author: LEVY, J.

text:
    FIDELITY & CASUALTY CO. OF NEW YORK v. J. W. CROWDUS DRUG CO.
    (No. 1305.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 29, 1914.
    Rehearing Denied May 7, 1914.)
    Insurance (§ 183) — Policy—Construction— Amount of Premium.
    An employer’s liability policy stated that the premium of $113.90 placed therein was based or estimated upon data furnished in the schedule as to the amount of compensation paid employés, and, further, that the premium, though, should be subject to adjustment if the compensation was greater or less than the estimated sum stated in the schedule, etc. The compensation paid was in fact greater than the amount so estimated. Held, that the $113.90, the amount estimated, was not conclusive of the amount of the premium, and the insurer could recover the additional amount shown to be due.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 394; Dec. Dig. § 183.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge. :
    Action by the Fidelity & Casualty Company of New York against the J. W. Crowdus Drug Company. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    The suit is by appellant against apjpellee to recover the' amount of certain additional premiums covering, a period of three years, alleged to be due by the terms of a policy of liability executed by appellant in favor of the drug company. The appellee, besides general denial, averred that there was a verbal waiver by the appellant of Condition N in the policy, and further that by a rider attached to and forming a part of the policy it was agreed to continue in force the policy for the fixed sum of $113.90 per year. The only question submitted to the jury for their decision was that of waiver of increased premiums, and the verdict was in favor of the defendant.
    The evidence shows that on July 27, 1907, the appellant issued and delivered to appellee a policy of insurance, which, as material to be stated, reads:
    “No. 120202. The Fidelity and Casualty Company of New York,' hereinafter called the ‘company,’ in consideration of one hundred thirteen 90/100 dollars ($113.90) premium and the statements hereinafter set forth in the Schedule of Statements, which statements the assured makes and warrants to be true by the acceptance of this policy, except the statements concerning the compensation of employes which are estimated, does hereby agree to indemnify the J. W. Crowdus Drug Company of Dallas, county of Dallas, state of Texas, hereinafter called the ‘assured,’ for a period of twelve months beginning on the 27th day of July, 1907, noon, and ending on the 27th day of July, 1908, noon, standard time at the place where this policy has been countersigned, against loss from the liability imposed by the law upon the assured for-damages on account of bodily injuries or, death, accidentally suffered while this policy is in force, by any person or persons while within the premises described in the Schedule or upon the sidewalk or other ways immediately adjacent thereto provided for the use of employés or the public, subject to the following conditions:
    “Condition L. No erasure or change appearing on the face of this policy as originally printed and no change or waiver of any of its terms or conditions or statements shall be valid unless indorsed hereon, and signed by the president or vice president or one of the secretaries of the company. Notice to or knowledge by any agent or any other person shall not be held to waive any of the terms, conditions or statements hereof.
    “Condition N. The premium for this policy is based on the data given in the 'Schedule. If the compensation of employés is greater or less than the estimated sum stated in the Schedule, or if the data otherwise given in the Schedule is erroneous, the premium charge shall be subject to adjustment on the basis of the rates stated in the analysis of premium given below. The company shall be entitled to examine the pay roll accounts and to check all other items of the Schedule whenever it desires to do so.”
    There was attached to the policy the following rider: “Form 22 C. Date July 27th 1907. ‘Installment Form.’ It is hereby understood and agreed that the assured under Gen. Lia. policy No. 120202 may cause the insurance to be continued from noon of the .27th day of July, 1908, to noon of the 27th day of July, 1909, standard time, at the place where this policy has been countersigned, by: the payment of $118.90 dollars, and that the, payment at the expiration of said period of: the further sum of $118.90 dollars shall con-' tinue the insurance for the period of one year, to wit, from noon of the 27th day of July, 1909, to noon of the 27th day of July, 1910, standard time, at the place where this policy has been countersigned. Nothing herein contained shall be held to abrogate the, right of the company to cancel the policy as provided in it. Attached to and forming part of Gen. Lia. policy No. 120202 of the Fidelity and Casualty Company of New York to the J. W. Crowdus Drug Co. and dated July 27, 1907. Robt. J. Hillas, Vice President-Secretary.”
    Under the “Schedule of Statements” set forth in the policy there appears as follows: “Estimated wages of office men, $6,000.00, at 5 cents per $100; estimated wages of all other employes engaged on the premises, $6,000.00, at 20 cents per $100.” Acting on this statement of estimated wages, which was made by the appellee to appellant’s general agent, the appellant’s general agent fixed $113.90 as the amount of the premium, based on the rate of 5 cents per $100 for office men, and 20 cents per $100 for all other employés. Appellee accepted the policy when it was delivered to it. It was proven without dispute that the books of appellee showed actual wages paid by it to its employés from July 27, 1907, to July 27, 1910, which was the life of the policy, to be $180,204.78, and that this was the correct amount that the premiums during the three years mentioned should have been paid on at the rate per $100 specified in the policy, instead of $12,000 as erroneously represented by the data furnished by appel-lee in the “Schedule of Statements” in the policy. It was agreed by the parties that in calculating the premium payable based on the amount of wages paid there was a balance unpaid above $113.90 of $69.18 for each of the three years during which the policy was in force. At the end of both the first and second years the appellee sent a check for $113.90 to pay the premium for each year; and appellant offered evidence going to show that it issued and mailed to appellee for each payment a renewal receipt, which, among other things, recited that the policy was continued in force for another year, “subject to all the conditions and agreements contained in the aforesaid policy.” The appellee does not offer testimony to show whether it did or did not receive the renewal receipts. The testimony does not establish in point of fact that appellant, or its authorized agent acting' within the scope of his authority, had waived its right to additional premiums to the $113.-90 paid each year, based on the amount of the compensation paid the employés of ap-pellee. The further question arising on the record is one of law- under the undisputed facts above set out.
    Thomas & Rhea and G. D. Hunt, all of Dallas, for appellant Seay & Seay, of Dallas, for appellee.

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

   LEVY, J.

(after stating the facts as above). According to the policy, the appellant contracted to indemnify the appellee' against loss in legal liability for damages “in consideration of $113.90 premium and the statements hereinafter set forth in the Schedule of Statements.” It is further stipulated in. the policy that “the. premium for this policy is based on the data given in the Schedule. If the compensation of employés is greater or less than the estimated sum stated in the Schedule, or if the date otherwise given in the Schedule is erroneous, the premium charge shall be subject to adjustment on the basis of the rates stated in the analysis of premium given below.” The “rates stated in the analysis of premium” given in the policy provides “5 cents per $100” of the wages paid “office employes,” and “20 cents per $100” of the wages paid “all other employés engaged on the premises.” Appellee-by,accepting the policy would be held to have agreed to all its terms. The policy clearly evidences the agreement of the parties to base the sum of the premium payable on the amount of wages paid by appellee to its employés at the rates specified in the policy for each $100 paid such employés. According to the wording of the policy, the sum of $113.90 was placed therein as the premium payable under the rates specified as base'd on the data given in the schedule. The data- given in the schedule, which was furnished by appellee for the purpose of fixing the amount of the premium, shows “estimated wages” paid employés in the total sum of $12,000. The $113.90 recited as the sum of premium payable being, ac: cording to the policy, fixed on “estimated wages” only, then, in view of the further stipulation of the parties, and under the undisputed facts of this ease, the sum of $113.-90 woqld not be conclusive of the amount of premium that was payable by appellee. The further stipulation provided that the premium charge should be “subject to adjustment” if “the compensation is greater or less than the estimated sum stated in the Schedule, or if the data otherwise given in the Schedule is erroneous.” It was proven without dispute that the “estimated wages” in the total amount of $12,000 stated in the schedule was way below the true and correct amount of the total wages paid by appellee to its em-ployés. And the true and correct amount shown by the books of appellee was conclusively proven. The true and correct amount of the total wages paid its employés being thus truly arrived at, it then became, under the policy, a mere matter of mathematical calculation, and nothing more, to get the amount of the premium payable, for the rates were expressly fixed and agreed upon in the face of the policy. Where there is nothing left open for the parties to do but to ascertain the amount of the pay roll and then merely to mathematically compute, as here, the amount of the premium, the agreement of the parties should, in order to carry out its purpose and plain intent, be understood as meaning to pay what may be due from one party to the other. And in view of the stipulation of the parties and the undisputed facts, it is believed that the appellant has shown a right of recovery for the additional amount of premiums, which, in amount, are admitted. There is no evidence of any probative force whatever introduced showing that appellant, or its authorized agent acting within the scope of his authority, had waived its right to the additional premium sued for. It follows that appellant was entitled, under the facts, as a matter of law, to recover, and the court should have given the peremptory instruction asked for by appellant. Assignment No. 1 is therefore sustained, and this disposes of the appeal.

The appellee argues that the rider on the policy fixes the premium payable and should control. The rider merely authorizes a renewal, and does not introduce new or additional terms, or modify or alter Condition N in the policy.

