author: DUNKLIN, J.

text:
    MITCHELL v. PORTER.
    (No. 8534.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 17, 1917.
    Rehearing Denied April 28, 1917.)
    1. Venue @=>5(4) — Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, providing that no inhabitant of the state shall be sued out of the county in which he has his domicile, excepts, by subdivision 14, suits for the recovery of lands or damages thereto, suits to remove incumbrances on title to land, and suits to quiet title to land, which “must be brought in the county in which the land or a part thereof may lie.” Subdivision .24 provides that suits against receivers of persons and corporations “may also be brought as provided in article ¿147.” Subdivision 2S provides where foreign, private or public corporations “may be sued.” Subdivision 30 provides that,. whenever venue is expressly prescribed, the suit shall be commenced in the county where the jurisdiction may be so expressly given. Article 2147 provides where actions “may be brought” against receivers. Held that, as article 2147 is permissive, it is controlled by subdivision 14, so that the venue of a suit against the receiver of a foreign corporation to cancel a deed of trust and a note given for stock was the county in which the land was situated.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 8.]
    2. Evidence <@=>450(5) — Parol — Explanation op Contracts — “Securities.”
    As the word “securities,” used in stock subscription contracts, defined as written assurances for the return or payment of money or evidences of indebtedness, is ambiguous only, in that it embraces different kinds of such evidences, parol evidence is admissible to explain what was intended by the parties to the subscription contracts.
    [Ed. Note. — For other - cases, see Evidence, Cent. Dig. § 2071.
    For other definitions, see Words and Phrases, First and Second Series, Security.]
    3. Corporations <@=>77 — Subscription Contracts — Construction by the Parties.
    Where the meaning of the term “securities,” as used in a stock subscription contract, was doubtful, the practical construction, deliberately given it by both parties, should control its interpretation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 210-212, 219-243, 455.]
    4. Corporations <@=>562(1) — Unpaid Subscriptions — Suit by Receiver.
    Unpaid subscriptions for capital stock of a corporation, which has become insolvent, become a trust fund for the benefit of the creditors of the corporation, and may be sued on and collected by the receiver for such purpose, even though such creditors did not know of such unpaid subscriptions when their debts were incurred.
    [Ed. Note. — For other casos, see Corporations, Cent. Dig. §§ 2265, 2266, 2268.]
    5. CORPORATONS <@=>90(1) — STOCK SUBSCRIPTIONS — SUIT by Receiver — Defenses — Fraudulent Representations.
    In a suit by the receiver of an insolvent corporation to collect unpaid stock subscriptions, as a general rule it is no defense that' the subscription contract was procured by fraudulent misrepresentations.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 383, 385-388.]
    6. Contracts <@=>97(1) — Invalidity—Ratification.
    A contract which is void cannot become effective merely by ratification.
    [Ed. Note. — For othcifc cases, see Contracts, Cent.-Dig. §§ 442, 443.]
    7. Corporations <@=>92 — Subscription Contracts — Stock Issued for Notes.
    Under Const, art. 12, § 6, providing that no corporation shall issue stocks or bonds except for money paid, labor done, or property actually received, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1146, providing that no corporation, domestic or foreign, doing business in the state, shall issue any stock whatever, except for money paid, labor done, or property actually received, note given for capital stock in a foreign corporation, and the stock subscription contract are void.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 366.]
    8. Corporations <@=>92 — Actions to Cancel Notes Given for Stock — Defenses—Estop-pel.
    Where a stock subscription contract was void because providing for the issue of stock for notes, as between the stockholder and the corporation which had actually issued the stock, the corporation could not invoke the defense of estoppel to the stockholders’ action for a cancellation of the notes and deed of trust given to secure them.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 366.]
    9. Corporations <S=>90(1) — Action to Cancel Notes Given for Stock — Defenses— Estoppel.
    As it appears that the stock issued is absolutely worthless, and there is no proof that any of the creditors represented by the receiver ever extended credit to the corporation in reliance upon the notes and deed of trust, the receiver, as representing such creditors, is in no better position to enforce the collection of such subscription contracts or invoke the defense of estoppel than is the corporation itself.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 383, 385-388.]
    10. Appeal and Error <@=>1073(1) — Review— Harmless Error.
    In a suit by a stockholder of an insolvent corporation against the receiver to cancel note and deed of trust given for stock, the stock subscription contract and note being void, if there was error in a judgment canceling note and deed of trust, such error was harmless, so far as the receiver was concerned, whore the only interest he could have would be to enforce the collection of such note.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4240.]
    Appeal from District Court, Baylor County; J. A. P. Dickson, Judge.
    Suit by C. T. Porter against J. W. Mitchell, receiver of the Commonwealth Bonding & Casualty Insurance Company, and another. Judgment for the plaintiff, and named defendant appeals.
    Affirmed.
    Ocie Speer, of Ft. Worth, for appellant. Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.
   DUNKLIN, J.

R. T. Stuart and Coke W. Harkrider, doing business as partners under the firm name and style of Commonwealth Organization Company, undertook, as promoters, to organize a corporation to be known as the Casualty Bonding & Accident Insurance Company, to be incorporated under the laws of the state of Texas, with an authorized capital stock of $300,000, and a paid-up capital of at least $200,000, free from organization expenses. The promoters planned to charge' each subscriber for stock a certain bonus to go to them as expenses for organizing the corporation and securing a charter necegsary to do business. Pursuant to that plan, the promoters, on September 12, 1910, procured from C. T. Porter a subscription for 25 one-tenth shares of stock in the proposed corporation, and on October 8, 1910, another subscription contract for 40 one-tenth shares of such capital stock. Thereafter, a corporation was formed under the name of the Commonwealth Bonding & Casualty Insurance Company, but it was not chartered under the laws of Texas, but was chartered under the laws of Arizona. After its incorporation in Arizona, it secured from the Commissioner of Insurance and Banking of Texas a permit to do business in the state of Texas.

The amount of stock for which Porter subscribed was issued by the corporation that was formed, and the same was delivered to him. Porter never paid any money for said stock, but in lieu thereof he executed his promissory note in favor of the corporation to cover the amounts which he agreed to pay for the stock, secured by deed of ’trust upon certain real estate owned by him and situated in Baylor county. This suit was instituted by Porter in Baylor county to cancel the deed of trust and note given by him for the stock. The suit was instituted against the corporation, and also against J. W. Mitchell, its receiver, who had theretofore been appointed by the district court of Tarrant county to take charge of all the assets of the corporation situated in the state of Texas; and from a judgment against both defendants, granting plaintiff the relief prayed for, the receiver has prosecuted this appeal.

The subscription contract executed by plaintiff, Porter, on September 12, 1910, for stock in the proposed corporation, was as follows:

“Commonwealth Bonding '& Accident Insurance Company.
“Capital, $10.00. Surplus, $30.00.
“Subscription to Capital Stock.
“No. 1111.
“Whereas, Commonwealth Organization Company, of Fort Worth, Texas, are promoting the organization of a Casualty, Bonding and Accident Insurance Company, to be incorporated in pursuance of the laws of the state of Texas, under the name of Commonwealth Bonding and Accident Insurance Company, or such other name as may be selected, with an authorized capital stock of three hundred thousand dollars, and a paid-up capital of at least two hundred thousand dollars, paid up and free from organization expenses, all in accordance with a printed prospectus issued by them and delivered to me;
“And whereas, by their acceptance of this subscription said Commonwealth Organization Company agree to endeavor with all reasonable diligence to accomplish, on or before December 31, 1910, the organization of said corporation with capital stock fully paid as aforesaid, they to defray all expenses of the organization and incorporation:
“Now, therefore, I do hereby subscribe for 25 one-tenth shares, of the par value of ten dollars each, of the capital stock of said Commonwealth Bonding and Accident Insurance Company, and agree with said company and the said Commonwealth Organization Company to pay therefor the sum of 1,000.00 dollars, as follows: The sum of 750.00 dollars I agree to pay in money or securities satisfactory to the Insurance Department, with 6 per cent, interest, to said Commonwealth Bonding and Accident Insurance Company, or its trastees, at Fort Worth, Texas (which goes to capital and surplus), at any time after November 1, 1910, immediately upon receipt of notes from said Commonwealth Organization Company that its capital stock has been subscribed in good faith in amounts and at rates netting the company at least two hundred thousand dollars of capital in the aggregate when paid. The remaining sum of 125.00 dollars I agree to pay, and to pay concurrently with this subscription, to the said Commonwealth Organization Company, in consideration of their agreement herein before recited, and in lieu of any further or other contribution to expenses of organization and incorporating said company.
“No conditions, representations, or agreements other than those printed herein shall be binding on Commonwealth Organization Company or the Commonwealth Bonding and Accident Insurance Company.
“Witness my hand this the 12th day of September, 1910.
“$125.00 cash, and note $750.00, with stock as collateral.
“C. T. Porter, Name of Subscriber.
“Seymour, Texas, Post Office Address.
“Stockman, Occupation.
“Witness: J. H. Carmichael, Fort Worth, Texas, Residence.”

