text:
    FAIN et al. v. NELMS et al.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 28, 1913.
    Rehearing Denied March 27, 1913.)
    1. Trespass to Try Title (§ 57) — Improvements — Bona Fide Purchaser.
    Where an agent authorized to receive applications to purchase and forward them believed he had authority to sell,' and he made a contract to sell to the purchaser, who believed that the agent had full authority, and the purchaser was placed in possession, and the owner ratified the transaction, the purchaser was a bona fide purchaser within the law governing the recovery of improvements.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 88; Dec. Dig. § 57.]
    2. Trespass to Try Title (§ 57) — Improvements — Bona Fide Purchaser.
    Where a competent surveyor made a survey of land purchased, but made an excusable mistake in the boundary so as to include land not sold, the purchaser taking; possession of the land as surveyed and making improvements thereon could recover for the value of the improvements made on the land not sold.
    [Ed. Note. — For other eases, see Tresnass to Try Title, Cent. Dig. § 88; Dec. Dig. § 57.]
    3. Trespass to Try Title (§ 59) — Improvements— Statutory Provisions.
    In trespass to try title begun April 7, 1904, a finding that the possession of defendant claiming compensation for improvements began about January 1, 1903, was sufficiently definite to fix the time within the statute providing that the claimant must have bad adverse possession for more than a year before suit is filed to authorize a recovery.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 90; Dec. Dig. § 59.]
    4. Trial (§ 114) — Argument of Counsel.
    The argument of counsel informing the jury as to the legal effect of their finding a fact is improper, and the court on objection must direct the jury to disregard it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 275-278, 296; Dee. Dig. § 114.]
    5. Appeal and Error (§ 1060) — Harmless Error — Misconduct of Counsel.
    Where the jury learned from the facts and the contention of counsel during the trial the effect of their finding a fact, the improper argument of counsel informing the jury as to the legal effect of their finding such fact was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dee. Dig. § 1060.]
    6. Appeal and Error (§ 1046) — Harmless Error — Right to Open and Conclude Argument.
    Where defendant in trespass to try title admitted plaintiff’s title and demanded compensation for improvements, and the real conflict in the case was over his right to compensation, the giving him the right to open and conclude the argument was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. § 1046.]
    Appeal from District Court, Anderson County; B. H. Gardner, Judge.
    Action by J. A. Fain and another against T. A. Nelms and another. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    See, also, 113 S. W. 1002.
    W. R. Petty and Campbell & Sewell, all of Palestine, and J. N. Starr, of Athens, for appellants. Thos. B. Greenwood and Gregg & Brown, all of Palestine, for appellees.

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

   REESE, J.

This is an action of trespass to try title by J. A. Fain against T. A. Nelms and, as presented in the trial court, involved the title of a tract of 12 acres of land on the Frost league adjoining an International & Great Northern Railroad Company survey of 221 acres. Defendant, who claimed to be the owner of a portion of said survey, alleged that the land in controversy was part of said tract, and also alleged that he was in possession in good faith and as such had made valuable and permanent improvements on the land in controversy, and prayed that if plaintiff recovered judgment for the land he be allowed the value of his improvements. On the trial defendants admitted plaintiff’s title to the land, and the case was submitted to the jury on special issues, who found in favor of defendant’s right to the value of his improvements, fixed their value and the value of the land and the enhancement of the value of the land by reason of the improvements, also awarding plaintiff $25 damages claimed by him for timber cut. Judgment was rendered accordingly as provided by the statute. A' motion for a new trial was made by plaintiff, which was overruled, and he prosecutes this appeal.

The only question presented by the appeal is the right of defendant to recover the value of his improvements. This is the third trial and the second appeal of this case, defendant having on each trial recovered the value of his improvements. The first appeal was heard and determined by the Court of Civil Appeals of the Fourth District, and the case is reported in 113 S. W. 1002. On that appeal all of the contentions of defendant here made were sustained, but the judgment was reversed and cause remanded because there was no evidence to show how much the value of the land was enhanced by the improvements. This suit was begun by the filing of the original petition April 7, 1904.

Appellant requested the court to charge the jury to rqturn a verdict for plaintiff, also in another requested charge, to return a verdict for plaintiff and against defendant on his claim for improvements in good faith. The ■ charges were refused, and this actioD of the court is made the basis of the first two assignments of error presented in the brief, and the several propositions thereunder. Under these several propositions appellant presents the contentions that under the undisputed evidence, first, appellee’s title to the land on the International & Great Northern Railroad Company survey was not such as to constitute him a possessor in good faith, so as to entitle him to pay for the improvements; second, that appellee’s claim that he placed improvements on the land in controversy on the adjoining Frost league under a mistake as to the location of the boundary line between the International & Great Northern Railroad Company survey and the Frost league and believing in good faith that he was placing them on the land bought by him, cannot be sustained; and third, his adverse possession of the tract so improved .began less than one year before the filing of this suit.

Upon these issues the evidence is sufficient to support the following conclusions:

The New York & Texas Land Company was the owner of the International & Great Northern Railroad Company survey in question, which was a tract of irregular shape and. joined the Frost league. In September, 1902, appellee applied to W. H. Dick, of the firm of Dick & O’Conner, land agents, at Palestine, who represented themselves to be agents of the owner for the sale of their lands in Anderson county, to purchase this tract of land. They agreed on the terms and appellee paid Dick $50 as earnest money for which Dick gave him a receipt. There is some conflict in the evidence as to whether Dick & O’Conner, at that time, were agents of the owner of the land. On the 17th of November, 1902, they were by written instrument of that date, signed by. the Land Company, appointed agents, with authority to render the property for taxes, to protect land from trespassers and to receive and forward applications for the sale of land to the company, which reserved the right to reject or accept the same. Dick testified that at the time he made the contract his firm had authority to negotiate this sale, or they would not have done so, but he was in doubt as to whether they had the written appointment as agents at that time. They were reputable men, represented to Nelms that they were authorized to make the sale, they believed they had such authority, and appellee undoubtedly in good faith believed they were so authorized. A little later, in the fall of 1902, appellee applied to Dick to have the land surveyed, as he wanted to build a house as a residence on the land purchased by him. Dick, with "Wilbur H. Young, an agent of the Land Company, who was a competent surveyor, went down and with appellee ran the lines of the land, so locating the dividing line between this tract and the Frost league as to place the 12.01 acres in controversy on the railroad survey. Appellee was assured that this was the correct line, and, so believing, he shortly after, and not later than the date found by the jury, “about January 1, 1903,” went into possession of the land in controversy and began to make improvements inclosing some of it, planting an orchard, digging a well, and planting a crop, which was cultivated during the year 1903. He also at this time began the erection of a dwelling house, which in due course of time was completed, when he moved in and has since been making his home on the land. Afterwards it was found that appellee wanted a longer time to pay for the land than the Land Company was willing to give, and it was arranged that one Hood should buy the land, for cash, and should convey to appellee a part and to another person a part, upon such terms as appellee desired. This contract was carried out by the Land Company conveying the land to one Woodward, Woodward conveying to Hood, and Hood to ap-pellee. In this way appellee secured title to the land. It does not satisfactorily appear why Woodward came in; but we find that he had no real interest, and that the arrangement by which appellee got title to the land was in pursuance of his original contract with Dick, and was so understood by all of the parties to the transaction. Ap-pellee did not get his deed or written contract of sale from Hood until within a year of the filing of the suit, but we find that he was placed in possession by Dick and Young, and began his improvements as stated, on the faith of his contract with Dick. Dick in good faith believed that he was authorized to sell. Appellee in equal good faith believed that he was, and the Land Company afterwards ratified and confirmed the sale in such a way that appellee received the benefit of his contract with Dick. The lands were surveyed by a competent surveyor, and appellee in good faith believed that the 12 acres was a part of the tract which Dick, as agent of the Land Company, had contracted to sell him. It was held by the Court of Appeal of the Fourth District upon the former appeal, upon what appears from the findings of fact of that court was substantially the same evidence, that the evidence was sufficient to entitle appellee to pay for his improvements, upon all the grounds upon which his claim was contested by appellant, including appellee’s mistaken belief as to the location of the line between the railroad survey and the Frost league, and his contention that his adverse possession began more than one year before the institution of this suit.

We quote the following from the opinion of the Court of Civil Appeals, on the former appeal: “The owner of the International & Great Northern survey had authorized Dick to make sales, and, at least, parties desiring to purchase its lands had reason to believe that he was so authorized. Either one of these views of the evidence was sufficient to constitute one dealing with Dick a purchaser in good faith. The receipt given by him evidenced the transaction, and was under the circumstances a writing sufficient to warrant Nelms in entertaining the belief that he had secured the land, i. e., the International & Great Northern survey. By a survey made by a surveyor- who, tbe testimony showed, was competent and of good reputation, tbe 12.01 acres in question was surveyed and assigned to bim as a part of that survey. That be relied upon this land being a part of bis purchase, and in such belief and reliance, so induced, moved upon it, improved it, and lived upon it with his family, is supported by testimony; also, that be moved upon it more than 12 months prior to tbe filing of tbe suit. This was sufficient, as far as good faith was concerned, to support bis plea, unless be should be confined in bis plea to land that was in fact within tbe International & Great Northern survey, and was incapable under a writing calling for tbe International & Great Northern survey to become an improver in good faith of land situated in another survey. In Butts v. Caffall, 24 S. W. 380, this court held: ‘If be (tbe defendant) was not negligent in ascertaining the correct boundary of tbe property claimed and exercised due diligence, such as a reasonably prudent and careful man would under like circumstances', to ascertain tbe location of bis premises, and after tbe use of such care and diligence was mistaken as to its location, and if, while laboring under such mistake, be constructed bis improvements on appellant’s land, honestly believing it to be bis own, be should be allowed to recover their value’ — citing several cases. See, also, Gilley v. Williams (Tex. Civ. App.) 43 S. W. 1094. Por tbe above reasons tbe several propositions cannot be sustained.”