The judgment is reversed and here rendered in favor of the appellant for $207.54, with interest at 6 per cent, from October 25, 1911, and for the costs of the trial court and of this appeal.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    SOCKWELL v. SOCKWELL et al.
    (No. 1303.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 29, 1914.
    Rehearing Denied May 21, 1914.)
    1. Gifts (§ 48) — Gifts Inter Vivos — Evidence.
    Where a will contest and an action of trespass to try title were consolidated and heard together, the proponent claiming the land in controversy under the will and the contestants under a parol gift from testatrix prior to her death, a witness was properly permitted to testify that, about two years before the execution of the will, testatrix stated that she had given the property to contestants, and would that day deliver possession; such being admissible, not on the issue of the execution of the will, but to prove the gift inter vivos.
    [Ed. Note. — For other eases, see Gifts, Cent. Dig. §§ 87-94; Dec. Dig. § 48.]
    2. Trial (§ 91) — Reception of Evidence-Effect of Failure to Object to Evidence.
    When evidence is not objected to when offered, unless good reason for the delay is shown, the court has a wider discretion in passing upon its admissibility upon motion to strike out.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 242-244, 252; Dec. Dig. § 91.]
    3. Wills (§ 164) — Probate—Evidence.
    In a mil contest, where the issue was whether the proponent procured its execution by fraud, a letter, written by proponent to his uncle, seeking to borrow money, and stating, “If you could know wha.t I know which is coming to you and your family through my work I think you would remember me,” was properly admitted; it being shown that, under the will, the uncle’s wife received a good share.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 403-414; Dec. Dig. § 164.]
    4. Appeal and Error (§ 1050) — Harmless Error — Evidence.
    Though testimony was objectionable, its admission was not ground for reversal, where testimony to the same effect was admitted without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    5. Wills (§ 165) — Probate—Evidence—Admissibility.
    Declarations by testatrix, at or about the time of the alleged execution of a will offered for probate, disclosing unfriendly feeling towards persons who. were beneficiaries under the will, were relevant and material in a contest charging fraud, as tending to show that testatrix did n'ot knowingly and willingly make the bequest.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 415-420; Dec. Dig. § 165.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Application by Melvin Sockwell to pro-, bate will of Mrs. Catherine Hale, deceased, in which Mrs. Mattie Sockwell and others were contestants, consolidated with an action of trespass to try title by Mrs. Mattie Sockwell and others against Melvin Sock-well. From a judgment for contestants and plaintiffs, contestee and defendant appeal.
    Affirmed.
    J. H. Morgan, Neyland & Neyland, and Sherrell & Starnes, all of Greenville, for appellants.' Clark & Leddy, of Greenville, for appellees.

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

   HODGES, J.

In April, 1912, the appellant, Melvin Sockwell, filed in the county court of Hunt county an application for the probate of an instrument purporting to be the last will of Mrs. Catherine Hale, deceased. It was alleged in the application that Mrs. Hale died on the 7th day of February, 1912, leaving an estate valued at $25,000. The instrument offered as her will was dated June 13, 1907, and contained, among others, a provision bequeathing to the appellant, her grandson, an undivided half interest in a lot in the town of Greenville on which were standing some brick buildings. James F. Sockwell, a son-in-law, was appointed executor without a bond. This application was contested by Mrs. Mattie Sockwell, joined by her husband, James F. Sockwell. The contestants alleged that the instrument offered was not the will of Mrs. Catherine Hale; that it was not signed by her, nor by any one authorized by her; that if in fact Mrs. Hale did sign the paper, she did so under a misapprehension of its contents, believing that it bequeathed to Mrs. Sockwell the entire interest in the brick buildings referred to. It was further charged that the execution of the instrument was procured by the fraud of the appellant and one Byron Logan, together with other persons unknown to contestants ; that these parties exercised an undue influence over Mrs. Hale, and through fraud and deception induced her to sign the instrument. When the cause came on for trial in the county court a judgment was rendered admitting the will to probate. From this judgment the contestants prosecuted an appeal to the district court. While the contest was pending in the county court the ap-pellees, Mrs. Sockwell joined by her husband, filed in the district court of Hunt county a suit against the appellant in the form of an action of trespass to try title, in which it was alleged that Mrs. Hale during her lifetime made a parol gift of the lot in controversy to the plaintiff, and that the latter bad, on the faith of that gift, entered into possession and had made permanent and valuable improvements on the property. The petition also set out in detail the character of the improvements, when made, and the value claimed as the result of each. This suit and the application to probate the will were consolidated and tried on June 11, 1913. A judgment was rendered refusing to probate the will, and in favor of Mrs. Sock-well for the property sued for.

The case was submitted to a jury on special issues, and the finding of the jury was, in substance, as follows: (1) In 1905 Mrs. Hale gave the lot in controversy to Mrs. Sockwell, and delivered possession to the latter with the intention that the property should thereafter be that of the donee. (2) That Mrs. Sockwell, with the knowledge and acquiescence of Mrs. Hale, made permanent and valuable improvements upon the property as follows: Sidewalks adjacent to the property, $750, improvements on the lot and other paving, $1,268.50, and that the property had been enhanced in value by reason of these improvements to the extent of $3,-000. (3) That Mrs. Hale did not understand the contents of the paper offered for probate as her will by the appellant, and was induced to have her name signed thereto by fraud and deception.

The evidence shows that Mrs. Hale was 92 years old at the time of her death, and had been blind and in feeble health for several years prior thereto. Her condition was described as being as helpless as that of a child, and it was shown that she required constant attention. Much of her time during her later years had been spent with her daughter, Mrs. Sockwell. It also appeared from the evidence that Mrs. Hale had made two other wills prior to 1907; one in 1902, and another in 1905. In the will of 1905 all of the lot in controversy was bequeathed to Mrs. Sockwell, whereas under that of 1907 Mrs. Sockwell only ' received an undivided half interest, the other going to the appellant.

During the progress of -the trial M. M. Chandler, one of the witnesses to the will of 1905, testified that he had signed that will as a witness, that he remained for some time thereafter and talked with the family, anu that Mrs. Hale remarked that she would never bother him any more about witnessing another will, and then explained why she had changed a former will — that she had given the brick property to her daughter, Mattie Sockwell, and would turn it over to her that evening, for her past kindness and favors. This testimony was admitted without any objection. Some-time thereafter the defendant moved the court to strike out all that part in which the witness stated what she (Mrs. Hale) was going to do with reference to turning over the property to Mattie Sockwell. The ground of this objection, as shown by the bill of exception, is as follows: “Because the same related to something that she was going to do in the future which might not be done.” The refusal of the court to sustain that motion is the basis of one of the assignments of error. In her suit filed in the district court, which was then being tried, Mrs. Sockwell was relying upon a parol gift from her mother, coupled with possession and valuable improvements made, and not upon the will, as the basis of her claim to the property. By the testimony of this witness the donor is represented as saying that she had given the property to Mrs. Sock-well, and would that evening deliver possession. The manifest purpose of this testimony was to prove a gift inter vivos, not to disprove the execution of the will of 1907. We think the testimony was admissible as against the objection urged. 6 Enc. Ev. pp. 211, 212, and cases cited in the notes. But even if this evidence was subject to the objection, it cannot be said that the court abused his discretion in refusing to exclude it after it had once been admitted without objection. When an objection is delayed without showing some reason for so doing, the court has a wider discretion in passing upon the admissibility of testimony than when an objection is made at the time the testimony is offered. Ry. Co. v. Lamothe, 76 Tex. 223, 13 S. W. 194; Ry. Co. v. Andrews, 29 S. W. 920. The bill of exception gives no reason why an objection was not sooner made, nor does it appear from any other portion of the record that there was any good reason for the delay.

Appellees offered in evidence the following letter from the appellant: “Denver, Colo., May 15, 1911. Mr. J. J. Alexander, Santa Anna, Texas — My dear Uncle: No doubt you may be surprised to hear from me, but I knowing you to be a friend and true — at that — I do not hesitate in asking you my want. Now Uncle I went broke this A. M., which I am very sorry to state to you, in fact it is the first time that I have ever been in such a fix for quite a few years. Yesterday (May 15th) I was worth $5000.00 ca'sli at the batik, but to-day I am worth only wbat I can show. Now if you have a few dollars you can spare for a few days please accommodate me and send to address I may give you (J. J. please never say anything about me writing you.) I have made money fast since coming out here, but J. J. you know it takes all for man to exist on this kind of a game, but if you can favor me do so at once, for I know it will be to your advantage some time. Noto I would not you to ever mention me writing you for this — for I know if you could see me and know wbat I know wbicb is coming to you and your family through my work I think you would remember me by the past. So Uncle J. J. A. if you can favor me kindly do so at onoe and for God sahe and mine say nothing. Yours devotedly, Melvin Sockwell.” On the margin of the second page of this letter appeared the following: “J. J. A. Please never say anything about me writing you.” This was objected to upon the ground that on its face the letter had np reference to the will offered for probate, and was irrelevant and immaterial. In their contest the appellees had charged fraud and deception in the execution of the will of 1907, and it was permissible for them to prove those facts by circumstances. We think it was for the jury to determine, under all the facts, whether or not this letter referred to that will. Appellant was present in court at the time, and had an opportunity to explain the letter and to show what he was referring to, if not to the will. This he failed to do. If he was referring to this will, the language used was strong evidence of fraud. It was shown by a comparison of the two wills that under the last the wife of the party to whom the letter was addressed received a larger portion of the property than under the will of 1905.

In the third, fourth, and sixth assignments of error the appellant complains of the admission of testimony, mainly upon the ground that it was irrelevant and immaterial. Even if this testimony was objectionable its admission cannot now be considered grounds for reversing the judgment, because testimony to the same effect was admitted from other sources without objection.

