author: SPEER, J.

text:
    MISSOURI, K. & T. RY. CO. et al. v. BROWN et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 1, 1913.
    Rehearing Denied March 29, 1913.)
    1. PRINCIPAL AND AGENT (§ 22) — EVIDENCE op Agency — Statements of Agent.
    Where persons alleged to be agents of a railroad company were found where such agents usually are, transacting the business of their respective railroads, their statements that they were such agents were admissible to prove agency.
    [Ed. Note. — Eor other cases, see .Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.]
    2. Appeal and Error (§ 1048) — Harmless Error — Reception of Evidence — Question. and Answer.
    That a question propounded to a witness is improper is not material, if it fails to elicit improper evidence.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. §.1048.]
    3. Evidence (§ 481) —Opinion — Conclusions.
    In an action for injuries, to a shipment of cattle, a qualified witness may testify as to what is the usual, customary,'or ordinary run, or. as to proper time or manner of doing things.
    [Ed. Note. — Eor other cases, see Evidence, • Cent. Dig. §§ 2248-2254; Dec. Dig. § 481.]
    4. Appeal and Error (§ 721) — Joint Assignments — Review.
    A joint assignment that the verdict was contrary to the weight of the evidence as to all the defendants was unsustainable, if the evidence supported a verdict as to any of them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2985-2989; Dec. Dig. § 721.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by J. K. Brown and others against the Missouri, Kansas & Texas Railway Company and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Thompson & Barwise and W. H. Francis, all of Ft. Worth, and A. S. Coke, of Dallas, for appellants. Goree & Turner, of Ft. Worth, for appellees,

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

   SPEER, J.

J. K. Brown shipped 626 head of cattle from Yan Horn, Tex., to Pontiac, Kan. The shipment was handled by the Texas & Pacific Railway Company,'the Missouri, Kansas & Texas Railway Company of Texas, the Missouri, Kansas & Texas Railway Company, and the Missouri Pacific Railway Company. The cattle received certain injuries in transit, and all of the roads were sued. The plaintiff had judgment against the Missouri, Kansas & Texas Railway Company of Texas and the Missouri, Kansas & Texas Railway Company in the sum of $675 each, and these defendants have appealed.

By appropriate bill of exceptions appellants complain that the court erred in permitting certain testimony of appellee Brown with reference to declarations made to him by persons who claimed to be agents of- these appellants along the route. The proposition urged is that the declarations, of a person are not admissible, of themselves, to prove agency in such person. The proposition is sound, but it does not follow that the objections to the evidence should have been sustained. The circumstances were sufficient or at least tended to show, independently of the declarations, that such persons were agents of appellants.. They were found where such agents are usually found, transacting the business of the roads, and their statements that they were such agents were therefore properly admitted. G., C. & S. F. Ry. Co. v. Looney, 51 Tex. Civ. App. 381, 115 S. W. 268.

By another bill of exceptions objection was interposed to the following questions propounded to the appellee and to his answer thereto, because the same involved a conclusion of the witness upon' the mixed question of law and fact of ordinary care in handling the shipment: “What, in your opinion, would have been the general market value of the cattle at Rosalia as died en route, or died there, or died after their arrival there, taking into consideration the condition that the cattle should have been in when delivered at destination and if handled en route in the usual way, and considering the handling that the cattle should have received and the condition they would have been in with that usual and ordinary handling?” and “What, in your opinion, would be the market value at Rosalia, Kan., of the cattle involved in the shipment that did not die, if they had been handled during the transportation on the trip in question in the usual and customary way and with ordinary care on the part of the carriers?” The witness answered as follows: “Considering the condition of these cattle at the time they started and the condition they should have arrived at destination with the usual and ordinary and customary handling, there was a market value for them at destination, and the 21 head there were dead had a market value, or would have had such market value, at destination, of from $24 to $30 per head, not including the freight,” and “Considering the condition of the remainder of the cows in this shipment, excluding the steers and the dead cattle, at the time they were delivered to the railroad company at Van Horn with the usual, customary, and ordinary run and handling that said shipment should have received for the distance they were shipped was $24 per head — about that — at destination. But the condition in which they were actually delivered — in the bruised condition, and there was quite a number of them that had slunk their calves, I should say about 35 or 40 of them — their market value was about $17 or $18 in the condition in which they were delivered.” The second question propounded was, perhaps, improper and in violation of the rule announced in H. & T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S. W. 808, as calling for a conclusion of the witness on a mixed question of law and fact, but the answer was not such as to fall within the condemnation of that rule. That the question was improper cannot be material, if it fails to elicit improper evidence. It has never been held, we believe, that a witness who knows cannot .testify as to the usual, customary, or ordinary run, or time, or manner, or the like.

The third assignment complains that the verdict was contrary to the great weight and overwhelming preponderance of the testimony, setting out the particulars wherein the same was deficient, and the fourth that the court erred in submitting the case at all as to these appellants because of the complete absence of evidence of negligence on their part. Of course, if the third' assignment is overruled, necessarily the fourth also will be. These assignments are joint assignments, and therefore, if the verdict and judgment finds support as to either appellant, the assignments must be overruled. See authorities cited in 1 Decennial Digest, Appeal and Error, § 721 (1). The evidence justified a finding, which we will attribute to the verdict, that the Missouri, Kansas & Texas Railway Company of Texas negligently delayed the unloading of the cattle after the delivery to it by the Texas & Pacific Railway Company at Hodge, and that such negligence resulted in the injuries for which the damages against that company were allowed. As to the other appellant, there is also evidence by the appellee of several delays, though, as further shown, such delays occurred at divisional points, where some delay is always to be expected, and it may be that from this evidence the jury also were authorized to find against that company; but, as indicated already, since the appellants have seen proper to treat the cause of the two roads as one by jointly assigning error to the verdict and judgment; we do not find it necessary to determine this matter.

This disposes of all assignments adversely to appellants; and the judgment is affirmed.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    DE WITZ et al. v. SANER-WHITEMAN LUMBER CO.
    (Court of Civil Appeals of Texas. Galveston.
    March 22, 1913.
    On Motion for Rehearing, April 17, 1913.)
    1. Trespass (§ 52) — 'Taking Lumber — Damages — Manufactured Value.
    To warrant a recovery of the manufactured value of trees taken by one person from the land of another, it must have been within the knowledge of the taker that he was not the owner, or he must have been guilty of such negligence in not knowing it that he would be estopped to deny that he knew it, the taking being willful and without the belief in good faith that the taker was entitled to make the appropriation.
    [Ed. Note. — Eor other cases, see Trespass, Cent. Dig. §§ 137, 138; Dec. Dig. § 52.*]
    2. Tenancy in Common (§ 24) — Cutting Timber — Taker’s Liability — Measure oe Damages.
    Where defendant lumber company, having purchased an undivided three-fourths interest in certain timber land, cut, manufactured, and sold the timber, which was of proper size for advantageous sale, with knowledge that it did not own the outstanding one-fourth interest, the fact that it .took a deed to the whole tract, paid all the taxes, executed mortgages thereon, etc., did not constitute an ouster of the coten-ants owning the remaining one-fourth in view of defendant’s express recognition of their interest and readiness to account for the proportionate value of the timber on demand; and hence the taking was not willful so as to render defendant liable for the manufactured value of the lumber, but it was only liable for one-fourth of the value of the timber.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 65, 66; Dec. Dig. § 24.]

      Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.
    Trespass to try title by Robert De Witz and others against the Saner-Whiteman Lumber Company. From a judgment for plaintiffs for less than the relief demanded, they appeal.
    Affirmed.
    June C. Harris, of Nacogdoches, for appellants. Blount & Strong, of Nacogdoches, for appellee.

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

   McMEANS, J.

This is a suit of trespass to try title, brought by appellants against the appellee to recover an undivided one-fourth interest of 80 acres of land out of the Alfred Moore survey in Nacogdoches county. Under an allegation that appellee had cut and removed all the merchantable pine timber on the entire 80 acres, appellants sought to recover the value of one-fourth thereof after it had been manufactured, into lumber, and, in the alternative, sought a recovery of the value of one-fourth of the timber taken from the land, called in the parlance of the timber region “stumpage value.” A trial before the court without a jury resulted in a judgment for appellants for an undivided one-fourth of the land, and for the sum of $197.50 for their proportionate value of the timber cut and appropriated by appellee from the land, based upon the stumpage value. Appellants, claiming that under the facts proven they were entitled to a judgment for the manufactured value of one-fourth of the timber taken, excepted to the judgment of the court, and have brought this case before us on appeal.

The facts are these: Appellants and ap-pellee were tenants in common of the 80 acres, the former owning one-fourth and the appellee three-fourths undivided interest therein. Appellee having opportunity of making advantageous use of the merchantable pine timber growing upon the land cut and removed the same, and manufactured it into lumber, which it sold, and appropriated the proceeds. When it did this appellee knew that there was an outstanding title to one-fourth undivided’ interest in the land, but nevertheless cut all such timber and manufactured it into lumber, holding itself liable and ready to account to the owners of the one-fourth interest for their' proportionate value of the trees taken whenever they should demand it. Under these facts, is appellee liable for the manufactured value?