There can be no doubt, we think, that even if Dick & O’Conner did not, at tbe time they made tbe contract to sell to appellee,. have tbe authority claimed by them, tbe circumstances were such as to induce a man of ordinary prudence to trust to their representations. Appellee undoubtedly believed they bad such authority. Dick evidently, for some reason, also so believed. It was fully shown that before tbe survey was made Dick & O’Conner were so appointed agents, not, it is -true, with full authority to sell, but with limited authority to receive applications and forward to tbe owners. Having this authority, at least — and it does not appear that appellee was aware that they did not have the full authority to make the contract of sale — they had tbe land surveyed, tbe surveyor being tbe agent of tbe owners and put appellee in possession. Tbe doctrine announced in Robson v. Osborne, 13 Tex. 307, that in such case appellee must, at bis peril, ascertain whether tbe agent was authorized, was practically overruled in Dorn v. Dunham, 24 Tex. 378, by tbe same judge who wrote tbe opinion in Hobson v. Osborne, and is not in harmony with tbe rule now established in this state. House v. Stone, 64 Tex. 684; McDaniel v. Needham, 61 Tex. 274; French v. Grenet, 57 Tex. 279; Van Zandt v. Brantley, 16 Tex. Civ. App. 420, 42 S. W. 617; West Lumber Co. v. Chessher, 146 S. W. 979.

If tbe circumstances were such as to protect appellee in tbe value of bis improvements, if be bad placed them on tbe land purchased, tbe same equitable principle would protect bim in tbe present case; tbe improvements having been placed on tbe adjoining land under tbe excusable belief, in good faith, on tbe part of appellee, that it was within tbe boundaries of tbe railroad survey. Butts v. Caffall, 24 S. W. 373, and authorities cited. We think it entirely clear that any man of ordinary care and prudence in looking after bis own interests would have been misled as appellee was and would have rebed upon a survey made by a trustworthy surveyor as to tbe location of tbe lines. The evidence shows that the mistake as to tbe boundary was especially excusable. It was shown that Homeyer, a surveyor of 15. or 20 years’ experience, and a most competent surveyor, also ran this division line after Young did and bis location of its corresponded substantially with that of Young.

It is strenuously contended by appellant that at least tbe great preponderance of tbe evidence shows that appellee’s adverse possession began less than a year before tbe institution of tbe suit. Tbe evidence on this part was conflicting, but there was positive and emphatic testimony that appellee took possession and at least began to improve within a very short time after the survey by Dick and Young, which was shown clearly to have been in tbe fall of 1902. If tbe testimony referred to is true, appellee’s possession began certainly some months prior to April 7, 1903. Tbe suit was filed April 7, 1904. The jury found that it began “about January 1, 1903,” which was definite enough to fix tbe time at some date more than a year before tbe suit was filed, and; tbe evidence is sufficient to sustain tbe finding. Tbe statute does not require that tbe improvements shhll have been made more .than a year before suit is filed, but that the claimant should “have bad adverse possession in good faith of tbe premises in controversy for at least one year next before tbe commencement of such suit, and that be has made permanent and valuable improvements on tbe land sued for during tbe time of such possession.”

The fifth proposition under these two assignments is hardly germane to tbe assignments, but we have carefully considered it and find it without merit. Tbe assignments and the several propositions are severally overruled.

Tbe contention presented by appellant in tbe third assignment of error with regard to the admission in evidence of certain letters offered by appellee over bis objection was decided adversely to appellant on the former appeal, tbe court bolding that tbe letters were admissible upon tbe issue of good faith, in which we concur, and overrule tbe assignment.

What we have said renders any further discussion of tbe fourteenth and fifteenth assignments of error unnecessary, and they are overruled, with the several propositions stated.

By the ninth assignment of error appellant complains of statements made by appellee in the closing argument, in which the jury were instructed as to the legal effect of their finding as to the date of the beginning of appellee’s adverse possession. -Objection was made by appellant to this line of argument, which the court overruled, and further refused to instruct the jury, at appellant’s request, to disregard it. We have no hesitation in saying that the argument was, in the circumstances, improper, and that the' court should have stopped it when attention was called to it, and should have instructed the jury to disregard it. The jury, as triers of the facts solely, had nothing to do with the legal effect of their findings. This was a matter which could not properly concern them. They were only to find the facts. The argument came very near a direct invitation to the jury to consider, in finding this fact, what the legal effect would be. The argument should not have been made, nor should the court have allowed it to be made, and to give tacit approval of it by disregarding appellant’s objection.

In passing upon the question, however, as ground for reversal, its effect on the jury must be considered, and upon this point it must be assumed that during the course of this trial, amid the strenuous conflict between counsel as to the time appellee’s adverse possession began, and the amount of evidence on that issue, it must have been a remarkably stupid juror who would not have gathered what would be the legal result of a finding on this issue. We are inclined to the opinion that counsel only told the jury what they already knew, and ,we cannot believe that they disregarded the evidence and charge of the court, and were influenced by this argument. These improper remarks, we think, ought not to bring upon appellee the. penalty of a reversal. The assignment is overruled.

Appellee admitted appellant’s title and took the burden of establishing his claim to improvements in good faith and was given the right to open and conclude the argument. To this appellant objected on the ground that appellee had not admitted his right to recover rents and damages claimed in the petition. There appears to have been no contest of appellant’s right' to recover damages for cutting of timber, nor of the amount awarded by the jury, $25. No evidence was introduced as to rents, and the issue was not submitted, nor did appellant request it to be submitted. Neither in the motion for a new trial nor by any assignment of error is any objection made to the verdict as to the value of the timber. This was such an immaterial issue, in view of all the facts and circumstances, that we are of the opinion that it was not reversible error for the court to allow appellee to open and conclude the argument, on his admission of appellant’s title. The only real conflict was over appel-lee’s right to pay for his improvements. Upon this he took the affirmative and the burden of proof. Under the same state of facts the Court of Civil Appeals, on the former appeal, held that the trial court did not err in allowing appellee to open and conclude the argument, and in this holding, on the present appeal, we concur.

We have carefully considered each of the assignments of error and the several propositions thereunder presented in the able and exhaustive brief of counsel for appellant, and our conclusion is that none of them present reversible error. The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    FREEMAN v. MORROW.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 22, 1913.
    Rehearing Denied March 27, 1913.)
    1.Master and Servant (§ 21) — Contract of Employment — Termination of Relation-Grounds.
    Where a contract between a railroad’s, receiver and certain boilermakers and apprentices under which plaintiff was employed provided that no boilermaker or apprentice should be discharged without cause, the receiver was not authorized to terminate the employment of plaintiff by reason of his failure to, sign a release of liability for injuries sustained in the course of his employment through the receiver’s alleged negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 20, 21; Dec. Dig. § 21.]
    2. Master and Servant (§ 21) — Contract of Employment — Alteration.
    Where, by an express contract between boilermakers and apprentices and a railroad’s receiver, under which, plaintiff was employed, the receiver was not entitled to discharge plaintiff except for cause, such contract was not subject to modification, by an alleged custom of the receiver not to continue in his employment any employs having an unadjusted claim against him, and to require a release of all liability from the employs as a condition to a continuance of his employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 29, 21; Dec. Dig. § 21.]
    3. Release ■(§ 13) — Validity—Consideration.
    Plaintiff, a boilermaker’s apprentice, was employed under a contract for five years, providing against discharge except for cause. Plaintiff, while so employed, sustained an injury to his eye as the result of a piece of steel flying into it, due to his master’s alleged negligence in failing to provide proper appliances, but was able to continue his work. On his return to work, he was required, as a condition to the continuance of his employment, to execute a release to the master for his injuries, reciting that it was based on a consideration of one day’s employment at the usual pay and for such additional time only as might be satisfactory to the master, such time being wholly covered by his original contract of employment.
      JB.'éld, that the consideration for the release was merely nominal, and insufficient to support it.
    [Ed. Note. — For other cases, see Release, Cent. Dig. §§ 21-27, 29; Dec. Dig. § 13.]
    Appeal from District Court, Anderson County.
    Action by R. E. Morrow against T. J. Freeman, as receiver of the International & Great Northern Railroad. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. I. Sims and Morris & Fowler, all of Palestine, and Wilson, Dabney & King, of Houston, for appellant A. G. Greenwood and Thos. B. Greenwood, both of Palestine, for appellee.

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

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

   McMEANS, J.

This suit was brought by the appellee, R. E. Morrow, against the appellant, T. J. Freeman, receiver of the International & Great Northern Railroad, to recover damages for personal injuries sustained by him while in the service of the receiver in the capacity of boilermaker’s apprentice.