The appellant requested the following charge, which was refused: “You will not consider any statements or declarations made by Catherine Hale before the execution of the will dated ; — , June 1905, if statements or declarations were made, or after the execution of said will, if executed, nor any declarations or statements made by said Catherine Hale before the execution of the will of date day of -, 1907, if samp was executed, or declarations or statements made after the execution of said will, if executed, but such declarations or statements made by said Catherine Hale, if made, can be considered by you only for the purpose of assisting you in arriving at whether or not Catherine Hale did in fact make a parol gift of the land in controversy to Mattie Sockwell, if said declarations or statements do assist you. Such declarations or statements, if made, cannot be considered by. you in considering the probate of the will of 1907, but such testimony, in your deliberations, shall be limited to the issue as to whether or not a parol gift was made by Catherine Hale to Mrs. Mattie Sockwell of the property in controversy.” This charge is, to say the least, confusing. In one portion it tells the jury without qualification not to consider any statements made by the testator either before or after the execution of either of the two wills referred to. In the latter part it tells the jury that they should consider such declarations only for the purpose of determining whether or not a parol gift of the lot had been made to Mrs. Sock-well, and for no other purpose. But even if the charge had been properly framed, we do not think the court erred in refusing to give it. Some of the declarations referred to disclosed unfriendly feelings on the part of the testatrix toward the appellant, and a pronounced disinclination to bequeath to him any portion of her property. Such declarations, made at or about the time the instrument offered as a will was executed, are relevant and material, in a contest charging fraud, as tending to show that the testator did not knowingly or willingly make the bequest. It is neither natural nor common for testators to give their property to those toward whom they entertain hostile feelings. Those declarations were circumstances to be considered by the jury. Kennedy v. Upshaw, 66 Tex. 442, 1 S. W. 308; Johnson v. Browne, 51 Tex. 79; Robinson v. Stuart, 73 Tex. 269, 11 S. W. 275; 1 Underhill on Wills, §§ 132, 161. Some of them referred to in the charge were offered by the appellant himself, without any qualification or restriction. It was only after other declarations tending to show a hostile state of mind towards him that he deemed it expedient to ask the court to place the restrictions upon their consideration.

The remaining assignments are overruled, and the judgment is affirmed.


author: WILLSON, C. J.

text:
    GULF, C. & S. F. RY. CO. v. HICKS et ux.
    (No. 1314.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 30, 1914.)
    1. Death (§ 103) — Questions fob Jury — Resulting Loss of Injury.
    In an action by the parents of a young man of 23 killed in a wreck due to defendant’s negligence, held, on the evidence, that the question whether plaintiffs had any reasonable expectation Of pecuniary benefit from him was for the jury.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 141; Dec. Dig. § 103.]

      2. Death (§ 86) — Eight of Action — Loss or Injury.
    In an action under tie statute by the surviving wife, parents, etc., for damages from injury resulting in death, there can be no recovery, unless plaintiffs had a reasonable expectation of pecuniary benefit from deceased.
    [Ed. Note. — For other cases, see Death, Gent. Dig. §§ 108, 109, 112-114, 117, 119; Dec. Dig. i 86.]
    3. Death (§ 99) — Damages—Excessive Damages.
    In an action by surviving parents about 65 years of age for damages from the death of a son 23 years of age, where it appeared that plaintiffs were engaged in farming and stocjt raising, and were worth about $30,000, that deceased was skilled in such business, and when at home assisted therein and in household work, that he was considerate of their health, and had on occasions called a physician to see them, and that he had stated that he intended to remain unmarried while his mother lived, in which the jury, under Rev. St. 1911, art. 4704, might allow such damages as they thought proportionate to the resulting injury, a verdict of $5,500 was excessive and would be reversed, unless a remittitur of $4,400 was filed.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.]
    Willson, O. J., dissenting in part.
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by W. F. Hicks and wife against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs for $5,500, and -defendant appeals.
    Reversed and remanded for new trial, unless a remittitur of $4,400 was filed, in which event judgment reformed.
    Terry, Gavin & Mills and A. H. Culwell, all of Galveston, for appellant. Evans & Carpenter, of Greenville, for appellees.

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

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

   WILLSON, C. J.

On September 25, 1911, as the result of the wrecking of one of appellant’s freight trains near Celeste, appellees’ son, Ira Delos Hicks, a young man nearly 23 years old, was killed. At the time the wreck occurred deceased, employed by appellant as a brakeman, was on the top of one of the cars forming the train. Appellees charged, the jury found, and we find, that the wrecking of the train was due to negligence on the part of appellant, in that it was operating same at too great a speed over a track not reasonably safe because of rotten ties. The appeal is from a judgment for $5,500 — apportioned $500 to the father, and ■$5,000 to the mother — recovered by deceased’s parents as the damages they suffered because of his death.

At the time of deceased’s death appellee Hicks was about 65, and his wife about 63 years old. They had several children, all married and living in homes of their own, except deceased, their youngest child, who lived with them when not at work elsewhere. Besides about 60 head of stock cattle, 15 head of brood mares, and other property, the value of which is not shown in the record, appellees own*>d the 800 acres of land, worth about $30,000, on which they lived in Hill county, where they, engaged in farming and stock raising. Deceased was kind-hearted, sober, trustworthy, industrious, skilled in the business his father was engaged in, and was devoted to his mother. When at home with them he assisted his father in buying, feeding, and shipping cattle, and in doing other work around the place, and his’ mother in looking after and marketing chickens, eggs, etc., in the work involved in operating a dairy she carried on, and in various • other kinds of work she engaged in as a housekeeper. Deceased understood caring for sick people, and was a capable nurse. He was attentive and helpful to his mother, not only in assisting her in her work, but also in accompanying her to church when, as often happened, she otherwise could not have gone. He.had declared he did not intend to marry as long as his mother lived, but intended to remain unmarried, so he could see after and take care of her. On one or two occasions he had the witness Dr. Mayner to call professionally to see his father or mother, stating to him that his father and mother “were getting old and needed attention, and his father would not call a doctor very often when he needed one,” and that he (deceased) “would settle the bill, and for me (witness) to come to him for it.” Deceased and his father had entered into an agreement, the terms of which were stated in testimony of the latter as follows: '“The agreement we had was that I was to furnish 25 mares and 50 or 60 head of cattle, and he was to get one-half of the increase for his labor. * * * He was to run the farm, and what we made was to be used that way. If we did not use all that we made on the farm, the _ balance was to be sold, and it was to be ours, mine and his; if anything was left, not used, we were to dispose of it, and it was to belopg to us. We were to divide the profits on the stock business half and half, and, if there was anything left on the farm, we were to divide that. * * * 1-Ie was going to come home Christmas and take charge of everything and carry out the agreement we made, take charge of the stock, cattle, horses, and farm.”

In the statement just made we think we have recited substantially all the facts relied on to show pecuniary loss to appellees as a result of the death of deceased. Appellant insists that it cannot be said it appeared from those facts that appellees had reasonable expectation of pecuniary benefit from deceased had he not been killed, and that therefore the judgment in their favor is not supported by evidence, and cite, as supporting their contention, Winnt v. I. & G. N. R. R. Co., 74 Tex. 32, 11 S. W. 907, 5 L. R. A. 172; D. & W. Ry. Co. v. Spicker, 61 Tex. 427; Texas Portland Cement Co. v. Lee, 36 Tex. Civ. App. 482, 82 S. W. 306; Railway Co. v. Johnston, 78 Tex. 536, 15 S. W. 104; and Standard Light & Power Co. v. Muncey, 33 Tex. Civ. App. 416, 76 S. W. 931.

The two cases first cited are so unlike this one in their facts as to render it unnecessary to further refer to them.

The Johnston Case was not a suit by parents for damages for the death of their child, but was a suit by the widow, a minor daughter, a married daughter, and a son who lacked" only a few months of being 21 years of age, of the deceased. The judgment was in favor of the widow and minor daughter for $5,000 each, and in favor of the son and married daughter for $2,500 each. It was shown that the deceased earned $125 per month as a locomotive engineer. There was no testimony showing that'he had contributed anything to his son or to his married daughter. In reversing the judgment, so far as it was in favor of the son and married daughter, the Supreme Court said: “The damages recoverable in an action of this character are for the pecuniary loss of the party benefited by the recovery. Before a recovery can be had, the loss must be proved like any other fact. It is difficult to imagine a case in which it can be proved directly. It must be proved by circumstances, such as the relation and ages of the deceased and the surviving relative, the capacity of the former for earning money, and his disposition to contribute pecuniarily to the aid of the latter. In this case the circumstances repel the idea that the son and married daughter of the deceased had any just grounds to expect pecuniary assistance from the father. The law does not and cannot compel the party causing the death to give a gratuity in these cases. The recovery is to compensate a loss and not to confer a bounty.”

The Lee Case was a suit by the widow and parents of the deceased, 25 years old at the time he was killed, in which each of the parents recovered judgment for $500 on facts found by the Court of Civil Appeals to be as follows: “That up to the time of the marriage of the deceased, A. G. Lee, he contributed largely to the support of his father and mother, J. G. and Mary Lee, but after such marriage he contributed nothing to their support. That at the time of the trial of the cause in the court, below J. G. Lee was 67 years old, and Mary Lee was about 60 years old. J. G. Lee’s health was good; but Mary Lee’s health was bad and had been for many years. J. G. Lee was a carpenter by trade; but the amount of property owned by him and his wife is not shown. Nor does it appear from the evidence what income, if any, J. G. and Mary Lee had, or that they needed pecuniary aid from their son.” On the ground that the facts stated were not sufficient to support it, the judgment in favor of the parents was reversed by the Court of Civil Appeals. That court said: “It does not appear from the evidence that they [the parents] had any reasonable expectation of receiving any pecuniary benefit from him [deceased] in the future had he lived. It was essential for the parents of the deceased to show that they had suffered some pecuniary loss by reason of his death in order to authorize a verdict for any amount in their favor. This they failed to do.” The value of the case as a precedent is weakened by the fact that the Supreme Court, in overruling, on other grounds, the application of the parents for a writ of error, were careful to say they did not wish their action to be construed as meaning that they thought the judgment.in favor of the parents was not supported by the evidence. Texas Portland Cement Co. v. Lee, 98 Tex. 236, 82 S. W. 1025.

