellee in tlie district court of El'Paso county. In support of this contention appellant invokes the well-recognized and familiar rule that equity, will not enjoin an action at law where the party seeking the injunction has a good defense at law; that matter which will constitute a defense of which a party may avail himself in a suit pending against him cannot be made the ground of an injunction to restrain proceedings in such suit: This doctrine is well established and so generally recognized that we deem the citation of authorities unnecessary. There is no special provision of statute upon which appellee can rest his claim for an injunction restraining appellant from instituting suit against him in El Paso county for divorce. Whatever right he may have for such relief must be found in the general principles of equity, and since equity, as before stated, will not enjoin an action at law where the party seeking the injunction has a good defense at law, and since, if appellant should wrongfully sue ap-pellee in El Paso county, he would have an adequate legal remedy - of which he could avail himself in such suit, he was not entitled to the injunction granted in this ease restraining appellant from suing in that county.

That appellee upon sufficient allegations properly sworn to that appellant was threatening or in the act of removing the minor children of himself and wife beyond the limits of this state, or that she would probably secr.ete them before the trial of this case so that a judgment awarding their custody to him would be unavailing, would he entitled to an injunction restraining such action on the pai't of appellant m clear, and seems to be unquestioned by appellant. But if it should be conceded that the allegations of appellee’s petition were sufficiently full and positive upon tiffs phase of the case to entitle him to an injunction restraining appellant from so removing or secreting said children, which is not done, still since the petition was not properly verified that relief should not have been granted.

'It does not become necessary for us to determine, for a proper disposition of this appeal, whether or not the allegations of ap-pellee’s petition were sufficient, if sustained by evidence, to entitle him to dissolution of his marriage with appellant, and we express no opinion upon that question.

For the reasons indicated, the judgment of the district court is reversed, and the injunction dissolved.
      <®=>Eor otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ZAPP v. SPRECKELS.
    (No. 7555.)
    (Court of Civil Appeals of Texas. Galveston.
    March 7, 1918.
    Rehearing Denied June 27, 1918.)
    1. Corporations <®=»99(1) — Sal® of 'StockTaking Notes in Payment — “Issue)” Contract for purchase of increase of csapital stock was not, where stock was not ‘ to be de-Hverecl until notes given therefor had been paid, an executed sale so as to be void under Const, art. 12, § 6, and Rev. St. 1911, art. 1146, and article 4725, subd. “e” and articles 4726, 4728, prohibiting issuance of stock except for money paid, etc.; “issue” meaning delivered.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Issue.]
    2. Corporations <§=92 — Sale oe Stock —■ Taking Notes in Payment.
    Where under subscription contract stock was not to be delivered until notes given therefor were paid, notes would not be in violation of Const, art. 12, § 6, and Rev. St. 1911, art. 1146, and article 4725, subd. “e” and articles 4726, 472S, as to not issuing stock except for money paid, etc.
    3. Corporations <®=92 — Sale oe Stock — Taking Notes in Payment.
    Where stock was not to be delivered to defendant until notes given therefor were paid, defendant is in no position to plead failure of consideration because of nondelivery of stock in action by indorsee on note first due; nothing having been paid on any of notes.
    4. Corporations <§=92 — Sale oe Stock — Taking Notes in Payment.
    That plaintiff indorsee of note given for stock knew that stock was not to be delivered until notes given therefor had been paid would not prevent his recovery after having in good faith and before maturity paid full value for note.
    5. Evidence <§=442(1) — Incomplete Contract — Parol Evidence.
    Where subscription contract did not state when stock was to be issued and delivered, testimony that it was understood between all parties that stock was not to be delivered until notes given therefor had been paid was admissible; contract being incomplete and executory.
    Appeal from Fayette County Court; George Willrich, Judge.
    ■Suit by J. C. Spreekels against Mrs. Isolda. Zapp. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    L. D. Brown, of La Grange, for appellant. John T. Duncan, of La Grange, for appellee.
   GRAVES, J.

