text:
    HALSELL et al. v. FERGUSON et al.
    (No. 2870.)
    (Supreme Court of Texas.
    April 10, 1918.)
    1. Municipal Corporations &wkey;>600, 601 — Police Powers — Platting Lots.
    Dallas City Charter, art. 1, § 3, requiring new plats in cities to conform to abutting streets and lots, and Dallas Building Code, § 2, requiring new plats to maintain the established frontage, are within the police power, and not subject to attack on constitutional grounds.
    2. Municipal Corporations <&wkey;620 — Police Powers — Platting Lots — Municipal Regulations — Compensation por Injuries.
    Property owners having lots platted within the city must submit to such statute and ordinance without compensation.
    3. Estoppel &wkey;>62(4), 83(4) — Platting Lots.
    Where property owners have platted their land and faced lots upon certain streets and improved them, and other persons have purchased property on such streets in reliance upon the recorded plat, the city and the property owners are estopped to change the plat so as to put rear of their buildings on lots, and damage other property facing them.
    Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.
    Suit by Hugh W. Ferguson and others against J. W. Halsell and others. On questions certified from the Court of Civil Appeals, on appeal from a decree for the complainants.
    Questions answered.
    Adams & Stennis, of Dallas, for appellants. Cecil JO. Simpson, of Dallas, for appellees.
   GREENWOOD, J.

Questions certified from the Court of Civil Appeals of the Fifth Supreme Judicial District of Texas, on an appeal from the district court of Dallas county. The certificate of the honorable court of Civil Appeals is as follows:

This is an appeal from an order of the district court of Dallas county, Tex., directing the issuance of a temporary writ of injunction as prayed for by the plaintiffs below, appellees here, restraining the appellants, their agents and representatives, from building a house on lots 5 and 6 in block 668 of the city of Dallas, Dallas county, Tex., except in so far as the same may conform to the frontage of said lots on Harry avenue, as originally platted, in said city. The ap-pellees allege in their petition, in substance, that they are the owners of part of lot No. 12 in block No. 27, according to the official map of said city, which is situated at the southeast corner of Harry avenue and Annex avenue; that said lot fronts 67% feet on Harry avenue and runs back along Annex avenue 200 feet, and is in the residence section of the city of Dallas; that appellant J. W. Halsell is the owner of lots Nos. 5 and 6 in block 668 of said city of Dallas, which adjoin each other and front on Harry avenue, and run back along Annex avenue and California avenue 150 feet; that said lots 5 and 6 are located west and immediately across Annex avenue from appellees’ said lot; that said Halsell has contracted to sell or is about to- sell or has sold said lots 5 and 6 or a part of said lots to the appellant W. D. Pro-vine. Appellees further allege that they acquired said lot 12 in block 668 by deed dated August 29, 1914; that at the time they so acquired the same there was, and now is, upon it a five-room frame house and other improvements of the reasonable market value of $2,250, and that the lot, exclusive of the improvements thereon, is of the reasonable market value of $1,500; that said house on said lot faces or fronts Harry avenue; that Harry avenue is a street about 50 feet wide, and extends from California avenue on the west to Prairie avenue on the east, being a distance of two blocks; that at the time appellees purchased their said lot 12 buildings had been erected on both sides of Harry avenue fronting on said avenue in excess of 50 per cent, of the entire frontage of said avenue; and that said buildings are still fronting on said avenue. Appellees further allege that Annex avenue is a well-defined thoroughfare and street about 50 or 60 feet wide extending south from Harry avenue a long distance, and was so defined at the time appellees acquired their said lot; that appellees’ lot is in Alexander’s Park addition to the city of Dallas, and that said lots 5 and 6 owned by appellants are now a part of what is known as Bergfield Place, a subdivision of block D of said Alexander’s Park addition; that said Berg-field Place addition was mapped and platted showing the frontage of lots 5 and 6 owned by appellants on Harry avenue when they purchased, and that said map was and is now of record in Dallas county, Tex., and that appellants purchased with reference to said map and plat and at the time they ->urchased there were no improvements on their lots. Appellees allege that section 2 of the ordinance of the city of Dallas, amending section 161 of the Building Code of said city passed March 4, 1913, and which is now in effect, reads “that whenever any lots are laid oil by any plat showing a frontage for said lots on any street or avenue in the residence section of the city all buildings erected on same shall keep their frontage on said streets or avenues so as to conform to the frontage of lots shown by any plat”; that soon after appellees -acquired their lot the appellant Hal-sell made an effort to secure a permit from the building inspector of the city of Dallas authorizing him to erect a residence on parts of his said lots 5 and 6 fronting on said California avenue, with the rear thereof towards Annex avenue and appellees’ property directly across the street from appellants’ property; that said inspector refused to grant such permit because same was in violation of the ordinances and charter of the city of Dallas governing such matters; that thereafter, and on the 29th day of May, 1915, appellant Halsell made application to the mayor and board of commissioners of the said city of Dallas to be allowed to re-plat his said lots 5 and 6 so as to make three lots of the same facing west California avenue and extending back to Annex avenue; that on May 31, 1915, by resolution said mayor and board of commissioners granted the said application of said appellant; that appellees had no notice that said application had been made and granted until December 22, 1915, when they were informed that appellants were about to erect a building on part of their said lots fronting on California avenue; that when they discovered that appellants were about to so erect said building they immediately protested against a permit being granted therefor, but over said protest a permit for the erection of said building was granted, and appellants were proceeding to erect the same fronting on California avenue. Appellees allege that the resolution passed by the mayor and board of commissioners on May 31, 1915, permitting the appellants to replat said lots so as to face California ave-nue_ is void because the same was passed without notice to appellees and others whose property would be affected and greatly damaged thereby, and because said resolution is in direct conflict with section 3 of article 1 of the charter of the city of Dallas, which reads: “Should any property lying within the city limits as established by this act be hereafter platted into blocks and lots, then and in that event the owners of said property shall plat and lay the same off to conform to the streets and lots abutting on same, and shall file with the city engineer a correct map of same, provided that in no case shall the City of Dallas be required to pay for any of said streets at whatever date opened, but when opened by reason of platting of said property at whatever date platted they shall become by such act the property of the city of Dallas for use as public highways and may be cared for as such.” Plaintiff further charged that, if appellants aré permitted to proceed with their building and improvements, as contemplated and intended by them, Annex avenue will virtually be reduced to an alley, and appellees’ property will be damaged thereby in the sum of $1,000. The appellees’ petition closes with an appropriate prayer for the relief sought.
The appellants answered by a general demurrer and special answer. They allege, in substance, that on February 21, 1913, the Bergfield Building & Investment Company, a voluntary association composed of the said J. W. Halsell and other stockholders, acquired what was then known as block D of Alexander’s Park addition to the city of Dallas; that said block, was then divided into five lots fronting on Munger avenue, and the shortest of said lots was 598.66 feet long, and unimproved; that to enable the owners of said property to utilize the same for residence property they proceeded to subdivide said block D into two blocks numbered 1 and 2, and platted same as Bergfield subdivision of block D of Alexander’s Park addition, fronting the lots involved in this controversy and other lots on California street; that at an expense of about $19,000 they surveyed, graded, and otherwise improved said entire block as subdivided; that the ten said owners were notified by the street commissioner of the city of Dallas that he would not approve said subdivision, and refused to permit the filing of said last-mentioned plat and directed that the same be changed by extending Harry avenue across block 1 of said subdivision to California avenue in said subdivision, thereby appropriating a strip 50 feet wide out of said block 1 for street purposes, and thereby dividing said block 1 into two blocks, the west end to be numbered 1, and the east end to be numbered 2, and ordered that the west end of said block No. 2, and known on the map as lots 5, 6, and 7, be replat-ted into lots 5 and 6 (which are the lots in controversy) fronting on said extension of Harry avenue, and that said subdivision as changed be filed as a plat of said subdivision; that said owners were compelled to and under protest did plat said property as ordered by said street commissioner; that said lots 5 and 6 fronting on Harry avenue as platted under protest were of the reasonable value of $3,000, but as divided into three lots fronting on California avenue was and is of the reasonable value of $3,750. Appellants further aver that the said J. W. Halsell and others in May, 1915, applied to the street commissioner and to the mayor and board of commissioners of the city of Dallas for permission to amend and change and replat said portion of said subdivision then known as lots 5 and 6 as to divide the same into three lots 5, 6, and 7 and to front said three lots on California avenue; that thereafter, on the 31st day of May, 1915 (as alleged by appellees), said board of commissioners granted said application and directed said lots to be divided and replatted into three lots fronting on said California avenue; that in pursuance to such order of the board of commissioners the appellants did on said date amend, change, and replat said lots 5 and 6 as directed, and that said amended plat has been certified and filed with the engineer of said city; that in December, 1915, the owners, relying upon their rights under said amended plat, sold to the appellant Provine said lot 6 as per said amended plat, with the understanding that a residence would be at once constructed thereon; that a permit for said improvements was in good faith applied for and issued by the building inspector of the city of Dallas, and appellants were in good faith proceeding under and by virtue of said permit to erect said house until restrained by the writ in this case. Appellants further aver that there never was any privity of contract between them and the appel-lees, nor between those under whom appellees claim and appellants pertaining to the direction in which any of said lots or buildings to be erected thereon should front, and that the order of the street commissioner of the city of Dallas requiring the extension and opening of Harry avenue across a portion of said block 1 and the fronting of said lots 5 and 6 on said avenue was without compensation to the owners thereof, was without authority of law, and void; that, if said order ever had any force or effect, the same was repealed and annulled by the order of the board of commissioners made and passed on the 31st day of May, 1915. Appellants aver that by fronting that portion of block D which is involved in this suit on California avenue the owners of said property have three lots each 50 feet wide by 140 feet deep, but, if compelled to front said property on Harry avenue, they have only two lots, as same is insufficient in width for three lots; that the owners of said property have never received any compensation from any one to reimburse them for what they would lose if compelled to front said lots on Harry avenue rather than on California avenue; and that no compensation is now offered them to reimburse them for such loss. Appellees make further allegations, but we deem it unnecessary to state them for the purposes of this certificate. The material facts are as follows:
Section 3 of article 1 of the charter of the city of Dallas now in force and adopted prior to 1909 is as follows: “Should any property lying within the city limits as established by this act be hereafter platted into blocks and lots, then and in that event the owners of said property shall plat and lay the same off to conform to the streets and lots abutting on same, and shall file with the city engineer a correct map of same, provided that in no case shall the city of Dallas be required to pay for any of said streets at whatever date opened, but when opened by reason of platting of said property at whatever date plafted, they shall become by such act the property of the City of Dallas for use as public highways, and may be cared for as such.”
Section 161 of what is commonly known as the Building Code of the city of Dallas, as amended March 4, 1913, and now in force is as follows:
“Sec. 161. That wherever 50 per cent, or over of the lots on any street or avenue in the residence sections of the city of Dallas have been improved, and the building line of said residences on said street or avenue made permanent, all buildings hereafter erected on adjoining lots shall keep the front building line of any such building; at the average distance back from the front Ene as those already built, so that the same shall conform to the permanent building line observed by 50 per cent, or over of the improved lots on said street or avenue: Provided further that any building hereafter erected in any block on any street or avenue in the residence section of the city must have its front building line at the average back from the street as the front line of the buildings already built in any such block.”
“Sec. 2. That wherever any lots are laid off by any plat, showing a frontage for said lots on any street or avenue in the residence section of the city, all buildings erected on same shall keep their frontage on said street or avenue so as to conform to the frontage of the lots shown on any such plat.
“Sec. 3. Before any building is constructed, a permit shall be obtained from the building inspector, and it shall be the duty of the said officer before issuing said permit, to require that the provisions of this ordinance shall be fully observed.
“Sec. 4. That any person or corporation violating the terms of this ordinance shall be subject to the penalty prescribed in the original ordinance hereby amended.”
On February 23, 1903, the plat of what is known as Alexander’s Park addition to the city of Dallas, and which is located within the corporate limits of the city of Dallas, was filed and recorded in the Plat Records of Dallas County, Tex., showing blocks A, B, C, and D, and dedicating the streets and alleys therein outlined. On February 21, 1913, the respondent J. W. Halsell and his associates purchased what was then known as block D of said addition. This property (block D) was th.en unimproved, and was situated in a residential district of said city, and was desirable as residence property; but the block was irregular in shape and too large for one block of residence property, its sides measuring 534, 578, 598, and 784 feet respectively. On the southeast side of block D was Munger avenue, on the southeast side was Carroll avenue, on the northwest side was Ells drive, and for about two-thirds of the distance on the northeast side was Annex avfenue, and none of these streets have been changed, and no attempt has been made to change any of .these streets. Block C of the said addition was and is situated northeast of block D, and is bounded by the said Annex avenue, Harry avenue, Prairie avenue, and Munger avenue. Block D, as per said plat of 1903, was divided into five lots, running through said block and fronting on Munger avenue and Elk drive. Block O, as per said plat of 1903, was and is divided into 12 lots. Nos. 1 to @, fronting on Munger avenue, and Nos. 7 to 12, fronting on Harry avenue, and the property of complainants being a lot 67.2 feet fronting on Harry avenue by 200 feet deep, and being part of lot 12 out of the corner of said block O, and at the intersection of Annex avenue and Harry avenue. Said lot is well improved, the residence thereon facing Harry avenue, and was on said lot when complainants purchased same. About August 1, 1913, the said Halsell and associates prepared a plat for the subdivision of said block D, dividing said block into two blocks numbered 1 and 2 by dedicating and opening an avenue designated as California avenue, running from Munger avenue to Elk drive, parallel with Annex avenue and Carroll- avenue, and dividing that portion of said block D situated northeast of California avenue and known as block 1 into 13 lots, with two of said lots fronting on Munger avenue and the remaining eleven of said lots fronting on said California avenue. Said proposed plat and subdivision, being designated as the Bergfield addition or subdivision of block D or Alexander’s Park addition to Dallas, was submitted to the street commissioner of the City of Dallas for his approval, and said commissioner refused to approve said proposed addition of subdivision, and ordered that said plat be changed so as to extend Harry avenue southwest to said California, thus dividing said proposed block No. 1 into two blocks, to be numbered 1 and 2, and the block southwest of California avenue to be numbered 3, and under protest, but said protest does not appear of record, the said Halsell and his associates (incorporated), by the president and secretary of said corporation, executed a certificate of dedication with plat attached in conformity with the orders of said street commissioner, and on -October 4, 1913, said plat and certificate of ■dedication was recorded in the Plat Records of said county, and said certificate of dedication is as follows: “The State of Texas. Know all m.en by these presents that the Bergfield Building & Investment Company, a Texas corporation domiciled at Dallas, Tex., does hereby adopt the foregoing map as a true and correct representation of ‘Bergfield Place,’ a subdivision of block D 668, Alexander’s Park addition, Dallas, Tex., and hereby dedicates for the use and benefit of the public forever the, streets and alleys shown thereon, this the 16th day of August, 1913.” This plat shows that the southwest end of block 2 in said subdivision is divided into two lots numbered 5 and 6 and fronting on Harry avenue (being that portion of Harry avenue extended from Annex avenue to California avenue by order of said street commissioner). The fronting of these lots on Harry avenue, rather than on California avenue, was one of the changes required by said street commissioner as a condition to his approval of said subdivision or addition.
In September, 1913, complainants, with knowledge of the foregoing facts, and believing that the owners of said lots 5 and 6 would be required to front their houses which might there-' after be constructed on Harry avenue, acquired by purchase certain vendor’s lien notes against the above-described part of lot 12 in said block C directly across the street from lot 5, and thereafter acquired said part of said lob 12 by purchase on August 29, 1914.
More than two-thirds of the lots on Harry avenue are platted so as to front on Harry avenue, and all of the houses that have been constructed on Harry avenue except at the northeast end of said block 1 have been constructed so as to front on Harry avenue. All the improvements on Harry avenue were made prior to May 27, 1915. According to said plat of August 16, 1913, said subdivision of said block D is divided into blocks 1; 2, and 3. Block 1 is divided into 6 lots fronting on California avenue, and two houses have been constructed on said lots and front on California avenue, and there is no other way for the houses on the remaining of said lots to front than on California avenue. Said block 2 was divided into six lots, two fronting on Munger avenue, two on California avenue, and two on Harry avenue. Said block 3 was and is divided into nineteen lots, three fronting on Munger avenue, six on Carroll avenue, and ten on California avenue, and nine of these cannot front any way except on California avenue, and eight of these have houses fronting on California avenue.
About May 27; 1915, the said Halsell and his associates petitioned the mayor and commissioners of said city of Dallas for permission to amend the above-mentioned plat and subdivision of date August 16, 1913, by dividing said lots 5 and 6, fronting on Carroll avenue, into three lots to be numbered 5, 6, and 7, and to front California avenue, and on May 31, 1915, upon recommendation of the street commission of said city of Dallas, said petition was granted and approved By the mayor and board of commissioners, and said approval was duly entered upon the minutes of said board of commissioners.
On June 10,1915, the said Halsell and his associates (the Bergfield Building & Investment Company), under the direction of the board of directors of said corporation, executed and filed in the Plat Records of said county an amended plat and dedication of said subdivision of block D, amending said plat of August 16, 1913, by dividing said lots 5 and 6 into three lots numbered 5, 6, and 7, and designating as fronting on California avenue in accordance with the authority granted by said board of commissioners as aforesaid. On December 22, 1915, the said Halsell and his associates applied to and received from the building inspector of said city of Dallas a building permit for the construction of a five-room frame cottage on lot No. 5 on California ayenue, and proceeded toward the construction of a house in accordance with said permit fronting on said California avenue, and, while engaged in the Construction of said house, application was made to Hon. Kenneth Foree, judge of the Fourteenth district court of Dallas county, for a restraining order to prevent the construction of any house on said lot which would front on California avenue, and on the 15th day of January, 1916, after hearing the petition of complainants, the answer of respondents, and the evidence, the court granted a restraining order enjoining the said Halsell and his associates, their agents and representatives, from further proceeding with any further building or improvements on lots 5 and 6 in block 668 of the city of Dallas (being the lots designated on said plat of August 16, 1913, and fronting on Harry avenue), except in so far as such improvement may conform to the frontage of said lots on Harry avenue as originally platted. The said lots 5, 6, and 7, as per said last-amended plat, run through from California avenue to Annex avenue, and the rear end of any house constructed on any of said lots would be pointed toward the side of the house owned by complainants, and would depreciate the value, of complainants’ property to the extent of from $400 to $1,000, and would depreciate the value of other property fronting on Harry avenue and lying northeast from Annex avenue in proportionate amounts. The rear end of any house constructed on lots 6 or 7, block 2, as per said plat of August 16, 1913, would point to the side of the house heretofore constructed on lot 4 fronting on California avenue, and would depreciate the value of said lot 4 and the improvements thereon, and would depreciate the value of the several lots with houses thereon on the southwest side of California avenue whose fronts would he toward the side of such house. The house on said lot 4 is the property of respondents at this time. If the respondents are permitted to use their property known on the plat of 1913 as lots 6 and 7 and on the amended plat of 1915 as lots 5, 6, and 7 so as to front on California avenue, said property would be worth to them about $1,250 more than it would be worth if they should be denied the right to front the houses to be constructed- thereon toward California! avenue. California avenue is a wider street than any of the other streets mentioned, and has been paved and ornamented at large expense to the respondents. The complainants had no notice of the application of respondents for permission to amend their plat in May, 1915, and knew nothing of said application nor the action of the street commission and board of commissioners of Dallas until several months, thereafter. There is nothing in any of said plats or dedications to indicate the direction in which the lots or houses to be erected thereon are -to front, except the outlines of the blocks, lots, streets, and alleys as shown on the recorded plats. There has never been any contractual relation between complainants and their vendors, on the one hand, and respondents and their vendors, on the other hand, as to the direction in which any house or lot should front. The property of respondents and their vendees in said Bergfield Place addition, to whose financial interest it is to front the houses on California avenue, is across the street from the property of complainants and their neighbors, whose interest is similar to complainants, and to whose financial interest it is to front the houses on Harry avenue, and by reason of its new platting in 1913 and again in 1915 is recognized as a different addition, but all is part of the original Alexander Park addition. The fronting of the houses in controversy as required by the restraining order would cause about the same depreciation in value and damage to the remaining property on California avenue as would the fronting of said houses on California avenue cause to the remaining property on Harry avenue. All the lots in the Bergfield Place addition that have been sold by respondents have been sold with reference to the plat of August 16, 1913, as reflected by private plat Exhibit C, and also all the lots in said addition that have been improved by respondents are with reference to the plat of August 16, 1913.
The day the application for the temporary injunction was set dowh for hearing the district judge before whom the proceeding was pending, after the introduction of the evidence, granted the writ, and the appellants perfected an appeal to this court.
The members of this court disagree upon issues of law arising upon the appeal material to a decision of the case, and we deem it advisable to certify the questions set out below to the honorable Supreme Court of Texas for adjudication.
Question 1. Was the enactment of section 3 of article 1 of the charter of the city of Dallas and the passage of section 2 of the ordinance ■constituting a part of what is known as the Building Code of the city of Dallas, which provides “that wherever any lots are laid off by any plat, showing a frontage for said lots on any street or avenue in the residence section of the city, all buildings erected on same shall keep their frontage on said street or avenue so as to conform to the frontage of. the lots shown on such plat,” a valid exercise of the police power of the state and said city?
Question 2. If the enactment of the provision of the city’s charter and the passage of section 2 of the ordinance referred to in the foregoing question were a valid exercise of the police power of the state and city of Dallas, then, since the appellees purchased their said property after appellant Halsell and associates had, by map or plat, with certificate of dedication attached, placed of record, extended I-Iarry avenue to California avenue and subdivided their originally proposed block No. 1 into two blocks, numbered 1 and 2 and fronting lots 5 and 6 of said block 2 on Harry avenue, and before the board of commissioners of the city of Dallas, by resolution adopted, permitted the said Hal-sell and associates to amend and change said map or plat so as to front said lots 5 and 6 on California avenue, did said board of commissioners have the legal right to authorize or permit such change in the plat of said subdivision without notice to or consent of the appellees, if such change materially damaged their property? Or was said city, by reason of having ordered the extension of Harry avenue to California avenue and the fronting of said lots 5 and 6 on said Harry avenue, and the acceptance of the dedication of the streets shown by the plat in accordance with such order and placed of record, estopped to legally authorize a change of said plat in May, 1915, so as to front said lots on California avenue?
Question 3. Was the district court authorized, regardless of how the foregoing questions, or either of them, should be answered, to grant the temporary injunction prayed for by. appel-lees for the reason that appellant Halsell and associates had plátted the subdivision in question fronting lots 5 and 6 on Harry avenue, and caused a map thereof to be recorded and accepted by the city of Dallas, and appellees had purchased their property likewise fronting on said avenue with reference to such platting and map, believing the frontage of said lots would remain on said Harry avenue?
Question 4. Under the facts stated, did the district court err in granting the temporary injunction in this case?