In order to warrant a recovery of the manufactured value of the trees taken by one person from the land of another, it must have been within the knowledge of the taker that he was not the owner, or he must have been guilty of such negligence in not knowing it that he would be estopped to deny that he knew it. In other words, the act of taking or trespass must have been willful and without the belief in good faith that he had the right to make appropriation thereof. This rule has been substantially adopted and followed in this state in the following cases; Railway v. Jones, 34 Tex. Civ. App. 94, 77 S. W. 955; Young v. Lumber Co., 100 S. W. 784; Werner Stave Co. v. Pickering, 55 Tex. Civ. App. 632, 119 S. W. 333.

But has the rule any application to a case where one person cuts and sells the trees, knowing at the time that he is not .the sole owner of the land, but that he is only a tenant in common with others? We think not. In Freeman on Cotenancy and Partition, § 251, it is said that: “If timber standing on the land is of proper size and condition for advantageous sale, either of the co-tenants may lawfully proceed to cut and sell it, for in so doing he makes no unusual use of the real estate of which he is a tenant in fee.” This statement of the rule is quoted approvingly in Gillum v. Railway Company, 5 Tex. Civ. App. 338, 23 S. W. 717, where it is held that one tenant in common may cut trees proper to be cut on the land held in tenancy in common, and that the remedy of the cotenant is an action against the eotenant cutting the timber for his share of the value, citing Baker v. Wheeler, 8 Wend. (N. Y.) 505, 24 Am. Dec. 66. If, then, one co-tenant may take the trees when the occasion of doing so advantageously arises, he in doing so does only that which his relation to the eotenant and to the land from which the timber is taken justifies, and therefore cannot be said in any sense to be a trespasser, or to have acted with knowledge that he has no right to the trees taken. Nor was it essential that the cotenant who took the trees should have first acquired the consent of the other cotenants, for to require this would in many instances be practically a denial of any benefit to him from the use of the trees, and would require a partition of the estate before he could exercise any individual control over his interest in that regard. From this it follows, we think, that. the taking of the timber by appellee was not, under the circumstances of the case, wrongful as to appellants; and, not being wrongful, appellants’ recovery was properly restricted to the value-of the trees. This conclusion is borne out, we think; by the authorities. In 38 Cyc. 91, the rule is thus stated: “The ordinary rule of valuation in an accounting between tenants in common as to the removal of timber by some of them, in the absence of a statute or agreement to the contrary, is the value of the timber while growing.” In Coleman’s Appeal, 62 Pa. 278, the question under consideration was the measure of recovery in favor of one tenant in common for certain ores that had been taken by another from the common estate and sold. The court, after stating that “It seems that even where a trespass has been committed, if innocently and unintentionally, by working over a party’s own line into his neighbor's adjacent tract, the measure of damages is the value of the mineral or timber taken in place, or at the farthest when first severed,” goes on to say: “But the case of the defendants is entitled to still more favorable regard than that of a trespasser, though by mistake or ignorance. There the property has been taken .wrongfully and against his will. Here a tenant in common exercises his undoubted right to take the common property, and he has no other means of obtaining his own share than by taking at the same time the shares of his companions. The value of the oré in place is therefore the only just basis of account.” To the same effect is Patureau v. Wilbert, 44 La. Ann. 355, 10 South. 782, where this language is used: “We cannot see how defendants can be held liable for tort or trespass on land in which they have one-half interest to the other coproprietor by the simple cutting and removing of trees for manufacture and sale in the ordinary course of affairs, and without waste or destruction.”

We think that the court applied the proper measure of damages in this case, and the judgment therefore must be affirmed.

Affirmed.

On Motion for Rehearing.

Appellants insist in their motion for a rehearing that as the facts, proven upon the trial show beyond question that, while appellants and appellee were tenants in common of the land from which appellee removed the timber which it manufactured into lumber, nevertheless appellee purchased a title adverse to its cotenants and claimed and held the land adversely to them,, and that by so doing appellee ousted appellants and repudiated their title, and that, therefore, appellee was in law a trespasser and liable as such for the manufactured value of their proportion of the timber taken. The facts upon which this contention is based are these: Houston West was the owner during his lifetime of the 80 acres in controversy. He died intestate, and left surviving him his wife, Melvina, and six children. Afterwards Charles Hoya purchased from Melvina and certain of the children three-fourths undivided interest in the land. Hoya then conveyed to appellee the entire 80 acres; the latter at the time of the conveyance knowing that Hoya only owned a three-fourths interest. After this conveyance was made appellee rendered for taxation, and paid taxes on, the entire 80 acres, and at divers times gave deeds of trust upon it, and finally cut and removed the merchantable'pine timber therefrom, and manufactured the same into lumber. At the time of the cutting, removal, and manufacture appellee knew there was a superior outstanding title to one-fourth of the land, and took the timber in recognition of it; and, as stated in our opinion, held itself liable and ready to account to the owners of the one-fourth interest for their proportionate share of the value of the trees taken whenever they should demand it. We think that the taking of a deed to the whole of the tract, paying all taxes thereon, and executing mortgages upon it did not amount in law to a repudiation of appellants’ title to one-fourth, in view of their express recognition of it, and their readiness to account to the owners thereof for their proportionate portion of the value of the timber upon demand; and in any event the taking in the circumstances was not such a willful taking as rendered appel-lee liable for the manufactured value.

The motion for a rehearing is overruled.


text:
    WHITE et al. v. COWLES.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 15, 1913.
    Rehearing Denied March 22, 1913.)
    1. Husband and Wife (§ 238) — Actions Against Mabried Women — Judgments — Validity.
    Rev. Civ. St. 1911, art. 4625, providing that the court entering judgment against a married woman shall decree that execution may be levied on either the common property or her separate property at the discretion of plaintiff, is for the benefit of plaintiff, and the failure of the judgment to award an execution against the wife’s property does not render the judgment void.
    [Ed. Note. — For other eases, see Husband and Wife,. Cent. Dig. §§ 853-855, 858, 860-863, 983; Dec. Dig. § 238.]
    2. Husband and Wife (§ 238) — Collateral Attack.
    The error in a judgment against a married woman arising from its failure to specifically award execution against the wife’s property, as provided by Rev. Civ. St. 1911, art. 4625, does not render the judgment subject to collateral attack.
    [Ed. Note. — Por other cases, see Husband and Wife, Cent. Dig. §§ 853-855, 858, 860-863, 983; Dec. Dig. § 238.]
    3. Attachment (§ 182) — Liens—Deeds.
    The filing for record of a corrected deed after the attachment of the property conveyed confers no right on the grantee superior to the attachment creditor, w*here the ’original deed executed by the debtor was fatally defective.
    [Ed. Note. — Por other cases, see Attachment, Cent. Dig. §§ 577-580; Dec. Dig. § 182.]
    4. Homestead (§§ 29, 154) — Selection-Rights of Parties.
    The husband has the right to choose the homestead for the family and to abandon a homestead.
    [Ed. Note. — Por other cases, see Homestead, Cent. Dig. §§ 37, 307; Dec. Dig. §§ 29, 154.]
    5. Homestead (§ 161) — Abandonment—Acts Constituting.
    Where a’ widow occupying premises as a homestead married, and she and her husband voluntarily left the premises, with no intention on the part of the husband again to make the same the homestead of the family, the property became subject to execution sale.
    [Ed. Note. — Por other cases, see Homestead, Cent. Dig. §§ 312-314; Dec. Dig. § 161.]

      Error to District Court, Clay County; P. A. Martin, Judge.
    Action by E. J. Cowles against Charles H. White and others. There was a judgment for plaintiff, and defendants bring error.
    Affirmed.
    J. C. Chesnutt and P. M. Stine, both of Henrietta, and Theodore Mack, of Ft. Worth, for plaintiffs in error. A. S. Moss, of Memphis, for defendant in error.

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

   SPEER, J.

This is an action of trespass to try title instituted by E. J. Cowles against Chas. H. White and others to recover certain land in Clay county in which there was a judgment for the plaintiff, and the defendants have sued out a writ of error.

The trial court made the following findings of fact:

“This case involves the title to an interest of Susie B. Bolton in a house and lot in Henrietta, Clay county, Tex., which was owned by her. and her first husband, T. B. McDonald, and occupied by them as a homestead.
“McDonald died May 15, 1S90, and his widow occupied the premises as her homestead until she married S. W. Bolton on April SO, 1908. When she married Bolton she moved away with Bolton, and has since resided in several places, but has never returned to the place in controversy. Bolton owns two places in Bonham, Tex. He never lived on or claimed the place in Henrietta as his homestead, but has claimed it as his wife’s homestead.
“Mrs. Bolton at the time of her marriage owed the plaintiff Cowles a debt which, with principal, interest, and attorney’s fees, amounted to $318.77, and on September 8, 1909, Cowles caused a writ of attachment to be levied upon the property ijj controversy to secure his debt, said property being levied upon as the property of Susie B. Bolton and S. W. Bolton. After judgment of foreclosure said property was duly sold by the sheriff of Clay county, and bought by Cowles upon his judgment In the meantime on September 2, 1909, Mrs. Bolton and her husband had executed a deed to the property to Chas. H. White, who is a son-in-law of Mrs. Bolton, attempting to convey the property to him for a consideration of $1 and a promise upon the part of White to furnish her with another home of equal value to this at some future time when she decided where she wanted it. This deed was fatally defective, but on August 2, 1910, after the attachment proceedings against the place, a corrected deed was filed for record reciting the consideration expressed above.
“From all the circumstances of the case I find as a fact that Mrs. Susie Bolton had abandoned the place as a homestead before the levy of the attachment by plaintiff, E. J. Cowles.”