On a former day of this term' this cause was affirmed without written opinion, and motion for rehearing overruled, but, in response to the very earnest motion of appellant heretofore granted, written statement of the ground upon which that disposition was made is now filed. The essentials of the case may be thus stated:

On the date therein named Mrs. Zapp executed the following contract for the purchase of stock in the insurance company it designates:

“No. 1039. Authorized Capital, $2,000,000.-00. No. Shares, 10. Subscription Contract to Increased Capital Stock of Southern National Insurance Company, Austin, Texas.
“When.is. Southern National Insurance Company is a fire insurance corporation organized and ⅛ orpórated under the laws of the state of 'r ',-!is. with a paid-up capital stock of $120,000. W "I'd
“Whereas, i( proposed to increase the capital stock of saui company in accordance with the provisions of the laws of the state of Texas; and
“Whereas, said company has engaged Charles St. Clair, of Austin, Tex., as fiscal manager to sell said increase of capital stock:
“Now, therefore, I, Isolda Zapp, of Fayette-ville, hereby subscribe for ten shares of the said capital stock of the par value of $100.00 each, said stock to be fully paid up and nonas-sessable, and I agree to pay therefor $200.00 per share as follows: $50.00 per share to be paid to said Charles1 St. Clair in cash on date of this subscription to be appropriated by him as compensation to him for sale and distribution of stock hereby subscribed for. * * ⅞
“Said company alone has the • right to accept or reject this subscription, contract. If accepted, amount of $50.00 specified above as paid ini cash, to said Charles St. Clair on date hereof shall be considered duly earned by him, and not to be refunded to me under any conditions. If rejected, total payments made on date hereof shall be returned to me, no conditions or agreements other than those printed hereon shall be binding on any party hereto.
“Dated and signed at Fayetteville this the 13th day of November, 1911.
“[Signed] Mrs. Isolda Zapp.
“Chas. St. Clair, Agent.”

In lieu of cash, which she did not have on hand, Mrs. Zapp signed and delivered with the contract her three promissory notes for the $2,000 called for in the purchase of the ten shares at $200 per share, two of them for $500 each, and one for $1,000, the one here involved being the first $500 note due six months after its date and payable to Charles St. Clair. The insurance company duly accepted the contract and delivered the note last mentioned to St. Clair, who soon thereafter, and' before its maturity, sold it to ap-pellee, J. C. Spreekels, for $475. When the note matured, Mrs." Zapp refused payment, and Spreekels brought this suit thereon.

Trial befqre a jury was had, and at the close of the evidence the court peremptorily instructed a verdict for Spreekels for the amount of the note, interest and attorney’s fees, which being returned, judgment was accordingly entered against Mrs. Zapp, from which she presented this appeal.

It will be noted the contract does not state when the stock was to be issued and delivered, but appellant pleaded, and the undisputed proof showed, that she never paid anything on the stock, nor was any ever delivered to her; furthermore, the evidence is equally undisputed that no stock was to be delivered until the three notes ha,d first been paid.

The insurance company finally went into liquidation, which did not occur, however, until about one year after this suit had been filed upon the first one of Mrs. Zapp’s notes; the other two having then, been past due for practically the same period.

The judgment is first assailed upon the contention that the transaction represented by the quoted contract and the note sued upon “was a straight out sale of stock of the corporation for $2,000 worth of notes," and was not a subscription for stock and deferred payments, evidenced by notes, and was there- * fore void.”

Section 6 of article 12 of our state Constitution, as well as statutes of similar import (R. S. arts. 1146, 4725, subd. “e,” and articles 4726 and 4728), are then invoked, the constitutional provision being in full as follows:

“No corporation shall issue stock or bonds except for money paid, labor done or property actually received, and all fictitious increase of stock or indebtedness shall be void.”

Under the undisputed facts developed here, we are unable to agree with appellant that this transaction amounted to an executed sale of the stock, thereby bringing it within the inhibition of the provision just quoted, but think it amounted to nothing more than an executory contract of subscription for the stock. In construing the word “issue” as there used our courts have held that it means in effect the same thing as delivered; that no stock is in law “issued” until it is paid for and actually delivered to and title thereto vested in the purchaser. Farmers’ & Merchants’ State Bank v. Falvey, 175 S. W. 833; Cattlemen’s Trust Company v. Turner, 182 S. W. 441.

It has been often further held that notes given as part of the subscription price for stock of a corporation are not void, but may be enforced as valid obligations, and that such stock can be contracted for and paid in installments. Commonwealth Bonding & Casualty Co. v. Hill, 184 S. W. 248; Cope v. Pitzer, 166 S. W. 447; Horn Bros. v. Baker, 173 S. W. 474, and cases cited; Davis v. Burns, 173 S. W. 476, and cases cited; Thompson v. First State Bank, 189 S. W. 116; Smoot v. Perkins, 195 S. W. 988; Zielinski v. Hernig, 195 S. W. 952; Irrigation Co. v. Deutschmann, 102 Tex. 201, 105 S. W. 486, 114 S. W. 1174.