The sections of the charter and of the Building Code ordinance mentioned in question 1 are attacked as unconstitutional upon the ground that they do not come within the police power. In so- far as material here, the charter section merely requires the owner in platting property within the limits of the city into blocks and lots to , conform to abutting streets and lots; while the ordinance section merely requires that buildings conform their frontage to the,froptage of lots whenever the. lots are so platted as to show a frontage on any street or avenue in the residence portion of the city. Since these regulations appear reasonable, and since they promote the.general convenience and the public welfare, we cannot regard them as subject to attack on constitutional grounds.

Coming within the police power, appellants have to submit to these regulations, without regard to compensation. Eor, as announced in section 442, Corpus Juris, vol. 12, p. 931:

“.Since the very foundation of the police power is control of private interest for the public welfare, a statute or ordinance is not rendered unconstitutional by the mere fact that private rights of person or property are subject to restraint or that loss will result to individuals from its enforcement.”

We answer “Yes” to question 1.

The facts recited in questions 2 and 3 precluded and estopped the city and appellants from changing the frontage of appellant’s lots from I-Iarry avenue, and from erecting a .residence thereon otherwise than in conformity to the frontage on Plarry avenue.

The principles announced ,in Harrison v. Boring, 44 Tex. 266-273, compel the conclusion that when appellees purchased their property in reliance on,the representations embodied in the plat filed by appellants and approved by the city, the property of appellants became impressed with easements or servi-tudes, of which appellees or their assigns could not be deprived without their consent.

It would hardly be denied that appellees would be entitled to relief if appellants were seeking to deprive appellees of the benefits accruing from the dedication, iby appellants’ plat, of the extension of Harry avenue. We see no reason to apply a different rule to the attempt to deprive appellees of the valuable benefits accruing from the frontage given by the plat to appellants’ lots.

The facts certified present every essential element of an estoppel. It is certain that the plat of 1913 embodied a representation with respect to the subdivision of appellants’ property which is entirely inconsistent with the rights now asserted. If it be said that appellants did not intend a purchaser from another of adjacent property on Harry avenue to act on the plat, it cannot be maintained that such purchaser might not reasonably accept the representation of the plat as true and act thereon. The certificate shows that appellees did make their purchase in reliance on the plat, and that they:will suffer substantial injury unless appellants are held bound by same. The city made itself, in effect, a party to the representation by adopting and filing the 1913 plat.

Hence we answer to questions 2 and 3 that the city and appellees were estopped to deny that the easements or servitudes, for the benefit of appellees, which were represented or shown by the 1913 plat, attached to appellants’ property.

It follows that under the facts stated the district court did not err in granting the temporary injunction, and this answers question 4-
      <g=»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    ALVARADO v. STATE.
    (No. 4933.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.)
    1. Criminal Law <@=>915 — New Trial — Amended Motion — Defective Indictment —Bill of Rights.
    Under Bill of Rights, § 10, providing that indictment shall begin, “In the name and by the authority of the state,” etc., the omission of the words “by the,” occurring before “authority,” is a fatal defect, and not a mere technicality, so that discretion of court in refusing amended motion for new trial on alleged discovery that the original indictment after service on defendant in jail had been amended by writing in the words “by the” was improperly exercised, in view of section 29 of Bill of Rights, declaring that everything therein shall'forever remain inviolate.
    2. Criminal Law <@=>949(3) — New Trial — Amended Motion — Discretion 9F Court.
    The filing of an amended motion for new trial is generally within the sound discretion of the trial court.
    3. Constitutional Law <@=>35 — Mandatory Provisions of Constitution — Duty to Follow.
    When the Constitution provides and commands that a thing shall be done, the matter must be done as directed, and neither the Legislature, executive, nor the courts have authority to set aside the mandates.
    Appeal from Criminal District Court, Nue-ces County; Walter F. Timón, Judge.
    Simon Alvarado was convicted of horse theft, and he appeals.
    Reversed, and cause remanded.
    Dawson & Anderson, of Corpus Christi, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the 'State.
   DAVIDSON, P. J.