It is apparent that defendant in error’s title is dependent upon the Validity of the sheriff’s sale growing out of his levy of a writ of attachment upon thq property in controversy, and several of plaintiffs in error’s assignments are to the point that the judgment in the attachment Suit was a general judgment in form, and did not specifically award an execution against the separate property of Mrs. Boltón, and that, therefore, the sale was unauthorized, and passed no title to defendant in error. Article 4625, Revised Statutes 1911, which is cited for this contention, does declare that in certain cases where judgment is entered against a married woman “the court shall decree that execution may be levied upon either the common property or the separate property of the wife at the discretion of the plaintiff.” But this according to the express terms of the article applies only to debts contracted by the wife for necessaries .furnished herself or children, or for' expenses incurred by her for the benefit of her separate property. The liability in the present case was neither, but represented an indebtedness owing by Mrs. Bolton prior to her marriage to S. W. Bolton. But, if the liability was upon a contract within the statute, yet the failure of the judgment specifically to award an execution against the wife’s property could hardly avail her anything, since this provision is evidently for the benefit of the plaintiff in the action, and, if by any possibility the same should be erroneous, it would not render the judgment subject to a collateral attack. Speer’s Law of Married Women, §§ 315, 316, 317.

Plaintiffs in error complain that the court erred in admitting in evidence the execution, levy, and sheriff’s deed under the foregoing judgment because the same were immaterial, since the “uncontradicted evidence” showed that the title to the property had passed out of Mrs. Bolton before the levy of the writ of attachment. The court, however, found that the attempted conveyance of September 2, 1909, was fatally defective ; and, if this finding is not overthrown, then clearly the objections made to the evidence of the levy and sale were properly overruled. Plaintiffs in error’s fourth assignment, which attacks the trial court’s finding last referred to, assails such finding upon the ground that “the record shows that said deed was executed by Susie B. Bolton, joined by her husband, S. W. Bolton, to Chas. H. White to the property in controversy before the levy of plaintiff’s pretended attachment, and at the time said deed was executed said property was the homestead of Susie B. Bolton and her husband.” There is nothing whatever in the statement following this assignment that tends in any way to overthrow the court’s, finding- that the deed was fatally defective. The finding does not show in what the defect consisted, nor does plaintiffs in error’s brief throw any light on the matter. The recited fact that on August 2, 1910, after the attachment proceedings, a corrected deed was filed for record, certainly could give plaintiffs in error no right superior to defendant in error’s attachment lien if at the time of its levy the title stood in the name of Mrs. Bolton.

The remaining contention to the effect that the court’s finding against Mrs. Bolton on her claim of homestead is contrary to the undisputed evidence is overruled. In this state the husband as the recognized legal head of the family has the right to choose the homestead for the family. This necessarily carries with it the corresponding right to abandon the homestead.

Upon Mrs. Bolton’s marriage to S. W. Bolton and their voluntarily leaving the property, with no intention on the part of the husband again to make it the homestead of the family, the property became subject to forced sale, and the trial court did not err in so finding. There is no intimation in the record of any disagreement between Mr. and Mrs. Bolton or the existence of any other fact that would authorize her as wife instead of him as husband- to select the homestead of the family.

Upon the trial court’s finding of fact which we adopt, the judgment is in all things affirmed.


author: REESE, J.

text:
    DETERING v. BOYLES.
    (Court of Civil Appeals of Texas. Galveston.
    March 20, 1913.)
    1. Evidence (§ 419) — Parol Evidence — Consideration.
    Parol evidence that before delivery of the deed the parol contract of sale of the land was modified by reduction of the price below the amount of consideration expressed in the deed is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.]
    2. Vendor and Purchaser (§ 260) — Vendor’s Lien.
    Any unpaid balance of purchase money is secured by vendor’s lien, though it was originally understood that it should all be paid on delivery of deed, and this was waived as to part of it, and the purchaser’s oral promise to pay the balance accepted.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 713-750; Dec. Dig. § 266.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by J. M. Boyles against H. E. Det-ering, Judgment for plaintiff. Defendant appeals.
    Reversed and remanded.
    Jones & Jones, of Houston, for appellant. Campbell, Bewail & Myer and Edward S. Boyles, all of Houston, for appellee.

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

   REESE, J.

On January 26, 1910, J. M. Boyles conveyed to H. E. Detering by quitclaim deed' a certain tract of land described by metes and bounds and recited to contain 20 acres, more or less. The consideration recited was $2,500 to.jbe paid in cash. This tract included within its boundaries a tract of about four acres, which was in possession of G. W. Tharp, and it was arranged that Boyles should procure a quitclaim deed from Tharp; the deed to be made to Detering direct, and the consideration, $1,000, to be paid by Detering to Tharp as part of the $2,500. The deeds were executed substantially at the same time, and it was all substantially the same transaction. Tharp executed the deed to Detering, describing the tract by metes and bounds. Detering paid Tharp $1,000 and paid Boyles $1,277.80 and received the deeds. Boyles brings this suit in the district court to recover of Detering $222.20 and for a foreclosure of the- vendor’s lien on the land, alleging that of the consideration of $2,500, which Detering was to pay for the land, there was a balance due of that much, which Detering had promised to pay. Detering by his answer, after pleading a general denial, set out his version of the transaction, which was, in substance, that he had agreed to pay $2,500 for the Tharp tract, which was supposed to contain 4y¡¡ acres; that Boyles had no title to the remainder of the land embraced in the boundaries of his deed, and he had refused to buy it at any price, as he was advised that Boyles’ title was worthless, but was willing to pay $2,500 for the Tharp tract, supposed to be 4% acres ; that surveys and calculations made showed that the land which Tharp proposed to convey contained only 4i/io acres; that, when they met to close the trade, he brought this matter up, and the result was that it was finally agreed then that, at $2,500 for the tract of 4% acres, the land would be worth $555 per acre, and the four-tenths of an acre short (that is, the difference between the 4% acres the tract was supposed to contain and the 4i/i0 acres it did contain) would be worth $222.20, and that it was finally agreed that he should pay Tharp the $1,000 and pay Boyles $1,277.80, which, after deducting $222.20 from the $2,-500, would be the amount agreed to ,be paid, and the whole matter was then closed up and the deeds delivered, he settling with Tharp and giving Boyles his check for $1,-277.80. On the trial Detering offered evidence, principally of himself and the attorney Johes, who drew the deeds, and in whose office the transaction occurred, substantially establishing the allegations of his answer as to the character of the transaction. This testimony was objected to by plaintiff on the ground that it was immaterial and irrelevant, and that the effect of it would be to vary or contradict by parol the terms of the written contract as evidenced by the deeds. This objection was tentatively overruled and the evidence admitted; but, after the evidence was all in, the trial court sustained this objection, struck out all of the evidence tending to establish the allegations of the answer as to the agreement above set out, and, this being done, directed the jury to return a verdict for plaintiff for the amount sued for, with foreclosure of the vendor’s lien. Defendant tools bills of esceptions to the ruling of the court in striking out the testimony of the witnesses by whom he had undertaken to establish the allegations of his answer, showing the agreement referred to, the alleged shortage in the Tharp tract, and the Tharp deed. This left in the case substantially only the evidence of the Boyles deed and his testimony as to the amount due. Detering, however, denied that he owed Boyles anything, or that he had ever promised to pay the balance claimed, which was allowed to remain in the record. From the judgment thus rendered, Detering appeals.

By appropriate assignments of error, appellant contends: First, that, even without the excluded evidence, there was an issue which should have been submitted to the jury; and, second, that the court erred in excluding the evidence hereinbefore referred to showing the final agreement of the parties. We are inclined to think that, even without the excluded evidence, there was an issue for the jury. This evidence tends to show that, at the time the transaction was finally closed up, there was an abatement of the purchase price of $2,500 to the extent of the amount now claimed to be due, and that the money paid by appellant to Tharp and to appellee was paid and accepted in full payment for the land.