The Muneey Case.was a suit by the wife for the benefit of herself and the father and. mother of the deceased. The judgment in. favor of the father and mother for $1,000' each was attacked on the ground that the-proof showed “deceased did not contribute-anything toward their support, and there-was no proof of their receiving any pecuniary benefit from a continuation of his life.”' In disposing of the contention, the Court of Civil Appeals said: “We are of the opinion, that this objection is well grounded. The-evidenee shows that, after deceased married, he contributed nothing to the support of his-parents, and that there was no necessity therefor, and there is no evidence to show that they had any reasonable expectation of receiving any pecuniary benefit from him! thereafter had he lived. The relationship, itself does not give a right of recovery. It must be shown that they have sustained some pecuniary loss by the injury upon which, the jury could legally base a verdict.”

While this case is like the Lee and Mun-cey Cases in some of its facts, it is unlike-them in that here deceased not only performed service of pecuniary value to his parents-after he became 21 years of age, when he-was under no legal obligation to do so, but had declared it to be his intention to not. marry during his mother’s lifetime, so that he might more effectually look after and care for her. But those cases, and the Johnston Case also, make it plain that a recovery should be denied in such eases in the absence of testimony showing that the plaintiff has reasonable expectation of pecuniary benefit from the deceased had he not been killed. In view of appellees’ financial condition and the contract he and his father had. entered into, as shown by the testimony, the-writer is strongly inclined to think it so improbable that a necessity for deceased to-aid his parents pecuniarily ever would have-arisen, or that such aid ever would have been-rendered to them by him, that it should be-said, as a matter of law, that they had no reasonable expectation of such benefit from, him. The other members of the court, however, are of opinion the testimony made a question .as to whether appellees had sueh expectation or not, which should have been, as it was, submitted to the jury. The conclusion, therefore, is that appellant’s contention that the testimony, was not sufficient to show pecuniary loss to appellees should be overruled.

But, conscious as we are of the fact that “the damages in such cases are essentially indefinite” (Railway Co. v. Kindred, 57 Tex. 503), and of the fact that the statute declares that in such cases “the jury may give such damages as they may think proportioned to the injury resulting from such death” (article 4704, R. S. 1911), and loath as we are to substitute our own judgment for that of the jury as to the proper amount to award as damages, we nevertheless are agreed that under the circumstances shown by the testimony the verdict and judgment are so plainly and radically excessive they should not be permitted to stand. It is clear, we think, when the financial condition of appellees is. kept in mind, that it was extremely improbable that appellees ever would have needed pecuniary assistance, and therefore that the assistance of that nature which deceased reasonably could have been expected to render to them would have been trivial, and that a much smaller sum than $5,500 would have fully compensated appellees for the loss of that nature suffered by them. We are of opinion that the judgment should not have been for a sum in excess of $1,100, and that it should be reversed, unless a remittitur of $4,400 of the amount recovered is filed.

The assignments presenting other questions for review are overruled.

The judgment will be reversed, and the cause remanded for a new trial, unless, within 20 days from this date, a remittitur of $4,400 of the sum recovered is filed, in which event it will be so reformed as to adjudge a recovery in favor of appellees, in the proportions determined by the jury, of the sum of $1,100.


author: PLEASANTS, C. J.

text:
    WHITE et al. v. LOWRY.
    (No. 6553.)
    (Court of Civil Appeals of Texas. Galveston.
    April 18, 1914.)
    Appeal and Eeeoe (§ 742) — Review—Harmless Error.
    An assignment of error, complaining of the refusal of the court which rendered a default judgment against defendants to file findings of fact and conclusions of law, must be overruled where the statement thereunder did not show the ground of the motion for new trial, excuse defendants’ default, or show that they had a good defense; it not appearing defendants were in any way harnied.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Action by M. W. Lowry against E. A. White and others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    N P. A. Dowlen and David E. O’Piel, both of Beaumont, for appellants. Jas. A. Harrison, of Beaumont, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by appellee against the appellants to recover on a note for $3,483.55 and to foreclose a mortgage lien given by appellants, upon land described in the petition, to secure the payment of said note. The defendants were duly served with citation on June 12, 1912. On February 3, 1913, no answer having been filed by the defendants, judgment by default was rendered in favor of plaintiff for the amount due upon the note and foreclosing the lien upon the land described in the petition. Appellant in due time filed a motion to set aside the judgment by default, and for a new trial. This motion' was heard and overruled by the court on the 29th day of March, 1913, which was the last day of the term of the court. Appellants excepted to the ruling of the court, gave notice of appeal, and requested the court to file conclusions of fact and law. No conclusions were filed by the court. On June 24, 1913, appellant presented to the trial judge a bill of exceptions to his failure to file conclusions of fact and law. This bill was approved by the judge and filed by the appellants on said date. ' In his approval of the bill the judge states that his failure to file the conclusions was due to the fact that in the press of other business he “overlooked the preparation and filing” of said conclusions and orders that the bill be filed and made a part of the record.

The only assignment of error presented in appellants’ brief complains of the failure of the trial judge to file his conclusions of fact and law. As presented the assignment shows no sufficient ground for a reversal of the judgment. The statement under the assignment does not show the grounds of the motion for new trial; and, so far as we are informed by the brief, appellants may have had no defense to plaintiff’s suit. There is nothing in the statement in the brief to indicate what, if any, issues of fact would or could have been raised by the defendants had they filed an answer before the judgment by default was rendered, nor is there anything to show upon what ground appellants sought to excuse their failure to answer, or • that any issue of fact was raised upon this ground of the motion. Prom this showing it does not appear that conclusions of fact and law could have been of any benefit to appellants, and consequently the assignment as presented does not show any error prejudicial to appellants. Unless the statement under an assignment shows that the error complained of was probably harmful, the' assignment fails to present ground for the reversal of the judgment of the trial court. The assignment is overruled. Texas Lumber Mfg. Co. v. Prince (Tex. Civ. App.) 154 S. W. 231. This disposes of the only question presented by appellants’ brief, and it follows that tbe judgment of tbe court below must be affirmed; and it bas been so ordered.

Affirmed.


text:
    BOLTON v. UNITED STATES FIDELITY & GUARANTY CO. et al.
    (No. 1290.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 26, 1914.)
    Appeal and Error (§ 387) — Perfection op Appeal — Bond.
    Where a judgment appealed from was rendered at a term of the district court ending April 5th, and the motion for new trial was overruled April 4th, but appellant did not file an appeal bond until June 12th, there was no compliance with Rev. St. 1911, art. 20S4, requiring an appeal bond to be filed within 20 days after the expiration of the term, and the appeal would be dismissed.
    [Ed. 'Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064r-2070; Dec. Dig. g 387.]
    Appeal from District Court; Dallas County; E. B. Muse, Judge.
    Action between James E. Bolton and tbe United States Fidelity & Guaranty Company and others. Judgment for tbe company, and Bolton appeals.
    Dismissed.
    Pierson, House & Pierson, of Dallas, for appellant. Hunt, Myer & Teagle, of Houston, and Seay & Seay, of Dallas, for appellee United States Fidelity & Guaranty Co. J. L. Oog-gans, of Dallas, for appellee Dallas County.

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

   WILLSON, C. J.

It appears that tbe judgment appealed from was rendered January 25, 1913, at a term of a district court for Dallas county, which commenced January 7th, and which by authority of law (article 30, subd. 44, p. 33, R. S. 1911) continued until April 5, 1913. It further appears that appellant’s motion for a new trial was overruled April 4, 1913, and that he then gave notice of an appeal to the Court of Civil Appeals for the Fifth District. It' further ap-, pears that appellant was a resident of Dallas county, and that he did not file an appeal •bond until June 12, 1913. So much appearing, it is clear, under repeated decisions of the courts of this state construing article 2084, R. S. 1911 (Burr v. Lewis, 6 Tex. 80; Ry. Co. v. Whatley, 99 Tex. 128, 87 S. W. 819; Trim v. Planters’ Cotton Oil Co., 163 S. W. 103), that this court has not jurisdiction to hear and determine the appeal. Said article of the statutes is as follows: “An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered by the appellants giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or affidavit in lieu thereof, as hereinafter provided, within. twenty days after the expiration of the term. If the term of the court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in the county, and with'in thirty days, if he resides out of the county.” It will be noted that appellant, being a resident of the county where the cause was tried, to comply with the statute should have filed the appeal bond within 20 days from April 4, 1913, when he gave notice- of an appeal, and that, instead of doing so, he delayed filing same until more than 60 days had elapsed after such notice was given. In this attitude of the case all we can do is to dismiss the appeal.