Appellant was convicted of horse theft, and allotted two years’ confinement in the penitentiary. He was not defended by an attorney. Subsequent to his conviction his brother employed Dawson & Anderson to look after his case. Motion for new trial was filed and overruled, and notice of appeal given. Later, and during the term, it is claimed that it was discovered that the,original indictment did not begin, “In the name and by the authority of the state of Texas,” but did begin, “In the name and authority of the state of Texas.” The two words “by the,” in front of “authority,” were omitted in the original indictment. After appellant had been served with a copy of this indictment, he being in jail, this beginning of the indictment was changed by the insertion in ink of the two words “by the.” The court declined to entertain an amended motion for new trial, inasmuch as the party had been sentenced. These mlatters are shown by bill of exceptions.

It is unnecessary to go over the amended motion for new trial, with the attached affidavits and statements, which, if true, would have shown that the beginning of the indictment had been changed as alleged. The general rule may be stated that the filing of an amended motion for new trial is within the sound discretion of the trial court; and, unless error is shown of a substantial nature, this court will not revise the ruling, but that is not the invariable rule. Where the amended motion for new trial does show serious or substantial error, the court should not exercise his discretion unfavorably to a fair trial, and such action under such circumstances will be reviewable by this court. If appellant’s contention is correct, that the Indictment began “In the name and authority of the state of Texas,” then the court should have heard the motion and passed upon it. If in fact the indictment had been changed after being filed by the grand jury in the district court, and not by the grand jury itself before such filing, the indictment would be fatally defective. Such matters can be entertained, and the court having jurisdiction of all matters before him and the disposition of cases until the adjournment of court, the motion for new trial should have been entertained and the matter investigated and determined. This is not a matter of form, so far as the indictment is concerned, but one of substance. While it does not relate to the charging part of the indictment setting out the ingredients of the offense, yet it does bring before the court the provision of the Constitution which has in all cases been held by this court to be mandatory, and, if found true, vititates the indictment. The matter underwent careful and critical examination in Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746. Many of these cases were reviewed at the time the opinion was written in Moss v. State, 60 Tex. Cr. R. 268, 131 S. W. 1088, and the rule in the Oox Case and subsequent cases followed. This is not to be considered technical in its nature. In view of the mandatory provision of the Constitution it has not been so regarded in Texas. In fact, the contrary doctrine has been laid down and followed. It is unnecessary here to discuss what may or may not be technicalities, even upon rules of practice and procedure in the trial of criminal eases and in the preparation of pleadings, The Constitution has provided that indictments shall begin, “In the name and by the authority of the state of Texas,” and conclude, “against the peace and dignity of the state.” As before stated, this has been held mandatory, not that it affects the charging allegations in the indictment, but because the Constitution -has provided it shall be so. Where the Constitution provides and commands that a thing shall be done, the matter must be done as indicated. The legislature, executive, nor the courts have •authority to set aside these mandates. This is not a directory, but a mandatory, provision. Section 29 of the Bill of Rights, in order to set these rules of construction at rest, thus provides:

“To guard against transgressions of the high powers herein delegated, we declare that everything in this ‘Bill of Rights’ is excepted out of the general powers of government, and shall forever remain .inviolate, and all laws contrary thereto, or to the following provisions, shall be void.”

Section 10 of the Bill of Rights provides that indictments in felony cases shall be preferred by a grand jury. The judiciary article (article 5) provides, among other things, that the grand jury shall be composed of 12 men. It would therefore be necessary, under all the decisions and the plain provision of the Constitution, that the grand jury shall be thus constituted, otherwise there is no grand jury. The same article (section 12) provides the indictment shall begin, “In the name and by the authority of the state of Texas,” and conclude, “against the peace and dignity of the state.” The Constitution might have omitted these clauses; it might have provided that more or less than 12 grand jurymen could return an indictment. It might have provided that an indictment was not necessary, but it did not, but expressly laid down the mandatory provision that all these .things shall occur. This Constitution is the act of sovereignty of the people in whom all inherent power is lodged. This inherent power is found laid down in the second section of article 1, known as the Bill of Rights. They have said that when the provisions of the Constitution ordained by them shall be transgressed such act shall be null and void. The Legislature seems to have followed these provisions, which emphasizes the fact of the superiority of the Constitution and its overweening power. This is a correct proposition, and ought not to be debatable. Whatever may be considered technicalities, in a general way, it will not do to hold that, where the sovereign power declares what shall and what shall not be the law of the land, and has spoken in sovereign capacity, such are technicalities. There is nothing to debate. It may be emphasized here that the power of a people or government, speaking in a sovereign capacity, can never be regarded as technical. The mandates of the Constitution are not technicalities, but the expressed will of a sovereign people ordaining a constitutional form of government based upon a representative democracy, and these mandates must be obeyed implicitly by all created power under it. The creature is never equal to the creator, nor has that creature authority to set aside the mandate of its creator. This may not affect the guilt or innocence of the defendant in this or any other case, but our people in their sovereign capacity have decreed that these matters shall be placed in and as prerequisite to the indictment. It having thus provided, there is no power vested in th,e executive, legislative, or judicial to set aside this plain and imperative demand. Therefore, we say that the court erred in exercising the judicial discretion confided to him in this matter. He should have heard the evidence in regard to it, and if the indictment is found to have been changed in the manner mentioned after the grand jury had presented it in open court, .and it had passed from their jurisdiction, then the indictment is void. Had the grand jury properly amended the indictment before presentment by the insertion of the omitted words, it would have been different.

The judgment, therefore will be reversed, with instructions to the court to investigate this matter, and if the allegations are found to be true as contended by appellant, the indictment; should be quashed, and, if further prosecution is thought necessary, another indictment be presented in obedience to the law.

The judgment is reversed, and the cause remanded.

PRENDERGAST, X, not sitting.

      =>For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ALVARADO v. STATE.
    (No. 4930.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.)

    Appeal from Criminal District Court, Nueces County; Walter E. Timón, Judge.
    Simon Alvarado was convicted of crime, and he appeals.
    Reversed, and cause remanded.
    Dawson & Anderson, of Corpus Christi, for appellant. E. B. Ward, of Corpus Christi, ami-cus curiae. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This is a companion case to cause No. 4933. Alvarado v. State, 202 S. W. 322, this day decided. The matter with reference to the indictment discussed in that opinion relates also to this case, and will govern its disposition.

For the reasons indicated in that opinion, the judgment herein will be reversed, and the cause remanded.

PRENDERGAST, J., not sitting.


text:
    ALVARADO v. STATE.
    (No. 4931.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.)
    Appeal from Criminal District Court, Nueces County; Walter F, Timón, Judge.
    Simon Alvarado was convicted of crime, and he appeals.
    Reversed, and cause remanded.
    Dawson & Anderson, of Corpus Christi, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This is a companion case to cause No. 4933, Alvarado v. State, 202 S. W. 322, this day decided. The record in this case is the same as the -record in that case, so far as the indictment is concerned. Upon the authority of that case the judgment herein will be reversed, and the cause remanded.

PRENDERGAST, X, not sitting.


author: MORROW, J.

text:
    ALVARADO v. STATE.
    (No. 4932.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.)
    Appeal from Criminal District Court, Nueces County; Walter F. Timón, Judge.
    Simon Alvarado was convicted of crime, and he appeals.
    Reversed, and cause remanded.
    Dawson & Anderson, of Corpus Christi, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is a companion case to cause No. 4933, Alvarado v. State, 202 S. W. 322, this day decided. The record in this case is the same as the record in that ease, so far as the indictment is concerned. Upon the authority of that case the judgment herein will be reversed, and the cause remanded.

PRENDERGAST, J., not sitting.


text:
    ALVARADO v. STATE.
    (No. 4934.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.)
    Appeal from Criminal District Court, Nueces County; Walter F. Timón, Judge.
    Simon Alvarado was convicted of crime, and he appeals.
    Reversed, and cause remanded.
    Dawson & Anderson, of Corpus Christi, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is a companion ease to cause No. 4933, Alvarado v. State, 202 S. W. 322, this day decided. The indictment in this case is in the same condition as the indictment in that case. Upon the authority of that case the judgment herein will be reversed, and the cause remanded.