The trial court erred in excluding the evidence offered by appellant. This evidence in no way affected the terms of the written deed from appellee to appellant, except as to the consideration recited. It did not tend to show that more or less land was intended to be or was conveyed than as shown by the terms of the deed. It left both deeds, the one from appellee to appellant and the one from Tharp to appellant, in full effect as written. The effect of this evidence was that appellant regarded and was advised that appellee’s title to the land in the Scanlan pasture, being all of the 20 acres except that portion quitclaimed by Tharp, was worthless and .he would not have given anything for it, but was willing to give $2,500 for the Tharp tract, which was represented to contain 4 y2 acres; that he was advised that the field notes of Tharp’s quitclaim only embraced ■4i/io acres; and, upon his objection that he was not getting the quantity of land he was paying for at $555 an acre, it was agreed that the proper proportion of the $2,500 should be deducted, amounting to $222.20, thus abating the purchase price to that extent, and this amount was then paid in full ’and the whole transaction closed. The "only ■change this made in the deed was to substitute $2,277.80 as the consideration to be paid for the land for $2,500. Jones, the attorney who wrote the deed from appellee to appellant, explains that the deed had been prepared and ready for execution before this agreement was made. That the deed showed prima facie a sale in gross did not "prevent the parties from entering into independent oral agreement, made before the transaction was consummated, abating the purchase price for any reason,. and the admission of evidence of this character would, to no extent, violate the rule forbidding the admission of parol evidence to vary or contradict a written contract. Disentangled from immaterial matters,' the transaction proposed to be shown by the excluded testimony was this: Appellant agreed to buy from appellee the tract of land referred to for an agreed consideration of $2,500, and the deed was so drawn. When the parties met to consummate the trade by payment of the consideration and delivery of deeds, appellant declined to carry out the sale at that price, but demanded a reduction in the price of $222.20. This was finally agreed to by appellee, and upon this agreement the trade was finally consummated; appellant paying $2,277.80 as the full price for the land and receiving-the deeds. The other facts that appellant only considered the Tharp tract of any value, and that he was really paying $2,500 for this tract as 4% acres at $555 per acre, and that it was short to the extent of four-tenths of an acre, of the proportionate value of $222.20, were mere matters of detail only going to show why the abatement in the purchase price was made, which was the only essential fact. The promise to pay, which is the basis of the suit, rested in parol, and it was competent for appellant to show by parol that he had paid in full for the land and owed nothing. The reason he gave for demanding an abatement of the price was utterly immaterial, except as explanatory, The-essential thing was that the price had been abated by agreement of the parties, and upon this agreement the money paid, the deeds delivered, and the matter then and there closed up. The only material thing affected was the ■consideration to be paid for the land. The trial court erred in excluding the testimony referred to. Johnson v. Elmen, 94 Tex. 174, 59 S. W. 253, 52 L. R. A. 162, 86. Am. St. Rep. 845; Thomas v. Hammond, 47 Tex. 52; G., C. & S. F. Ry. Co. v. Jones. 82 Tex. 169, 17 S. W. 534; Finn v. Krut, 13 Tex. Civ. App. 36, 34 S. W. 1016: Martin v. Rotan Grocery Co., 66 S. W. 213.

If, in fact, as claimed by.appellee, appellant still owes him a balance for the land, the same was secured by the equitable vendor’s lien on the land, and the trial court did not err in so holding. Briscoe v. Bronaugh, 1 Tex. 326, 46 Am. Dec. 108; Irvin v. Garner, 50 Tex. 53; Marshall v. Marshall, 42 S. W. 353. This is not affected by the fact' that it was understood that the purchase money should be paid in cash. According to appellee’s testimony, the payment of the entire amount was waived, and he accepted appellant’s verbal promise to pay the balance claimed to be due.

For the' errors indicated, the judgment is reverse'd, and the cause remanded.

Reversed and remanded.


author: MOURSUND, J.

text:
    KIRWAN et al. v. ALAMO IRON WORKS.
    (Court of Civil Appeals of Texas. San Antonio.
    March 26, 1913.
    Rehearing Denied April 23, 1913.)
    1. Limitation of Actions (§ 24) — Breach of Warranties in Written Contract — Petition.
    A petition, ■ alleging that defendant agreed in writing to deliver to plaintiff enumerated machinery to perform the work ordinarily performed by such machinery, that it should be of good material and workmanship, that because of defendant’s negligence the machinery was defective as to material and workmanship and failed to perform the work required of it and proved a total failure, that defendant failed to furnish a specified part of the appliances, and that plaintiff was damaged in consequence thereof, states a cause of action founded on warranties in a written contract within the four-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 112-117; Dec. Dig. § 24.]
    2. Limitation of Actions (§ 28) — Implied Warranty. .
    An action on an implied warranty of suitableness for the purpose for which goods are purchased under a contract in writing is within the. two-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 134, 135, 142; Dec. Dig. § 28.]
    3. Limitation of Actions (§ 24) — Instruments in Writing — Petition.
    A petition, alleging that defendant contracted in writing to deliver an engine to pump water on crops, that subsequently defendant informed plaintiff that he could not furnish the engine, but could furnish a secondhand engine,that plaintiff, being unable to secure a new engine as quickly as the secondhand one, directed defendant to ship the same, that defendant did not ship the secondhand engine until nearly a month later and on its arrival it failed to operate, that plaintiff had made his preparations to plant his crops, and that if defendant had shipped the new engine as required by contract it would have arrived in time to have enabled plaintiff to irrigate his crops, but that in consequence of defendant’s violation of the written contract plaintiff’s crops were almost a total failure, states a cause of action founded on an instrument in writing within the four-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 112-117; D'ec. Dig. § 24.]
    4. Limitation of Actions (§ 27) — Verbal Contracts — Time to Sue.
    An action founded on a parol contract is within the two-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 132, 133; Dec. Dig. § 27.]
    Appeal from District Court, Brooks County; W. B. Hopkins, Judge.
    . Action by George B. Kirwan against the Alamo Iron Works, in which W. W. Riley intervened as warrantor. From a judgment of dismissal, plaintiff and intervener appeal.
    Reversed and remanded.
    T. Wesley Hopk, of Falfurrias,, for appellants. C. A.' Keller, of San Antonio, for ap-pellee.

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

   MOURSUND, J.

On December 22, 1912, Geo. B. Kirwan sued Alamo Iron Works, a corporation, alleging that said corporation was indebted to him upon two choses in action ; one accruing to him and the other held by him as assignee of W. W. Riley. Later said Riley by leave of court intervened as warrantor of the choses in action assigned by him to Kirwan. The case comes to us upon one assignment of error, by which Kir-wan and Riley complain of the court’s ruling in sustaining an exception to the effect that plaintiff’s cause of action as stated in the petition accrued more than two years beforp the commencement of the suit, and was therefore barred, by the statute of limitations. Appellants having declined to amend, the case was dismissed.

The petition alleges' two distinct causes of action,, and we will first take up that portion dealing with the cause of action alleged to have accrued to Kirwan.

It is first alleged that July 22, 1908, Kirwan and appellee entered into a written contract, whereby appellee, for a valuable consideration, agreed to deliver to Kirwan at Falfurrias, Tex., “one 16-foot Sampson mill with steel tower, one 12" cylinder; one Kewanee water system, No. -11, with tank 36 by 120 (automatic), and all valves, gauges, pipe and fittings, combined air and water pump, all complete, one walking beam and attachments for two pumps, all pipes and fittings to couple pumps to well and small pump to tank, and all pipes and fittings to couple tank to bath, sink, etc., all f. o. b. Falfurrias.” It is further alleged: “That the material and workmanship of all of said goods were to be sufficiently good so that the said goods would perform the work ordinarily performed by such articles, and defendants were obligated by said contract to furnish goods of such material and workmanship.” It is further alleged that, due to the negligent failure of defendants to perform the obligations incumbent upon them by the terms of said contract, all of such goods were defective ak to material and workmanship; that the Kewanee system and the walking beam were absolutely worthless to plaintiff; that the agreed price of the Kewanee system was $166, and “defendants were by said contract obligated and bound to furnish an automatic water system to perform the work ordinarily performed by such system, with a pressure sufficient to throw water over the house of plaintiff, but said system,due to defective material and workmanship, due to negligence of defendants and their failure to perform their obligations imposed on them by said contract, has not performed such work, but has proved a total failure from the start, to plaintiff’s damage $166, cost price.”

In regard to the walking beam it is alleged that “by said contract defendants were obligated to furnish a walking b.eam which would perform the work ordinarily performed by such goods, but, due to defendant’s failure to perform the conditions imposed upon them by said contract,” said walking beam was defective and worthless, to plaintiff’s damage $20. There is also an allegation that defendants were bound to. furnish plaintiff all pipe and pipe fittings to couple up the different pumps, etc.; but there is no allegation that they failed to furnish the same, but damages amounting to $14.52 are claimed on account of this item. It is further alleged: “That defendants agreed to furnish by the said written contract one 16-foot Sampson mill with 3-foot galvanized steel tower, which mill and tower were to be complete and all material for the said mill was by the said contract to be sufficient for the ordinary uses of a windmill, but plaintiff has been compelled to replace many parts of the said Sampson mill, namely, 1 plunger for 12" cylinder, 1 bottom valve, 1 bottom flange cap fitted for 5" pipe, bought November 26, 1909, owing to defective material due to the failure of defendants to perform the conditions obligatory upon them by the terms of said contract, to plaintiff’s damage, $19.”