The subscription contract executed on October 8, 1910, was substantially a copy of the foregoing contract, with the exception that it was for 40 one-tenth shares of stock, at the par value of $10 each, the consideration for which was to be $1,600, $1,400 of which was to go to the proposed corporation, and $200 to the organization company as promotion expenses.

The note given by plaintiff for the stock subscribed for by him, and also the deed of trust given to secure the same, were executed January 1, 1911; the note maturing January 1, 1916, and bearing interest at the rate of 6 per cent, per annum, and the deed of trust was upon land situated in Baylor county. By the judgment of the trial court those two instruments, together with the capital stock received by Porter from the corporation, were all canceled, said capital stock having been tendered for cancellation both in plaintiff’s petition and also upon the trial of the case.

The judgment rendered was against both the corporation and the receiver, and as against the corporation was a judgment by default.

The following agreement of counsel appears in the record:

“It is agreed that there was called for'about the 1st day of December, 1910, a meeting of the subscribers for stock in the projected corporation — that is, the corporation which the said Organization Company was attempting to organize, said call meeting being made by the Organization Company; that the subscribers were notified, and that the plaintiff gave a proxy to said meeting, and that said proxy was voted; and that at said meeting a preliminary organization was perfected by the election of directors, and they wore instructed to incorporate under the Laws of Texas, and the proposed corporation was there, by vote of the stockholders, named Commonwealth Bonding & Casualty Insurance Company; that no corporation was, however, incorporated in Texas, but another meeting of the subscribers was called at Fort Worth, Texas, for March 20, 1911, and the plaintiff gave a proxy for said meeting, which was voted at said meeting, and that at said meeting a majority of the stock represented voted that the proposed corporation should be incorporated under the laws of Arizona, and the directors, who had been elected at the prior meeting — that is, the meeting in December, 1910 — were instructed to prepare and secure a charter under the laws of Arizona, and that said charter was on March 23, 1911, secured from the state of Arizona; and that, after said' corporation was so chartered, the subscription contracts signed by the plaintiff, the note and deed of trust executed by the plaintiff were delivered to and taken possession of by the Arizona corporation and its officers, and the said corporation issued and delivered to the plaintiff the certificate for 65 shares in said Arizona corporation.
“It is further agreed that H. P. Branham was at the meeting in December, 1910, selected as one of the directors of said proposed corporation, and that he was a director and treasurer of the said Arizona corporation, from the time of its incorporation, for about one year; that all the proxies given by plaintiff have been voted at all die meetings of the stockholders.” .

The record further shows that on November 23, 1910, plaintiff, Porter, executed a written proxy to, John Scharbauer and others authorizing them—

“to voto as my proxy at any annual or special meeting of the stockholders of the Commonwealth Bonding & Accident Insurance Company for the election of directors and upon such other questions as may come before such annual or special meeting to the number of votes I should be entitled to if then personally present.”

On March 13, 1911, September 3, 1912, May 31, 1913, February 14, 1914, and March 6, 1915, the plaintiff gave similar proxies to different individuals.

The receivership proceedings against the corporation were instituted in the district court of Tarrant county, and on September 18, 1915, that court appointed J. W. Mitchell as receiver, and authorized him to take charge of all of such assets, and further authorized him—

“either in his own name as receiver, or in the name of defendant Commonwealth Bonding & Casualty Insurance Company, as may be necessary to bring, prosecute and defend any and all suits, pleas of intervention in any and all courts when proper or necessary to reduce said estate, or any part thereof, to his possession, or to recover or otherwise protect the same,” etc.

The order of court further decreed that the corporation was insolvent; that by reason thereof it was impossible for it further to pursue the business for which it was incorporated ; that the incorporation was therefore dissolved, and that its affairs should be administered in behalf • of creditors and other persons interested therein.

The proof showed that plaintiff had received from defendant company the capital stock, but he alleged that it was worthless, and that he had received no other consideration for his note and deed of trust; that the whole scheme, as originated and carried out by the promoters, was void because it contemplated and resulted in a violation of the provisions of the state Constitution and Statutes, which forbid a corporation, from accepting anything in payment for its capital stock except money or property, or labor actually performed; that it was understood by the parties to the subscription contracts that no money nor property nor labor would be paid for said stock, but that in lieu thereof plaintiff would give his promissory note secured by deed of trust on land; that it was the understanding and intention of the parties to said subscription contract that the word “securities” used therein to express the consideration plaintiff would pay for the-stock meant his promissory notes secured by deed of trust on real estate; that the defendant corporation in issuing the stock did so with full knowledge of such understanding and agreement; that said defendant was not organized under the laws of the state of Texas, as stipulated in said subscription contracts, but was organized under the laws of the state of Arizona, after the execution and delivery of said note and mortgage, and at a preliminary organization meeting at which it was decided and agreed that the proposed corporation would be organized under the laws of Texas, in whose favor the note and deed of trust were executed and delivered ; and that the same were afterwards delivered to the Arizona corporation without plaintiff’s knowledge or consent. It was further alleged that the note and deed of trust were.void, and created a cloud upon plaintiff’s title to the land described in the deed of trust, and he prayed for cancellation of both said instruments in order to remove said cloud.

The receiver pleaded to the venue of the suit as against him, claiming the privilege to be sued only in Tarrant county, the domicile of defendant corporation, where the receivership suit was still pending, and where the principal office and place of business of the corporation were located; by general demurrer, special exceptions, general denial, and special pleas, he presented several defenses which will be hereafter noted in his assignments of error; and also by cross-action prayed for a judgment against plaintiff upon the promissory note alleged in his petition and for a foreclosure of the deed of trust given to secure the same.

Following are provisions of Vernon’s- • Sayles’ Texas Civil Statutes, art. 1830:

“No person who is an inhabitant of this state-shall be sued out of the county in which he has his domicile, except in the following cases, to wit: * * *
“14. Suits for the recovery of lands or damages thereto, suits to remove incumbrances upon the title to land, suits to quiet the land title to-land, and suits to prevent or stay waste on lands, must be brought in the county in which... the land, or a part thereof, may lie. * * *
“24. * * * Suits against receivers of persons and corporations may also be brought as. provided for in article 2147. * * *
“28. Foreign, private or public corporations, joint stock Companies or associations,'not incorporated by the laws of this state, and doing business within this state, may be sued in any court within this state having jurisdiction over the = ■subject-matter, in any county where the. cause of action, or a part thereof, accrued, or in any county where such company may have an agency or representative, or in the county in which the principal office of such company may be situated ; or, when the defendant corporation has no agent or representative in the state, then in the county where the plaintiffs, or either of ■them, reside. * * *
“30. Whenever, in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be •commenced in the county to which jurisdiction may be so expressly given.”

Article 2147 reads:

“Actions may be brought against the receiver of the property of any person where said person resides. Actions may be brought against receivers of a corporation in the county' where the principal office of said corporation may be located, and against receivers of railroad companies in any county through or into which the road is constructed, and service of summons may be had upon the receiver, or upon the general or division superintendent of the road., or upon any agent of said receiver who resides in the county in which the suit is brought.”

In.many of the exceptions embraced in article 1830 it is provided that suits “may be brought” in some county other than the county of the domicile of the defendant; but in many other of the exceptions, such as subdivision 14, it is provided that the suit “must” or “shall” be.brought in some other county; and we are of the opinion that such language used in subdivision 14 excluded the venue in any other county than that named in such exception whenever a proper plea or exception to the venue is urged. In other words, the language used in article 2147, being permissive only, is controlled by the mandatory and exclusive terms of subdh vision 14, whenever the purpose of the suit is within the purview of that subdivision, and a proper plea or exception to the venue is urged. Russell v. Ry. Co., 68 Tex. 646, 5 S. W. 686; State v. Stone Cattle & Pasture Co., 66 Tex. 363, 17 S. W. 735; Nugent v. Powell, 63 Miss. 99; Equitable Life Ins. Co. v. Gleason, 56 Iowa, 47, 8 N. W. 790; Dean v. White, 5 Iowa, 266; Carson v. Phœnix Ins. Co., 41 W. Va. 136, 23 S. E. 552. Subdivision 14 is not a jurisdictional statute, but is one of venue only; and the language, “must be brought in the county where the land, or a part thereof, may lie,” is not mandatory in tire sense that the district court of no other county has jurisdiction of such a suit, but is controlling in the sense that a proper plea to tire venue by defendant in a suit brought in some other county must be sustained. The district court has general jurisdiction of such suits, and, if one is instituted in some county other than that in which the land is located, the judgment will be valid in the absence of a plea or exception to the venue. Wolfe v. Willingham, 43 Tex. Civ. App. 167, 94 S. W. 362; De Lavega v. League, 64 Tex. 205; State v. Patterson, 40 S. W. 224; and other decisions there cited.

If the present suit had, been instituted in Tarrant county, a plea to the venue by the defendants could not have been overruled without doing violence ito the authorities cited, which we believe to be sound. We do not believe that the two cases cited by appellant (Kirby Lumber Co., Receivers, v. McLendon, 56 Tex. Civ. App. 279, 120 S. W. 227, and Dickson v. Scharff, 142 S. W. 980) are in conflict with the foregoing conclusions; in fact, we think the latter case tends to support our views. See, also, opinion in Mitchell v. Hancock, 196 S. W. —, decided contemporaneously herewith.