It follows from our fact findings that this note was not void as being in contravention of the cited constitutional and, statutory provisions, nor was appellant in any position to plead failure of consideration because of nondelivery of the stock to her, never having paid any of the notes which, under the very terms of her'own agreement, she was bound to pay before any stock was to be delivered to her; but she insists that at the time he purchased and paid value for the note Spreckels either knew it was given for stock in a corporation or was in possession of sufficient facts to put him upon inquiry, which, if pursued, would have disclosed to him the true conditions concerning its execution and delivery. , This may be freely conceded without in the least changing the legal result above deduced. She agreed to purchase the capital stock of a corporation organized for a lawful purpose. She signed a subscription contract for the stock. This was lawful for her to do. As a part of this lawful transaction she executed the note sued on which in law is and was a legal, obliga*tion. As a part of this transaction it was agreed, and she so understood that she was not to get possession of the stock until she paid the notes and complied with her part of the subscription agreement. Knowledge of these facts would neither have rendered the note sued on void in appellee’s hands, nor prevented his recovering thereon, after having in good faith and before maturity paid full value therefor, as the proof shows he did.

In the second place, appellant complains of the admission of testimony from different witnesses to the effect that it was well understood by all parties, including appellant, of course, that no stock was to be delivered to her until her notes had been first paid; the main objection being that the contract upon its face showed it to be an executed contract of sale, and the effect of the testimony admitted was to vary the terms of a written contract by parol evidence. We think this position untenable. Not only did this contract on its face fail, to show it to be an executed and completed one, as appellant so contends, but plainly indicated its incompleteness and executory character. Moreover, as has been already stated, it did not specify when the capital stock should be “issued” or delivered and evidence upon a mere matter of detail not covered by the written contract is not changing or varying its terms. Not only so, but the pleadings of Mrs. Zapp herself, as has been above recited, charged that the transaction was unfinished and incomplete, and hence in effect executory.

It is evident from what has been said that in our opinion no reversible error was pointed out, which conclusion necessitated entry of the orders heretofore made.

Affirmed.

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      <§=5]<⅛ other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    NEW FENFIELD TOWNSITE CO. v. KING.
    (No. 6059.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 12, 1918.
    Rehearing Denied July 1, 1918.)
    1. Principal and Agent <g=»146(2) — Undisclosed Principal — Diability.
    An undisclosed principal may be sued for breach of a contract made with the agent in entire ignorance of the principal.
    2. Principal and Agent <§=145(2) — Undisclosed Principal — Right to Sue.
    Assuming the court erroneously found an agent not liable for breach of a contract, the liability of the undisclosed principal was not thereby affected.
    3. Appeal and Error <§=1033(8) — Harmless Error.
    In action for destruction of cotton where plaintiff claimed damages of $900, the defendant could not complain that the court required a re-mittitur and rendered judgment for $500.
    4. Courts <®=169(2) — Jurisdiction—Countt Oouri^-Texas.
    In the absence of allegation o,f fraudulent attempt to confer jurisdiction or’ the county court, finding that cotton destroyed was of value of $1,500 did not deprive the court of authority to render judgment for the amount claimed in the petition, which was within its jurisdiction.
    5. Trial <§=192 — Instructions —Assuming Facts.
    Where nlamtiff testified that there was breach of contract, which was not denied but defendant claimed there was no contract, and all the evidence showed a breach if there was a contract, the court could assume the breach as a fact.
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by J. H. King against the New Fen-field Townsite Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    John D. Hartman, of San Antonio, for appellant. Jas. F. Boyls and T. IT. Ridgeway, both of San Antonio, for appellee.
   FLY, C. J.

This is a suit instituted by ap-pellee against the New Fenfield Townsite Company and Thomas Goggan, president of said company, to recover damages for the destruction of a growing crop of cotton. A trial by jury upon special issues resulted in a judgment in favor of appellee for $500.