Plaintiff alleged that about March 15, 1909, he was injured by a piece of steel striking him in'his right eye, and that the sight of that eye was destroyed; that this injury was caused by the failure of appellant to exercise ordinary care to furnish reasonably safe appliances to plaintiff and his coem-ployé, Weaver, with which to perform certain work as boilermakers; that the appliances furnished were defective, out of repair, and dangerous, and that a certain reamer had to be removed by the use of a chisel and hammer, whereas it was the duty of the company to furnish a shedder and drift with which to remove said reamer, which it did not furnish; that in using the hammer and chisel to remove the reamer small particles of steel would readily fly therefrom, and that one of these particles struck him in the eye, and caused his injuries, through the negligence of appellant. Plaintiff further avers that all of said defects and dangers were well known to the receiver, or could have been known by the exercise of ordinary care, and that such injuries were the direct and proximate result of appellant’s negligence; that the defects and dangers aforesaid were unknown to plaintiff, or, if plaintiff knew of such defects, still the appellant was not relieved from liability for such injury, because, plaintiff alleged, that a person- of ordinary care would have continued in the service of appellant with knowledge of the said defects and dangers. The defendant pleaded a full and complete settlement, setting out the release in full in its answer, reciting therein that, if plaintiff was injured as alleged, he was not entitled to recover because he and the receiver on the 13th day of March, 1909, made a full and complete settlement of the cause of action based upon a valuable consideration, and that the plaintiff then and there executed and delivered to defendant a release in full. The defendant also pleaded specially that said injury, if any, was caused by the negligence of the said Morrow, or by the negligence of his fellow servant, Weaver, or by the concurring negligence of himself and Weaver, and that he assumed the risk. The plaintiff filed a supplemental petition in which he alleged that, while he executed and delivered the release, there was no valuable consideration therefor, because at the very time thereof plaintiff was employed by the defendant for a term which included one day’s employment, and that defendant had no legal or moral option to terminate said employment because plaintiff had received injuries through defendant’s negligence, and pleaded, further, that such employment by defendant was by virtue of a written contract and agreement between the receiver and the boilermakers and apprentices, and alleged, further, that plaintiff was never out of the service of defendant, or ceased to be an employs, because of such contract between the receiver and the boilermakers and apprentices. The defendant in a supplemental answer pleaded specially that under the contract relied upon by plaintiff no one could be employed having an unadjusted claim against the company, because it was a rifle of the railroad company and the receiver, fully understood and adopted by the plaintiff and all employés, and uniformly followed by the company and the receiver, to the effect that the receiver would not retain in his employment any one having an unadjusted claim, and that he would not promise employment or consider any one as an applicant for employment having such claim against the receiver; that this was true at the time plaintiff was injured; and that plaintiff fully recognized this rule, and made a settlement as set out in the original answer. The case was tried before the court without a jury, and resulted in a judgment for plaintiff for the sum of $5,000, from which the defendant has duly prosecuted this appeal.

Appellant’s first assignment of error is as follows: “The court erred in its second conclusion of law in holding that the defendant was legally bound to continue to employ plaintiff as boilermaker apprentice at the usual rate of pay for a term which included the one day specified in the purported release in full, and in holding that there was no consideration whatever for said release in full, because the undisputed evidence shows that, under all the facts proved, defendant had the right under the aforesaid written contract existing between the boilermakers and apprentices and the defendant to discharge an employé who had received an injury upon his refusal to execute a release for said injuries, and the right of the defendant under the undisputed evidence to refuse to permit plaintiff to continue in his employ unless he did execute a release for his aforesaid personal injuries, and the undisputed evidence further shows that said release was based upon a valuable and adequate consideration.”

The first, second, third, and fourth propositions under this assignment are not germane to, but contradictory of, the assignment, and we are not at liberty therefore to consider them. The fifth proposition is as follows: “Where the undisputed evidence shows that by a rule in vogue for 20 years to the effect that appellant would not permit an employs, upon receiving an injury in the service, to resume work until such employs adjusted his claim for damages and executed a release in full of his said claim for said damages, and where the undisputed evidence shows that appellee executed a release for injuries sustained by him in consideration of ‘re-employment by said receiver of said company at the usual rate of pay for one day, and for such additional time only as may be satisfactory to said receiver of said company,’ said release shows a re-employment for a definite period of time, and is a sufficient consideration to support the release.”

The court upon proper request filed its written findings of fact and conclusions of law. From the fact findings we quote the following:

“(4) On or about the 13th day of March, 1909, the plaintiff signed and delivered to defendant the instrument in writing set out in full in “defendant’s original answer as a ‘Release in Full.’

“(5) When the written instrument set out in defendant’s original answer as a ‘Release in Full’ was signed and delivered by plaintiff to defendant, the plaintiff was in the employment of the defendant as a boilermaker’s apprentice, under a written contract and agreement between defendant and the boilermakers and apprentices in his employ, including plaintiff, based upon mutual and valuable considerations, whereby it was stipulated that plaintiff should serve the defendant as a boilermaker’s apprentice for certain specified compensation and for a definite term, which had not then expired, and, would not expire until long after the ‘one day’ mentioned in said ‘Release in Full,’ and whereby it was expressly agreed that defendant’s boilermaker’s apprentices (including plaintiff) should in no case leave the defendant’s service without just and sufficient cause, and whereby it was further expressly agreed that defendant’s boilermaker’s apprentices (including plaintiff) should not be discharged or suspended without just and sufficient cause, and whereby it was further stipulated that if, after proper investigation, it should be found that any boilermaker’s apprentice had been discharged or suspended unjustly, then he should be reinstated, with full pay, for all time lost.

“(6) It was a custom of the defendant, when plaintiff signed and delivered said instrument termed ‘Release in Full,’ not to permit an employs having an unadjusted claim for damages against him to resume work until such employe signed and delivered what purported to be a release of his claim for damages, and xDlaintiff knew of this custom when he executed the instrument set out in defendant’s original answer.

“(7) Notwithstanding the above custom, the fact that plaintiff had sustained an injury, through defendant’s negligence, for which no release had been given, and which injury did not, at the time, interfere in the least with the proper performance by plaintiff of every duty of his employment by defendant, did not constitute just and sufficient cause for plaintiff’s suspension or discharge.

“(8) The plaintiff was never suspended or discharged from defendant’s service as a boilermaker’s apprentice prior to the execution of the purported ‘Release in Full,’ and plaintiff has never received anything of value from the defendant, save in consideration of labor and services performed, at the price fixed for such services by written agreement between defendant and his boilermakers and apprentices, including plaintiff, and hence there was no consideration for the attempted release by plaintiff to defendant of the cause of action herein suéd upon.”

The second conclusion of law, which is attacked in the first assignment of error, is as follows: “Since the defendant was already legally bound to continue to employ plaintiff as a boilermaker’s apprentice ‘at the usual rate of pay’ for a term which included the ‘one day’ specified in the purported ‘Release in Full,’ and since the defendant’s promise of re-employment for any additional time was entirely optional with the defendant, there was no consideration whatever for the purported ‘Release in Full,’ and the same cannot bar plaintiff’s recovery, and hence judgment will be entered in his favor for $5,000 and all costs.”

The release pleaded by appellant and referred to in the court’s fourth finding of fact and second conclusion of law is as follows:

“Release in Full.

“Whereas, on the 12th day of March, 1909, while employed in the service of Thomas J. Freeman, receiver of the International & Great Northern Railroad Company, at or near Palestine, I received personal injuries which were caused by ‘piece of steel getting into my right eye,’ for which such injuries and the damages resulting to me therefrom, I claim to have a demand against the said Thomas J. Freeman, receiver of the International & Great Northern Railroad Company; and whereas, said receiver of said company will not employ or retain in his employ any one who has any unadjusted claim for damages against him, and will not promise employment to or consider any one as an applicant for employment who has an unadjusted claim against him: Now, therefore, in consideration of re-employment by said receiver of the said company at the usual rate of pay for one day and for such additional time only as may be satisfactory to said receiver of the said company, I do hereby acknowledge full settlement, payment and satisfaction of all claims and demands against said receiver of said company, and do hereby release and discharge said receiver of said company from any and all claims of whatever kind or character X may have on account of or arising from said injuries. To secure this settlement, I hereby represent to said receiver of said company that I rely wholly upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries, disabilities and damages, and that no representations or statements about them, made by the surgeon or agents of said receiver of said company have influenced me in making, or induced me to make, this settlement. No promise or agreement not herein expressed has been made by said receiver of said company, nor by any of his officers, agents or employes. Dated at Palestine, this 13th day of March, 1909. R. E. Morrow.”

The contract between appellant and the boilermakers and apprentices referred to in the court’s fifth finding of fact, and which was in effect at the time plaintiff was injured, in so far as it is material to the question presented by the assignment and proposition under consideration, is as follows:

“International & Great Northern Railroad Company, Locomotive and Car Department.

“The following rules and regulations are issued for the government of the boilermakers and apprentices of the International & Great Northern Railroad Company, effective August 26, 1907:

:f * * * * , *

“Rule 2. No boilermaker or apprentice shall be discharged or suspended without just and sufficient cause. If, after proper investigation, it is found that a boilermaker or apprentice has been discharged or suspended unjustly, he shall be reinstated with full pay for all time lost; the investigation to take place in the presence of the shop committee within five days after such discharge or suspension. The shop committee shall first endeavor to adjust all grievances with the officials of the company at the point where such grievance exists. All grievances that cannot be adjusted locally shall be brought before the management for adjustment by the board of advisers appointed by the boilermakers.”