Appellee invokes such decisions as Douglas v. Baker, 79 Tex. 499, 15 S. W. 801, and Zavala Land & Water Co. v. Tolbert, 165 S. W. 28, to support his contention that, by his plea in reconvention for a recovery upon the note and deed of trust, the receiver waived his plea to the venue previously filed and not brought forward in the later amended answer containing the cross-action, but which said amended answer expressly alleged that such recon vention was filed subject to such plea to the venue. The decisions cited seem to support the contention; but the later decision of our Supreme Court in Hickman v. Swain, 106 Tex. 431, 167 S. W. 209, seems to be in conflict with those decisions upon that question. In view of our conclusion already stated, we find it unnecessary to determine the merits of the contention last noted.

The term “securities,” used in the subscription contracts to denote how the consideration for the capital stock subscribed would be paid, is defined in 35 Cyc. p. 1283, as “written assurances for the return or payment of money; evidences of indebtedness.” And in addition to the authorities there noted, see, also, C. H. & D. Ry. v. Kleybolte, 80 Ohio St. 311, 88 N. E. 879; In re Stark’s Will, 149 Wis. 631, 134 N. W. 389. The word is ambiguous in its meaning in the sense only that it embraces different kinds of such evidences of indebtedness, and parol evidence was admissible to explain what was intended by the parties to the subscription contracts, and the proof shows beyond controversy that it was understood by all the parties, including the Arizona corporation, that the stock should be issued to Porter in consideration for his promissory note for the full amount of such stock, secured by the deed of trust described in his petition. In G., H. & S. A. Ry. v. Johnson, 74 Tex. 263, 11 S. W. 1113, our Supreme Court, in construing an ambiguous contract, said: “The language of the contract being doubtful, the practical construction deliberately given it by both parties should control its interpretation.” Por other authorities to same effect, see 4 Michie’s Dig. Tex. Rep. 599.

By several assignments of error the receiver insists that plaintiff is estopped to claim the relief prayed for in his petition, and that the receiver upon his cross-action was entitled to a judgment, upon the note and deed of trust described in plaintiff’s petition, for several reasons, which may be briefly summarized as follows: (1) That the alleged agreement to pay for the stock by promissory note secured by deed of trust on land was a fraud upon the rights of the creditors of the defendant corporation. (2) Because plaintiff had accepted the benefits of such contracts by the receipt of the capital stock for which he had subscribed, and had held himself out as a stockholder in the defendant corporation, and as such had participated " in the transaction of its corporate business.

The receiver further pleaded that, by the acceptance of the capital stock in the defendant corporation and the participation in the transaction of its corporate business, he is estopped from asserting his plea that he owed to the defendant no contractual obligation, in that it was incorporated under the laws of Arizona, contrary to the stipulation in the subscription contract that the corporation then contemplated should be organized under the laws of the state of Texas.

Article 12, § 6, of our Constitution, is as follows:

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

Article 1146, Vernon’s Sayles’ Texas Civil Statutes, reads:

“No corporation, domestic or foreign, doing business in this state, shall issue any stock whatever, except for money paid, labor done, which is reasonably worth at least the sum at which it was taken by the corporation, or property actually received, reasonably worth at least the sum at which it was taken by the company. Any corporation which violates the provisions of this article shall, on proof thereof, in any court of competent jurisdiction, forfeit its charter, permit or license, as the case may be, and all rights and franchises which it holds under, from or by virtue of the laws of this state.”

It is well settled by the authorities that unpaid subscriptions for capital stock of a corporation which has become insolvent become a trust fund for the benefit of the creditors of the corporation, and may be sued on and collected by the receiver for such purpose, and this is true even though such creditors did not know of such unpaid subscriptions at the time their debts were incurred. National Bank of Jefferson v. Texas Investment Co., 74 Tex. 421, 12 S. W. 101; Herf v. Brewster, 117 S. W. 882; Leucke v. Tredway, cited in 34 L. R. A. 743, note; Hightower v. Thornton, 8 Ga. 486, 52 Am. Dec. 412; 7 R. C. L. p. 357.

It is also a general rule that, in a suit by the receiver to collect such unpaid subscription, it is no valid defense that the subscription contract was procured by fraudulent misrepresentations. Mathis v. Pridham, 1 Tex. Civ. App. 58, 20 S. W. 1015, and authorities there cited. See, also, Mitchell v. Hancock, supra.

The following announcement in 16 Cyc. 720, seems well supported by the authorities:

“An estoppel by simple contract cannot be predicated on an invalid contract. However, it : has. been held that a party to an invalid contract, which it not illegal and unlawful, may be equitably estopped to dispute the validity of the con-tx’aet.”

The same rule is announced in 10 R. C. L. p. 801, as follows:

“It is. generally considered that, as between the parties to a contract, validity cannot be given to it by estoppel if it is prohibited by law or against public policy. This rule has been applied to a contract illegal because executed on Sunday, but dated as of another day, where the facts were known to the other party. Manifestly, the reason underlying the limitation on the doctrine of estoppel presently under discussion is that, when the matter of illegality arises, the question ceases to be one solely between the parties or between private individuals. Accordingly, an estoppel is not available to sustain a contoact of carriage which is invalid under the Interstate Commerce Act, nor to avoid the defense of usury.”

Again, in section 115, p. 805, of the same work, the following is said:

“A maker of commercial paper is estopped from setting up any infirmity when in its execution, consideration, or negotiation' he was guilty of fraud, fault, negligence, or imprudence. * * * But the maker of a note is not estopped from setting up the illegal character of its consideration as against one who has taken the note with knowledge of what the consideration was. ⅜ * * ” Citing Dickson v. Kittson, 75 Minn. 168, 77 N. W. 820, 74 Am. St. Rep. 447. See, also, Seeligson v. Lewis & Williams, 65 Tex. 215, 57 Am. Rep. 593.

Nor can a contract which is void become effective merely by ratification. Rue v. M. P. Ry. Co., 74 Tex. 474, 8 S. W. 533, 15 Am. St. Rep. 852; C., B. & C. Ins. Co. v. Curry, 183 S. W. 1. In S. A. Irrigation Co. v. Deutschmann, 102 Tex. 207, 105 S. W. 486, 114 S. W. 1174, it was held that a contract to acquire stock in a corporation without the payment of money at the time of the issuance and delivery of the stock is void. To the same effect are Kanaman v. Gahagan, 185 S. W. 619; Republic Trust Co. v. Taylor, 184 S. W. 776; McCarthy v. Texas Loan & Guaranty Co., 142 S. W. 96; and many other authorities which might be cited. And in the case last cited it was further held that a promissory note given for the payment of stock is not property, within the meaning of the provisions of the Constitu,tion and statute forbidding the issuance of stock in a corporation without the payment of money, property, or labor therefor. In Gilder v. Hearne, 79 Tex. 120, 14 S. W. 1031, it was held that a plea of usury was available against a promissory note in the hands of an innocent purchaser. This was upon the principle that a contract for usurious interest was prohibited by law. In Republic Trust Co. v. Taylor, 184 S. W. 772, it was held that notes given for capital stock in a corporation sold and delivered on a credit are void and unenforceable, even in the hands of a bona fide holder for value.

In the present suit, as noted already, the defendant Arizona corporation, in pursuance of the original subscription contracts given by the plaintiff, actually issued the stock to plaintiff in consideration alone for a promissory note secured by the deed of trust. Hence, as between that company and the plaintiff, unquestionably it could not invoke the defense of estoppel to the relief prayed for by the plaintiff. The question then arises whether or not the receiver, representing the creditors, is in any better position than the corporation itself. According to the decision in Thompson v. Samuels, 14 S. W. 143, an innocent purchaser for value of a promissory note given for a gambling consideration could recover thereon. The reason for that holding was given as follows:

“lYhile gaming of various kinds is denounced by our Penal Code, we have no statute in this state declaring that all contracts entered into upon gaming considerations are void.”

In State Bank of Chicago v. Holland, 103 Tex. 266, 126 S. W. 564, it was held that an innocent purchaser of a negotiable note given to a foreign corporation not having a permit to do business in Texas may sue and recover thereon, since the statute which denied the corporation the right to sue on such a note did not expressly or impliedly provide that such a contract would be void.

We fail to perceive how the receiver of the defendant corporation in the present suit could have any higher right than the creditors themselves, whose interest he represents. There is an entire absence of any proof in this record that any of the creditors represented by the receiver ever extended credit to the defendant corporation upon the faith of the promissory note and deed of trust which plaintiff had given, and which he sought to cancel by the present suit. Under such circumstances, it cannot be said that the creditors are entitled to the same protection as could have been claimed by an innocent purchaser of said note and lien, even though it could be further said that such a purchaser could have recovered thereon. The record further shows that, while the plaintiff received his stock, the same was absolutely worthless, and that he never received any dividend thereon, nor ever in any manner profited thereby. In that respect, at least, the present suit may be distinguished from the case of McWhirter v. First State Bank of Amarillo, 182 S. W. 682, in which the following statement occurs:

“This record shows that McWhirter went along for several years as a stockholder, receiving and acknowledging dividends paid by the bank as having been earned upon the stock.”