text:
    TURNPAUGH et al. v. DICKEY et al.
    (No. 1328.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 30, 1914.)
    Homestead (§ 154*) — Abandonment—Segregation.
    Complainants purchased a triangular piece of ground containing a half acre or less in an unincorporated town, built a house and outbuildings thereon, using it as their home. After the town was incorporated, complainants constructed another house on another portion of the lot and divided the two by a high board fence. The second house was rented from month to month with the intention of removing it to another place thereafter. The lot was never platted or cut into two separate lots, and complainants always reserved the particular premises on which the second house was located for use of himself and' family. Held, that the division of the property by the fence and the construction of the second house did not constitute an abandonment of the homestead character of that portion of the premises so as to render it subject to execution.
    [Ed. Note. — For other cases, see Homestead, Gent. Dig. § 307; Dec. Dig. § 154.*]
    Appeal from District Court, Tarrant County; ■ R. H. Buck, Judge.
    Action by J. H. Dickey and others against J. W. Turnpaugh and others, to set aside a sale, of real property under a .judgment as a homestead. From á judgment for complainants, defendants appeal.
    Affirmed.
    On January 12, 1911, the appellant Turn-paugh recovered a personal judgment against J. H. Dickey for $222.92, with interest and costs. An abstract of the judgment was properly recorded. On January 17, 1913, an alias execution was issued on the above judgment and levied on certain described land of ap-pellee Dickey, and appellant Turnpaugh, the execution creditor, became the purchaser under the sale. Claiming that the land so sold was their homestead, appellee and his wife brought .this suit against the purchaser and the sheriff to set .aside said sale and cancel the deed made thereunder. Besides the plea of denial, the appellant, in affirmative plea, prayed that the court foreclose his judgment lien on a specifically described portion of the land, claiming' tile same liad been segregated .before tbe sale from tbe remainder of tbe borne and abandoned as a part of tbe original homestead. Tbe case wa s tried to tbe court without a jury, and judgment was entered in favor of plaintiffs for tbe land.
    Tbe evidence establishes that in 1902 ap-pellee J. H. Dickey purchased a tract of land, in triangle shape, of a half acre or less, out ■of tbe J. Van Rupper survey, and located near tbe Polytechnic College in Tarrant county. Polytechnic was not incorporated, as a town at tbe time of the purchase, but has since, at some date not given, been incorporated, and at tbe time of tbe trial tbe land in suit lay within tbe incorporate limits of the town. At tbe time of tbe purchase of tbe land, Dickey built a bouse in tbe northeast corner of tbe land, and drilled a well in tbe southern part of the triangle, and moved with his wife and children into the bouse as tbe homestead of tbe family. After moving into tbe house, appellee built a barn, wash-house, a eoalhouse and sheds, and other outhouses shown on tbe plat in tbe record, for family usé in connection with the home. Ap-pellee is a plumber, is actively engaged in that business, and has bis plumbing shop on tbe southwest portion of the lot. During tbe year 1911 appellee’s wife inherited a sum' of money from her aunt, and $1,000 of tbe money was used to erect a small bouse on tbe northwest portion of the lot. An upright board fence was then built between this bouse and tbe residence, which extended in a southerly direction to a point opposite the eoalhouse built some time prior thereto.. There were a gateway and drive, about eight feet wide, on the west and running with tbe cross fence, leading from the street on the north to tbe eoalhouse, and connecting with a gateway at the southern end of tbe cross fence and next to the horse lot. At the south end of tbe cross fence is also tbe washhouse mentioned as having been previously built. Prom' tbe time of tbe erection of the house in 1911 to the trial, the appellee has rented the same to tenants. Tbe testimony, however, admittedly shows that appellee erected this house on tbe lot, intending to keep it there only temporarily until he could purchase another lot and remove it. The house was only rented by the month and tbe right reserved by appellee to terminate the tenancy at the end of any month, and was never rented to any one having live stock, chickens, or children. The driveway was used by ap-pellee as a means of ingress and egress to and from his stock lot on the south of the lot, and the eoalhouse and washhouse were used in common by the appellee’s family and the tenants. The lot had never been platted or cut into two separate lots, and appellee did not intend to do so, and he always reserved the particular premises on which the house last erected was located for the use of himself and his family.
    The evidence supports the finding of fact; as involved in the judgment of the court, that all the premises constituted the homestead of appellee and his wife, and that he did not intend the house to be permanently rented, and had not discontinued the use of any part of the entire lot for any homestead purpose, and did not intend, any discontinuance or abandonment of any .part of the original homestead.
    Wm. Booth, of Et. Worth, for appellants. L. H. Burns, of Et. Worth, for appellees.
   LEVY, J.

(after stating the facts as above). The first assignment predicates error upon the refusal of the court to foreclose appellants’ judgment lien on that part of the original homestead of appellee, as described in appellants’ answer. The judgment of the court involves the finding of fact by him that appellee did not intend to segregate and abandon any part of his original homestead. It is believed that there is sufficient evidence to support the trial court’s finding of fact, and this court would not be warranted in ruling that the trial court, as a matter of law, erred in rendering judgment, for the appellees. In the case of Blackburn v. Knight, 81 Tex. 326, 16 S. W. 1075, relied on by appellants, the trial court there made the finding of fact, as supported by the evidence, that “the defendants, because of the permanent renting of the premises, and of their limiting themselves to the use, and to the right of the use, of the strip of 14 feet, had, before the levy of the plaintiff’s execution, abandoned their homestead rights in all of the lot in controversy except a strip of 14 feet wide along the north side.” Then the court said, “If there be evidence to support the several findings of fact above set out, they will not be disturbed by this court” The other cases cited by appellant also turn on the particular finding of fact in the evidence, as must every case presenting this question.

The judgment is affirmed.


text:
    POPE v. COMMONWEALTH BONDING & CASUALTY CO.
    (No. 1320.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 8, 1914.
    Rehearing Denied May 21, 1914.)
    1. Appeal and Error (§ 883) — Questions Review able — Peremptory Instructions— Consent op Parties.
    Where the court intimated to the parties that it would not allow a verdict to stand for defendant, and a consultation between the court and the attorneys resulted in the suggestion that a peremptory instruction should be given, and thereafter defendant’s attorneys consulted defendant, and announced that they ha.d no objection to that proceeding, defendant consented to a peremptory instruction, and coiild not complain on appeal thereof.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3611; Dec. Dig. § 883.]

      2. Trial (§ 45) — Conduct of Trial — Exclusion of Evidence.
    Where the court asked counsel for defendant whether he had any testimony to offer, and counsel replied that he had not,. but that he rested, an assignment complaining that the court over the objection of defendant made defendant rest his case before introducing all his testimony was without merit.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 110-114; Dec. Dig. § 45.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action to cancel an accident and health policy by the Commonwealth Bonding & Casualty Company against Francis M. Pope, who, by cross-action, sought a recovery on the policy for an accidental injury. From a judgment canceling the policy and denying, relief on the cross-action, defendant appeals.
    Affirmed.
    McLean, Scott, McLean & Bradley, Frank R. Graves, and Mays & Mays, all of Ft. Worth, and D. A. Frank, of Dallas, for appellant. Capps, Cantey, Hanger & Short and David B. Trammell, all of Ft. Worth, for appellee.

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

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

   LEVY, J.

The suit was brought by appel-lee against appellant to cancel an accident and health policy, upon alleged grounds of fraud in procuring the issuance of the same. The defendant answered by denial, and by cross-action sought recovery on the policy for an alleged accidental injury to the left leg, resulting in its partial loss, and also for libel. The court peremptorily instructed a verdict for the cancellation of the policy, and against the cross-action of the defendant. The appellant predicates error upon the giving of the peremptory instruction. There appears in the statement of facts, properly agreed to by the parties and approved by the court, the recital of proceedings had immediately before the instruction was given.

According to the record, without copying the whole statement, the court had the jury to retire, and then intimáted to the parties that he would not allow a verdict to stand in favor of appellant, in view of the testimony, and “thereupon a general consultation between the court and the attorneys for both sides as to the course that should be pursued occurred,” which resulted in the final suggestion that a peremptory instruction be given. After the consultation between the court and the attorneys had occurred, the record states that “thereupon Pope’s attorneys. asked for time to consult their client, and they and Pope retired to the rear of the courtroom, and after some minutes returned and announced that they had no objection to that proceeding.” The effect of the proceeding was, we think, that appellant consented to the giving of the peremptory instruction, and, having consented, he cannot now complain. English v. City of Ft. Worth, 152 S. W. 179.

The second assignment makes the contention that the court, over the objection of the defendant, made the defendant rest his case before he had introduced all of his testimony. The recital mentioned of the proceedings shows that the court asked the counsel for the defendant, “Have you any testimony to offer on behalf of the defendant?” to which the attorney replied, “We have not, your honor; we rest.”

In the state of the record the judgment is affirmed.


author: HIGGINS, J.

text:
    MAPLE v. SMITH.
    (No. 312.)
    (Court of Civil Appeals of Texas. El Paso.
    April 30, 1914.
    Rehearing Denied May 28, 1914.)
    1. Appeal and Error (§ 544*) — Record — Statement of Facts — Necessity.
    In the absence of a statement of facts, an assignment of error to the ruling, withdrawing from the jury the issue raised by defendant’s plea of limitations, must be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-^2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.*]
    2. Limitation of Actions (§ 127*) — Amendment — New Cause of Action.
    Where the original petition was based upon an agreement to divide a commission from a sale of property, an amendment merely stating more accurately and fully the facts relating to the contract originally declared on, and plainly relating to it, was a continuation of the original suit, and not the institution of a new one, so that the action was not barred, though the amended petition was filed after the period of limitation.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by D. B. Smith against H. M. Maple. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. G. Morris and Sam B. Gillett, both of El Paso, for appellant. Jno. L. Dyer and 0. W. Croom, both of El Paso, for appellee.
   HIGGINS, J.