The allegations) of the petition show that appellant agreed to give appellee all the cot- ■ ton he might gather from volunteer cotton on 125 acres of cleared land, in consideration that appellee should clear the mesquite brush off two or three acres on the unimproved part of the land, and that he cleared the brush from the two or three acres of land, and when he had gathered a part of the cotton appellant entered upon the land and cut down and destroyed the cotton. Appellee proved the contract as alleged if his testimony is to be credited, as it was by the jury. He stated that he was afterwards requested by Goggan to cut scattering shrubs all over the tract, and he did so; but that did not alter the fact that he swore that he carried out the terms of his contract as alleged in the petition.

The facts show that the New Fen-field, Tow'nsrte Company owned the land, and that Thomas Goggan was its president. The contract was made by Goggan for the company, and it .did not matter that the principal was not disclosed at the time the contract was made. Appellee was authorized to sue appellant for a breach of the contract, although the .contract was made with the agent in entire ignorance of the principal. Mechem on Agency, §§ 1731-1733. The agent was probably liable also, but the fact that the court found that he was not liable could not cancel or impair the liability of the principal. Immunity granted the agent erroneously did not affect the liability of the principal. There was no denial of the agency of Lite president of the company. The first as-signuiv'ot of ' is overruled.

The .-'vono third, sixth, seventh and eighth assign r vi 11 ⅛ > t£ error are overruled. It was not alleged Unit there had been a fraudulent attempt to give the comity court jurisdiction over the suit by the allegations of the petition and a finding of the jury that the cotton destroyed ivas of the value of $1,500 did not deprive the; court of the authority to render judgment for the amount claimed in the petition. Appellant has no right to complain that the court required a remittitur of $400 from the sum of $900 claimed and rendered a judgment for $500 in favor of appellee. The remittitur was in favor of appellant, and ap-pellee alone has the right to complain.

The fourth, fifth, ninth, and tenth assignments of error are overruled. The evidence was sufficient to support the answers of the jury to the issues submitted to them. Appellee swore that there was a breach of the contract, and that was not denied; appellant claiming that the contract was not made. All the evidence showed a breach, if there ivas a contract, and the court could assume the breach as a fact.

The judgment is affirmed.
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author: PLEASANTS, O. J.

text:
    MALLORY S. S. CO. v. HARRISS-IRBY COTTON CO. et al.
    (No. 7563.)
    (Court of Civil Appeals of Texas. Galveston.
    May 24, 1918.
    Rehearing Denied June 27, 1918.)
    1. Shipping <®=»132(3) — Damage to Goods— Burden op Peo op.
    Under the Harter Act, § 3 (U. S. Comp. St. 1916, § 8031), providing that if the owner has properly equipped, supplied, and manned a seaworthy vessel he shall not be liable for losses from certain causes, where cotton shipped in proper condition arrived in damaged condition, it devolved on the vessel owner to prove that the loss was occasioned by a cause enumerated in the statute.
    2. Shipping <§^>134 — Damage to Goods — Exemption Statutes — Construction.
    The Harter Act, § 3 (U. S. Comp. St. 1916, § 8031), exempting vessel owners from liability for damage to goods in' specified causes, where vessel is seaworthy, should be strictly construed and not extended to include exemptions not clearly within its scope.
    3. Shipping <S=>138 — Damage to Goods — Statutoby Exemption — Caeeiee’s Negligence.
    The Harter Act, § 3 (U. S. Comp. St. 1916, § 8031), exempting vessel owners from liability for damage to goods from specific causes, does not exempt a vessel owner from liability for loss due to his negligence, such as the negligent covering of a hatch.
    4. Shipping <⅜^132(3) — Damage to Goods — Damage in Transit — Bukden of Pboof.
    Where goods are delivered to a vessel in good condition and are damaged when delivered at destination, the Carrier is liable in the absence of evidence showing such damage was not the result of its negligence, and the shipper is not required to show how- the damage was caused.
    5. Shipping <®=>132(5) — Damage to Goods— Separation of Damaged and Undamaged Goods — Evidence.
    Evidence of the methods of separation of damaged from undamaged portions of a shipment of cotton and ascertainment of amounts thereof by weighing and estimating held not too uncertain and indefinite to sustain a finding of the number of pounds damaged.
    Appeal from Harris County Court; W. E. Monteith, Judge.
    Suit by the Harriss-Irby Cotton Company against the St. Louis & Southwestern Railway Company, In which the Mallory Steamship Company was made a party defendant. Judgment for plaintiff against the railway company and in favor of the railway company against the steamship company, from which judgment the latter appeals.
    Affirmed.
    R. W. Franklin, of Houston, for appellant. Wm. H. Wilson, of Houston, for appellee St. Louis & Southwestern Ry. Co. of Texas. Hutcheson & Bryan, of Houston, for appellee Harriss-Irby Cotton Co.
   PLEASANTS, O. J.