In the case of T. & P. Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919, our Supreme Court, upon its own suggestion of fundamental error, reversed a judgment for damages for breach of a contract void because in restraint of trade. The general rule seems to be that a court of equity will not grant any relief to either party to an illegal contract. The appellant has not suggested the question in the present suit. If that rule should be held applicable here, it would defeat not only the plaintiff’s suit for a cancellation of the note and deed of trust, but also the receiver’s suit to recover thereon.

In view of the decision in T. & P. Coal Co. v. Lawson, supra, and in order to remove any question of a conflict herewith, we have deemed it proper to notice that question here, in the absence of any suggestion from appellant, and to say that we do not believe the rule referred to is applicable in the present suit. In 2 Pomeroy, Equity Jurisprudence, § 940, the author says:

“The proposition is universal that no action arises, in equity or at law, from an illegal contract; no suit can be maintained for its specific performance, or to ■ recover the property agreed, to be sold or delivered, or the money agreed to be paid, or damages for its violation. The rule has sometimes been laid down as though it were equally universal, that where the parties are in pari delicto no affirmative relief of any kind will be given to one against the other. This doctrine, though true in the main, is subject to limitations and exceptions which it is the special object of the present inquiry to determine. ⅞ ⅞ ⅜ As long as the contract is ex-ecutory, it cannot be enforced in any kind of an action brought directly upon it; the illegality constitutes an absolute defense. As an application of the smae doctrine merely in a different form, while the. agreement is executory, courts of equity may relieve the debtor or promising party by ordering the written instrument and other securities to be surrendered and canceled, and by granting the ancillary remedies of injunction, discovery, and the like. * ⅜ * The equitable relief so conferred does not violate the general maxim concerning parties in pari de-licto; on the contrary, it carries that maxim into effect. ⅜ ⅜ ⅜ The remedy of cancellation or injunction, under the circumstances, is simply the equitable proceeding identical with the setting up of the illegality as a defense to defeat a recovery at law, and thus to get rid of the contract as a binding executory obligation.”

Clearly, under the rule in equity so stated, the corporation could not recover upon the subscription contracts for stock. If the creditors knew of those contracts, then they are also chargeable with knowledge of their invalidity, and hence could not be in a position similar to that of innocent purchasers for value without notice of any infirmity therein. They are in no better position if they extended credit without knowledge of such contracts.

So that, in any event, the creditors and the receiver representing them are in no better position in a court of equity to enforce the collection of 'such subscription contracts than is the corporation itself. Hence if, in any event, there was error in the judgment canceling the note and deed of trust in controversy, such error was harmless so far as the receiver is concerned, since the only interest he could have would be to enforce the collection of such note.

For the reasons indicated, all of appellant’s assignments of error are overruled, and the judgment is affirmed.
      <Ss»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ¿fe>For Citber iases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    SAUER v. PALMER PRESS BRICK WORKS.
    (No. 1595.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 2, 1917.
    Rehearing Denied March 29, 1917.)
    1. Master and Servant <§=3197 — Injuries to Machinist in Brick Plant — Proximate Cause.
    In an action by a machinist in a brick plant, for damages for injuries sustained while in pit removing loose metal cups from a defective elevator belt, plaintiff held not entitled to recover, the proximate cause of injury being starting of elevator by plaintiff’s helper, a fellow servant.
    [Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. §§ 489, 490.]
    2. Master and Servant <⅜=>217(14) — Injuries to Servant — Assumption op Risk.
    Where servant was aware of the structure of the elevator box of which he complains during employment for about seven years, he assumed any risk for injury from such source, where the only danger lay in starting elevator while he was engaged in pit cleaning it out.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 584.]
    Error from District Court, Ellis County; F. L. Hawkins, Judge.
    Action by Charles Sauer against the Palmer Press Brick Works. Judgment for defendant and plaintiff brings error.
    Affirmed.
    The action is by tbe plaintiff in error against the defendant in error for damages for personal injuries. The petition alleged negligence in two particulars: First, the furnishing of an elevator belt which was worn and old and insufficient to sustain- the metal cups iattached, thereto; and, second, the failure .to furnish a safe place in which to work, in that the foot or bottom of tbe elevator box was not properly constructed. It was further alleged that complaint had been made of the belt to the president of the defendant, and a new belt had been promised. The defendant, besides denial, pleaded assumed risk and that the injury solely resulted from the act of a fellow serv-. ant of the plaintiff in starting the machinery with which he was at work. After hearing all the evidence, the court peremptorily instructed a verdict in favor of the defendant.
    The defendant was engaged in operating a brick plant at Palmer, Tex. The plaintiff was the machinist for the defendant, and had been for about eight years in charge of the machinery of the plant. His duties were to keep the machinery in repair and in proper operating condition. Plaintiff had a helper named Jolly Tucker. For the purpose of carrying the dirt used in the manufacture of the brick from the dry-pan, fed through a chute near the ground, to the hopper upstairs in the building, an elevator was used, extending from tbe dry-pan to tbe hopper. This elevator consisted of a wooden box through which operated a leather belt, to wbicb were attached about 56 metal cups or buckets, each of the size of 5½ by 10 inches. These cups were attached to the elevator belt by metal brads, and as tbe cups passed up they pick up or catch the dirt that-comes into the dry-pan through the chute. At the bottom of the elevator box there is a pulley, and up near the roof of the building there is a line shaft with a pulley, and the elevator belt runs over these pulleys. On the line shaft there was another pulley, over which the drivé 'belt connected with the engine operated. On the day in question the elevator choked up, causing the operation of the same to stop. This was caused by one or two of the metal cups becoming partially loose or unfastened from the belt and catching on the side of the wooden box of tbe elevator at tbe bottom of tbe elevator shaft. The elevator belt was old and worn and in bad condition, and on account of this condition tbe brads in the metal cups would pull out of and come loose from the belt. While tbe operation of the belt was stopped tbe plaintiff, as was his duty, undertook to relieve the condition of tbe elevator. In order to do the work tbe plaintiff, as was tbe way to do this work, got in tbe pit or hole on the ground at the bottom of the elevator shaft, and extended his right hand and arm up underneath and into the lower part of the elevator box or shaft where ifc was clogged, located a loose metal cup, and attempted to unfasten it from the dirt which obstructed tbe movement of tbe elevator. The ' metal cup bad become loose by reason of one of tbe metal brads which held it to the belt pulling out of the belt. As plaintiff took bold of tbe loose cup with his right hand, and started to pull it down and out of the belt, the machinery and belt suddenly started in operation grievously injuring tbe plaintiff’s right hand and fingers. Jolly Tucker, a helper to the plaintiff, started the machinery to working while plaintiff was engaged in cleaning the elevator bottom. Tucker said, “I put the belt on to start the elevator; the elevator started then.” Plaintiff testified:
    “I was pulling that off [meaning the loose metal cup] when the machinery and belt started up, and it caught -my hand. Jolly Tucker was working at the plant; he was cleaning up, helping me if I needed any help; he was my helper — that is, he worked first one place and another; he helped me. If the foreman needed him any place around the yard, he would use him there. Tucker did not have authority to hire hands there to work nor authority to discharge them. Mr. Tucker was really under me; he was not as high grade employé as I was. I had no authority to employ or discharge hands. The foreman was the man who did that. I don’t know of my own knowledge — that is, I am not positive — who started the machinery up. Of course, Mr. Tucker was the man that was to be up there. All I know about it is that he left me and said he would go back upstairs. * ⅜ * If that belt had not been started up, my hand would never have been hurt. If the belt had not been defective and the cups tom loose, my hand would not have been cut. ⅜ * * I got hold of the cup and started to pull it down; the belt was put on and it caught my hand. That was about five or six minutes after I gaya the order not to put it on.”

      The plaintiff further testified that there should have been a door in the elevator box to enable him to get inside the elevator box to the belt when it was clogged. The elevator box, according to the undisputed evidence, existed as constructed during all the time that plaintiff was employed by the defendant, and he used the same method for cleaning out the box on the occasion of the injury as he had done many times before; and the plaintiff was thoroughly familiar with all conditions existing at the plant. It was further shown that the plaintiff called the attention of the president of the company to the condition of the belt, and requested him to get a new 'belt, and that the new belt was gotten and was there ready to be installed at the time of the injury.
    Chas. F. Olint, D. B. Eades, and Eric Eades, all of Dallas, for plaintiff in error. Thomas & Rhea, of Dallas, for defendant in error.
   LEVY, J.