“Rule 9. One apprentice shall be employed in each shop, irrespective of the number of boilermakers employed, ánd an additional apprentice may be employed for every five boilermakers. An apprentice hereafter engaging himself to learn the trade of a boilermaker shall serve five years. He shall be between the age of sixteen (16) and twenty-one (21) years when employed. He shall in no case leave the service of the company without just and sufficient cause, and shall receive ten cents per hour the first six months and semiannual increases prorated so that at the expiration of his five years’ apprenticeship he shall equal the standard pay of a boilermaker covering the point at which the apprentice is employed. A service letter shall also be given him when he leaves the service, if on account of reduction of force, or if he has served the five years of his apprenticeship. This article to be construed to mean that apprentices employed previous to this agreement may be retained regardless of the number, if given the benefit of this schedule of wages.”

It was shown without dispute that on January 1, 1910, the rules above referred to were changed so that the minimum rate of wages for all boilermakers on said railroad was fixed at 42 cents per hour, and provision was made for each prorated semiannual increases as would make the pay of an apprentice, at the expiration of four years’ apprenticeship, equal the standard of a boilermaker. The cover of these rules and regulations, or contract, is as follows: “Agreement between the International & Great Northern Railroad Company, Thomas J. Freeman, Receiver, and Boilermakers and Apprentices, effective January 1, 1910” — and the same were signed at their conclusion by F. S. Anthony, superintendent of machinery, and H. M. Martin, superintendent, on behalf of the receiver, and by S. R. De Arment, H. W. Naylor, E. D. Woolridge, and J. Short, committee, on behalf of the boilermakers and apprentices, and approved by Thomas J. Freeman, receiver and general manager.

It was shown by the testimony of the plaintiff that the next morning after his injury he went back to work, and his attention was called by his foreman to the fact that before continuing in the service he would have to sign a release, and upon plaintiff telling the foreman he had not signed a release was told by the latter that he had better sign one, and that he then signed the release introduced in evidence, which is the same that is above copied. It was admitted that at the time plaintiff was injured, and for 15 or 20 years before this, and up to the time of the trial, it was a custom of the International & Great Northern Railroad Company, and of the receiver, not to permit an employe having an unadjusted claim for damages against the company or receiver to resume work until such employé signed and delivered what purported to be a release of his claim for damages, and that plaintiff knew of this custom at the time he was injured, and at the time he signed the release in question. After plaintiff signed the release, he resumed his work and continued in the service until about September, 1909.

Appellant contends, in effect, that the signing, of the “Release in Enll” by appellee, for the recited consideration of his employment by appellant for one day “at the usual rate of pay, and for such additional time only as may be satisfactory to the receiver,” was up-’ on sufficient consideration, and that the release was binding upon appellee, and precluded his recovery. On the other hand, appellee contends that the question is not whether the agreement to employ appellee for one day at the usual rate of pay is a valuable consideration, but whether such an agreement is a valuable consideration when the appellant was already legally bound to employ appellee for that same one day — that the appellee having sustained an injury through appellant’s negligence, which injury did not, at the time, interfere in the least with the proper performance of every duty of his employment, this did not and could not constitute just and sufficient cause for appellee’s discharge or suspension under the written contract between the boilermakers and apprentices, which expressly forbade appellee’s discharge or suspension on that account, hence appellant having already employed appellee for a period comprised in the term of his apprenticeship, was legally bound to employ him for such day, and that the pretended employment for one day furnished no consideration for the so-called release. It is urged by appellant, to meet this contention, that at the time plaintiff signed the release there was and for 15 or 20 years before then had been a custom of the railroad company and the receiver not to permit an employé having an unadjusted claim for damages against the company or receiver to resume work until such employé had signed a written relinquishment of such claim; that, this custom being in vogue at the time of the execution of the agreement between the receiver and the boilermakers and apprentices, it must be read into the agreement, and as thus read into it the failure of an employé to release a claim for damages was understood and agreed to constitute just and sufficient cause for his discharge; and that, therefore, the consideration of the employment of appellee for one day at the usual rate of pay was a sufficient consideration for the execution of the release.

We must overrule the contention of appellant in this regard and sustain that of appellee. The agreement does not provide what should constitute a just a-nd sufficient cause for an employé’s discharge. Independently of the custom relied upon by appellant above referred to, his contention, when reduced to its last analysis, is that the negligent act of the receiver proximately resulting in a personal injury to an employé is “just and sufficient cause” for the employé’s suspension or discharge, unless the employé release his claim for the damages sustained by him upon such terms and for such consideration as the employer may voluntarily choose to offer. We cannot subscribe to such a doctrine. Railway v. Greenwood, 2 Tex. Civ. App. 76, 21 S. W. 561; Mudgett v. Texas Tobacco, etc., Co., 61 S. W. 151; Clay, etc., Tel. Co. v. Root, 1 Sad. (Pa.) 485, 4 Atl. 828; 26 Cyc. 989.

Nor can we agree with appellant’s contention that the custom referred to should be read into the agreement between the receiver and the class of employés named. Rather it should be said that this class of employés knowing of the custom of the employer to discharge or refuse to continue in his service employés who might have a claim for damages for personal injuries arising from the negligence of the employer, unless the employé should relinquish such claim, desired to interrupt this custom in so far as it applied to the employés in that department of the seryice, and to that end procured the agreement that no one of their number should be discharged without just and sufficient cause. The appellee proved an express contract which needs no extrinsic aid for its interpretation, and which forbade appellee’s suspension or discharge except for just and sufficient cause, and which, in our opinion, forbade his suspension or discharge for refusing to release his claim for damages caused by the master’s delinquency. In such case it seems to be well settled that the contract must prevail over a contrary custom. Orient Mutual Ins. Co. v. Wright, 1 Wall. 456, 17 L. Ed. 505; Baltimore Baseball Club v. Pickett, 78 Md. 375, 28 Atl. 279, 22 L. R. A. 690, 44 Am. St. Rep. 304; Camp v. Baldwin-Melville Co., 123 La. 257, 48 South. 927; Stovall v. Gardner, 103 S. W. 406; 12 Cyc. 1094, 1095, and note 82.

Here we have an express contract safeguarding the servant’s employment for five years. against discharge for any cause that is not just or sufficient By means of custom an additional cause is sought to be introduced, to wit, the servant’s refusal to surrender to the master a cause of action arising out of the master’s tort, on terms of the master’s dictation; and this additional cause of discharge is both inconsistent with and contrary to the express contract in that it is manifestly unjust and insufficient. The law which governs on this point is so well expressed by Justice Miller of the United States Supreme Court, in the case of Orient Mutual Ins. Co. v. Wright, supra, we cannot forbear taking the following excerpt therefrom: “When we have satisfied ourselves that the policy is susceptible to a reasonable construction on its face, without the necessity of resorting to extrinsic aid, we have at the same time established that usage or custom cannot be resorted to for that purpose. In speaking of usage of trade, Greenleaf says (Ev. vol. 2, § 251): ‘Their true office is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature of their contracts arising not from express stipulation, hut from mere implications and presumptions, and acts of doubtful and equivocal character, and to fix and explain the meaning of words and expressions of doubtful and various senses.’ Again he says (1 Greenleaf, Ev. § 292): ‘But, though usage may be admissible to explain what is doubtful, it is not admissible to contradict what is plain.’ In the case of The Reeside, 2 Sumn. 567, Mr. Justice Story, after using language strongly condemning the tendency to introduce and rely on usages in courts of justice, and defining their true office in the language just cited from Greenleaf, proceeds to say: ‘But I apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and a fortiori, not in order to contradict them. An express contract of the parties is always admissible to supersede or vary or control a usage or custom; for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or contradicted by a usage or custom, for that would not only be to admit parol evidence to control, vary, or contradict written contracts, but it would be to allow mere presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary, or contradict the most formal and deliberate written declarations of the parties.’ These views, in addition to the high source whence they come, commend themselves to our judgment by their intrinsic soundness. ‘Not only is a custom inadmissible, which the parties have expressly excluded, but it is equally so if the parties have excluded it by necessary inplieation. For a custom can no more be set up against the clear intention of the parties than against their express agreement, and no usage can be incorporated into a contract, which is inconsistent with the terms of the contract. 2 Pars. Con. 59; Bliven v. N. E. Screw Co., 23 How. (64 U. S.) 431, 16 L. Ed. 513; Atkins v. Howe, 18 Pick. (Mass.) 16; Bogert v. Cauman, Anth. N. P. (N. Y.) 70; Allegro v. Md. Ins., 2 Gill & J. (Md.) 136, 20 Am. Dec. 424. Tested by these principles, the usage attempted to be set up in the case at bar cannot be sustained. It contradicts, directly, the written contract. It proposes to set aside all that is said about the rate of premium, and substitute the discretion of one of the parties to the instrument. It goes upon the assumption that all that is written in the contract, which fixes, or ascertains, or limits the amount that may be claimed for premium of insurance by the company is nugatory, and that the whole field is left open, and the power placed in the hands of one of the parties exclusively. No such usage can be admitted thus to contradict, vary or control this contract.” If .custom then be allowed to prevail over the agreement or to aid in its construction, then we would have the following anomalous condition: The express agreement requires that all boilermaker’s apprentices employed subsequent to its date must be hired for five years, and those previously employed must be retained for five years, and that they should not be discharged without just and sufficient cause, while, on the other hand, custom makes an exception of an apprentice who refuses to surrender his claim for damages against the master, although the claim arises on the master’s tort; for under this custom his subsequent continuance in the service is not for a certain term, and not until some just and sufficient cause for his discharge arises, but becomes terminable at once upon his refusal to sign a release, or, if he sign one, becomes then by the terms of the release itself terminable at the will of the master after one day’s service. Other inconsistencies and contradictions between the agreement and custom could be pointed out, but we think that already suggested is sufficient to show that to permit the custom to control the contract would be to defeat the contract itself, and to nullify the evident object and intention of the parties in making it.