This suit was brought by appellee Harriss-Irby Cotton Company against appellee St. Louis & Southwestern Railway Company to recover the sum of $415.85 with legal interest thereon from January 14, 1915, alleged to be the amount of damage to 100 bales of cotton delivered to tlie defendant rail-way company at Green-ville, Hunt county, Tex., for shipment and delivery to plaintiff’s order at the city of New York. The petition alleges:

“That by the issuing of its bill of lading the defendant railway company contracted and undertook and was charged by law as a common carrier for hire, to transport the said cotton from Greenville, Tex., to New York, and there deliver the same in the sound and dry condition in which it was delivered to defendant, to shipper’s order, notify Harriss-Irby Cotton Company, but that[ upon the receipt of said cotton in New York City same was in| bad condition, part of said cotton being damaged apparently by water and other liquids, so that it became necessary to recondition the cotton at New York by removing) from said 10© bales of cotton 3,340 pounds of damaged cotton, leaving a net weight of 46,516 pounds of undamaged cotton, to plaintiff’s damage in the sum of $415.00.”

The St. Louis & Southwestern Railway answered, by a general demurrer and general denial, and alleged that it delivered said cotton to its connecting carrier in, the exact and same amount, kind, condition, and quality as it received it, and that if any damage occurred the same occurred upon the line of the Mallory Steamship Company, and asked that the Mallory Steamship Company be made a party to the suit, and that, if any judgment be recovered against it, that it have judgment over against the Mallory line.

The Mallory Steamship Company answered by general demurrer and a general denial, and further alleged that, if the cotton became wet, it was due to the weather and dangers and perils of the sea, which liability was specifically excepted in paragraph 9 of the bill of lading, which provided there should be no liability in such cases. Mallory Steamship Company further alleged that, if said cotton was damaged, the damage was further and materially increased by reason of the negligence of the plaintiff in failing to recondition part of said cotton and holding the same in a wet condition for some 60 days after it was received; that it had used all due diligence to furnish a seaworthy vessel at the beginning of said voyage; and that said vessel was in all respects seaworthy at the time of the commencement of said voyage; and specially pleaded the Harter Act (Act Feb. 13, 1S93, c. 105, 27 Stat. 445 [U. S. Comp. St. 1916, §§ 8029-8035]).

The trial was had before a jury, which rendered a verdict upon special issues, and a motion was filed by all parties that judgment be entered in their favor; but the court overruled the motion of the Mallory line and entered judgment in favor of the cotton company against the railway company for the sum of $415.85 with 6 per cent, interest from January 14, 1914, and a judgment in favor of the railway company over against the Mallory line. This appeal from said judgment is presented only by the steamship company.

The bill of lading issued by the railway company for shipment is a through bill of lading for shipment from Greenville to New York. Section 9 of the 'bill of lading provides that the shipment is made subject “to the condition that no carrier or party in possession (of the cotton) shall be liable for any loss or damage resulting from the perils of tlie lake, sea, or other water.”

The jury, in response to questions propounded by the charge of the court submitting special issues, found that the cotton was not damaged at tlie time it was delivered to the railway company at Greenville, and that 3,340 pounds of the cotton was damaged while in the possession of appellant steamship company, a connecting carrier of the railway. They further found that the steamship company at the commencement of the voyage had used due diligence to make the vessel seaworthy and to properly man, equip, and supply the same for the carriage of the shipment, but that said defendant steamship company “could have 'by the use of due diligence and care have kept said cotton from becoming damaged.” There is sufficient evidence to support all of these findings.

We shall not discuss the assignments of error in detail, nor in the order in which they were presented in appellant’s brief.

Under an appropriate assignment, appellant complains of the refusal of the trial court to enter judgment in its favor upon the finding of the jury that appellant “at the time of the commencement of the voyage used due diligence to make the vessel in all respects seaworthy and properly manned, equipped, and supplied for the carriage of said shipment.” In'support of its contention under this assignment, appellant cites sec: tion 3 of the Act of Congress known as the Harter Act, Federal Statutes AimotrJced, vol. 4, p. 857. This statute is as follows:

“That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the' said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, .agents, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation, or in the management of ¡said vessel, nor shall the vessel, her owner or owners, charterers, agent or master be held Hablo for losses arising from clangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service.”