(after stating the facts as above). [1 ] The appeal is to review the correctness of the ruling of the trial court in peremptorily instructing a verdict for the defendant. And it is believed that, according to the evidence in the case, it should be held that the court did not err. The evidence sufficiently shows that the leather belt was old and worn and insufficient to hold thepnetal cups fast and secure to the belt, and that because of the deficient condition of the leather belt several of the metal cups had become’ loose and unfastened from the belt. And the evidence would warrant a finding by the jury that the furnishing and use by the defendant of the worn and insufficient belt was negligence. But at the time the plaintiff was doing his work in removing the loose metal cup from the defective belt, the belt was not being operated and the machinery was stopped. And the evidence shows without dispute that the plaintiff’s injury did not proceed from his work of itself in removing the loose metal cup from the defective belt or because of the defective belt. The sudden starting of the machinery, which had been stopped for the purpose of safely doing the work in hand, caused the belt to. move upward, and this act of starting the machinery caused the plaintiff’s hand to ,be injured. Situated as plaintiff’s hand was at the time, inside the elevator shaft, it would have been injured by the sudden operation of the belt, irrespective of whether the belt was defective or not defective. And therefore it would conclusively appear that the sole proximate cause of the plaintiff’s injury was the act of Jolly Tucker in starting the machinery when he did, and that Jolly Tucker and the plaintiff were fellow servants. Lumber Co. v. Hastings, 152 S. W. 863; Oil Co. v. Edgmon, 155 S. W. 1012; Jones v. Lumber Co., 162 S. W. 420.

The plaintiff claimed that the elevator box or shaft was not properly constructed, in that “there ought to have been a door in that-elevator box to enable me to get inside of the box to the belt when it clogged up.” The elevator box or shaft was, it appears, a permanent structure, and had existed as first constructed for more than eight years. The plaintiff testified:

“When I first went to work there, that elevator was just like it was when I got hurt. The box went up to the top of the building and came down in this pit. I had to get in the pit and clean the box when it was choked all the time I worked there, the same as I did on the occasion I was hurt. I was there six or seven years. * * * I went down in that pit and cleaned it out just the same way I had cleaned it out lots of times before, and I frequently cleaned it out; had frequently gone down into the hole and gone through just exactly the same thing I did that time and cleaned it out; I had been doing that ever since I had gone there to work the first time, and I did it that time just the same- way I had always done it.”

Thus it conclusively appears plaintiff was aware of the structure of the elevator box or shaft as it existed and of which he complains. And this evidence would plainly show that no danger existed on account of its construction as it existed, but for the fact that the machinery was started in operation while plaintiff had his hand in a position to be caught in the elevator. The particular danger arose and proceeded from starting the machinery, and this danger was just as apparent to the plaintiff accustomed as he said he was to machinery and the operation of this elevator, as to any one connected with the defendant. Suggesting, as plaintiff does, the improvement that should have been made in the elevator box or shaft, it may not be said he was ignorant of the dangers of the condition that existed. It is believed that, under the evidence most favorable to the plaintiff any injury arising to him from the bottom of the elevator box or shaft not being, as claimed by plaintiff, properly constructed, was assumed by plaintiff. Oil Co. v. Shaw, 27 Tex. Civ. App. 65, 65 S. W. 693; Brown v. Miller, 62 S. W. 547.

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


author: ELY, C. J.

text:
    SAN ANTONIO BREWING ASS’N v. SIEVERT.
    (No. 5825.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 18, 1917.
    Rehearing Denied May 16, 1917.)
    1. Master and Servant <⅜=>278(17) — Injuries to Servant — Action.
    In an employe's action for personal injuries, caused by the fall of a stack of kegs which he-was engaged in handling, evidence held insufficient to show negligence on the part of the employer in stacking the kegs.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 969.]
    2. BIaster and Servant <⅞=»265(10) — Injuries to Servant — Pleading—Res Ipsa Loquitur.
    In a servant’s action for personal injuries, caused by the fall of a stack of kegs, where he pleads the negligent acts of the employer in method of stacking the kegs, the burden is upon him to show by direct proof actionable negligence on the employer’s part as pleader; negligence not being inferable, as between master and servant, from the mere happening of the accident.
    [Ed. Note. — -For other cases, see Master and Servant, Cent. Dig. § 890.]
    Appeal from District Court, Bexar Coun ty; S. G. Tayloe, Jitdge.
    Action by Julius Sievert against the San Antonio Brewing Association. Judgment for plaintiff, and defendant appeals.
    Reversed.
    Newton & Newton and Terrell & Terrell, all of San Antonio, for appellant. Harris & Newton and Will A. Morriss, all of San Antonio, for appellee.
   ELY, C. J.

This is a suit for damages by appellee against appellant, alleged to have arisen through the negligence of appellant in not furnishing appellee, its employe, a safe place in which to work, in this: That kegs were so unsafely and carelessly stacked that they fell and injured the left hand of appel-lee. , The negligence, as particularized, consisted in stacking the kegs in an insecure, loose, and careless manner; in stacking them at too great a height, so that they could be jarred and shaken down; in stacking the kegs in too close proximity to the place where appellee was working; and in not having timely inspections made as to the method of stacking the kegs. A trial by jury resulted in a verdict and judgment in favor of appellee for $5,000. This is a second appeal to this court, the former opinion being found in 182 S. W. 3S9. The former reversal of the judgment, for the same amount in favor of appellee, as on the last trial, was on account of the insufficiency of the evidence to sustain the verdict. The evidence on this appeal, so far as its probative force goes, is practically the same as on the former appeal.

The testimony of appellee shows that he was working in an aisle, five feet wide, between, two rows of beer kegs, in a large room belonging to appellant, and was engaged in removing the bungs from the kegs, emptying them of the water with which they were filled, then putting them on a slide which carried them away. He had, in performing his labor, to lift thorn from the piles in which they were stacked four high, place them on the floor, then remove the bungs with a bung starter. He claims to have been working on a pile to his right with his left to the row of kegs on the opposite side of the aisle or passageway, and as he lifted a keg from the pile on his right, and placed it on the floor, and was engaged in extracting a bung, a keg from across the passageway fell and crushed his left hand. There was no testimony tending to show that the stack from which the keg fell, which injured ap-pellee, was insecurely stacked, unless it is to be inferred from the fact that a keg fell. Neither appellee nor any one else had noticed the unsafe condition of any of the stacks, and the testimony of Euermann showed that the kegs “were stacked the same as usual, usual and customary way, the proper way to stack the kegs,” on the day that appellee was injured. Mandry swore that there were no “barrels out of the stack on the left-hand side.” The kegs were stacked by the fellow servants of appellee. No one knew what caused the barrel to fall, if it fell from a pile on appellee’s left. Appellee testified:

“I do not know what caused that barrel to fall, what the reason of it was.”

No one knew how long the kegs had been piled. Mandry testified that they had been piled for two or three days, and he supervised the piling of the kegs, and saw that they were safely stacked. Appellee was working on the barrels that had been longest stacked. The books of appellant showed that appellee was hurt on December 9, although he testified it was December 8, 1910. On the last date seven car loaders, who also stacked kegs, were at work among the kegs, and the same number on December 9th. Appellee admitted that he was hurt in October, 1910, by the car loaders rolling the kegs over and knocking other kegs down. The evidence utterly fails to show that the kegs were improperly stacked, or that due care was not exercised to discover defective stacking, if such stacking had béen proved.

The only basis for a recovery in this case is that the kegs were improperly and negligently stacked, and although this was done by the fellow servants of appellee, for whose acts appellant could not be held accountable, still it is contended it was the duty of appellant to discover such imperfect stacking and remedy it. The evidence utterly fails to show improper or careless stacking, or that the keg fell by reason thereof, if it had been proved. The evidence shows that the car loaders, who at a previous time had knocked a keg down on appellee, were at work about the kegs at the time appellee was hurt. The former act may have been repeated, a hypothesis based upon circumstances to sustain it, while the fact of improper stacking is sustained by no facts whatever. It was in proof that in the course of experience of the superintendent, Etter, a stack of kegs had never fallen from improper stacking. This testimony was not controverted, nor that to the effect that, if improperly stacked, “they come down again right away.” Much of the testimony tended to show that the keg that hurt appellee came from the stack from which appellee was taking kegs. It is a coincidence that, according to appellee’s testimony, just as he pulled the keg to the floor on the right-hand side, a keg came down from the left-hand side. Did he shake it down by the force with which he jerked his keg to the floor?

Taking the evidence of appellee in its most favorable light, and what caused the keg to fall from the stack on the left is not known. This is not a case where the doctrine of res ipsa loquitur applies, for appel-lee has pleaded the negligent acts of appellant which caused his injuries, and it devolved on him by direct proof to show actionable negligence' upon the part of appellant as alleged. Negligence is not inferable, as between master and servant, from the mere happening of the accident; but there may be cases -where the circumstances in proof show that the accident would not have happened, if due care had been exercised. The facts in this case show that the falling of the keg could have occurred from other causes than improper stacking, and the circumstances fail to indicate that, but for improper stacking, the keg would not have fallen. Negligence has been alleged in a certain way, and negligence must be proved as alleged. It may be shown by circumstances which lead naturally and directly to the reasonable conclusion that negligence caused the accident; that is, the negligence alleged. We have never fully agreed wdth the ease of McCray v. Railway, 89 Tex. 168, 34 S. W. 95, as we stated in Broadway v. San Antonio Gas Co., 24 Tex. Civ. App. 603, 60 S. W. 270, in which a writ of error was refused, and yet it may be stated that the evidence in the McCray Case showed that only improper loading could have caused the steel rail to fall off the car. No such testimony appears in this case. As said by this court in Railway v. Garven, 50 Tex. Civ. App. 248, 109 S. W. 427:

“There is really no exception to the rule that negligence is not inferable, as between master and servant, from the mere occurrence of an accident; but there are cases where the very nature of the action may of itself, and through the presumption it carries, supply the requisite proof; that is, the circumstances in proof show that the accident would not have happened, if due care had been exercised.”