PRENDERGAST, J., not sitting.


author: HUEF, C. J.

text:
    JACKSON v. GREENVILLE COMPRESS CO.
    (No. 1304.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 27, 1918.)
    1. Warehousemen <@=>24(1) — Cotton Compress Company — Duties.
    ■Although plaintiff did not agree to pay storage, and it was his purpose to sell the cotton stored with defendant compress company without having it compressed, where the cotton was received with the expectation that defendant would be compensated by compress charges paid by the carrier before shipment, defendant was a bailee for hire, whose duty it was to exercise ordinary diligence in caring for the cotton.
    2. Evidence <@=3408(7) — Warehouse Receipt —Impeachment by Parol.
    Ordinarily a warehouseman’s receipt is a contract which cannot be impeached by parol testimony.
    3. Appeal and Error <@=>671(6) — Matters not Shown by' Statement oe Facts — Review.
    The terms of the receipt issued by defendant compress company to plaintiff for cotton delivered not being set out in the statement of facts, the court on appeal cannot discuss the effect of the receipt.
    4. Evidence <@=>69 — Laweul Business — Presumption.
    The presumption is that defendant compress company, with whom plaintiff stored cotton, was doing a lawful business in a lawful way.
    5. Pleadings <@=>34(3) — Sufficiency — Absence of Special Exception.
    Every reasonable intendment will be indulged in favor of the, allegations of plaintiff’s petition in the absence of a special exception.
    6. Warehousemen <@=>34(4) — Allegations as to Relation — Sufficiency.
    Plaintiff’s petition alleging that defendant engaged in the compress business and in connection therewith used extensive platforms in storing and caring for cotton delivered, for which a toll was charged, that, at the request of defendant, plaintiff delivered cotton with the understanding that defendant would accept and compress the same in a reasonable time, that there was an agreement to accept the cotton and care for the same, and keep it protected from weather or other damages in consideration, of the usual price for compressing cotton, sufficiently showed the relation of bailor and bailee for hire, in the absence of a special exception.
    7. WAREHOUSEMEN @=24(1) — COTTON COMPRESS Companies — Duties;
    Wheie defendant accepted the cotton in connection with its compress business on storage for mutual benefit of both parties, it was not necessary to prove express contract, the law implying a contract and imposing on defendant the duty to use ordinary care.
    8. Appeal and Error @=>960(3) — Striking Trial Amendment — Discretion.
    Although court on appeal reaches conclusion that first paragraph of plaintiff’s trial amendment did not set up a new cause of action, where no abuse of discretion is shown in striking out the amendment it will not be held that there was error.
    9. Limitation oe Actions <&wkey;127(17) — Trial Amendment — New Cause oe Action.
    Where plaintiff’s original petition alleged that defendant agreed to accept, care for, and keep the cotton delivered by plaintiff, and compress it within a reasonable time, trial amendment alleging that defendant agreed to open the bales and separate the good cotton from the damaged set up a new cause of action within the statute of limitations.
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Suit by E. W. Jackson against the Green-ville Compress Company. Judgment for defendant, and plaintiff appeals.
    Reversed.
    Evans & Shields, of Greenville, and G. R. Smith, of McKinney, for appellant. Clark & Sweeton, of Greenville, for appellee.
   HUEF, C. J.

The appellant, Jackson, instituted this suit against the appellee compress company for damages alleged to have been sustained to 157 bales of cotton by reason of negligence, in that it “failed and neglected to compress said cotton until in the month of March or April, 1914, and in the meantime and while in the possession of said cotton negligently and carelessly permitted said cotton to become exposed to the weather, rain, and damp ground or damp platform, injuring said cotton in the bales by rotting the same and in the loss of weight, as follows” (setting out the grounds of injury), and the following allegations were made:

“(2) Plaintiff shows that the defendant at this time is engaged in the business of compressing cotton for the public, and has been so engaged for many years next preceding the filing of this petition; that defendant’s compress is located in the city of Greenville, and that in connection with-its compress it has an extensive platform, covered with shingles, used for the purpose of storing and caring for cotton that is delivered to the defendant for the purpose of being compressed, said defendant charging a toll of so much for each bale compressed.
“(3) That between the dates of the 15th of September, 1913, and the 1st day of, January, 1914, the plaintiff, at the request and solicitation of the defendant, delivered to the defendant from his home in Collin county, Texas, to the compress of the defendant in Greenville, Texas, one hundred fifty-seven (157) bales of cotton, with the understanding that the defendant would accept said cotton and compress the same in a reasonable length of time thereafter, and from the time the cotton was received until the same was compressed and delivered back to plaintiff the said, defendant, acting by and through its authorized agent and general manager, W. B. Wyse, contracted and agreed to accept said cotton at its compress, and to care for the same, and keep it protected from the weather or other damage, and that in consideration therefor the defendant was to receive the usual prices.for compressing cotton; that at the time of accepting plaintiff’s cotton, and at all times subsequent thereto, while in the possession of said cotton defendant was bailee for hire and liable to plaintiff for the safe-keeping of his cotton.”

It appears after the introduction of the evidence the appellant filed a trial amendment, alleging substantially that at the time he arranged to ship the cotton to appellee it was agreed and understood by both parties, or was within their contemplation, that the cotton was to be accepted and stored upon appellee’s platform, to be cared for and protected against danger of loss until such time as appellant might conclude to sell same, at which time the cotton would necessarily have to be compressed before it could be shipped; that this was the custom and usage of appellee in the management of the compress, and that each acted upon the same, in consideration, among other things, appellee would have the privilege of compressing said cotton and be paid the sum of 50 cents per bale by the railway; that it undertook and agreed, expressly or impliedly, to accepc, store, preserve, and care for said cotton during the time it was in appellee’s possession, notwithstanding which appellee negligently permitted the cotton to be exposed, and failed and neglected to turn it, etc. It is further alleged after the cotton was delivered, and while in possession of appel-lee, that on.the 4th day of March, 1914, ap-pellee, for a valuable consideration, contracted and agreed to condition said cotton — that is to say, open said bales and- separate the good cotton from the damaged out of the 157 bales then in the possession of appellee; that appellee neglected and failed to condition' the cotton until April 6th thereafter, permitting the damaged cotton to remain in the bales, and as a result appellant suffered loss to his cotton in the sum of $1,000, etc.

The appellee excepted to the trial amendment so filed on the grounds (1) that it alleges an implied contract and the suit was brought upon an express contract, and that no implied contract was alleged until more than two years after the alleged cause of action; (2) to all that which claims anything except the right to recover on an express contract of bailment, because barred by the two-year statute of limitation, especially the new contract alleged to have been made March, 1914; (3) that the trial amendment was filed after the close 'of the evidence, and comes too late, and because the attempted cause of action was barred by tbe statute of limitation. Tbe order of tbe court on tbe exception recites after tbe close of tbe evidence, and while tbe argument was in progress, upon appellee’s request for an instructed verdict, appellant was granted leave to file a trial amendment, after which appellee was granted and did file its supplemental answer, and that tbe court sustain tbe exceptions therein contained, etc. Tbe trial court, after sustaining tbe exception striking out tbe trial amendment, instructed a verdict for the appellee.

The appellee was a compress company, receiving and compressing cotton. Tbe appellant bad cotton at bis home town, and be called up tbe superintendent of appellee over the phone, and told him that be bad cotton, and that he bad concluded be would ship it to the platform of appellee, and if tbe company would take care of it be would ship the cotton, and received tbe reply, “Yes, I will be glad to do it, and am prepared to take care of 10,000 bales more;” and appellant told him all right, that be would ship that cotton and possibly later some more. The superintendent testified as to the conversation bad with appellant, stating that appellant asked him if they were able to handle some cotton, and that-he told appellant they could handle tbe cotton. “He wanted to know if we could store bis cotton for him — some cotton be bad up there at Renner, or somewhere. He walked to ship in and store it at tbe Greenville compress. He knew tbe facilities we bad for storing; be had seen tbe premises.” There was nothing said in that conversation about caring for tbe cotton or compensation for tbe services. It is established, we think, by tbe facts, that appellant desired to ship the cotton and place it on tbe platform of appellee to get tbe cotton off tbe ground and near to a market, and it was bis purpose to sell tbe cotton without himself having it compressed. There was no consideration agreed upon for storing. The facts will warrant tbe finding that appellant had previous thereto shipped bis cotton and stored it as be did the particular lot in question. Tbe assistant superintendent, Williams, testified:

“Yes, sir; we turned it because it is customary to do it and necessary to protect tbe cotton. That was as far as we were able to protect it. You can’t always prevent damages¡ even by turning. I don’t think if you turn it at the proper time and often enough you can prevent damages. As to whether it would go from eighteen to twenty inches from one end if we turned it as often as necessary to turn it, you have your damage distributed on the various parts of the bale. As to whether or not how often we turned it depends on the room, we had to turn it end up would have anything to do with it. We turned it as often as convenient and possible to get to it and handle it. At that time the only opportunity the compress had of getting anything out of cotton was by compressing it, and the railroads paid that. We get ten cents a hundred pounds for compressing cotton where it is fixed by the railroad commission, which would be approximately fifty cents a bale. I think every bale of this cotton was compressed except the damaged part wasn’t compressed, and that we compressed we got ten cents a hundred pounds out of the railroad company for it; that is the way the compress company made their money. Yes; it is true that we provided large facilities for storing cotton there because it increased our facilities for compressing it. Yes; it was a rare occurrence if a man had some cotton there for him to take some wagons and haul it away. When cotton was nut there the chances are we would have a chance to compress it. We tried to take care of every bale of cotton, and have always done that when we didn’t have the proper facilities. JYes; we knew when cotton was brought there it was uncertain as to how long it remained, because it was never compressed until the party that sent it there sold it. Some cotton comes there for about three hours, and we got as much for cotton that comes there as cotton that stays six months. We never compressed it until it was ready to be shipped, and then we compressed it and put it in the train because we didn’t store compressed cotton. We kept our platform for the purpose of handling cotton. When cotton is put in an out-bound bill of lading it is blocked up. The number of men we have down there varies; it runs from seventy-five to a hundred and twenty-five and sometimes a few more. When people put their cotton down there I don’t really consider it is a duty to have those men turn this cotton as often as necessary to prevent damage. As far as possible we have been doing it; we have always done it as far as possible. I don’t recall having ever done that before for Mr. Jackson. The past two seasons he may not have had it there at the time of year when it was necessary to do anything. I don’t remember when the rains set in in 1914 exactly; you can get the weather record.”