Under the agreement referred to the appellant had obligated itself to retain appellee in his service until the latter had completed his apprenticeship unless for some good and sufficient cause the appellant should sooner terminate his employment; and appellee by the terms of the agreement obligated himself to remain in the service for such length of time, unless for good and sufficient cause he should determine to quit. This being the reciprocal obligations of the parties, the refusal of appellee to sign the release would not have been a good and sufficient cause for his discharge, nor did it in any way affect his right, under the agreement, to continue in the service of appellant, and therefore the release of appellant’s liability to him, based upon a consideration of one day’s employment at the usual pay, was without a valuable consideration, and voidable.

But, independently of all the foregoing considerations, we think that the purported “Release in Full,” relied upon by appellant to defeat a recovery by appellee, was not supported by a valuable consideration, and could therefore be avoided by appellee. The recited consideration was his re-employment by the receiver at the usual rate of pay for one day, and for such additional time only as may be satisfactory to the receiver. Releases based upon similar considerations have been reviewed by our appellate courts. In Quebe v. Railway, 98 Tex. 6, 81 S. W. 20, 66 L. R. A. 734, 4 Ann. Cas. 545, the consideration for the release was $1, and employment for one day, and for such further time and in such capacity as might be satisfactory to the railway company, and it was .there held that the consideration was a valuable and legal one, though small. It was shown that the dollar mentioned as a part of the consideration was in fact paid. But in Railway v. Smith, 98 Tex. 47, 81 S. W. 22, 66 L. R. A. 741, 107 Am. St. Rep. 607, 4 Ann. Cas. 644, the recited consideration for a release was the “re-employment by said company for such time only as may be satisfactory to said company.” The district court had instructed the jury peremptorily that the release was without consideration, and in passing upon a question raised by the giving of this charge, our Supreme Court held, first, that “when the release was executed there was no promise on the part of defendant to re-employ plaintiff at all, nor any other consideration to support plaintiff’s promise, and hence no contract binding on either party arose”; and, second, that since defendant upon employing plaintiff could, under the right expressly reserved, have discharged him at once, without violating any agreement, the actual employment and payment of wages for some time thereafter did not supply the consideration which was originally lacking.”

We have not found, nor has our attention been called to, any ease where the consideration for a release of a claim for damages is the same as that in the release under consideration. We think, however, that that in the Smith Case is more nearly like this than in the general run of cases where the consideration, or rather the want of it, is called in question. The Supreme Court refused to extend the principle of the Quebe Case to sustain Smith’s release, and we cannot extend it to'sustain the release at bar. In view of the evidence it cannot be logically asserted, we think, that the plaintiff, Morrow, had been really discharged or suspended, and it follows from this that there was no real reemployment. The promise to pay the usual rate of wages for one day cannot support more than the promise to perform work for one day equal in value to that day’s wages, and' any additional benefit promised in return for such one day’s employment for the usual wages of one day must be held to be a pure gratuity. We think the consideration stated in the release, if not fictitious, was nominal merely, and not sufficient to support a contract for the surrender of plaintiff’s cause of action for his injuries growing out of appellant’s negligence. The assignment is overruled.

What we have said in disposing of the first assignment disposes also of the second, sixth, seventh, and eighth adversely to appellant’s contention.

The third assignment complains of the court’s finding of fact to the effect that plaintiff at the time of his injury exercised such care for his- own safety as- an ordinarily prudent person would have exercised in the same circumstances. In disposing of this assignment we think it is sufficient to say that we have carefully examined the evidence and are of the opinion that the evidence warranted such a finding. The assignment is overruled.

We are also of the opinion that the evidence in the record warranted the court in finding as a fact that the appellant’s negligence in furnishing plaintiff and his coem-ployé, Weaver, an unsafe and defective little Giant motor, without reasonably safe appliances for the removal of a reamer therefrom, was the proximate cause of plaintiff’s injury, and appellant’s fourth and fifth assignments attacking this finding are overruled.

We find no reversible error in the record, and.the judgment of the court below is affirmed.

Affirmed.


author: CONNER, C. J.

text:
    MITCHELL et al. v. INMAN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 8, 1913.)
    1. Insane Persons (§ 61) — Vendor and Purchaser (§ 239*) — Validity oe Conveyances — Bona Fid® Purchasers.
    A conveyance by an insane person is not void, but merely voidable, and the fact that the grantee did not know of the insanity of his grantor does not validate the deed, nor does the fact that the conveyance was obtained without fraud and for an adequate consideration prevent an avoidance thereof, nor the fact that the property has passed into the hands of an innocent purchaser.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 93-99; Dec. Dig. § 61;* Vendor and Purchaser, Cent. Dig. §§ 583-606; Dee. Dig. § 239.]
    2. Insane Persons (§ 29) — Inquisition-Restoration to Sanity — Conclusiveness.
    A judgment reciting a person’s restoration to sanity is conclusive only of his status at the time the judgment was rendered.
    [Ed. Nóte. — For other- cases, see Insane Persons, Cent. Dig. §§ 42, 140, 150; Dec. Dig. § 29.]
    3. Evidence (§ 67) — Presumptions — Continuance of Sanity.
    Sanity once shown to exist will be' presumed to continue, unless the contrary is established.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. § 67.]
    4. Deeds (§ 196) — Action to Cancel Conveyance-Burden of Proof.
    In an action to cancel a conveyance made by a power of attorney on the ground that the grantor was not of sound mind, where the defendants introduce a judgment restoring plaintiff to sanity previous to a certain conveyance, the burden is upon the plaintiff to show that he thereafter became insane, and was insane at the time he executed the power of attorney.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 587-593, 649,; Dec. Dig. § 196.]
    5. Evidence (§ 332) — Documentary Evir .denge — Judicial Records.
    A document purporting to be a judgment of the- county court certified by the clerk thereof as a true and correct copy of the order entered on the lunacy docket in a certain cause styled state of Texas against plaintiff, whereby he was adjudged insane and ordered to be conveyed to an asylum, was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1237-1246; Dec. Dig. § 332.]
    6. INSanb Persons (§ 26) — Inquisition— Order — Presumptions.
    Where the county court has general jurisdiction in insanity inquisitions, it will be presumed upon introduction of an order adjudging plaintiff insane that facts existed which authorized its rendition and entry, so that it was not necessary that it recite the facts conferring jurisdiction on the court.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 35, 36; Dee. Dig. § 26.]
    7. Evidence (§ 116) — Showing Entire Conversation or Transaction.
    Where defendants in an action to cancel a conveyance on the ground of plaintiff’s insanity at the time of its execution attacked the credibility of .witnesses, a husband and wife who had both signed the conveyance executed by plaintiff’s attorney, and drew out the husband’s statement that' the attorney threatened to have the wife sign it or call plaintiff up and have him sent back to the asylum, the wife’s statement that the grantee and the attorney both acknowledge "that plaintiff was going crazy was substantially to the same effect as that of the husband, and was admissible as another part of what was done and said at the time.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. § 116.]
    S. Trial (§ 252) — Instructions — Conformity to Evidence.
    In an action to cancel a conveyance on the ground of the grantor’s insanity at the time of its execution by his attorney, where the evidence failed to Show that any part of the consideration received for the land ever went for necessaries for the lunatic, a requested instruction that if plaintiff had received any part of the consideration, and expended it for necessaries, he could not recover unless he tendered back such amount, was properly refused, as not being Within the issues raised by the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    9. Cancellation of Instruments (§ 59)— Relief — Restoration of Proceeds.
    In an action to cancel a conveyance on the ground of the grantor’s insanity at the time of its execution, the court may grant the relief sought by requiring the payment of such part of the consideration, if any, as was expended for necessaries for the grantor.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 119-125; Dec. Dig. § 59.]
    Error from District Court, Clay County; P. A. Martin, Judge.
    Action by J. C. Inman, by guardian, against J. B. Mitchell and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    R. E. Taylor, of Henrietta, Sidney L. Samuels and Theo. Mack, both of Ft. Worth, for plaintiffs in error. Templeton & Agerton, of Ft. Worth, for defendant in error.

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

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

   CONNER, C. J.

Defendant in error, alleged to be non compos mentis, through his guardian, instituted this suit to recover two surveys of land in Clay county, each containing 320 acres, and to cancel a power of attorney made by J. C. Inman to W. J. Inman and a deed by virtue thereof to one J. H. Warren, and a later deed of confirmation made by J. C. Inman to Warren purporting to convey the lands. Plaintiff in error J. B. Mitchell answered, alleging that he was a purchaser of the land in controversy for value and without notice of the alleged incompetency of J. C. Inman. E. T. Ustick answered with a like plea, claiming to be the owner without notice of a certain mortgage upon the lands made by J. II. Warren, which had been given to secure a loan of $2,500. After giving a legal test of the mental capacity necessary to make a valid and binding deed or power of attorney relating to land, the court submitted the case upon a single issue, as will be evident by the second and third clauses of the court’s charge, which read:

“(2) Therefore, if you believe from the evidence before you that at the time of the execution of the power of attorney given by J. 0. Inman to W. J. Inman dated December 17, 1908, and at the time of the execution of the deed made by J. C. Inman to J. H. Warren, dated February 16,1910, that the said J. C. Inman had not the mental capacity to make a valid and binding instrument, as such capacity is above explained, you will find a general verdict for the plaintiff.