See, also, Lone Star Brewing Co. v. Willie, 52 Tex. Civ. App. 550, 114 S. W. 186.

As said by tbis court on tbe former appeal (182 S. W. 3S9):

“In this case there is no allegation or proof that the place furnished by appellant was not a reasonably safe one, and the sole ground of negligence is the improper piling of the barrels. The piling was admittedly done by fellow servants. There is no evidence as to when the barrels were stacked. There is no evidence tending to show that appellant had any notice whatever of the dangerous condition in which the barrels were stacked, or that the utmost diligence would have disclosed such dangerous condition.”

In addition, tbe' evidence not only fails to show that tbe kegs were negligently stacked, but there was evidence tending to show that they bad been safely stacked, and that, if one of the kegs fell, it was from some other cause than improper stacking.

There is no allegation of any defect in any tools, machinery, or other appliances furnished appellee, nor in the construction of the premises where he worked, nor of any negligence in the employment of any servant whose negligence might have caused the accident. Everything was in perfect order, so far as construction and provision were concerned. It was only a matter of detail in the operation of the work and in the final analysis of a failure to discover the negligent way in which the fellow servants of appel-lee had stacked the kegs. No negligence is shown in this regard.

Negligence must be proven by facts or circumstances ; it cannot rest upon surmise, inference, suspicion, or imagination. Tbe kegs may have fallen as narrated by appel-lee; but wbat caused it is not disclosed, and there is an utter failure to prove a case of negligence. Tbis case has been thoroughly investigated, and nothing further can be added to it.

Tbe judgment of tbe lower court is reversed, and judgment here rendered that appellee taire nothing by this suit, and that appellant recover all costs in tbis behalf expended.
      tteoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    BANCROFT v. EMERSON-BRANTINGHAM IMPLEMENT CO.
    (No. 192.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 28, 1917.
    Rehearing Denied May 16, 1917.)
    1. Sales @=>126(1), 179(4) — Acceptance — Time eor Returning Goods.
    Where buyer retained a tractor nearly three years after knowing it was unsatisfactory, and that the seller would make no further repairs, he cannot rescind the contract or avoid paying the purchase price.
    [IOd. Note. — For other cases, see Sales, Cent. Dig. §§ 313, 315, 460^463.]
    2. Appeal and Error @=32615(1) — Findings— Con clusi veness .
    A finding of fact not excepted to is conclusive upon appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1536, 1538, 1543-1551.]
    Appeal from District Court, Orange County ; A.- E. Davis, Judge.
    Action by tbe Emerson-Brantingham Implement Company against E. W. Bancroft. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Bisland & Bruce, of Orange, for appellant. Spence & Haven, of Dallas, for appellee.
   BROOKE, J.

The plaintiff, Emerson-Brantingham Implement Company, instituted tbis suit in tbe district court of Orange county against tbe defendant, E. W. Bancroft, and alleged in substance that on tbe 1st day of October, 1912, Reeves & Co., of Columbus, Ind., sold to defendant, Bancroft, one Reeves 40 gasoline tractor, together with regular equipment, at tbe contract price of $3,025, allowing to defendant, Bancroft, a cash discount of $181.50, leaving a total balance due, as purchase price, tbe sum of $2,843.50, which said amount was to be paid by tbe defendant, Bancroft, to Reeves & Co., as follows: $600 cash, and the sum of $2,243.50 when the defendant, Bancroft, was satisfied that the engine would successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble; the test to be made on defendant’s farm, and to be determined in six days of favorable plow weather. Plaintiff further alleged that said contract and claim against the defendant, Bancroft, was, for a valuable consideration, transferred, assigned, and delivered by Reeves & ■Co. to the plaintiff, Emerson-Brantingham Implement Company. It was further alleged that the defendant, Bancroft, paid the sum ■of $600 cash when the machinery was delivered to the defendant, and accepted said machinery when the same was delivered, and had, since the date the same was delivered to .him, retained, used, and operated said machinery for threshing, plowing, disking, •and other purposes. Plaintiff alleged further that both Reeves & Co., and the plaintiff had fulfilled the contract of sale on their part, in ■delivering said machinery to the defendant, Bancroft. It was further alleged that 'the •defendant had retained and used said machinery for a period of two years and seven months, and that said time was an unreasonable time to retain, operate, and use said machinery without paying therefor; and that ■defendant, having had a reasonable time in which to test said machinery, and having retained said machinery and having used said machinery as his own, and having exercised the right of ownership over the same, that he thereby became liable to the plaintiff for the purchase price thereof. The further allegation is made that the sum of $181.50 allowed to the defendant as a cash discount was allowed upon the express consideration that defendant would pay cash for said maehin-■ery, and the defendant having failed and refused to pay for said machinery in aecord■ance with the terms and conditions no£ the contract of sale, thereby forfeited said cash discount, and was not entitled to receive said cash discount in the sum stated. Plaintiff asked judgment against the defendant for the sum of $2,425, together with inter■est thereon.

Defendant pleaded a general demurrer and .a general denial, and then alleged that the amount of $2,243.50 to be paid by the defendant to the plaintiff was not to be paid until the defendant was satisfied that the engine would successfully pull six 16-inch plows 6 inches deep in sod and nine 16-ineh plows 3 inches deep in rice stubble, said test to be made on defendant’s farm, and to terminate in six days of favorable plow weather, and that defendant had never been satisfied that said engine would successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches 'deep in rice stubble on his farm, and denied the right of plaintiff -to recover until he was so satisfied. By par-. agraphs 4 and 5 of defendant’s original answer he sought to- recover certain sums of money by way of cross-action against the plaintiff, but said allegations were abandoned by the defendant on the trial of the case, and further reference to the same will therefore be unnecessary.

A jury was waived and the case was tried before the court, and judgment rendered in favor of appellee, Emerson-Brantingham Implement Company, against the defendant, E. W. Bancroft, for the sum of $2,425. Defendant’s motion for a new trial was overruled, to which defendant excepted, and gave notice of appeal to this court. The machinery sold to the defendant was sold under the provisions of a written order as follows:

“Orange, Texas, Oct. 1, 1912.
“Reeves & Co. (Inc.) Columbus, Indiana: You will please ship for the undersigned purchasers at Bancroft station, in care of Reeves & Co., agent at Oklahoma City,- Okla., by the route you think best and cheapest, if possible, on or about October 3, 1912, the following described machinery, with appurtenances, viz.:
[I-Iere follows a description of property] . $3,025.00
Cash discount. 181.50
Total .. $2,843.50
“Where, in consideration thereof, I or we agree to receive the same, pay the freight and charges from Columbus, Indiana, and at the same time settle for said machinery in cash or notes in the sum of two thousand eight hundred forty-three and 50-100 dollars, as follows: Cash on delivery of the engine at Orange, Texas; $600.00 made payable at the Orange National Bank — Bank in Orange, Texas; ($2,-243.50) two thousand two hundred forty-three and 50-100 dollars to be paid when satisfied that engine will successfully pull six sixteen-inch plows six inches deep in sod and nine sixteen-inch plows three inches deep in rice stubble, said test to be terminated within six days of favorable plow weather, on Mr. Bancroft’s farm. P. O. Orange, Texas.
“[Signed] E. W. Bancroft.”

•The court, at request of defendant, filed its findings of fact and conclusions of law, to which there was no exceptiofi taken by' defendant, said findings being as follows:

“May 12, 1916.
“The court having been requested to file conclusions of fact and law in the above numbered and entitled cause, finds the following:
“Facts.
“(1) On the 1st day of October, Reeves & Co. sold to the defendant, E. W. Bancroft, one Reeves 40 gasoline tractor, with regular equipment and 12-in eh extensions for drive wheels, and 4-inch extensions for front wheels, for which E. W. Bancroft agreed to pay the sum of $3,025, less a cash discount of $181.50, leaving a total amount for which he was to pay for said machinery the sum of $2,843.50. Said sum of money was to be paid as follows: $600 cash when said machinery was delivered at the station Bancroft in Orange county, Tex., and the balance of $2,243.50 to be paid when E. W. Bancroft was satisfied that said engine would successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble, test to , be made on E. W. Bancroft’s farm, and to terminate in six days of favorable plow weather; said contract of sale being evidenced by writing, signed by E. W. Bancroft.
“(2) The machinery described in the first finding was shipped by Reeves & Co¡ to E. W. Bancroft and arrived at Bancroft station, in Orange county, Tex., about the 1st day of November, 1912, and was immediately unloaded from the cars and removed to the E. W. Bancroft farm, a short distance from Bancroft station.
“(3) I find that by indorsement on said contract Reeves & Co. transferred all of its right, title and interest in and to the balance due on said machinery and assigned the contract evidencing said balance, for a valuable consideration, to Emerson-Brantingham Implement Company, plaintiff in this case.
“(4) I find that Reeves & Co. was a foreign corporation incorporated under the laws of the state of Indiana, and had a permit issued to it on the 3d day of March, 1904, in accordance with the requirements of the laws of the state of Texas, authorizing it to transact business in the state of Texas as a foreign corporation, and that said permit was to run for a term of ten years, ending on the 1st day of May, 1913.
“(5) I find that the plaintiff, Emerson-Brant-ingham Implement Company, is a foreign corporation, incorporated under the laws of the state of Illinois, and that it had a permit issued to it on the 18th day of November, 1912, in accordance with the requirements of the laws of the state of Texas, authorizing- it to transact business in the state of Texas, and that said permit was to run for a term of ten years, until, to wit, the 18th day of November, 1922.
“(6) I find that either Reeves & Co. or Emerson-Brantingham Implement Company had representatives from its factory at the station of Bancroft when said machinery arrived, who assisted in unloading said machinery and in taking the same to the farm of the defendant, and that said expert remained with the machinery for several days in operating and in attempting to make said machinery operate on the farm of the defendant.
“(7) I find that after the machinery had been on the farm of the defendant nine days that said machinery had not, to the satisfaction of the defendant, successfully pulled six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble.
“(8) I find that on November 8, 1912, the defendant E. W. Bancroft, by letter notified Emerson-Brantingham Implement Company, the plaintiff, that he was not satisfied that said engine would successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble.
“(9) I find that from the date said machinery was unloaded until the month of July, 1913, that the plaintiff, Emerson-Brantingham Implement Company, sent four different experts, two of whom made two separate visits to see Mr. Bancroft with reference to said machinery, and to see if they could not repair said machinery so that said machinery would, to the satisfaction of E. W. Bancroft, successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble.
“(10) I find that after all of said experts had visited E. W. Bancroft with reference to said machinery, that the said machinery would not successfully pull six 16-ineh plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble, to the satisfaction of E. W. Bancroft.
“(11) I find that E. W. Bancroft was satisfied in July, 1913, that said engine would not successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble, on the Bancroft farm in Orange county, Tex.
“02) I find that neither the Emerson-Brant-inglmm Implement Company nor Reeves & Co., after July, 1913. further attempted in any way to remedy said machinery or in any way make it, to the satisfaction of E. W. Bancroft, successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble on the Bancroft farm.
“(13) I find that after E. W. Bancroft, in July, 1913, learned and was satisfied that said engine would not successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble, on his [Bancroft’s] farm, and that he knew that both Reeves & Co. and Emerson-Brantingham Implement Company had abandoned all further efforts to make said machinery so perform, that he (E. W. Bancroft) used said machinery in the fall of the year 1913, and in the spring of the year 1914, and in the fall of the year 1914, and in the spring of the year 1915, and in the fall of the year 1915, in disking ground and in threshing his rice crops.
“(14) I find that neither Emerson-Branting-ham Implement Company nor Reeves & Co. ever consented that E. W. Bancroft could use said machinery for any purpose than the test to which he was to subject said machinery before he was to make final payment therefor, and that the use of said machinery by E. W. Bancroft in threshing- his rice crops and in disking his lands was without the consent of either Reeves & Co. or Emerson-Brantingham Implement Company.
“(15) I find that the said machinery is not worthless,- but that the reasonable cash market value of said machinery at this time is the sum of $1,000, and that said machinery has been on the E. W. Bancroft farm in Orange county, Tex., since November, 1912, whore it was unloaded off of the cars, until this day, and the cash market value of said machinery at sajd place has never beep less than the amount of $1,000 from that date to this.
“(16) I find that there have been more than six days of favorable plow weather at the Bancroft farm in Orange county, Tex., since said machinery was delivered thereon, about the 1st of November, 1912, and that said E. W. Bancroft has retained .said machinery for a longer period than a reasonable time in which said E. W. Bancroft was to test said machinery to the end that he might b'e -satisfied that the same would successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble.
“(17) I further find that after a reasonable time had elapsed in which the said E. W. Bancroft could have tested said machinery to his satisfaction to see if the same would successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble; that thereafter he continued to use said machinery in threshing his rice and in disking his land.
“(18) I find that E. W. Bancroft paid to the plaintiff $600 when said machinery was delivered at Bancroft station on or about November 1, 1912.
“(19) I find that the defendant, E. W. Bancroft, has not paid the $2,243.50, which was to be paid when the said E. W. Bancroft was satisfied that the engine would successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble.
“(20) I find that when payment for machinery of this character is made within thirty days after the delivery that a cash discount will be allowed to the purchaser, and that the parties to the sale in this case mutually agreed and understood that the contract price should -be $3,025, but that the said E. W. Bancroft should receive a cash discount of $181.50, because the parties mutually understood and agreed that all of the purchase price for said machinery would be paid within thirty days from date of delivery.
“(21) I find that said purchase price of $3,-025 was not paid by B. W. Bancroft within thirty days from day of the delivery of said machinery, and that all of said purchase price has not been paid to this date.
“Conclusions of Law.
“I conclude as a matter of law that when the defendant, E. W. Bancroft, was satisfied in July, 1913, that said engine would not successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble, on his .[Bancroft’s] farm, located in Orange county, Tex., that he could have refused to accept said machinery and could have recovered the $600 paid to plaintiff therefor, together with all freight which he had paid thereon, but that he could not after that time continue to use said property to thresh his rice and disk his lands, because such use was utterly inconsistent with the right of rescission or with the right of subjecting' said machinery to said test. I further conclude that when E. W. Bancroft became satisfied in July, 1913, that said engine would not successfully pull six 16-inch -plows 6 inches deep in sod and nine 16-ineh plows 3 inches deep in rice stubble, on his [Bancroft’s] farm, in Orange county, Tex., and thereafter, in the fall of 1913, and in the spring of 1914, and in the fall of 1914, and in the spaing of 1915, and in the fall of 1915, when he used said machinery to disk his lands and thresh his rice crops, that said use of said machinery on his part evidenced a right of proprietorship or ownership over said machinery, and was utterly inconsistent with his right to reject said machinery, and that having so used said machinery and having exercised the right of ownership and pi’oprietorship over said machinery he is bound to pay there-foi\
“X further conclude that the defendant, E. W. Bancroft, is not entitled to the cash discount of $181.50, and that plaintiff, Emerson-Branting-ham Implement Company, is-thei’efore entitled to recover from the defendant, E. W. Bancroft, the sum of $2,243.50, together with the further sum of $181.50, making a total in the sum of $2,425, which the plaintiff, Emei-son-Branting-ham Implement Company, should recover against the defendant, E. W. Bancroft.”

It seems to have been conceded by the defendant, in the trial court, that his cross-action for damages in the sum of $2,000 was not well taken, and that he was not entitled to recover thereon, and therefore no exception was taken to the court’s refusing a recovery on said cross-action. It also seems to have been conceded by the defendant in the trial 'court that the sum of $425, which he claimed for repairs to the machinery, could not be recovered in this case against plaintiff for the reason that the evidence failed to show that the plaintiff had contracted and legally bound itself to reimburse defendant for said repairs, and therefore no exception was taken to the court’s refusal to grant him judgment for said sum, and in addition to this it seems to have been conceded also by defendant in the trial court that he did not take advantage of the cash discount provided in the order of sale in the sum of $181.50, and that if plaintiff was entitled to recover against him at all, that then the plaintiff should recover the sum of $2,243.50, together with the additional sum of $181.50, allowed as a cash discount, making the total amount that plaintiff should recover the sum of $2,425.

Appellant’s first assignment of error is as follows:

“The court erred in holding as a matter of law that the use by defendant of the machinery for any purpose, and particularly for the pur-poso of disking and threshing, was in effect an acceptance by defendant of said machinei'y for all purposes, and equivalent to defendant’s becoming satisfied that the machinery would plow as specified.”

The proposition under this assignment is:

“The use, by purchaser, of machinery bought on approval, such maehinei-y to be paid for when purchaser is satisfied after a test that it will do certain things, is not equivalent to an acceptance thereof, and does not constitute, of itself, purchaser’s satisfaction.”

The counter proposition is:

“Where a vendee of machinery purchased on trial, after a tx’ial is dissatisfied with the machinery, and the vendor has abandoned all efforts to make the machinery satisfactory to the vendee, without the consent of the vendor, uses the machinery for more than two years, the vendor may recover the purchase piice of said machinery from the vendee, and the vendee' cannot be heard to say that he has not accepted the machinei’y, because the long-continued use of the machinery by the vendee is utterly inconsistent with the right of rejection, and consistent only with the claim of title and ownership.”

With reference to this matter, an inspection of the record will show that the thirteenth paragraph of the court’s findings is as follows:

“I find that after E. W. Banci’oft, in July, 1913, learned and was satisfied that said engine would not successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble, on his [Bancroft’s] farm, that he knew that both Reeves & Oo. and Emerson-Brantingham Implement Company had abandoned all further efforts to make said machinery so perform; that he (E. W. Bancroft) used said machinery in the fall of the year 1913, and in the, spring of the year 1914, and in the fall of the year 1914, and in the spring of the year 1915, and in the fall of the year 1915, in disking ground and in threshing his rice crops.”