The only assignment presented is that the court erred in withdrawing from the jury the issue raised by defendant’s plea of limitation; the contention being that the amended petition declared upon a different cause of action from that set up in the original petition, and was filed more than two years after the accrual of the cause of action.

In the absence of a statement of facts, there are various reasons why this assignment of necessity must be overruled, but nevertheless we have. examined the two petitions, and áre unable to sustain the contention made.

Both petitions are based upon an alleged agreement of Maple to divide with Smith a commission earned for effecting a sale of certain property owned by one German to L. E. Booker. They plainly relate to the same transaction. The amendment is a mere amplification of the original pleading, stating more accurately and fully the facts relating to the contract originally declared upon. It must be regarded as a continuation of the original suit, and not the institution of a new one. Townes on Pleading (2d Ed.) 457; Thouvenin v. Lee, 26 Tex. 615; Burton-Lingo Co. v. Beyer, 34 Tex. Civ. App. 276, 78 S. W. 249; Mayes v. Magill, 48 Tex. Civ. App. 548, 107 S. W. 364; Schauer v. Von Schauer, 138 S. W. 147; Goodwin v. Simpson, 136 S. W. 1191; Ry. Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 285; Bingham v. Talbot, 63 Tex. 273; Cotter v. Parks, 80 Tex. 542, 16 S. W. 307.

AfGrmed.


text:
    AUGUST v. GAMER CO.
    (No. 1327.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 7, 1914.)
    1. Mechanics’ Liens (§ 291) — Foreclosure —Ownership of Land — Pleading.
    Where, in a suit to foreclose a mechanic’s lien, it was averred that the land was owned by “A. & L. August, by said A. August and by said L. August,” a judgment foreclosing the lien on the land of “A. August” was proper.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 599-605, 607, 610; Dee. Dig. § 291.]
    2. Appeal and Error (§ 544) — Variance-Record — Review.
    An alleged fatal variance cannot be reviewed on appeal in the absence of the statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.]
    3. Trial (§ 390) — Conclusions oe Fact and Law — Filing After the Teem.
    Where the judge filed his conclusions of fact and law within ten days after the adjournment of the term as permitted by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2075, it was not material that they were not reduced to writing and filed during the term.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 913; Dec. Dig. •§ 390.]
    4. Appeal and Error (§ 907) — Objections— Judgment — Verdict—Findings.
    Where a judgment appealed from is supported by the findings of the court and jury, it will be assumed on appeal in the absence of the statement of facts that the findings are supported by evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dee. Dig. § 907.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Action by the Gamer Company against Burke & Reilly and A. & L. August. From a judgment for plaintiff foreclosing a mate-rialman’s lien on the land of A. August, he appeals.
    Affirmed.
    Wray & Mayer, of Ft. Worth, for appellant F. H. Haddix, of Ft. Worth, for appel-lee.

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

   WILLSON, C. J.

Charles Gamer, doing business as the “Gamer Company,” sued Burke & Reilly, and A. & L. August, alleged to be a firm composed of L. August and appellant A. August. As against Burke & Reilly, appellee sought to recover $1,949.86, which he alleged they owed to him for material he had furnished to them to enable them as subcontractors to comply with their contract to furnish the material therefor and install a heating plant and certain plumbing in a building then being constructed by contractors H. L. Stevens & Co. for “A. & L. August and A. August and L. August” on a lot in Ft. Worth owned by “A. & L. August and said A. August and L. August.” As against A. & L. August and A. August and L. August, appellee sought to establish and foreclose a materialman’s lien he claimed against the building and lot owned by them to secure the payment of the sum due to him from Burke & Reilly. Other persons than those named above were parties to the suit, but as their rights are' not involved in the appeal, which is prosecuted by appellant alone against ap-pellee alone, it is not necessary to further refer to them. In the absence of a statement of facts, we assume that the findings in the record were supported by evidence. Those findings authorized the judgment rendered in appellee’s favor against Burke & Reilly for $2,115.61, and in his favor against appellant, establishing and foreclosing the lien asserted by appellee against the lot and improvements thereon owned by appellant, to satisfy $2,061.36 of the sum,found in appel-lee’s favor against Burke & Reilly.

The contentions made here are: (1) That “the court erred in rendering a judgment foreclosing a lien on the land of A. August, because the averment is that the land was owned by A. & L. August, by said A. August and by said L. August!” Plainly, we think, this contention is without merit. (2) That there was a fatal variance between certain allegations in the petition and the proof made. As noted above, there is no statement of facts with the record sent to this court. Without such a statement, we of course cannot determine whether there was a variance between the allegations and the proof or not. (3) That the court failed during the term at which the cause was tried to reduce to writing and file his conclusions of fact and law with reference to certain issues submitted to him by agreement of the parties. But the court did file his conclusions within 10 days after the adjournment of the term. This was a compliance with the requirement of the law. Vernon’s Stat. art. 2075. (4) That the judgment is “unsupported by the verdict of the jury, evidence, or findings.” It is supported by the findings made by the courí and jury, and, as stated above, we must assume in the absence of a statement of facts that those findings were supported by evidence.

The judgment is affirmed.


author: HARPER, J.

text:
    CUNNINGHAM v. STATE.
    (No. 3104.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.)
    Appeal from Hill County Court; Horton B. Porter, Judge. Pomp Cunningham was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

In the record before us there is neither a statement of facts nor any bills of exception, and there is nothing in the. motion for a new trial we can review in the absence of a statement of facts. The judgment is therefore affirmed.

DAVIDSON, J., absent at consultation.


text:
    DAVIS v. STATE.
    (No. 3083.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    Rehearing Denied May 6, 1914.)
    Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge. Henry Davis was convicted of aggravated assault, and he appeals.
    Affirmed.
    Russell & Spears, .of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. .Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of committing an aggravated assault on Lee Walters by cutting him with a knife and inflicting serious bodily injuries. The complaint and information are not subject- to the criticisms contained in appellant’s motion in arrest of. judgment, and succinctly charge the offense of' which he 'was convicted. The record containing neither 'a statement of facts nor bills of exception, the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    Ex parte GARDNER.
    (No. 3129.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.
    Rehearing Denied May 20, 1914.)
    Appeal from District Court, Washington County; Ed R. Sinks, Judge. Application by Carl Gardner for admission- to bail.
    Application denied.
    Mathis, Teague & Embrey, of Brenham, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

On appellant’s application the district judge of Washington county granted a writ of habeas corpus, whereby he was seeking bail in a case wherein he was indicted for murder. The district judge on a full hearing denied bail; hence this appeal. We have carefully read and considered all the evidence shown by the statement of facts in this case. We have reached the conclusion that there is no error in the order of the district judge denying bail. We follow the uniform practice of this court in not stating or discussing the evidence, as it would be improper to do so in view of a trial that must be had. The judgment of the court -below in denying bail is affirmed.


author: DAVIDSON, J.

text:
    Ex parte MYERS.
    (No. 3110.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge. Application by Harvey D. Myers for admission to bail. Prom the judgment fixing bail, relator appeals.
    Affirmed.
    Blain & Howth, of Beaumont, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Relator was arrested, charged with murder. Upon the trial under habeas corpus he was admitted to bail in the sum of $7,500. Failing to give bond, he resorted to writ of habeas corpus for the reduction .of bail, among other things filing affidavit of newly discovered evidence, which was to the effect that he was very drunk at the time he committed the offense. This was hardly newly discovered, but in any event the second writ was awarded, and the -bond reduced to $6,000. It is the practice of this, court not to indulge in a discussion of the facts as a basis for the conclusion reached on the question of bail. However, we are of opinion that the bail is not excessive. The judgment, is affirmed.


text:
    Ex parte PHELPS.
    (No. 3117.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.
    Rehearing Denied May 13, 1914.)
    Appeal from Special District Court, Liberty County; J. Llewellyn, Judge. Habeas corpus by J. T. Phelps. Relator was remanded to custody, and appeals.
    Affirmed.
    Marshall & Harrison, of Liberty, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with the murder of W. C. Tompkins. He sued out a writ of habeas corpus before Hon. J. Llewellyn, judge of the district court of Liberty county. A trial was had, and on the hearing Judge Llewellyn remanded relator to the custody of the sheriff. As this cáse is yet to be tried, it would -be improper for.us to recite or comment upon • the testimony, or the weight of any portion of it; but after-reading the record we. cannot say that the trial judge erred in the ' premises, and the judgment is therefore affirmed.