“(3) If, on the other hand, you believe from the evidence that at the time of the execution of either of said instruments the said J. G. Inman had sufficient mental capacity to execute the same, as such capacity is explained in the first subdivision of this charge, .then you will find a verdict for the defendants.”

The verdict and judgment were in favor of the defendant in error, and plaintiffs in error present the ease for revision.

Error is first assigned to the action of the court in sustaining exceptions presented to the pleas of innocent purchase set up by plaintiffs in error, the contention being that the deed of an insane person is voidable only, and that, therefore, one purchasing under such voidable title without notice and for value will take full title as against a remote insane vendor, as defendant in error was alleged to be. As alleged, and as indeed shown by the evidence, J. O. Inman executed to W. J. Inman, his brother, on December 17, 1908, a power of attorney sufficient in terms to authorize the conveyance of the lands in question; that by virtue of such power of attorney W. J. Inman on October 25, 1909, assuming to act under the power of attorney, conveyed the lands by general warranty deed to the defendant J. II. Warren, who thereafter on February 16, 1910, induced J. G. Inman to execute a quitclaim deed for a recited consideration of $10,000. It was further alleged in the pleas of innocent purchase that the land was later conveyed by Warren to one Legan and by Legan to one Luallin, from tbe latter of whom plaintiff in error Mitchell purchased on August 13, 1910, paying an adequate consideration therefor without notice of the alleged fact of J. O. Inman’s unsoundness of mind at the time of the execution of the power of attorney and deed made by him.

Our Supreme Court upon certified question in the case of Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115, expressly held that a power oi; attorney by one of unsound mind and a conveyance of land by virtue thereof was not void, but merely voidable. The further effect of the decision, however, is undoubtedly that in this state such conveyances may be avoided by a person of unsound mind, unless precluded by circumstances not shown in this ease. It is said by the author of 22 Cyc. p. 1171, par. C, that: “A lunatic cannot bind himself absolutely by a conveyance of his property, and the fact that the grantee was not aware of the insanity of the grantor does not validate the deed.” The same author on page 1174 of the same volume says: “The facts that a conveyance from an insane person was obtained without fraud, and was based on an adequate consideration, do not prevent an avoidance thereof; neither does the fact that the property conveyed by an insane person has passed into the hands of an innocent purchaser.” Numerous authorities are cited in support of the text which we think announce the rule in effect affirmed by our Supreme Court in the case cited. It follows, we think, that no error was committed by the court in striking out plaintiffs in error’s pleas of innocent purchase, as complained of in the first assignment, nor in giving the special charge objected to in the second assignment of error which was to the effect that J. B. Mitchell and E. T. Ustick could acquire 'from their grantors, respectively, no better title to the land in controversy than said grantors had acquired from J. C. Inman, and that, therefore, the defendants’ pleas of innocent purchase should be disregarded. Such pleas could constitute no defense in event J. C. Inman was in fact insane at the time he made the instruments already mentioned.

Plaintiffs in error’s third assignment is as follows: “The court erred in refusing to give to the jury these defendants’ special charge No. 2, which was as follows: ‘Gentlemen of the jury, in this case the defendants, Mitchell and Ustick, have offered in evidence a judgment of the ■ county court pi Olay. county, Tex., dated the 19th day of December, A. D. 1907, restoring J. C. Inman to his rights as a sane man, and you are instructed that after the rendition of such judgment the presumption is that J. O. In-man was a- person of sound mind, and, before you can find for the plaintiff, you must find that the plaintiff has proven by a preponderance of evidence that the said J. C. Inman thereafter became insane, and was insane at the time of the execution of the power of attorney in question, and unless you so find you will find for the defendants, Mitchell and Ustick.’ ” A judgment as recited in the special charge quoted was read in evidence, and plaintiffs in error insist that they had the right to rely implicitly upon such judgment as establishing' J. C. Inman’s sanity. We think it must be held, however, that the judgment was conclusive only of J. O. Inman’s status at the time the judgment was rendered. True, the condition of mind thus fixed would be presumed to continue until the contrary be established, yet the presumption would have no greater force than the presumption of soundness of mind indulged in every case where the question is pertinent. The presumption is by no means conclusive. It may be rebutted by proof, the material question being, Was the person of sound mind at the very time of' the transaction under consideration and the issue was thus expressly presented by the court? Indeed, a different interpretation of the law is not presented by the special charge. It was therein merely directed that after the rendition of the judgment the presumption was that J. G. Inman was of sound mind, and that the verdict should be for the defendants, unless the plaintiffs had proven by a preponderance of the evidence that J. G. Inman thereafter became insane, and was insane at the time of the execution of the power of attorney in question. The court’s charge fully presented this view, the jury being instructed in addition to what has been before quoted that: “The burden of proof is upon thé plaintiffs to show that J. C. Inman was insane at the time he executed the instrument involved in this suit by a preponderance of the evidence, and, unless he has done so, you will find for the defendant.” Plaintiffs in error’s third assignment is accordingly overruled.

Upon the trial the plaintiff introduced a document duly certified to by the county clerk of Denton county, Tex., which reads as follows: “No. 50. Lunacy. The State of Texas v. J. C. Inman. In term time October 23rd, 1891, defendant adjudged insane and ordered to be conveyed to the asylum at Terrell, in Kaufman county, Texas, for restraint and treatment.” Plaintiffs in error insist under the fourth assignment that this document is not a judgment of the court, but merely a conclusion of the clerk? that it does not state such facts as authorized its introduction in evidence, but is purely an ex parte or hearsay statement made by the clerk, and that it does not undertake to set forth the domicile of J. 0. Inman. We think these objections, however, are untenable. The order purports to be a judgment of the court, the certificate of the clerk being in due form, and merely that the document “is a true and correct copy of the order entered on tlie lunacy docket of the county court of Denton county in lunacy cause No. 50, styled State of Texas v. J. C. Inman, as appears, on page 194 of said docket.”

Nor is it necessary to the validity of the order that it should recite the fact conferring jurisdiction upon the court that entered it. The county court of said county had general jurisdiction over . the subject-matter, and it must be presumed in this proceeding that the facts existed which authorized its rendition and entry. The fourth assignment is, accordingly, overruled.

Plaintiffs in error in the fifth assignment object to the testimony of Mrs. P. G. Wade, who is the sister of J. C. Inman, and who together with her husband joined in the deed made by W. J. Inman to J. H. Warren on October 25, 1909, to the effect that, at the time that she so joined in the execution of the deed to Warren, Warren and W. J. In-man induced her to sign the same by stating that the instrument was a: “deed of trust; that they acknowledged — both of them — that Jim (J. C. Inman) was going crazy.” The testimony was objected to for the reason “that it was not in rebuttal of any question asked; that it was hearsay; and because it was a declaration of other parties made and done in the absence of plaintiffs in error Mitchell and Ustick, without their knowledge and consent, and without its having been shown that they were connected with the conversation or transaction, or had any notice, actual or implied.” We are of opinion that no reversible error has been shown. It further appears that this witness and her husband had both been examined in chief by the defendants in error, Mrs. Wade testifying to circumstances and giving her opinion that J. C. Inman was of unsound mind at the times involved in the controversy. It further appears that upon the cross-examination of P. G. Wade, the husband, the deed was exhibited to him, and he was asked if he did not sign same, and if his wife had not signed the same, and had not duly acknowledged it as appeared in the certificate of the notary, and the witness answered that he had signed the deed, and that his wife had done so, but that it was represented to them as a deed of trust by Warren and W. J. Inman, and that “John (W. J. Inman) got her (Mrs. Wade) to believing that it was a deed of trust — she never read it. John threatened to have her sign it or throw Jim (J. C. Inman) up and have him sent back to the asylum.” It seems evident that an attack upon the credibility of Mr. and Mrs. Wade was thus made by plaintiffs in error, and that, they having introduced a part of what was said and done at the time, all that was then said and done on the same subject was admissible. The bill of exception fails to show an objection to the specific statement made by Mrs. Wade that “they (Warren and W. J. Inman) acknowledged — both of them— that Jim (J. 0. Inman) was going crazy.” On the contrary, the objections in the bill relate to all that Mrs. Wade was permitted to testify, part of which was clearly admissible in view of the cross-examination on the part of plaintiffs in error of the husband, P. G. Wade. Moreover, the statement of P. G. Wade which was clearly drawn out by plaintiffs in error that “John threatened to have her sign it or throw Jim up and have him sent back to the asylum” was, we think, substantially of the same effect as the statement of Mrs. Wade which would, if standing alone, seem clearly objectionable. On the whole, under the circumstances stated, we think the assignment raising the question (the fifth) must be overruled.