It will be noted that no exception to this finding of the trial court was made. Therefore the above stands as one of the facts in this case, and from this finding it is clearly evident that Bancroft, after1 appellee had abandoned all efforts to make said machin-ei’y perform as set ont in the contract, nevertheless continued to use the machinery for something over two years. Therefore it is a question, not so much of use of the machinery by the appellant, as it is the use of the machinery after he was satisfied that it would not accomplish the things specified in the contract, and that after Bancroft knew he was not satisfied, and became sure he could not be made so, he nevertheless continued to use the machinery for nearly three years. Consulting the authorities, we are of opinion that the assignment is not well taken, and that it must be overruled.

In the case of Hallwood Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857, the judge, rendering the opinion, says:

“The testimony shows that, just prior to the commencement of this suit, the defendant notified the plaintiff that he would not keep the property, and plaintiff must take it away. This was not done, and defendant by Ms testimony continued to use it. It was the duty of defendant, as soon as he learned of the misstatements, to have rescinded the contract; and notice of such rescission must have been promptly given, and adhered to, in order to bind the parties thereto. The continued use of the property for some thirty days after he had learned the facts would he a waiver of the right of rescission, even though notice of such rescission had hgen given. (Italics ours.)”

The opinion continues further:

“In the case of Bassett v. Brown, 105 Mass. 551, it was held that a party, led into a contract by fraud, ‘was entitled, upon discovering-the facts, to elect whether to affirm the conveyance and retain the consideration, or to avoid it. * * * If after such knowledge he continues to deal with the property received as his own, he thereby affirms the contract by which he received it.’ ”

Continuing, the court says:

“The testimony of J. M. Berry, one of the appellees, brings this case clearly within the scope and application of the rule laid down in the decisions cited. Ho knew that the machine was worthless, and yet he used it after gaining such knowledge. * * * He knew as much the first day he used it as afterwards, according to his own statements. He used it for the purposes for which he had bought it, and thereby waived all right to rescind his contract of purchase.”

Our attention has been called, also, to the case of Dodsworth v. Hercules Iron Works, 66 Fed. 483, 13 C. C. A. 552, in which the following language is used:

“The right of rejection was lost by the long-continued use of the machinery, which use was utterly inconsistent with a purpose to resort to the first remedy which was open to them, and consistent only with a claim of title and ownership.”

In the case of Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669, 14 L. R. A. (N. S.) 1107, the following language is used:

“Defendants sold to plaintiffs a traction engine for $400 and an old horse power. By written agreement the purchasers wore accorded ‘ten days’ trial on this engine, and said engine must do good work and be in good shape. If engine wheels and pinions break this year (1006) by cause of defect, same will be sent new.’ Plaintiffs received the engine, had used it in threshing on some six or seven different days, but during a period of more than ten days after its receipt. An August 27th they had ascertained to their own satisfaction that the engine would not do good work, and had determined absolutely that they would not accept or keep it, and, about noon, on that day, sent word to the seller’s agent to that effect. Thereafter, on the same day, and for about half of the following day, they continued to use the engine to run their threshing machine in order to finish up a job of threshing for a customer on which they were then engaged. Defendants, refusing to recognize the right of plaintiffs to rescind, got possession of the old horse power to wMch they were entitled under the terms of the trade. Plaintiffs, having demanded the same, brought replevin therefor. Upon trial the jury found a statutory verdict in replevin in favor of the plaintiffs, to the effect: (1) That plaintiffs were entitled to the possession of the horse power; (2) that defendants unjustly took and unjustly detained the same; (3) $60 value; and (4) plaintiffs’ damage, $S. But, in response to two special questions submitted by the court of its own motion, they found: (1) That ‘the plaintiffs determined absolutely, on August 27th, that they would not accept and keep the traction engine’; (2) that ‘after they had thus determined they proceeded with the use of the engine to finish the threshing job at which they were then employed.’ Upon this verdict the court denied plaintiffs’ motion for judgment, and rendered judgments in favor of defendants for the recovery of the horse power or for its value, from which judgment the plaintiffs appeal.”

On this state of facts the court says:

“One having, a right of choice between two inconsistent positions, who exercises that choice, is finally concluded and confined to the rights and remedies appropriate to the position so chosen, and excluded from those consistent only with the repudiated one. Since such choice is merely mental, any unambiguous act consistent with one and inconsistent with the other of the elective positions will be deemed conclusive evidence of such election. Smeesters v. Schroeder, 123 Wis. 116, 101 N. W. 363. When an article delivered in attempted satisfaction of a contract of or for sale is, upon reasonable inspection, ascertained to vary from the requirements of such contract, the recipient becomes vested with such a choice. He may repudiate it entirely as not being that which he purchased, or he may accept it either as satisfying the contract completely, or, under some circumstances, as satisfying it only partially, so that he may recoup its insufficiency or defect against the purchase price, or recover damages therefor. * * ⅜ In the first case he refuses to become the owner of the article; in the latter he does become such. The two are inconsistent; hence, when ho adopts either alternative, he can exercise no rights consistent only with the other position. Or, concretely, if, after ascertaining defects, he exercises dominion and avails himself of benefits to which he could 'be entitled only as owner, he1 so declares his election to become such that he cannot afterward deny the obligations of such position, or claim the immunities which would have resulted upon a rescission. ⅜ ⅜ ⅜ When a purchaser has the right to subject the article to trial, the mere use is, of course, ambiguous, for it may be for the purposes of trial; but when the test is complete so that the purchaser has, to his satisfaction, ascertained all that trial can teach him, and determined that the article does not satisfy the contract, then that element of ambiguity is eliminated in the construction of any subsequent acts of dominion or use. After that certainly any unnecessary application of the article to his advantage and benefit would in honesty be consistent only with a decision to become or continue owner.”

Our attention also has been called to the case of Brown v. Foster, 108 N. X. 387, 15 N. E. 608, and Palmer v. Banfield, 86 Wis. 441, 56 N. W. 1090. In the Brown Case we find the following language:

“Where the vendee, with full knowledge of its defects, keeps and uses machinery for nearly three months, without the consent of the vendor that it should be so used on trial, there is an acceptance of the machinery; and in an action by the vendee to recover for a broach of the contract to furnish the machinery, the vendor may recover, as a counterclaim, the agreed purchase price.”

In the Palmer Case it is said:

“Defendant, to whom plaintiff had sold a harvesting machine, to be paid for if it should prove satisfactory, after using the machine for a day and a half decided to return it for defects, but, in order to finish his harvesting, used it the next day, and then offered to return it. Held an acceptance, by which defendant waived his right to return it.”

We agree with, the second proposition of appellant under his first assignment, which is:

“The use, by purchaser, of machinery bought on approval, such machinery to bo paid for when purchaser is satisfied after a test that it will do a certain thing, is but a circumstance only, to be considered along with all the other feats and circumstances in determining whether or not purchaser was, in fact, satisfied, and such use is not conclusive of satisfaction.”

However, the view we take of the matter is that the assignment must be overruled in the light of the fact found by.the court that after the purchaser had become satisfied that no further effort would be made on the part of the vendor to make the machinery satisfactory, in other words, after he became assured that it was unsatisfactory, he nevertheless continued to use the same for the term of nearly three years, and under these circumstances was not entitled to rescind the contract; neither would he be entitled to be heard to say that after using the same for such length of time that he ought not to pay the purchase price.

The second assignment of error is:

“The judgment of the court is contrary to the law and the evidence in this, to wit, because the evidence established that defendant’s use of the machinery was consistent with defendant’s belief that the plaintiff' would yet make same plow to defendant’s satisfaction, and defendant being at the time' of such use by him, and after such use, ready and willing to pay plaintiff the amount- agreed to be paid, when satisfied that said machinery would plow as specified in said order; and in that the evidence establishes that the use by defendant of the machinery for disking and threshing was with the knowledge of plaintiff, and with the acquiescence of plaintiff, and plaintiff made no protest or objection to such use by defendant.”

The court’s fourteenth finding of fact is as follows:

“I find that neither Emerson-Brantingham Implement Company nor Reeves & Co. ever consented that E. W. Bancroft could use said machinery for any purpose than the test to which he was to subject said machinery before he was to make final payment therefor, and that the use of said machinery by E. W. Bancroft in threshing his rice crops and in disking his lands was without the consent of either Reeves & Co. or Emerson-Brantingham Implement Company.”

To this finding of the court there was no exception, and, of course, it is conclusive. Perhaps it might be well to recall that the court’s sixteenth finding of fact was as follows:

“I find that there have been more than six days of favorable plow weather at the Bancroft farm in Orange county, Tex., since said machinery was delivered thereon, about the 1st of November, 1912, and that said E. W. Bancroft has retained said machinery for á longer period than a reasonable time in which said E. W. Bancroft was to test said machinery to the end that he might be satisfied that the same would successfully pull six 16-inch plows 6 inches deep in sod and nine 16-inch plows 3 inches deep in rice stubble.”

The case, as made out by the record before us, clearly shows that there is no merit in the second assignment, and it is therefore overruled.

Appellant seems to have had a fair and impartial trial, the court filed findings of fact and conclusions of law, as requested, and there being no error in the action of the lower court, apparent in this record, which has been carefully considered, the cause is in all things affirmed. ■
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