The facts will warrant the finding that all cotton received by the compress was received in the same way, and with the expectation of being compensated by compress charges paid by the railroad; that the compress cared for and turned the cotton while on its platform; and .there is some evidence to the effect that it had not been properly attended to in this case, and that as a result it was damaged. Under these facts we are inclined to believe the compress company was a bailee for hire, and, if so, the duty of ordinary care was imposed on it to care for and handle the cotton while stored with it. “The storage of the cotton was an incident to its compression, and it was the duty of the compress company to exercise ordinary care in the storage of the same.” Loeb Compress Co. v. Bromberg & Co., 140 S. W. 475. It was said in that case:

“The benefit accruing from this reciprocal bailment to Bromberg & Co. was that their cotton should be sampled, marked, stored, and protected, and the benefit to the Loeb Compress Company was that it should have the privilege of compressing the cotton, rather than have another compress at some other point along the line of the shipment enjoy this privilege, and collect from the railroad company fifty cents per bale for the compression; also the charge for loading the cotton, which was to be paid by the railroad company.”

See authorities cited in that case; also Sherman Ice Co. v. Klein, 195 S. W. 918, ana authorities cited.

The relation of the parties in this case imposed the obligation upon the compress company of a bailee, which was for the mutual benefit of the parties, and it was required to exercise ordinary diligence in the care of the cotton stored. 4 Elliott on Contracts, § 3100. In this case the compress company appears to have issued a receipt for the cotton.

Ordinarily a warehouseman’s receipt is a contract which cannot be impeached by parol testimony. 4 Elliott on Contracts, § 3099.

The terms of this receipt, however, are not set out in the statement of facts; hence we cannot discuss its effect. The facts, we think, are sufficient to show the cotton was delivered and accepted by a warehouse whose compensation for compression was fixed by law; that as a compress it was engaged in the business1 of receiving on storage cotton, with the prospect of being reimbursed for such services by compressing the cotton before it should be shipped. The parties dealt in this case as was the usual method and custom with this compress in such matters.

The presumption is that appellee was doing a lawful business, and in a lawful way, under lawful authority. The law in-posed upon it certain duties with reference to cotton in its care. If the petition in this case was good upon general demurrer, the court was in error in instructing a verdict.

Every reasonable intendment will be indulged in favor of the allegation in the absence of a special exception.

It is alleged the appellee was engaged in the compress business, and in connection therewith it used extensive platforms for storing and caring for cotton delivered to it to be compressed, for which a toll was charged; that at the request of appellee appellant delivered the cotton, with the understanding that the appellee would accept said cotton and compress the same in a reasonable time; that there was an agreement to accept the cotton and care for same, and keep it protected from the weather or other damages, in consideration of the “usual price for compressing cotton;” that at such time appellee was a bailee for hire.

The relation of .bailor and bailee was alleged, we think, by the facts stated in the petition, and that the consideration was the usual charges for compression.

It is not required of appellant to prove an express contract to care for and protect the cotton, and when appellee accepted the cotton in connection with its compress business on storage, for the mutual benefit of the parties, the law implied a contract, and imposed the duty on appellee to use ordinary care with reference to the care and protection of the cotton. We believe the original petition was sufficient to admit the evidence of the relation above set out, in the absence of a special exception. The court was therefore in error in instructing a verdict, but should have submitted the issues to the jury.

We have concluded that the first paragraph of the trial amendment did not set up a new cause of action, but alleged with more particularity the facts constituting the acceptance of the cotton, and more particularly the manner in which appellee was to be remunerated, setting up also the custom and method of appellee in receiving and storing cotton in connection with the compress.. However, the court, doubtless acting on its discretion, struck out the trial amendment, and, as no abuse of that discretion is here shown, we cannot hold that there was error.

As to the second paragraph of the trial amendment- — that is the one setting up a contract of March 4, 1914, to “condition” the cotton — we believe sets up a new cause of action, and, under the facts and pleadings in this case, shows to have been barred by the two-year statute of limitation. For that reason the court properly struck out that part of the trial amendment.

The .judgment will be reversed for the reasons above stated.
      ®=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    PATTERSON, Commissioner of Insurance and Banking, v. ONION.
    (No. 7913.)
    (Court of Civil Appeals of Texas. Dallas.
    March 9, 1918.
    Rehearing Denied April 6, 1918.)
    1. Bills and Notes <&wkey;521 — Issuing Stock eoe Notes — Evidence.
    Evidence held to show that stock of corporation was issued to defendant in consideration of the notes sued on, and not for money paid or property actually received within Const, art. 12, § 6, so that the notes were void as between the original parties.
    2. Bills and Notes <&wkey;>525 — Innocent Pue-chaser — Evidence.
    In suit by commissioner of insurance and banking on two notes, pledged as collateral 'to a bank in process of liquidation, held, under evidence, that notes were unenforceable; the bank not being an innocent purchaser without notice that the notes were executed in consideration of shares of stock, contrary to Const, art. 12, § 6.
    Appeal from District Court, Dallas County; E. B. Meese, Judge.
    Suit by John S. Patterson, as Commissioner of Insurance and Banking of the State of Texas, against John F. Onion. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Robt. H. Rogers, of Waco, for appellant. Short & Field and John F. Onion, all of Dallas, for appellee.
   TALBOT, J.

This suit was instituted by John S. Patterson, as commissioner of insurance and banking of the state of Texas, in charge of the assets of the Farmers’ & Merchants’ State Bank of Waco, which bank was in process of liquidation, to recover of John F. Onion the amount of two notes for $2,500, each dated March 15,1913, and executed and delivered by the said Onion to the Texas Eire Brick Company, a private corporation. The notes sued on were payable on March 15, 1914, and ¡September 15, 1914, respectively. On March 22, 1913, said notes, by what, is termed a collateral agreement, were delivered and pledged by the Texas Fire Brick Company to the Farmers’ & Merchants’ State Bank of Waco as collateral to secure the payment of a note made by said company to said bank. After the institution of the suit, and before trial, Mr. Patterson died, and Charles O. Austin, his successor in office, was made the party plaintiff. The defendant Onion denied liability on the ground that the notes were executed for the purchase price of stock in said Texas Fire Brick Company, and because .he had been misled and induced, by the false and fraudulent representations of said company’s agent as to the character and value of its property and the amount of business it was doing, to purchase said stock and execute his notes therefor. At the conclusion of the introduction of the evidence the trial court instructed the jury, which had been impaneled to try the case, as follows:

“The evidence shows without contradiction that the notes sued upon in this action were executed in payment for 50 shares of the capital stock of the Texas Fire Brick Company, for which defendant subscribed, and that there was no other consideration for said notes. Said notes are not money paid nor labor performed nor property actually received, for which the shares of stock issued to the defendant could be taken in payment, and are therefore void under section 6, art. 12, of the state Constitution, and are not collectible even in the hands of an innocent purchaser. You will therefore return your verdict for the defendant.”