DAVIDSON, J., absent at consultation.


text:
    RICHIE v. STATE.
    (No. 3082.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    Rehearing Denied May 6, 1914.)
    Appeal from Hunt County Court; Geo. B. Hall, Judge. R. R. Richie was convicted of an offense, and appeals.
    Affirmed.
    A. H. Mount, of Royse City, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

There is no statement of facts in this case, and no question is raised which can be considered in the absence thereof. The judgment of the lower court, convicting appellant of aggravated assault, will therefore be affirmed.


text:
    SNYDER v. STATE.
    (No. 3115.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    Appeal from Coke County Court; G. S. Arnold, Judge. Ben Snyder was convicted of wife desertion, and -he appeals.
    Reversed, and cause remanded.
    D. I. Durham, of Robert Lee, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was prosecuted under Act April 2, 1913, p. 188, for deserting his wife, and fined $25. The only question necessary to pass upon is whether or not the evidence is sufficient to sustain the verdict. This point was clearly made in the court below and in this. We have carefully read the evidence, and have reached the conclusion that the evidence is not sufficient to sustain the verdict and judgment. We regard it as unnecessary to recite the evidence, as it would serve no useful purpose. No other question raised presents any error. The judgment is reversed, and the cause remanded.


text:
    Ex parte TAYLOR.
    (No. 3120.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    Appeal from Special District Court, Liberty County; J. Llewellyn, Judge. Writ of habeas corpus by Vivian Taylor. Erom a judgment denying bail, relator appeals.
    Reversed, and bail granted.
    Marshall & Harrison, of Liberty, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Relator was arrested under a charge of murder, and resorted to a writ of habeas corpus for the purpose of obtaining bail. The court, upon hearing the evidence, held against relator, and remanded him to custody. In this we think the court was in error. We are of opinion that relator is entitled to bail. Therefore the judgment is reversed, and bail is granted in the sum of $7,500. Upon the giving of bail in the above sum under the terms of the law, the sheriff will release relator.


text:
    JOHN CHRISTENSEN & CO. v. HANSEN.
    (No. 6508.)
    (Court of Civil Appeals of Texas. Galveston.
    March 4, 1914.
    Rehearing Denied April 23, 1914.)
    Appeal from Galveston County Court; George E. Mann, Judge. Action by Harold Hansen against John Christensen & Co. Erom a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    Maco & Minor Stewart, J. E. Quaid, and Louis Lobit, all of Galveston, for appellants. James B. & Charles J. Stubbs, of Galveston, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellee against the appellants, John Christensen and J. Rasmussen, composing the firm of John Christensen & Co., to recover damages for personal injuries sustained while riding as passenger for hire in an automobile of defendants, and caused by the negligence of the driver of said automobile, who, it is alleged, was acting as the servant and agent of appellants in driving said automobile and conveying plaintiff as a passenger therein. Damages are claimed in the sum of $1,000. Defendants presented general demurrer and various special exceptions to the petition, the nature of which it is unnecessary to state. They further answered by general denial, and specially pleaded the defenses of assumed risk and contributory negligence. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff. This is a companion case with that of Christensen v. Christiansen, decided by this court on April 24, 1913, and. reported in 155 S. W. 995. The plaintiff in this case and plaintiff in the 'case cited were riding in the-same automobile and were injured in the same accident, and the identical questions presented on that appeal are presented on this. The evidence sustains the finding of the jury that ap-'pellee was injured, as alleged in his petition, by the overturning of an automobile belonging to appellants, in which appellee was riding as a passenger, and that .said injury was caused by the negligence of the driver of said automobile in the respects stated in the petition. The evidence further sustains the finding of the jury that appellee by reason of his injuries sustained damages in the amount stated in the .verdict. .Upon the issue of whether the driver of the car, in accepting appellee as a passenger and undertaking to convey him to his desired destination, was acting as the servant and agent of appellants, or by appellants’ authority, the evidence is practically identical with the evidence in the case cited, and we refer to >and adopt upon this issue our conclusions of fact in said case as our fact conclusions in this case. As held in the former case, in which a writ of error has been denied by our Supreme Court, the undisputed evidence shows that the driver of the car on the occasion in question was using the car without authority and without the knowledge of appellants, and was not using it in appellants’ business, nor in the performance of the duties of his employment, and therefore appellants cannot .be held liable for his negligence. This conclusion requires that the judgment of the court below be reversed, and judgment here rendered in favor of appellants; and it has been so ordered. Reversed and rendered.


author: HALL, J.

text:
    McQUITTY et ux. v. MOSS.
    (No. 591.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 28, 1914.
    Rehearing Denied April 25, 1914.)
    Appeal from District Court, Dallam County; D. B. Hill, Judge. Action between W. L. McQuitty and wife and G. L. Moss. From the judgment in favor of Moss, McQuitty and wife appeal.
    Affirmed.
    W. B. Ohauncey and Clifford Braly, both of Dalhart, for appellants. R. E. Stalcup, of Dalhart, for appellee.
   HALL, J.

Affirmed.


author: KEY, C. J.

text:
    ANDERSON, CLAYTON & CO. v. TERRY.
    (No. 5362.)
    (Court of Civil Appeals of Texas. Austin.
    May 13, 1914.)
    1. Pleading (§ 104) — Change of Venue — Plea oe Peivilege — Requisites.
    Rev. St. 1911, art. 1903, provides that a plea of privilege shall state that none of the exceptions to exclusive venue in the county of one’s residence, mentioned in Rev. St. arts. 1830 or 2308, exist in the ease. Raid,, that a plea of privilege, stating that none of the exceptions to exclusive venue in the county of one’s residence, mentioned “in articles 1194, 1585, of the Revised Statutes,” exist in the case, which articles did not relate to venue, was insufficient.
    [Ed. Note. — For other cases, see Pleading, ■ Cent. Dig. §§ 213-217; Dec. Dig. § 104.]
    2. Pleading (§ 8) — Change oe Venue — Plea oe Privilege.
    An allegation in a plea of privilege that the suit did not come within any of the exceptions provided by law in such cases, authorizing suit to be brought or maintained in the county of Milam or elsewhere outside the county of Harris, was a mere conclusion of law, and ineffective.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%, 68; Dec. Dig. § 8.]
    Appeal from Milam County Court; John Watson, Judge.
    Action by C. H. Terry against Anderson, Clayton & Co. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    R. E. Goree, of Houston, and Henderson, Kidd & Gillis, of Cameron, for appellants.

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

   KEY, C. J.

C. H. Terry brought this suit against Anderson, Clayton & Co. and certain other defendants, and, from a judgment rendered in his favor against Anderson, Clayton & Co. the latter have appealed.

Appellants filed a plea of privilege to be sued in another county, and the only question presented by this appeal is the action of the trial court in refusing to submit that plea to the jury. Article 1903 of the Revised Statutes requires, among other things, that such a plea of privilege shall state “that none of the exceptions to exclusive venue in the county of one’s residence mentioned in article 1830 or article 2308 of the Revised Statutes exist in said cause.” The articles referred to point out the exceptions to the statute which requires that a defendant shall be sued in the county of his residence. The plea of privilege filed in this case stated “that none of the exceptions to exclusive venue in the county of one’s residence mentioned in article 1194 or article 1585 of the Revised Statutes of the state of Texas exist in this case.” At the time this suit was brought and the plea referred to was filed, the Revised Statutes of 1911, from which we have quoted a portion of article 1903, were in force, and contained two articles numbered 1194 and 1585, but those articles do not relate to the subject of venue of suits. So it is quite clear that the plea omitted to state what the statute required, and for that reason we hold that it was insufficient, and that no error was committed in disregarding it.

It is true that the plea stated:

“That this suit does not come within any of the exceptions provided by law in such cases authorizing suit to be brought or maintained in the county of Milam, state of Texas, or elsewhere outside of the county of Harris, State of Texas.”

That statement contained a conclusion of law in the mind of the person who prepared the plea. The statute does not require or authorize the making of such general statement; nor do we feel justified in holding that such statement will supply the omission to state that which the statute requires.

No error has been shown, and thp judgment is affirmed.

Affirmed.


author: RICE, J. JENKINS, J.

text:
    NOBLE et al. v. BROAD.
    (No. 5335.)
    (Court of Civil Appeals of Texas. Austin.
    April 15, 1914.
    Rehearing Denied May 13, 1914.)
    Justices oe the Peace (§ 72) — Jurisdiction —Residence oe Parties.
    Under Rev. St. 1911, art. 2308, requiring suits before a justice of the peace to be commenced in the county in which the defendants, or one of them, reside, except in certain cases, among ■which is a suit upon a contract in writing promising performance at a particular place, which may be brought in that county, where a suit was begun on a promissory note, payable at a certain place, and secured by a chattel mortgage, against the maker of the note and the subsequent purchasers of the mortgaged property, none of whom resided in the county in which the suit was brought, the defendants other than the maker of the note are entitled to have the suit against them transferred to the county of their residence, since they were not parties to the agreement to pay at the particular place.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 56, 143-145, 235; Dec. Dig. § 72.]
    Jenkins, J., dissenting.
    Appeal from Coleman County Court; F. M. Bowen, Judge.
    Action by William Broad against T. B. Noble and others. On appeal from a justice of the peace to the county court, judgment was rendered for the plaintiff, and defendants appeal.
    Reversed, with instructions.
    Critz & Woodward, of Coleman, for appellants. Snodgrass, Dibrell & Snodgrass, of Coleman, for appellee.

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

   RICE, J.

While living in Coleman county, J. R. Hager became indebted to appellee in the sum of $125, and on December 3, 1909, gave him Ms note therefor, payable on the 1st of March, 1911, at Coleman, Tex., bearing 10 per cent, interest and 10 per cent, attorney’s fees, secured by a chattel mortgage on two mares, which was duly filed' and registered in said county. Afterwards he removed from Coleman to Clay county, taking said animals with him, without the knowledge or consent of appellee, and there mortgaged the same to T. B. Noble and H. L. McGregor to secure a debt due them, who, when the same matured, brought suit to enforce collection thereof, with foreclosure of said mortgage lien, and purchased said property at their foreclosure sale, crediting the amount paid therefor on their judgment against Hager. They subsequently sold said property to Leroy Vaughan, who paid value therefor. This suit was brought June 14, 1912, by ap-pellee in justice court precinct No. 1, Coleman county, against Hager on said note, and against all of the other parties above named, praying for judgment for the debt against Hager, and for foreclosure of his mortgage lien as against said other parties. Hager answered; but each of the others filed pleas of personal privilege to be sued in the counties of their residences, to wit, Clay and Wichita. On July 28, 1913, judgment went against Hager on the debt, with foreclosure of the mortgage as prayed for, but in favor of Noble, McGregor, and Vaughan on their pleas of privilege, transferring the case to the justice’s court of precinct No. 4, Clay county. ' An appeal was taken to the county court, where the case was tried before the court, without a jury, and resulted in a judgment on the 30th of October, 1913, in favor of appellee against Hager for his debt and foreclosure of the mortgage lien, and against all of the other parties thereto on their pleas of privilege, and for foreclosure of the mortgage lien, as well as for costs of- suit, from which judgment Noble and McGregor have appealed to this court, urging that the court erred in overruling their pleas of privilege, as well as rendering judgment against them foreclosing said mortgage lien.