We are of the opinion that the allegations must be construed as assertions that the written contract contained stipulations in the nature of warranties of the quality of the machinery and supplies furnished, and not that plaintiff seeks to recover upon an implied warranty that the goods are suitable for the purpose for which purchased. Appellant, in his argument, makes a statement indicating that in fact his first cause of action is upon an implied warranty; but when a pleader speaks of obligations, terms, and conditions imposed by a written contract, we regard such pleadings as alleging express written warranties, and not those implied by law from the mere fact of a sale being made of machinery to be used for certain purposes.

The suit being founded upon warranties alleged to be contained in a written contract, the four-year statute of limitations is applicable.

Where a suit is upon implied warranty of suitableness for the purpose for which goods are intended, the two-year statute of limitations is applicable. Fairbanks, Morse & Co. v. Smith, 99 S. W. 705; s. c., 101 Tex. 24, 102 S. W. 908.

The second cause of action pleaded by plaintiff is substantially as follows: That on September 25, 1909, defendant entered into a written contract with W. W. Riley by which defendant agreed to ship Riley at Falfurrias, Tex., at once, a 16 horse power Stiekney engine; that defendant knew at the time the purpose for.which the engine was desired, namely, to pump water upon crops of truck; that a week later defendant told Riley it could not furnish the engine, but could furnish a secondhand Stiekney engine, as good as new, which it could deliver to him promptly; that Riley was unable to secure a new engine as quickly as the secondhand one, and therefore directed defendant to ship the same on condition that if it did not suit Riley need not keep it; that defendant did not ship said secondhand engine until October 18, 1909, and upon its arrival it failed to operate as defendant had assured plaintiff it would operate, which defendant admitted, and, being unable to make it operate, tardily replaced it with a new engine about November 7, 1909>; that Riley had made his preparations to plant his crops, and if defendant had shipped the new engine September 25, 1909, it would have arrived three days later and Riley could have irrigated his crops; but that defendant violated the terms of said written contract and delayed shipping such new engine for 1 y¡¡ months, by reason whereof Riley’s crops were planted late and were almost a total failure, to.his damage $1,938, the character of the crops and the amount raised and which would have been raised being specifically alleged, and the damages being based upon the failure to perform the conditions of the contract of September 25, 1909.

It appears that this portion of the petition is a suit to recover damages for breach of a written contract made September 25, 1909, to deliver a new engine. The pleader sets out a contract, to supply a secondhand engine, which it appears from his pleadings was substituted for the first contract, but upon which no recovery is sought. It is not stated whether such second contract was written or verbal, but we do not regard this as a suit upon such contract. If it was and the same was verbal, the action would be barred in two years, or if it was in writing, and recovery was sought upon an implied warranty of suitableness for the work for which the engine was intended, the two-year statute would apply. The recovery is sought in this case for failure to deliver the new engine at once as stipulated in the written contract of September 25, 1909, and there is no question before us whether rights accruing on account of the failure to make such delivery were waived by the subsequent contract, but only whether such rights become barred within two years after breach of the contract, or within four years after breach thereof. We hold that the cause of action as. alleged is for a debt founded upon an instrument in writing, and that the four-year statute of limitations must govern in this suit

The judgment is reversed and the cause remanded.


text:
    GRIEB et al. v. STAHL et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 13, 1913.
    Rehearing Denied April 10, 1913.)
    1. Costs (§ 61) — Partial Success — Apportionment.
    Under Rev. St. 1895, art. 1438, providing that the court, for good cause to be stated on the record, may adjudge the costs otherwise than as provided in the preceding articles, where the court stated that the suit had resulted in an adjustment of the equities between tenants in common, and in partition of the property between plaintiffs, who claimed an undivided half interest therein and sought partition and an accounting and an. adjustment of the equities as to the rents, and that part of the defendants, the defendants in error, pleaded a general denial, that new parties were brought in and numerous pleadings filed so that the case finally became one of numerous and complicated issues as to the equities of the parties in the rents, it properly adjudged that such defendants in error recover their costs.
    [Ed. Note. — Eor other cases, see Costs, Cent. Dig. § 272; Dec. Dig. § 61.]
    2. Appeal and Error (§ 293) — Necessity op Objection — Costs.
    Parties will not be heard to complain of a judgment as to costs unless the matter has been brought to the attention of the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1395, 1700-1703, 1705, 1706; Dec. Dig. § 293.]
    3. Appeal and Error (§ 79) — Decisions Reviewable — Final Judgment.
    In an action for partition and an accounting, in which P., who had purchased an interest in the property, was made a party by the plaintiffs, and in which his grantees intervened, claiming relief against their grantor, and later suggested his death, praying that his heirs might be made parties, such heirs being after-wards dismissed without adjudication as to their rights, the judgment was a final judgment so as to be appealable, though no disposition was therein made as to the rights of P.; it being presumed that proper proof of his death was made.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 484-493; Dec. Dig. § 79.]
    Error from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Katharine Grieb and others against Maria Stahl and others. Judgment for defendants, and plaintiffs bring error.
    Affirmed.
    See, also, 108 S. W. 1197.
    Lewis Fogle, of Houston, for plaintiffs in error. Rowe & Doughty and E. T. Chew, both of Houston, for defendants in error.

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

   REESE, J.

Only two assignments of error are presented. by the briefs of appellants, both complaining of the. judgment in the matter of costs.

By the first assignment appellants complain of the judgment in adjudging that defendants, Maria Stahl, Philip F. Wagner, and Leila M. Stahl, recover their costs. The trial court adjudged the costs between the different parties under article 1438, R S., providing that “the court may, for good cause to be stated on the record, adjudge the costs otherwise than as provided in the preceding articles of this chapter.” The reasons for so doing stated in the judgment are that the suit had resulted in an adjustment of the equities between tenants in common and partition of the property. Appellants in their pleadings claimed an undivided one-half interest in the property and sought -partition and an accounting and adjustment of the equities as to the rents. Maria Stahl and Philip Wagner in their original answer pleaded general demurrer and general denial. But, as the case proceeded, new parties were brought in, numerous pleadings filed, and the case finally became one of numerous and complicated issues as to the equities of the parties in the adjustment of the rents. We do not think the court erred in adjudging the costs as was done, for the reasons given. Ft. Worth & R. G. Ry. Co. v. Robertson (Sup.) 138 S. W. 107. But, if this were not true, this assignment of error could not be sustained. In the motion for a new trial, no objection was made to the judgment as to the costs in the matter complained of. The rule seems to be well settled in this state that parties will not be heard to complain of the judgment as to costs, unless the matter had been brought to the attention of the trial court in a motion for new trial, or in some other proper way. Bridge v. Samuelson, 73 Tex. 523, 11 S. W. 539; Wiebusch v. Taylor, 64 Tex. 56. The assignment is overruled.

The second assignment of error complains of the judgment as to costs in adjudging against interveners, J. O. and Rosina P. Davis, only such costs as had accrued subsequent to their intervention. The interveners, having bought certain interests in the property pending the litigation, intervened in the case setting up their rights as such purchasers. In adjudging the costs, the court adjudged against said interveners all the costs incurred from and after the filing of their plea of intervention. This objection was properly presented in the motion for a new trial. We think the trial court did not err in the matter complained of. We find no error in the judgment, and it is affirmed.

It was insisted in oral argument by appellants that this court has no jurisdiction to hear and determine this appeal because the judgment appealed from is not a final judgment. One S. O. Plummer, having bought an interest in the property, appears to have been made a party by appellants. He appears to have sold out to J. O. and Rosina P. Davis, who thereupon intervened and in their plea in intervention claimed some sort of relief against Plummer. During the progress of the case, J. O. and Rosina P. Davis filed a pleading setting up the death of S. "0. Plummer and praying that his heirs be made parties, and they were made parties as such. Afterwards these heirs were formally dismissed. Appellants made no effort to make the heirs of Plummer parties to their suit. In the judgment, no adjudication is made of the rights of Plum-mer. We think we may assume that proper proof was made that Plummer was dead.