The giving of this charge is said to be erroneous: (1) Because the evidence does not show without contradiction that the notes herein sued upon were executed in payment for stock in the Texas Fire Brick Company, but shows that said notes were - executed as a part of a stock subscription contract between the defendant and said company, by which the defendant was bound before any certificate for stock in said company was ever filled out with the name of the defendant, or ever came into the hands of the defendant, and the charge is upon the weight of the evidence ; (2) because the filling out of a certificate, as in this case, with the name of a subscriber for stock which has not been paid for, and having the certificate indorsed in blank by the subscriber, which certificate is to, and does, remain in the possession of the owner and holder of the note or notes given in evidence of the subscription for such stock, is not a violation of the law; (3) because it declares the notes herein sued on to be void, even in the hands of an innocent purchaser. These contentions, of appellant are based upon an assumed state of facts which in neither instance is, in our opinion, warranted by the evidence. To quote the testimony in detail, is, of course, impracticable. There is, however, as we view it, practically no dispute or contradiction in it; and the applicable law seems to have been well settled by a number of decisions of our appellate courts. The notes in suit were executed by the appellee and the shares or certificates of stock purchased by him from the Texas Fire Brick Company were, according to the undisputed evidence, as we construe it, issued and delivered to him about the time of the signing of said notes, and the notes in turn taken in payment of the stock. The undisputed evidence, as we see it, further discloses that the notes in question were the only consideration for the shares of stock issued and delivered to appellee. After testifying that S. P. Kirk-sey, Jr., came to San Antonio, where appellee then resided, and solicited him to buy stock of the Texas Fire Brick Company, representing, in several days’ negotiations, the financial condition of the company, what it owed, the money it had in the bank, the property it possessed, dividends it would pay, etc., ap-pellee said that finally he agreed to take 50 shares of stock of the company and to execute his two notes in the sum of $2,500 each therefor, with the understanding and agreement that said shares of stock were to he delivered to him. He further said:

“These are the two notes (the notes sued on) I executed for that stock. * * * I received the 50 shares of stock. These notes were executed on my desk iu the Gunter Building, San Antonio, Tex. When I executed those notes X received 50 shares of stock in the Texas Fire Brick ■ Company. My recollection is the stock was received three or four days after the agreement was concluded; the certificate of stock was sent to me by mail with blank notes inclosed. When I received them there had been no agreement between us as to whether or not the stock should be put up as collateral security, but I had no use for the stock, and I .voluntarily signed it in blank at the bottom without transferring it to anybody, but just signed it in blank.”

There were two of the certificates of stock of 25 shares each. They bore the same date, and appellee testified that they were the certificates that were issued to him. He also testified:

“There was no consideration for the purchase of the 50 shares of stock represented by these two certificates other than these two notes that I executed. I demurred to taking the stock on the ground that I was investing in the San Antonio Life Insurance Company, and he (Kirk-sey, Jr.), said: ‘Now all you have to do is to execute these notes payable on the dates shown here, and we will at once send you the stock.’ ”

On cross-examination the appellee stated that it was not his recollection that Mr. Kirksey brought the notes to him at his office ; that Mr. Kirksey did not have with him the blank certificates of stock at the time he signed the notes; that there was a subscrip-, tion blank signed by him; that the signing of the subscription document was the original part of the entire transaction. He said:

“At that time I signed nothing else but that subscription. I cannot fix the date of that, but X assume from these other things it was in March, but I cannot tell the day. As I stated awhile ago, my recollection is that it was three or four days before the stock was delivered to me. * * * It is my recollection that those certificates of stock came to me through the mail after I signed the subscription contract, and I am pretty clear about this. The same mail that brought these certificates to me also brought these notes. * * * I do not recollect that those notes were brought to me by Mr. Kirksey. I have a distinct recollection of mailing them back to the company (Texas Fire Brick Company) in Dallas. Those notes were given in fulfillment of the stock subscription contract which I signed; they were given in payment of that stock. At the time the subscription contract was signed, I think the only man present was S. F. Kirksey, Jr. * * * He said he would deliver the stock to me, and all I had to do was to give him my notes. I do not know of any reason why the notes were not signed at that time. He didn’t claim at that time to have the blank stock certificates with him; he merely asked me to sign the subscription contract, and said he would send the stock to me, and the notes were to be signed in payment of the stock.”

On redirect examination appellee said:

“When I received the notes and the stock certificates, I signed the notes and signed the stock certificates in blank and sent them back to the company. They came in a letter from the company to me, and I sent them back to the company in a letter from myself to the company.”

The issue of stock generally means the issue of the certificate (Cook on Corporations, § 12), and it is doubtless true that such certificate is the mere representation of property, but it is the issuance and delivery of this representation of stock, except for money paid, labor done, or property received, that is prohibited by our Constitution. If issued in violation of the Constitution, such issue is void. That the testimony shows conclusively that the shares of stock involved in the suit were issued and delivered to appellee and became unequivocally his property, and that the notes sued on were executed by him and accepted by the Texas Fire Brick Company in payment for said stock in violation of article 12, § 6, of our Constitution, which provides that “no corporation shall issue stocks or bonds, except for money paid, labor done or property actually received,” etc., cannot, we think, be seriously doubted. The ease is clearly distinguishable in its facts from those cited and relied on' by appellant. As we understand .those cases it appeared in each of them, without contradiction, that the shares of stock were never issued and delivered to the purchaser. To review them and point out the particular evidence upon which they were decided would be of no real value, and only serve to lengthen unnecessarily this opinion. Some of the cases which have been cited by .appellee sustaining the judgment of the district court and the conclusion reached by this court as expressed above are the following: San Antonio Irrigation Co. v. Deutschmann, 102 Tex. 201, 105 S. W. 486, 114 S. W. 1174; McCarthy v. Texas Loan & Guaranty Co., 142 S. W. 96; Mason v. First Nat. Bank of Point Rock, 156 S. W. 866; Insurance Co. v. Curry, 183 S. W. 1; Republic Trust Co. v. Taylor, 184 S. W. 772. In the first case cited, the Supreme Court, after quoting the Constitution to the effect that “no corporation shall issue stocks or bonds except for money paid, labor done, or property actually received,” said:

“The terms ‘money paid’ are very definite and plain and do not mean that stock can be sold for money to be paid, but must be sold for cash.”

In McCarthy v. Loan & Guaranty Co., supra,’in which a writ of error was denied, it was held that the provision of the Constitution under consideration relates not to incorporation, but to the issuance of stock, and that its purpose was to prohibit the issuance of stock until paid for, and that the execution and delivery of the stockholders’ promissory note was not payment within the contemplation of the law, but more of a promise to pay. In Mason v. Bank, 156 S. W. 366, Mr. Justice Jenkins, speaking for the court, said:

“The sale of stock by a corporation is forbidden by the Constitution, except for money paid or property actually received. A note is not money paid, nor is it property within the meaning of said article of the Constitution.”

In Republic Trust Co. v. Taylor, supra, it was shown that the shares of stock by agreement were deposited with the trust company by Taylor as collateral security for the payment of the note given therefor, and Mi-. Justice Rasbury, speaking for this court, in regard to the question of the sufficiency of the issuance and delivery of the stock to the purchaser to constitute a violation of our Constitution, said:

“As security for the notes so given in payment of the capital stock the parties to the transaction recite that appellee (Taylor) has delivered to appellant the identical stock so purchased. There could not have been a delivery of the stock back to appellant without an issuance of the same.”

With stronger reason it may be said in the present case that there could not have been a delivery of the stock purchased by appellee back to the Texas Fire Brick Company without an issuance and delivery of said stock by said company to appellee. Here there was no agreement or understanding that the stock was to be placed with the Texas Fire Brick Company as collateral security for the payment of the notes; and the deduction from the uncontroverted evidence is not only that the stock purchased by appellee was issued and sent to him by the brick company, but that it was issued and delivered without any agreement that it should be returned immediately to be held by said company as security for the notes sued on, or that it was expected that it would be returned for that or any other purpose. It is plain that the stock was issued and delivered to appellee in consideration alone of his notes, and not for money paid or property, within the meaning of the Constitution, received. The contract was therefore void as between the parties to it

The question remains, Was the contract void and unenforceable as between the appellant and appellee? We think so. This is true in this case, even though it should be held that the- principle of law announced is not applicable to an innocent purchaser for value. The appellant is in no better position to enforce the collection of the notes sued on than the Farmers’ & Merchants’ State Bank of Waco, whose estate he is administering, or the Texas Fire Brick Company, would be if either of them were suing. That the Farmers’ & Merchants’ State Bank of Waco was not an innocent purchaser of said notes, without notice that they were executed in consideration of the shares of stock sold and delivered by the brick company, is very clearly shown by the evidence. There is no room to doubt that said bank knew, or should be charged with knowledge of the fact, that the notes appellant is attempting to collect in this action had been executed by appellee in payment of stock in the Texas Fire Brick Company. M. E. Hulsey testified that he had been president of the Farmers’ & Merchants’ State Bank of Waco part of the time and cashier part of the time; that the notes sued on came into his possession as cashier of said bank; that they were attached as collateral security to a $15,000 loan that was made by the bank through him to the Texas Fire Brick Company in March, 1913; that Mr. Lastinger was vice president of the bank, and that his connection with it began at its organization and continued until April 1, 1913, at which time he severed his connection with it permanently, and said he was going to become connected with the Texas Fire Brick Company; that before Mr. Lastinger severed his connection with the bank, he made application for the $15,000 loan to the Texas Fire Brick Company, and that he (Hulsey) had authority to make it; that Mr. Lastinger, at the time the application was made for said loan, stated that the $5,000 notes of appellee, Onion, together with another note of $11,500 would be pledged to secure the payment of' said loan. The wit-, ness Hulsey further testified:

“I don’t recall that'he (Lastinger) said what those notes of Mr. Onion’s were given for, but it is my impression that-they were given for stock in the Texas Fire Brick Company. * * * He had the notes with him, and the stock attached to the notes, and it was my impression that it was given for the stock. He told me that J. F. Onion (appellee) had signed the notes, and I investigated the makers of the notes before I made the loan. * * * At the time I made that loan, I knew that the collateral notes (of appellee) were given for an obligation Mr. Onion owed over at the Texas Fire Brick Company. I did not know for sure that it was for stock. * * * I don’t recall whether the question was discussed as to whether the notes were given for stock or not. The stock was attached to the notes, and it would be natural that I would suppose that is what they were given for. The notes being attached to the I stock, I would naturally get the impression that they were given for the stock.”