The evidence in this case does not establish the fact that the damage to plaintiff’s cotton resulted or arose from any of the causes mentioned in the statute. When the cotton was received by appellant from its connecting carrier, it was in good order and condition, and when it was delivered by the appellant to plaintiff at New York it was in the damaged condition found by the jury. Upon this state of the evidence, in order for appellant to relieve itself of liability under the statute above quoted, it devolved upon it to show that the damage was due to one of the causes specified in the statute. Mallory Steamship Co. v. Bahn Diamond & Optical Co., 154 S. W. 282. This it failed to do. It offered evidence to show that there was considerable stress of weather on the voyage. The entries in the log of the vessel on three of the days of the voyage are as follows:

“January 3d. Day opened with squally weather, and day ends with strong breeze and rough sea. January 4th. This day comes in ■with fresh northwest gale and heavy sea shipping much water fore and aft, eight a. m. wind and sea increasing, ship laboring heavily. January 5th. Day comes in cloudy with gale and rough sea.”

It followed this evidence with the testimony of the first officer of the vessel to ihe effect that the ports, hatches, and bilges of the vessel were in good order and kept closed so that no water could get in the hold or on the cotton, and by the testimony of its agent at New York, who inspected the cotton when it was taken out of the ship at New York, and who testified that it did not then bear any visible evidence of being wet or damaged. We think the evidence as a whole fails to raise the issue of whether the cotton was damaged by faults or errors in navigation or in the management of the ship, or was due to the dangers of the sea or the act of God. There is no contention that any of the other exceptions mentioned in the statute are available as a defense in this case. If, however, there was evidence to show that tfiS\ cotton was made wet and thereby damaged "fe ouse the hatches were not properly covered du-.n.’ig the stormy weather, the statute would in if exempt appellant from liability for loss*occ.'sioaed by such negligence. The statute bhomd be strictly construed and not extended, to include exemptions which are not clearly within its scope. The Germanic, 124 Fed. 5, 59 C. O. A. 521; The Mississippi, 120 Fed. 1020, 56 O. O. A. 525. In the case last cited it is held that the statute does not relieve from liability when the loss is caused by leakage due to the negligent covering of a hatch. Other cases which sustain the rule of strict construction of the statute are: The Palmas, 108 Fed. 87, 47 O. O. A. 220; The Catania (D. O.) 107 Fed. 152; The Musselcrag (D. C.) 125 Fed. 786.

Plaintiff was not required to showjhow the damage to the cotton was caused. When it is Shown that goods are delivered to a carrier in good order and condition and are.in a damaged condition when the carrier delivers them at destination, the carrier is held liable for such damage in the absence of evidence showing that the damage was not the result of its negligence. Hutchison on Carriers, par. 761; Ryan v. Railway Co., 65 Tex. 13, 57 Am. Rep. 589; Railway Co. v. China Mfg. Co., 79 Tex. 26, 14 S. W. 785; Railway Co. v. Bath, 90 S. W. 555.

The other assignments of error complain of each of the several findings of the jury on the ground that the finding is not supported by the evidence. We think the evidence sufficient to sustain each of the findings.

After the cotton was delivered at its destination, it was reconditioned by the employes of the warehouse company in whose custody it was placed. This reconditioning consisted in separating the damaged from the undamaged portions. The bales were weighed, and after the damaged portions were removed were reweighed, and the number of pounds of damaged cotton thus ascertained. The records of the warehouse in which this cotton was reconditioned show that 3,340 pounds of the cotton was damaged. The witness who testified to this record stated that the weight of the pickings —that is, the damaged portions of the cotton that was picked from the bales — was 3,340 pounds. He also stated that, when different lots of cotton were reconditioned at the same time, it was impossible to keep the pickings separated with absolute accuracy, and they often had to approximate the number of pounds of pickings which came from the several lots of cotton.

We cannot agree with appellant that this evidence is too uncertain and indefinite to sustain a finding of the number of pounds of .damaged cotton in appellee’s shipment.

What we have said disposes of all the material questions presented by appellant’s brief.

' No' error is pointed out which in our opinion requires or would justify a reversal of the judgment, and it has been affirmed.

Affirmed.
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