We think the judgment is a final judgment.


author: KEY, C. J.

text:
    FIRST NAT. BANK OF BEAUMONT v. UNION TRUST CO. et al.
    (Court of Civil Appeals of Texas. Austin.
    March 12, 1913.
    Rehearing Denied April 9, 1913.)
    Banks and Banking (§ 166) — Following .Trust Funds — Bank Collections.
    Where claimant sent a note to a trust company having many branches for collection, and the branch at the place where the maker resided collected the money, and almost immediately, before remitting, the trust company was declared insolvent and a receiver appointed, and there came into the receiver’s hands from all the branches an amount much greater than was necessary to pay the collection, claimant was entitled to a preferred claim for the amount thereof, being entitled to treat the money found in the possession of the trust company as an equivalent for the money collected and held in trust, though there were not sufficient funds in the branch where the money was collected, which passed into the hands of the receiver, to pay the entire claim.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 574^-578, 586; Dec. Dig. § 166.]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Action by the State against the Union Trust Company for dissolution, in which the First National Bank of Beaumont filed a claim for preference concerning certain items sent to the insolvent company for collection. From a judgment allowing the claim, but refusing the preference, claimant appeals.
    Reversed, and preference allowed.
    The nature and result of this suit are stated as follows in appellant’s brief:
    “This suit was instituted by the state of Texas, as plaintiff, against the Union Trust Company, an insolvent banking corporation created by special act of the Legislature of Texas, as defendant, for the purpose of securing the appointment of a receiver of said Union Trust Company and a winding up of its affairs and distribution of its assets among its creditors. After the appointment of the receiver, the appellant herein, First National Bank of Beaumont, by leave of court, intervened in the cause and set up a claim against the Union Trust Company for* certain moneys due said intervener by the Union Trust Company; said moneys being the proceeds of a promissory note belonging to intervener which had by intervener been transmitted to the Union Trust Company for collection. The intervener prayed in its petition for judgment against the Union Trust Company for the amount of the collection and for the allowance of a preference over the general creditors of the Union Trust Company in the payment of its said claim. The judgment of the trial court was in favor of intervener for the amount due it on its said claim, but denied to intervener any preference over general creditors of .the Union Trust Company for the payment of its claim. The sole question presented on this appeal is whether or not intervener is entitled to a preference. The case was submitted to the trial judge and will be submitted here on an agreed statement of facts, and it is also agreed that, if the ruling of the trial judge to the effect that intervener is not entitled to a preference for its claim be correct, then the judgment should be affirmed; if the ruling be otherwise, it is agreed that the judgment of the trial court should be reversed, and judgment here rendered in favor of intervener for payment of its claim in full.”
    Counsel for appellee concedes the correctness of that statement, with the addition of stipulation No. 3 of the agreement in reference to the transcript, which stipulation will hereafter be set out. The case was submitted to the trial court upon an agreed statement of the. material facts, which agreement reads as follows:
    “Come now the First National Bank of Beaumont, intervener in the above-styled and numbered cause, and T. H. Davis, receiver of the Union Trust Company, and agree that the material facts relevant- to said intervention are as follows, to wit:
    “(1) The Union Trust Company is a private corporation, created by special act of the Legislature of Texas, passed in the year 1870, and was up to the 10th day of January, 1910, doing a general banking business with places of business at Austin, Tex., San An--tonio, Tex., Aransas Pass, Tex., Manor, Tex., and several other points, hereinafter designated.
    “(2) The ■ intervener is a banking corporation duly chartered and incorporated under the banking laws of the United States of America and has its principal office and place of business in Beaumont, Jefferson county, Tex.
    “(3) On the 10th day of January, 1910, this court, by its order entered in this cause, appointed T. H. Davis receiver of the property and effects of defendant herein, the Union Trust Company, and said T. H. Davis on the same day duly qualified as such receiver and took possession of the property and effects1 of said defendant. Said receiver, upon taking possession'of the effects of said defendant, found on hand and in its possession the sum of $19,175.84 in cash; said cash was situated in the vaults of said defendant as follows, to wit: At San Antonio, $2,271.93; at Aransas - Pass, $233.75; at Lockhart, $4,595.73; Austin, $815.91; Band-era, $2,877.35; Boerne, $1,534.35; 'Christine, $1,024.57; ICyle, $1,592.55; Lavernia, $38.39; and at Manor, $2,191.31. The assets of the Union Trust Company are not sufficient to pay its debts in full. The receiver also, upon taking charge of the property of said trust company, found on hand in cash in the express office at Aransas Pass the sum of $2,-000, which was the property of said defendant. Said sum of $2,000 had been deposited by the agents of the defendant with the express company at San Antonio, Tex., on January 8, 1910, for transmission to its Aran-sas Pass branch, and arrived at Aransas Pass on the 10th day of January, 1910.
    “(4) On January 1, 1910, intervener was the holder and owner of a certain promissory note bearing date at Aransas Pass, Tex., November 5, 1909, by the terms of which the Brooke Lumber Company, 60 days after date, promised to pay to the order of the Beaumont Shingle & Lumber Company, at the office of the Union Trust Company at Aran-sas Pass, Tex., $322, with interest at the rate of 8 per cent, per annum on said sum from the date of said note until paid. On January 5, 1910, said intervener forwarded said promissory note to the Union Trust Company at Aransas Pass, Tex., for collection, and in the letter accompanying said note instructed said Union Trust Company to collect the money due on said note and to return the proceeds thereof to said Beaumont Bank at Beaumont, Tex. On January 7, 1910, the maker of said note, Brooke Lumber Company, paid' the full amount due thereon, including interest to said Union Trust Company, and said Union Trust Company, in receiving said note and in making said collection, merely acted as the agent of said Beaumont bank for the collection and return of said money, and said Beaumont Banli was not in any sense a general depositor of said Union Trust Company, so far as the proceeds of said note are concerned. Said Union Trust Company has never remitted to said Beaumont Bank the proceeds of said collection or any part thereof. Other similar claims1 on account of paper sent to the Aransas Pass branch of the Union Trust Company for collection and return have been filed and denied preference.
    “The various branches of the Union Trust Company were operated as follows: Each branch kept an account with its various depositors, and no account of'the depositors' of one branch was kept in the main office or in any branch office; a depositor in one branch was not a depositor in the main office or in any other branch, and his checks would not have been honored, except when drawn upon the branch in which the money had been deposited; the checks, deposit slips, passbooks, and other literature were made and issued in the name of the ‘Union Trust Company, Lockhart Branch,’ or ‘Union Trust Company, Aransas Pass Branch,’ etc.
    “The main office of the Union Trust Company was indebted to. every branch of said company,' except the one at Lockhart, at the' time of the appointment of the receiver herein whenever any branch of the Union Trust Company got more money on hand than was deemed necessary to transact its current business; upon demand, the excess was sent and charged to the main office of the company at San Antonio; and, whenever the supply of money on hand at any particular branch became insufficient to transact the ordinary business thereof, the main office of the Union Trust Company - at San Antonio would send it a sufficient amount of money to keep its doors open and to meet its current demands and charge its- account with such amount.”
    Stipulation No. 3 contained in the agreement in reference to the transcript reads as follows:
    “(3) It is further agreed by said parties1, with the approval of the court, that if the intervener is entitled only to a judgment for preference against the actual cash found by the receiver in the vaults of the Union Trust Company at Aransas Pass, Tex., then the judgment of the trial court should be affirmed, but that, if said intervener is entitled to a preference against the funds1 of the Union Trust Company found by the receiver in the branches of the Union Trust Company other than the Aransas Pass branch, then the judgment of the trial court should be reversed and judgment rendered by the Court of Civil Appeals that the inter-vener’s claim, as established by the judgment of the trial court, be paid in full.”
    Gregory, Batts & Brooks, of Austin, for appellant J. B. Robertson, of Austin, for appellees.

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

   KEY, C. J.

(after stating the facts as above). Counsel for appellant contend that the trial court committed reversible error iu refusing to accord to appellant’s claim a preference over general creditors, and rely upon Continental Nat. Bank v. Weems, 69 Tex. 489, 6 S. W. 802, 5 Am. St. Rep. 85, in support of that contention. Counsel for ap-pellees controverts that proposition and presents the contention that Bank v. Weems supports the action of the trial court in this ease in refusing to allow the preference contended for. In that case our Supreme Court dealt with a ease in which a bank had received from another bank certain claims for collection and return, and had collected a portion of them, and had indorsed and discounted the remainder and used the money received by such discount in the payment of its own debts; and, from the time it collected a portion of the claims until the receiver was appointed, it had on hand more money than the amount so collected.