None of the defendants resided in Coleman county at the time the suit was brought, or process issued, or judgment rendered, nor did any of them have possession of the property in question against which the foreclosure was sought, nor were any of them claiming any interest therein; but it appeared that Leroy Vaughan had, prior thereto, removed the property out of the state. Appellants’ pleas of privilege were in due-form and supported by the facts, showing that neither of them came within any of the exceptions to exclusive venue mentioned in articles 1830 or 230S of the Revised Civil Statutes of 1911, and, in view of this, it is urged that since none of the defendants lived in Coleman county, and appellants were not parties to the note sued on, that they were improperly joined in a suit by the payee against the maker of the note, notwithstanding the fact that no personal judgment was asked against them, but only a foreclosure of the mortgage lien.

Article 2308 of the Revised Statutes provides that every suit in the court of a justice of the peace shall be commenced in the county and precinct in which the defendant, or one or more of the several defendants, resides, except in the following cases, and such other cases as are or may be provided by law, etc. Exception 4 provides that suits upon a contract in writing promising performance at any particular place may be brought in the county and precinct in which such contract was to be performed, and this, exception is relied upon by appellee as authorizing the suit against appellants in this instance.

In the case of Behrens Drug Co. v. Hamilton & McCarty, 92 Tex. 284, 48 S. W. 5, the-plaintiff brought suit in McLennan county against Hamilton & McCarty, who resided in Comanche county, and against the First National Bank of Comanche. As stated by the court:

“The object of the suit was to recover against. Hamilton & McCarty the sum of $1,269.50, with interest, the value of certain merchandise sold to them by the drug company, for which they had agreed in writing to make payment in Mc-Lennan county, and to recover of the First National Bank of Comanche the value of certain book accounts and dioses in action, alleged to have been transferred and assigned to the plaintiff by Hamilton & McCarty to secure their indebtedness to the plaintiff, and after that transfer Hamilton & McCarty had pretended to transfer the same to the First National Bank of Comanche, and said bank had wrongfully seized and converted them to its own use.”

The bank having pleaded the privilege to be sued in Comanche, the county of its residence, it was held that it could not be joined in the suit in McLennan county, on the ground that it had not promised payment in said county.

Here Hager had promised payment in Coleman county; but the appellants had not, and the case comes within the rule above announced. It is true that said ruling was based upon article 18S0, prescribing venue of suits in district and county courts; but we hold that there is no material difference between it and the justice court act in this particular. We have carefully examined both acts, and. fail to find any basis for ap-pellee’s contention that there is such dissimilarity between the two as to make the ruling in Behrens Drug Co. v. Hamilton & McCarty inapplicable to the facts in the present case. In this connection we cite the recent case of Sublett v. Hurst et al., 164 S. W. 448, and also the cases of Zapp v. Davidson et al., 21 Tex. Civ. App. 566, 54 S. W. 366; Behrens v. Brice et al., 52 Tex. Civ. App. 221, 113 S. W. 782; Johnson v. Lanford et al., 52 Tex. Civ. App. 307, 114 S. W. 693; Breed v. Higginbotham Bros., 141 S. W. 165; St. Louis S. W. Ry. Co. v. McKnight, 99 Tex. 289, 89 S. W. 755; Lindheim v. Muschamp, 72 Ter. 33, 35, 12 S. W. 125; Cohen v. Munson, Guardian, 59 Tex. 236; Fermier v. Brannan, 21 Tex. Civ. App. 543, 53 S. W. 702 — which cases follow the rule laid down in Behrens Drug Co. v. Hamilton & McCarty, supra.

Believing that the court erred in rendering 'judgment against appellants, the case is reversed, with instructions to the trial court to transfer same to the justice court, either of precinct No. 1, Wichita county, or to the justice court of precinct No. 4, Clay county, at the option of appellee.

Reversed, with instructions.

JENKINS, J.

(dissenting). I do not com cur in the view expressed in the majority opinion herein that appellants’ plea of privilege to be sued in the county of their residence should be sustained. I think that the justice court in Coleman county had jurisdiction as to them by virtue of subdivision 5 of article 1830, R. S. 1911, which reads:

“Where a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile.”

The obligation sued on was to be performed in Coleman county, and it is conceded that as to Hager the suit was properly brought in that county. The only judgment asked was the enforcement of that contract; that is to say, judgment against Hager on the note and foreclosure of the mortgage on the property described in that contract. Appellants, being subsequent mortgagees, were proper parties to the suit. They took their mortgage with constructive knowledge of appellee’s prior mortgage, and were charged with notice, as a matter of law, that they could properly be made parties to a suit to enforce the prior mortgage. No personal judgment is sought against them. The only thing that appellee asks is that they shall do what the law says they agreed to do when they took their mortgage, and that is recognize the superiority of appellee’s prior mortgage. The judgment in favor of appellee does nothing more than enforce his written contract to which the appellants, for the purpose of the proper enforcement of the same, have voluntarily, to that extent, made themselves parties. Under such circumstances, I do not think that they should be permitted to oust the justice court in Coleman county of its jurisdiction conferred by the contract sued on by claiming that suit must be brought to enforce said contract in the county of their residence. If the contract is not enforced against a subsequent mortgagee, in effect, it is not enforced at all. I do not think that a subsequent mortgagee should be permitted to nullify the statute which gives jurisdiction in the county where the contract is to be performed.

The point in issue in this ease was not involved in either of the cases cited in the majority opinion, except the case of Sublett v. Hurst, 164 S. W. 448. I think that the honorable Court of Civil Appeals for the Sixth District fell into error in that case by reason of its failure to consider the facts in the ease of Behrens Drug Co. v. Hamilton et al., 92 Tex. 284, 48 S. W. 5, upon which it based its opinion. The Behrens Case was not a suit to foreclose a mortgage, but was a suit against Hamilton & McCarty on a note payable in McLennan county, and for a personal judgment against the First National .Bank of Comanche, by reason of its alleged conversion of the mortgaged property. The bank was not liable on the contract sued on for the reason that it was not a party to such contract. It was not suable in McLen-nan county as a proper party to the enforcement of the mortgage, for the reason that no foreclosure of the mortgage was sought. The only alleged liability of the bank was by reason of its conversion of the mortgaged property, alleged to have been committed in Comanche county, and, under mo exception to the statute, could the bank be sued, without its consent, in McLennan county for a tort committed in Comanche county. This is the extent of the holding in the Behrens Case. In Sapp v. Davidson et al., 21 Tex. Civ. App. 566, 54 S. W. 366, Freeman, who lived in Ellis county, was sued in Fayette county for converting cotton in Ellis county. In Behrens v. Brice et al., 52 Tex. Civ. App. 221, 113 S. W. 782, the Haywood Oil Company, whose place of residence was Jefférson county, was sued in Harris county for a tort committed by it, if at all, in Hardin county. In Johnson v. Langford, 52 Tex. Civ. App. 397, 114 S. W. 693, the suit was against Johnson and Earnest Langford in precinct No. 1, in Comanche county. The contract was not to be performed, nor did either of the defendants live, in said precinct. In Breed v. Higginbotham, 141 S. W. 164, the suit was instituted against Hill upon a contract to be performed by Mm in Comancbe county, and Mrs. Breed, wbo lived in Brown county, was made a party for tbe purpose of enforcing a mortgage executed by Hill. Hill was not cited, and for that reason it was held that no judgment could be rendered against Mrs. Breed. The court said:

“The asserted lien against the property * * * was ancillary only — an incident merely of the suit upon the note which constituted the basis of the proceedings — and the dependent issue necessarily failed when the only obligor therein was in effect dismissed by appellee’s declared election to proceed with the trial without any character of citation or notice to the maker of the note.”

In Railway Co. v. McKnight, 99 Tex. 289, 89 S. W. 755, the St. Louis & Southwestern Railroad was sued in Potter county, upon a contract to which it was not a party, for a tort alleged to have been committed by it in Bowie county. In Lindheim v. Muschamp, 72 Tex. 33, 12 S. W. 125, defendants were sued in a county other than that of their residence on a contract not to be performed in any particular' place. This was also the fact in Cohen v. Munson, 59 Tex. 236. In Fermier v. Brannan, 21 Tex. Civ. App. 543, 53 S. W. 702, one of the defendants lived in the county where the suit was brought, and it was held that the other defendant could properly be sued in that county, though they were husband and wife living in different counties. These are all of the eases cited in the majority opinion. ’

The correct judgment was rendered in Sublett v. Hurst, supra, for the reason that the mortgage was void as to Sublett. Burlington Bank v. Marlin Bank, 166 S. W. 499, decided at the present term of this court.