The only remaining assignment questions the action of the court in refusing to give a special charge to the effect that if J. O. Inman received any part of the money received by W. J. Inman upon the execution of the conveyance to Warren, and that the same had been spent upon him for necessaries, the verdict should be for the defendants “unless he (J. 0. Inman) has tendered back such amount, if any, as may have been expended on him for necessaries, if any.” We do not think the evidence raised the issue so sought to be sustained. The only testimony on the subject was that of W. J. Inman. He testified, in substance, that he had received the $2,500 for which the land was conveyed to Warren; that of this amount “J. 0. Inman got about $100 of it, and $110 was paid to cover a draft J. 0. Inman signed as indorser.” W. J. Inman further testified that he paid out of the $2,500 “about $700 on a judgment against his brother, J. C. Inman, and himself jointly.” The evidence is otherwise undisputed to the effect that at the date of the trial J. C. Inman had nothing, and the evidence quoted clearly fails to show, as we think, that any part of the consideration received for the land ever went for necessaries to the lunatic. It is certain that he received nothing that ever proceeded from the plaintiffs in error, and the character of the judgment paid or of the note upon which J. C. Inman was indorser, if any, does not appear, nor does it appear by virtue thereof that any lien upon the land had ever been acquired by any person, or had been discharged by W. J. Inman’s payments. Moreover, it would not be true as a legal proposition that the verdict should have been for the defendants “unless he (J. C. Inman) has tendered back such amount, if any, as may have been expended on him for necessaries, if any.” It is undisputed that no such tender was made, and the court might nevertheless have granted the relief sought by requiring the payment of such small part of the consideration, if any, as was proven to have been expended for necessaries for J. 0. Inman.

We conclude that all assignments of error must be overruled, and the judgment affirmed.


author: HALL, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. SCOTT.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 12, 1912.
    Rehearing Granted April 12, 1913.)
    1. Appeal and Error (§ 743) — Assignments op Error — Reference to Record .
    Assignments of error which make no reference to the pages of the record may not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Appeal and Error (§ 1040) — Harmless Error — Pleading—Exceptions.
    On an appeal from a justice’s court in an action for damages sustained in connection with a shipment of cattle, the overruling of an exception to the petition because it did not separately show the amount claimed because of a decline in the market, loss in weight, and depreciation in value was not reversible error, where it was not shown that because of such action defendant failed to procure testimony which it might otherwise have procured, or was deprived of any substantial right.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    3. Justices op the Peace (§ 174) — Appeal-Pleading.
    Technical rules of pleading do not apply to causes originating in and appealed from the justice’s court.
    i[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.]
    4. Evidence (§ 445) — Parol Evidence — Carriage op Live Stock.
    In an action against a carrier for damages sustained in connection with a shipment of cattle, the admission of evidence as to a conversation between the shipper and defendant’s yardman relative to unloading the cattle for feeding and watering was not error, on the ground that it varied the written contract of shipment, which provided that the shipper should assume all risks and expenses in feeding and watering the cattle, especially where defendant attempted to show that the cattle were properly fed and watered, since defendant could waive that provision of the contract, and, if it did so and was guilty of negligence in connection with the feeding and watering, it would be liable.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.]
    5. Carriers (§ 154) — Limitation op Liability-Consideration.
    Provisions in a contract of shipment limiting the carrier’s liability, and requiring notice of injury as a condition precedent to any action, which the contract recited were in consideration of the reduced rate charged for the shipment, would be disregarded, where the evidence failed to show that the rate was less then the regular tariff rate.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 641-645, 667; Dec. Dig. § 154.]
    6. Carriers (§ 132) — Injuries to Freight-Actions — Burden op Proof.
    The Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]) to the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]) re-established the common-law rule that, when freight is delivered to a carrier in good condition and reaches its destination in bad condition, the presumption of negligence arises, throwing the burden on the carrier of exonerating itself .from, liability.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dec. Dig. § 132.]
    7. Carriers (§ 218) — Carriage op Live Stock — Limitation op Liability.
    Under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]) to the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]), a carrier of live stock, subject to the exceptions which would relieve a carrier from liability at common law, is an insurer of the animals, and therefore a provision of a contract of shipment that the shipper assumed all risk and expense of feeding and watering and otherwise caring for the live stock while in cars, yards, pens, or elsewhere, and should load and unload them at his own expense, was void.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.]
    8. Trial (§ 252) — Instructions — Applicability to Evidence — Carriage op Live Stock.
    In an action against a carrier for damages caused by delay to a shipment of cattle, the refusal of an instruction that, if the cattle were unloaded at C. in obedience to the federal law forbidding the keeping of live stock on cars longer than 28 hours without unloading them for at least five hours, the necessary and proper time for unloading and re-loading should not be considered, was not error where the evidence did not show that they .were unloaded in order to comply with the federal law, but did show that they were kept at C. more than 15 hours, and that the shipment was about 60 hours in transit, although the usual time for making the trip was from 48 to 50 hours, which included the necessary time for compliance with the federal law.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    9. Appeal and Error (§ 1170) — Review-Harmless Error.
    A judgment will not be reversed for technical errors where substantial justice h'as been done.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from Oldham County Court; T. B. Jones, Judge.
    Action by'John Scott against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Gustavus & Jackson, of Amarillo, and N. H. Lassiter and Robt. Harrison, both of Ft. Worth, for appellant. Veale & Davidson, of Amarillo, for appellee.

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

   HALL, J.

John Scott instituted this suit against appellant Railway Company in the justice court of Oldham county, Tex., April 8, 1911, to recover $150 damages, growing out of a cattle shipment from Vega, Tex., to Kansas City, Mo., the shipment alleged to have been made about October 1, 1910. Upon a trial in the justice court judgment was rendered for plaintiff Scott for the amount claimed and costs of suit. Appellant herein by appeal removed the case to the county court of Oldham county, and in that court moved to dismiss the cause because no claim or demand was ever lodged with the justice of the peace, nor any oral pleadings made before him stating the cause of action. This motion was overruled, and plaintiff then filed a petition setting out his claim, based upon negligent delay, failure to feed and water the cattle properly, and unreasonably and unnecessarily holding the cattle in the pens at Caldwell, Kan.

The defendant answered by general and special demurrers, general denial, and specially that the shipment was made under a written contract, pleading specially some of its provisions as follows:

First. The provision limiting the liability and duty of each carrier to its own line.

Second. That in fixing and guaranteeing through rates to a point beyond its own line the appellant acted only as agent for the connecting lines, and limiting its liability for injuries or loss to such as occurred upon its own line.

Third. That the live stock covered by the contract were not to be transported within any special time, nor delivered at destination in any particular hour, nor any season for any particular market value.

Fourth. Exempting the carrier from liability for loss or damage arising from overloading, crowding, or other accidents or causes, unless the injuries should be the direct results of negligence on the part of the carrier.

Fifth. Providing that the shipper shall assume all risk and expense of feeding, watering, bedding, and otherwise caring for the live stock while in the cars, yards, pens, or elsewhere, and that the shipper should load and unload the same at his own expense and risk.

Sixth. That as a condition precedent to claiming or recovering damages for any loss or injury to detention of live stock or delays in transportation thereof, covered by the contract, the shipper should as soon as he discovered such loss or injury promptly give notice thereof in writing to some general officer, claim agent, or station agent of the carrier or to its agent at destination or some other general officer of the delivering line before such stock is removed from the point of shipment or from the place of destination, and before it is mingled with other stock, such notice to be in writing, and in any event served within one day after the delivery of the stock at its destination, and that a failure to strictly comply with this provision should bar the recovery of any and all such matters.

Seventh. That the contract provided that it should be performed in the state of Missouri, and the rights ■ and liabilities of the parties arising thereunder would and should be governed by the laws of said state; that under the laws of the state of Missouri such provision is binding and enforceable by a railway company, and the failure of a shipper to comply therewith is .a bar to an action for damages.

Eighth. That as a condition precedent to the bringing of any suit for damages, for any loss or injury to the person or persons or property covered by this contract, the claimant shall give notice in writing to some general officer, claim agent, or station agent not later than 90 days after the date of the loss or injury claimed, and a failure to strictly comply with this provision shall be a bar to recovery of any and all damages occasioned to the person or persons or property embraced in the contract.

Upon a trial in the county court judgment was rendered in favor of the plaintiff for the sum of $150 principal, $15.37 interest, together with costs of suit. At a former day of this term, this judgment was affirmed upon oral opinion, since which time appellant has filed his motion for rehearing, and a request that we file findings of fact and conclusions of law, and in deference to said motion we will discuss such of the assignments of error as are presented' in accordance with the rules.

Appellant’s assignments Nos. 1, 3, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, and 17 make no reference to the pages, of the record, and some of them are in other respects defectively prepared and briefed, and will not be considered.