Upon that state of facts, the Supreme Court held that the bank which sent the claims for collection was entitled to a preference over general creditors to the extent of the amount of money which the other bank had collected upon those claims, but was not entitled to a preference as to the claims not collected and used by the other bank in the payment of its debts; and, in discussing the question as to the right of preference for the money collected, the court said: “We think, therefore, that, when the City Bank collected these last notes, it acted in a fiduciary capacity, and received the proceeds in trust for the Continental National Bank, and that it was its duty to remit them to the latter. This brings us to the further question whether, under the circumstances of this case, they were divested of their character of trust funds when they were placed by the collecting bank in its vaults and there mingled with other moneys. It is a principle of equity, long recognized and applied, that, when one who is intrusted with the money of another invests it in property, the cestui que trust may follow the funds, and, fixing upon the property the character of the original trust, may claim it as his own. Ryall v. Rolle, 1 Atk. 172; Scott v. Inman, 4 Wells, 400; Burdett v. Willett, 2 Vernon, 638. But in an early case it-was. said: ‘If the factor have money it shall be looked upon as the factor’s estate and must first answer the debt of a superior creditor, * * * for, in regard that money has no earmark, equity cannot follow that in behalf of him that employed the factor.’ Whitcombe v. Jacob, 1 Sack, 160. The idea thus suggested seems long to have prevailed in the courts of England. But at a later day a different doctrine has been established in these courts (Taylor v. Plumer, 3 Mau. & S. 562; Pennell v. Diffil, 4 M., D. & D. 372; Knatchbull v. Hallett, L. R. 13 Ch. Div. 696), and has generally been applied in the courts of last resort in this country in the more recent cases. Nat. Bank v. Insurance Co., 104 U. S. 54, 26 L. Ed. 693; Brocchus v. Morgan (Tenn.) 5 Cent. Law J. 53; People v. Rochester Bank, 96 N. Y. 32; Harrison v. Smith, 83 Mo. 210, 53 Am. Rep. 571; Stoller v. Coates, 88 Mo. 514; Peak v. Ellicott, 30 Kan. 156, 1 Pac. 499, 46 Am. Rep. 90. The rule thus followed in the eases last cited we think is founded upon the better reason. Where the trustee kept the fund separate, and the original money was capable of being identified, there never was any question. The dictum above quoted is not understood as having been applied to such a case. It is where the trustee has mingled the trust money with the mass • of his other funds that the difficulty arises. It may be that, when the entire mass is once paid away, the right to claim a trust in any money or property is forever lost. But if, is in the present cáse, throughout all the trustee’s dealings with the funds so mingled together, he keeps on hand a sufficient sum to cover the amount of the trust money, we think it capable' of demonstration that the trust should attach to the balance that is found to remain in' his hands. Let us take the case before us for an illustration. It is shown by the evidence that after the bank received the money, amounting to about $5,-000, its cash assets were never reduced below the sum of $6,000 until they went into the receiver’s hands. Even admitting that, in course of its transactions, this identical money was paid out by the bank to its uttermost farthing, yet we know that every dollar so expended left its representative- and exact equivalent in the vault from which it was taken, and that,- when again' the money so left was expended, it left in turn its equivalent behind it. We see, - therefore, that, whatever changes may have taken place in the funds from.the receipts and expenditures of the bank, the balance left at the date of its failure was the result of the proceeds of the notes to the extent to which such balance was thereby increased, and that the case which went into the hands of the receiver should be deemed the representative of those proceeds and impressed with the trust character which- pertained to them. The equity would have been no stronger if the City Bank had used appellant’s money in the purchase of bonds or other securities, which were found in its vaults and identified, and if appellant were now seeking ro recover the securities so bought. For the reasons given, we are clearly of the opinion that appellant was entitled to priority of payment for the proceeds of the notes collected by the City Bank.”

The court then took up the other branch of the case, and, in discussing it, used language which, dissociated from the first question, might tend to sustain the contention urged on behalf of appellees in this case.

We think it .appears with reasonable certainty from the agreed facts in the case at bar that, from the time the Union Trust Company collected appellant’s claim until the receiver was appointed and took possession, the collecting bank had in its possession more money than the amount collected upon appellant’s claim, and therefore, under the doctrine announced and applied in the Weems Case, appellant’s claim is entitled to preference.

Counsel for appellee undertakes to distinguish this from the Weems Case for the reason that the collecting bank in that case had but one place of business, and; when the collection there involved was made, the money was placed in the vault with other funds, while in the case at bar the collecting bank operated banks and transacted business at several different places in. the state widely distant from each.other; and the facts show that, when the receiver took possession, most of the money was at other places and there was not enough in the possession of the Union Trust Company at the place where this claim was collected to pay the entire claim.' In other words, it seems to be contended either that these several places of business must be considered as if .they belonged to separate and distinct owners or that the right to treat money found in possession of an insolvent collector as a substitute or equivalent for money collected and held in trust is dependent upon the fact that the money so collected was placed in the same vault with the money found on hand and taken possession of by the receiver. Neither of these propositions is regarded as sound. It is true that in the Weems Case the money collected was placed in the same vault with other funds belonging to the collecting bank; and it could not well have been otherwise, as that bank had only one place of business. But we do not understand or believe that it was the intention of the court to make the right of preference depend upon the fact that the money collected was actually and physically mingled with or placed in juxtaposition to other money belonging to the collecting bank. The true logic and doctrine of the Weems Case is that such collections as that involved in this case •constitute a trust fund, and that, as long as the collecting bank keeps on hand as much or more than the amount of money so collected, the trust will attach to the funds so held by the collecting bank, although the identical money collected may have been paid out. And from this it follows that we hold that appellant’s lien attached to all the money which went into the hands of the receiver, and that this would be true even if none of it had been found in the Union Trust Company’s bank and place of business where appellant’s claim was collected. Ap-pellees’ illustration of money deposited by one bank in another is not in point, because, when a general deposit is made, the money •ceases to belong to the depositor and the transaction creates the relation of debtor .and creditor.

For the reasons stated, that portion of the judgment of the trial court refusing a preference to appellant’s claim is reversed and here rendered for appellant, requiring the receiver to pay said claim in full.

Reversed and rendered.


author: JENKINS, J.

text:
    GULF, C. & S. F. RY. CO. v. LOWERY.
    (Court of Civil Appeals of Texas. Austin.
    March 5, 1913.
    Rehearing Denied April 23, 1913.)
    1. Caeeiees (§ 52) — Deliveey to Caeeiee.
    Issuance of a bill of lading by a carrier is prima facie, but not conclusive, evidence of a delivery of the goods to the carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 109, 150-161, 163, 164; Dec. Dig. I 52.]
    2. Caeeiees (§ 41) — “Deliveey” to Caeeiee —What Constitutes.
    In order to constitute a delivery of goods •to a carrier for transportation, complete control of them must be given to the carrier; i. e., the owner must not retain any manner of control over the goods, and," if any one else retains such control, it must be as the agent of the carrier, and not of the shipper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 102-106; Dec. Dig. § 41.

    For other definitions, see Words and Phrases, vol. 2, pp. 1958-1970; vol. 8, p. 7632.]
    3.Caeeiees (§ 176) — Deliveey oe Goods to Caeeiee — Cae Load Freight.
    Where a connecting carrier had delivered a car of corn on a side track which it controlled jointly with defendant company, which was to continue the transportation, and such connecting carrier’s agent stated that it had no charges against the car, whereupon defendant’s agent received the car at that place as he was authorized to do, he had no right thereafter to refuse to ship out the car because the connecting carrier thereafter objected, and by doing so defendant became a joint tort-feasor with the connecting carrier, and liable to plaintiff for damages sustained by reason of the delay in the shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 766-774; Dee. Dig. § 176.]
    Appeal from McLennan County Court; Sam E. Stratton, Special Judge.
    Action by L. F. Lowery against the Gulf, Colorado & Sante Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and Spell & Sanford, of Waco, for appellant. Jas. P. Alexander and Frank T. West, both of Waco, for appellee.

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

   Findings of Fact.

JENKINS, J.

Appellee shipped a car load of corn (52,000 pounds) from Yerden, Okl., to Orange, Tex., consigned to Webster & Co., shipper’s order, and drew on Webster & Co. through the bank at Verden with bill of lading attached. On account of delay in the shipment Webster & Co. declined to receive the corn. On February 21, 1910, appellee made an agreement with the agent of the Orange & Northwestern Railway Company, at Orange, Tex., by which road the corn had arrived, to release said ear, so that the same could be shipped to McGregor over appellant’s road. Appellee, in compliance with the demand of the Orange & Northwestern Road deposited in the bank at Orange $500 to indemnify road on account of releasing said car without the bill of lading, the same having been returned to the bank at Yerden, and gave the agent of the Orange & Northwestern Road a cheek on the bank at Orange for the amount of the freight then due. Thereupon the agent of the Orange & Northwestern Road stated to appellee and to the agent of appellant at Orange, in the presence of appellee, that he had no further charges against said car, and that the same was released ; and the agent of appellant thereupon gave appellee a bill of lading for said car of corn to be shipped at once to McGregor, Tex., and later on the same day informed ap-pellee that said car had been shipped to Mc-Gregor.. The bank at Orange, upon presentation of the check for freight by the Orange & Northwestern Company’s agent, did not refuse to pay the same, but asked that it be held np until they could get further advices from a Gatesville bank, said deposit of $500 having been placed to appellee’s credit at the instance of said Gatesville bank. The agent of the Orange & Northwestern Road informed the agent of appellant as to this matter, and told him not to ship said car out until the Gatesville bank could be heard from. This caused a delay in the payment of said draft for freight of two days, at the expiration of which time the agent of the Orange & Northwestern Road informed appellant’s agent that he had been instructed by the auditor of said Orange & Northwestern Road not to allow said car to be shipped out until he received the original bill of lading from Ver-den. This situation continued until March 5th, when Webster & Co. attached said corn. This attachment was released on March 28th, on which date tbe agent of the Orange & Northwestern Road informed the agent of appellant that he made a claim for demur-rage on said car, and demanded the payment of the same before said car was shipped out. On April 20th appellee returned the bill of lading for the shipment of said car to McGregor to appellant’s agent at Orange, and instructed him to send said car to Houston. Said car finally arrived at Houston on May 6th, and there was found to be a shortage in said corn of 20,740 pounds, and the market price of the corn at Houston and also at McGregor on the day said corn arrived at Houston had declined 21 cents per bushel.

At the time appellant issued its bill of lading, the car of corn was standing on a track owned by the Orange & Northwestern Railroad Company, but used jointly by said company and appellant. There was no misrepresentation or concealment on the part of ap-pellee, and the agent of the Orange & Northwestern Road, with a knowledge of all the facts, released said car to appellant, and appellant was put in possession of said car, and had such possession at the time it issued its bill of lading for shipment of said corn to McGregor. Appellee went to McGregor for the purpose of receiving and disposing of his corn, and made frequent inquiries of appellant’s agent at that place as to why his corn did not arrive; and was never informed as to the cause of such delay until the 20th day of April, 1910, at which time he had said corn reshipped over appellant’s road to Houston. There was a judgment in favor of ap-pellee for $400, the amount of which is fully sustained by the evidence.

Opinion.

The controlling issue in this case is as to whether or not the car of corn was delivered to appellant at the time it issued its bill of lading for the shipment of said car to McGregor. A bill of lading is prima facie, but not conclusive, evidence of delivery. “Such instruments are both receipts and contracts. So far as they acknowledge the delivery and acceptance of the goods, they are mere receipts.” Hutchinson on Carriers, § 157. See, also, section 158, Id.; Railway Co. v. Fennell, 79 Tex. 448, 15 S. W. 693; Cohen v. Railway Co., 44 Tex. Civ. App. 381, 98 S. W. 437.

In order to constitute a delivery, complete control of the goods.must be given to the carrier; that is to say, the owner must not retain any manner of control over ■ the goods, and, if any one else retains such control, it must be as the agent of the carrier, and not as the agent of the shipper. Hutchinson on Carriers, §§ 105, 106; Railway Co. v. Insurance Co., 39 S. W. 975. In Railway Co. v. Trawick, 80 Tex. 274, 15 S. W. 568, 18 S. W. 948, and Railway Co. v. Pasture Co., 5 Tex. Civ. App. 186, 23 S. W. 754, it was held that the delivery of cattle in the pens of a railway company was a delivery to such company. In Railway Co. v. Pool, 10 Tex. Civ. App. 682, 31 S. W. 689, it was held that, if by agreement of the parties the goods to be shipped were deposited at a particular place, this would amount to a delivery to the carrier. Goods may be received at any place where an agent, duly authorized, may agree to receive them; and in such cases liability of the carrier commences at the moment of such acceptance. Hutchinson on Carriers, § 120.

In the instant case, the car of corn was delivered upon a railway track under the control of appellant jointly with the Orange 6 Northwestern Ry. Co. The agent of appellant received said car at said place, and he was authorized so to do, and it was its. duty to ship said car, notwithstanding the objections made by the agent of the Orange & Northwestern Railway Company. Said company had no right to make such objections ; it had delivered the car to the appel-lee and to the agent of the appellant, and had stated to them that it had no charges against said ear, and it was estopped, as against appellant, from claiming any control of said car. We do not think that appellant can be excused from performing its legal duty to ship out'said car, merely for the reason that another party objected to its doing so, especially as said party had no legal right to make such objection. The prevention of such shipment by the Orange & Northwestern Railway Company was a tort, as appellant must have known; and appellant, by acquiescing therein, and by not notifying ap-pellee of the action of the Orange & Northwestern Railway Company, became a cotort-feasor with said Orange & Northwestern Railway Company, and became liable to ap-pellee for. the damages sustained by him by reason of the delay in such shipment.

This issue was raised by appellant’s first assignment of error as to the refusal of the court to peremptorily instruct the jury to return a verdict for appellant, the request for such instruction being ■ based upon tbe theory that the undisputed evidence showed that the corn was never delivered to appellant. We think that the undisputed evidence shows that the corn was delivered to appellant.

There is no.merit in appellant’s other assignments of error.

For the reasons herein given, the judgment of the trial court is affirmed.

Affirmed.


text:
    SEWALL et al. v. CHRISTIE.
    (Court of Civil Appeals of Texas. Galveston.
    March 27, 1913.)
    Appeal and Error-(§ 745) — Assignments op Error — Necessity op Filing in Trial ■ Court.
    In a vendee’s action to recover a deposit as earnest money, where defendant pleaded that plaintiff had refused to carry out the contract, assignments that the court erred in rendering judgment for defendant, because, under the contract, it was necessary for defendant to cure all defects in the title and make it perfect of record, to execute and tender a deed, and, at the expiration of 30 days, to demand the balance of the price, of which there was no evidence, and that the court erred in rendering judgment for defendant, because there was no evidence of a written rescission or waiver of the contract by plaintiff, authorizing defendant to treat it as terminated and to forfeit the earnest money, did not raise fundamental errors apparent on the face of the record which could be reviewed, although the assignments were not filed in the trial court, as required by Rev. St. 1895, art. 1018, rule 101 <142 S. W.. xxiv) for district courts, and rules 23 and 24 (142 S. W. xii) for Courts or Civil Appeals, since, to determine whether error was committed as claimed; it would be necessary to examine the entire record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3039, 3042; Dec. Dig. § 745.] ■
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by Cleveland Sewall and others against George R. Christie. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Campbell, Sewall & Myer, of Houston, for appellants. Andrews, Ball & Streetman, of Houston, for appellee.

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

   REESE, J.

Appellants sued appellee in the county 'court to recover $500, alleged to have been deposited by them with defendant as earnest money on a proposed sale of land by defendant to plaintiffs. It was alleged that defendant had failed to comply with his contract, and the plaintiffs were entitled to the return of the earnest money. Defendant answered that, plaintiffs had breached the contract and refused to carry it out, and in consequence, under the terms of the contract, he was entitled to retain the earnest money. The case was tried by the court without a jury; the trial resulting in a judgment for defendant.

There are no conclusions of fact or law in the record. No assignments of error were filed in the trial court. The record shows none. Appellants rely for reversal upon two assignments, which, it is contended, present “error apparent upon the face of the record,” and may be availed of without having been filed in the trial court and brought up in the record. These assignments are as follows:

“The court erred in rendering judgment against plaintiffs and in favor of defendant, because, under the terms of the contract, it was necessary that defendant cure all defects in the title to said property and make the title to said property perfect of record and free of defects, and for defendant and wife to execute a general warranty deed to said property and tender the same to' E. W. Sewall, and at the expiration of 30 days thereafter to demand of E. W. Sewall payment of the remaining $6,000, before the defendant would be entitled to retain the $500 earnest money and declare the same forfeited. There being no evidence in the record that the defendant did either of the above things, the judgment is therefore fundamentally erroneous.”
“The court erred in rendering judgment in favor of defendant and against plaintiffs, which error is fundamental, because there is no evidence in the record of a written rescission or waiver of said contract, or any of the terms thereof, by E. W. Sewall, or any one authorized by him, which would authorize or allow the defendant to treat said contract as terminated, and declare a forfeiture of the earnest money, and any parol waiver or rescission of said contract, or any part thereof, would be a nullity.”

Article 1018, Revised Statutes, is as follows: “The appellant or plaintiff in error shall in all eases file with the clerk of the court below all assignments, of error, distinctly specifying the grounds of error on which he relies, before he takes the transcript of the record from the clerk’s office; all errors not distinctly specified are waived.”

Rule 101, district court rules (142 S. W. xxiv), provides: “The appellant or plaintiff in error shall file his assignments of error in the trial court as prescribed by statute.”

■ Rules 23 and 24 for the Courts of Civil Appeals (142 S. W. xii) are as follows:

“23. Said record should contain an assignment -of errors as required by the statute. If it does not, the court will not consider any error but one of law that may be apparent upon the record, if the judgment is one that could legally have been rendered in the lower court and affirmed in the appellate court.
“24. The assignment' of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial in the cause, and a ground of error not distinctly set forth in a motion for a new trial in the cause and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error as mentioned in rule 23.”

This is plain and emphatic enough. It only remains to determine whether the assignment of errors in the brief presents errors of law apparent upon the record.

It may sometimes be difficult to determine whether the error ■ relied upon, but not covered by proper assignment of errors in the trial court, comes within this definition so as to be entitled to consideration; but we think there can be no doubt that those here presented do not, under the most liberal interpretation of the rule referred to. There can be no question that the judgment was such as could have been legally rendered by the trial court and legally affirmed by this court. It is clear that, in order to determine whether error was committed as set out in these assignments, it will be necessary to examine the entire record, the pleadings, in order to determine what issues are presented, and the entire statement of facts, in order to determine whether the evidence entitled appellee to the judgment recovered. Houston Oil Co. v. Kimball, 103 Tex. 103, 104, 122 S. W. 533, 124 S. W. 85, is decisive of the question.

The assignments in the brief do not relate to “error of law apparent on the face of the record,” and not having been filed in the trial court cannot be considered. There being no other .assignments of error, the judgment must be affirmed; and it is so ordered.

Affirmed.