The second assignment of error submitted in appellant’s brief assails the action of the county court in overruling defendant’s third special exception to plaintiff’s petition. This exception attacked the petition because it was not sufficiently specific in the claims for decline in the market, loss, in weight, and depreciation in value, and did not show the amount claimed for each of these different injuries. It appears from the record that appellee’s claim for damages'on account of decline in the market was abandoned. No-evidence was offered upon that issue, nor was it submitted to the jury. It has been often held, and without dissent, that technical rules of pleading do not apply to causes originating in and appealed from the justice court. In G., C. & S. F. Ry. Co. v. Hutcheson & Carrington, 3 Willson, Civ. Cas. Ct. App. § 96, we read: “Appellant excepted to the statement of appellee’s cause of action because it did not show how and in what , manner appellant was liable for services rendered the Central & Montgomery Railroad Company. This exception was~overruled. Held that the ruling was correct. In justice court pleadings any such case may be oral. Plaintiffs were entitled to prove the facts which would entitle them to recover against defendants without lodging those facts in a written pleading, and the same rule obtained in the county court on appeal to that court.” In I. & G. N. R. Co. v. Pool, 24 Tex. Civ. App. 575, 59 S. W. 911, Collard, justice, said: “The assignment addressed to the failure to plead negligence by plaintiff is not well taken, but apart from this the rules of pleading governing courts of record do not apply in this kind of suit that obtain in courts of record. Ry. Co. v. Donalson, 2 Willson, Civ. Cas. Ct. App. § 239. Pleadings in justice court are oral, and are not subject to the same restriction. Brunswig v. Kramer, 2 Willson, Civ. Cas. Ct. App. § 804. A brief statement on the docket is sufficient. Moore v. Jordan, 67 Tex. 394, 3 S. W. 317; Railway Co. v. Wright, 2 Willson, Civ. Cas. Ct. App. § 339; Railway Co. v. Hutcheson, 3 Willson, Civ. Cas. Ct. App. § 96. When a case is appealed from the justice court to the county court, the rules of pleading are hot changed. They are still oral. Whitley v. Jackson, 1 White & W. Civ. Cas. Ct. App. § 576; Henry v. Blasco, 1 White & W. Civ. Cas. Ct. App. § 765. So, if it were necessary to allege negligence in a court of record to hold a common carrier liable for damages to a shipment while in transit, it would not be required in a court of justice of the peace nor in the county court on appeal from the former.” Brown, Justice, in Rector v. Orange Rice Mill Co., 100 Tex. 591, 102 S. W. 402, after quoting article 1603, Revised Statutes of 1895, said: “The effect of the article is that no rule is prescribed, except that the statement which may be made by the parties shall be oral, and may be entered by the justice of the peace op his dockets. Our courts have uniformly held that the form in which a party to a suit in a justice court may state his cause of action or ground of defense is of no importance. An examination of the cases cited below will sustain the proposition that if from all that is stated, written and oral, the court can ascertain what right the plaintiff asserts, or what defense the defendant interposes, the pleading will be held sufficient.” As further sustaining pur position upon this assignment, we cite Batla v. Goodell, 53 Tex. Civ. App. 178, 115 S. W. 622; Etheridge v. S. A. & A. P. Ry. Co., 39 S. W. 204, and reiterate what was said by this court in Amarillo Commercial Co. v. C., R. I. & G. Ry. Co., 140 S. W. 377.

Appellant nowhere shows that it has been injured by the failure of the county court to sustain its special exception. We are told that it failed to procure testimony which it might otherwise have procured, or that it has been ■ deprived of any substantial right whatever, by failure of the court to require appellee to itemize and specifically set out the amount of damages claimed by him. The contention is simply that the court failed to sustain a'special exception, which might have been good had the suit been filed in a court of record.

Under the fourth assignment, it is insisted that the court erred in permitting the plaintiff to testify that when the train reached Caldwell, Kan., and was stopped in the yards, he, with others accompanying the shipment, went- upstairs to an office where they were directed to find the yardman; that the purpose of seeing the yardman was to give instructions about feeding and watering the cattle as they understood they were to Be unloaded at that place; and that he, plaintiff, told this man that he wanted his cattle fed and watered, and gave him instructions about feeding and watering them, and he said he would do so. The objection urged to this testimony was that the plaintiff had alleged that a receipt or bill of lading had been issued by the defendant; that defendant had expressly pleaded that term of the contract, which was that plaintiff should assume all risks and expense of feeding, watering, and caring for the live stock while in the cars, yards, pens, or elsewhere, and should load and unload the same at his own expense and risk, and that the testimony proffered tended to vary and alter the terms of the written contract, and was irrelevant, immaterial, and incompetent for any purpose whatever. There was no error committed by the court in overruling these objections. The particular clause relied upon in the contract is; “That the second party (shipper) shall assume all risk and expense of feeding, watering, bedding, and otherwise caring for the live stock covered by this contract while in the cars, yards, pens, or elsewhere, and shall load and unload the same at his own expense.” We know of no rule which would prohibit the carrier from waiving that or any other term of the contract if it saw fit to do so, and the proof shows that in this case the yardman assumed the duty of feeding and watering the cattle, and, if in doing so he was guilty of any negligence, appellant would be liable therefor. Appellant also upon the trial undertook to justify the alleged acts of negligence by introducing its witnesses to show that the cattle were properly fed and watered.

In the motion for rehearing appellant specially calls the attention of the court to the following cases: Adams Express Company v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. -, C., St. P., M. & O. Ry. Co. v. Latta, 226 U. S. 519, 33 Sup. Ct. 155, 57 L. Ed. -, and C., B. & Q. Ry. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. -, recently decided by the Supreme Court of the United States, as bearing upon the question here submitted; and also to the more recent case of M., K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. -. These cases all construe what is known as the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]) to the Interstate Commerce Commission Act (Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]). The case of Harriman Bros, decides that the valuation named in the shipping contract, signed by the shipper, is as much an agreed valuation within the Carmack Amendment as if the shipper had stated the value on inquiry, and that there is nothing in the Carmack Amendment which forbids the shipper and the interstate carrier to enter into a contract limiting the carrier’s liability to an agreed value. The case further holds that the stipulation in such a contract that an action must be brought within 90 days is valid. The Croninger, Latta, and Miller Cases merely announce the same doctrine. None of these eases are applicable to the issues presented by this appeal. If there was any agreed valuation in the contract sued upon, that clause of the contract has not been urged either in the court below or brought forward in the assignments of error on appeal.

There is a provision in the shipping contract, which is as follows: “That for the consideration and mutual covenant and conditions herein contained, the said first party will transport for the said second party the livestock described below and the parties in charge thereof as hereinafter provided, viz.: two cars said to contain-head of cattle from Yega station to Kansas City station, consigned to F. W. Witherspoon, at the rate of-, per-, from-, to-, subject to minimum weights and lengths of ears specified and provided for in tariff. Said rate being less than the rate charged for shipments transported at carrier’s risk for which reduced rate and other considerations, it is mutually agreed between the parties hereto as follows.” There is not a line of testimony in the record tending to show that the shipments were made for less than the regular tariff rate. Therefore the consideration (if indeed it could be held to be a consideration) for the various stipulations following this one and some of which have been pleaded by the appellant has not been proven. It follows that this case must be decided under the general rule applicable to such contracts.

This court held in the case of P. & N. T. Ry. Co. v. Peter Meyer (not yet officially reported) 155 S. W. 309, that the Carmack Amendment had the effect of annulling many of the stipulations universally found in bills of lading issued upon the shipment of live stock and re-established the common-law rule that, when freight is delivered to a carrier in good condition and reaches its destination in bad condition, the presumption of negligence arises, throwing the burden upon the carrier of exonerating itself from liability by proof tending to detect the guilty carrier.

It has been further held by this court in the case of Ft. Worth & Denver City Ry. Co. v. Jordan, 155 S. W. 676 (not yet officially reported), that a carrier of live stock is an insurer of the animals delivered to it, and we believe such to be the spirit and intention of the Carmack Amendment, subject to the exceptions which relieve a carrier from liability at common law. None of the stipulations of the contract pleaded by appellants have been considered in the cases passed upon by the Supreme Court of. the United States, mentioned above, except the sixth and eighth paragraphs, relating to the question of notice of damages at the destination point, and the written notice within ninety days as conditions precedent to the bringing of any suit for damages, and these stipulations are not briefed and are waived by appellant. In our opinion the Carmack Amendment renders that term of the contract which provides “that the second party shall assume all risk and expense of feeding, watering, bedding and otherwise caring for the livestock covered by this contract while in cars, yards, pens, or elsewhere, and shall load and unload the same at his own expense and risk,” void. The carrier under the common law is primarily liable for all damages caused by its failure to feed, water, properly load and' unload, and otherwise care for live stock while in its possession, and it cannot under the Carmack Amendment make a valid contract shifting its liability to the shipper. So. Ry. v. Proctor, 3 Ala. App. 413, 57 South. 513.

The defendant asked a special charge to the effect that a railroad company transporting live stock is not permitted to keep such stock on cars longer than 28 hours or for 36 hours when the owner or shipper has signed a written waiver of the- 28-hour law without unloading such live stock for a period of at least 5 hours for feed, water, and rest, and if the jury should find that the cattle were unloaded at Caldwell, on account of and in obedience to this law, not to consider the necessary and proper time for unloading and reloading said cattle and for being in the pens for five hours as any part of the time used in transporting the same. There was no proof that the cattle were unloaded at Caldwell in order to comply with the federal law. The record discloses that the cattle were in Caldwell more than 15 hours, and that the shipment was about 60 hours in transit when the usual and customary time for making the trip was from 48 to 50 hours. We think the jury were authorized to find that any time consumed beyond 50 hours was an unreasonable delay, since the testimony showed that 50 hours included the necessary time for rest, etc., under the federal act. We find that there was an unusual and unnecessary delay, and that the evidence supports the verdict.

The fifteenth assignment has already been disposed of in what has heretofore been said with reference to the duty resting upon ap-pellee to feed, water, and care for his cattle while in-the pens.

The sixteenth and seventeenth assignments are without merit, and with the others are overruled.

A careful review of the entire record-shows that the charge of the court in some instances was even more favorable to appellant than it should have been under a strict .construction’ of the Carmack Amendment; that the evidence is sufficient to sustain a recovery; and, while there may be some technical errors cropping out in the record, upon the whole, substantial justice has been done, and we are unwilling to reverse a judgment under such conditions. Having granted the motion for rehearing upon the finding and conclusions, the judgment is affirmed.