The foregoing is the testimony of the representative of the Farmers’ & Merchants’ State Bank of Waco, who was authorized to and who did make the loan mentioned to the Texas Fire Brick Company, in part upon the pledge of appellee’s note to secure the payment of said loan, and while it is true the bank’s representative stated that he did not know for sure that the notes sued on were given for stock in the Texas Fire Brick Company, no reasonable and fair deduction can be made from it than that he clearly understood and was convinced, at the time the bank acquired possession of appellee’s notes, that they were executed for the shares of stock purchased by appellee from the said company. We are unwilling to hold in the face of the foregoing undisputed testimony that the Farmers’ & Merchants’ State Bank of Waco was, and that the appellant through it became, an innocent purchaser and holder of the notes sued on without notice, etc. If, in fact Mr. Hulsey, the officer of the bank who received said notes for it, “did not know for sure” that the notes were given for stock in the brick company, it is manifest that the slightest inquiry would have disclosed that fact.

But, while we are not called upon to authoritatively determine in this case whether or not a note given in violation of our Constitution for corporate stock is void and unenforceable in the hands of an innocent purchaser for value without notice, it may be said that decisions of this and other states and elementary authority may be found affirming that it is. San Antonio Irrigation Co. v. Deutschmann, 102 Tex. 201, 105 S. W. 486, 114 S. W. 1174; Republic Trust Co. v. Taylor, supra; Kanaman v. Gahagan, 185 S. W. 619; Commonwealth B. & C. Ins. Co. v. Curry, 183 S. W. 4; Mason v. Bank, 156 S. W. 366, supra; Sturdevant v. Falvey, 176 S. W. 908; Ater v. Rotan Grocery Co., 189 S. W. 1106; Moss v. Bank, 102 Ga. 808, 30 S. E. 267; Williams v. Evans, 87 Ala. 726, 6 South. 702, 6 L. R. A. 218; Pomeroy on Equity Jurisprudence, § 940. Such seems to be the effect, if not the express holding, of the decision in Irrigation Co. v. Deutschmann, cited. In that case it is said that:

“A contract which is in contravention of the Constitution of the state, as the one under consideration, cannot give a right of action for damages or for any other relief in the courts of this state” (citing Moss v. Bank, supra).

It is also said in Deutschmann’s Case that in Williams v. Evans, supra, the court construed a provision of the Constitution of that state which is almost in the same language of our Constitution upon the subject, and held that an agreement to issue stock in excess of the amount paid was in violation of the Constitution and therefore void. The rule is stated in the section of Pomeroy above cited as of universal application—

“that no action arises in. equity or at law from an illegal contract; no suit can be maintained for its specific performance, or to recover the property to be sold or delivered, or the money agreed to be paid or damages for its violation.”

It is clear to us that the judgment of the district court in this case should be affirmed; and it is so ordered.

Affirmed.
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author: HIGGINS, J.

text:
    WELLS v. CLOUD.
    (No. 837.)
    (Court of Civil Appeals of Texas. El Paso.
    March 21, 1918.)
    1. Attachment &wkey;>176 — Evidence—Admissibility — Title to Property.
    In an attachment suit, wherein an automobile was levied on as the property of defendant, who retained possession of it by giving a re-plevy bond, defendant cannot prove that it belonged to a firm composed of defendant and another, and that the attachment was therefore invalid because not made as prescribed by Rev. St. art. 3743, regulating a levy on a partner’s interest.
    2. Attachment &wkey;339 — Replevy Bond — Judgment against Sureties.
    In an attachment suit there was no_ error in rendering judgment against the sureties on the replevy bond for the value of an automobile as estimated by the sheriff when the bond was given, together with interest, as such judgment is plainly authorized by Rev. St. art. 269, providing that judgment shall be against defendant and his sureties on his replevy bond for the amount of the judgment, interest, and costs, or for the value of the property replevied and interest according to the terms of the bond.
    3. Attachment <&wkey;339 — Replevy Bond — Judgment against Sureties.
    In rendering judgment against the sureties on a replevy bond for the value of an attached automobile, there was no necessity for the court to make a finding as to its value, as pursuant to Rev. St. art. 258, the amount of the bond is based on its value as estimated by the officer who takes the bond.
    4. Appeal and Error &wkey;>1010(l) — Review— Findings oe Fact.
    A finding of fact by the trial court cannot be set aside on appeal, where there is ample evidence to sustain it.
    Appeal from El Paso County Court; W. P. Brady, Judge.
    Suit by H. D. Cloud against E. C. Wells, on a judgment aided by attachment. Judgment was rendered against defendant Wells and against his sureties on a replevy bond, and he appeals.
    Affirmed.
    Nichols & Robinson, of El Paso, for appellant. Frank Judkins and D. W. Burkhalter, both of El Paso, for appellee.
   Statement of Case.

HIGGINS, J.

Cloud recovered a judgment in Oklahoma against Wells for $407.75, with interest and costs. Upon this judgment suit was brought in El Paso county. Writ of attachment was issued and executed by the sheriff of El Paso county by levying upon and seizing an automobile as the property of Wells. Wells replevied the automobile, which was valued by the sheriff at $575. Upon trial, judgment was rendered against Wells for $625, that being the amount then due upon the Oklahoma judgment. Judgment was also rendered against the sureties upon the replevy bond for the estimated value of the automobile, with interest. Wells appeals.

Opinion.

1. Error is assigned to the exclusion of evidence offered to show that the automobile did not belong to Wells; that it was owned by the Wells Peugh Realty Company, a partnership composed of Wells and R. C. Peugh, and that Wells as such partner only had an undivided half interest in the automobile. It is contended that the evidence should have been admitted for the purpose of showing that the levy of the attachment was invalid because not made in the manner prescribed by article 3743, regulating the manner in which a levy shall be made on the interest of a partner in partnership property. There is no merit in this assignment. The car was levied upon as the property of Wells. It did not purport to be a levy upon any partnership interest. The issue of title to the automobile could not be tried in this way. 17 Cyc. 1115. Furthermore, it is very generally held that the giving of a replevy bond and retaining possession of the attached property, as was done by Wells in this case, precludes the defendant in the writ from •questioning the legality of the levy. Some of the -authorities hold that he is estopped; others that he has waived any irregularities in making the levy. Portis v. Parker, 8 Tex. 23, 58 Am. Dec. 95; Miller v. Clements, 54 Tex. 351; Kingsland, etc., v. Harrell, 1 White & W. Civ. Cas. Ct. App. § 737; 17 R. C. L. 246; 13 Amer. & Eng. Ency. Law (2d Ed.) 1141; notes in 25 Am. Dec. 429; 51 L. R. A. (N. S.) 635.

2. There was no error in rendering judgment against the sureties on the replevy bond for the value of the automobile as estimated by the sheriff when the bond was given, together with interest. The statute plainly authorizes the judgment rendered. Article 269, R. S. The rules invoked by appellant have reference to replevy bonds in sequestration proceedings.

3. There was no necessity for the court to make a finding as to the value of the automobile, as the amount of the bond was based upon the value thereof, as estimated by the officer who took the replevy bond. Article 258, R. S.

4. There was ample evidence to show that defendant was personally served with citation in the suit in Oklahoma, and we are not authorized to set aside the finding of the trial court that he was so served.

5. All other questions presented have been considered, and are regarded as without merit.

Affirmed.
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author: HALL, J.

text:
    J. M. RADFORD GROCERY CO. v. FLYNN.
    (No. 1321.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 27, 1918.)
    1. Venue <&wkey;70 — Plea of Pbivilbge — Admissibility.
    While the general rule is that a plea of privilege is inadmissible as evidence, where defendant’s plea was introduced without objection, the court was authorized to consider it in ’ so far. as it tended to prove defendant’s residence in another county.
    2. Venue <&wkey;70 — Change—Showing—Sufficiency.
    Before Acts 35th Leg. c. 176, became effective, where plaintiff in suit against member of partnership to defeat defendant’s plea of privilege set up a financial statement, signed by defendant for his firm, agreeing that all indebtedness should be payable in the county where plaintiff brought suit, defendant’s plea alleging in general terms that said statement was procured by fraud, though introduced in evidence without objection,- did not warrant a change of venue.
    3. Pleading <&wkey;8(15) — Conclusions—Fbaud.
    A pleading setting up fraud must contain specific allegations of the acts and conduct relied upon, and must be definite and certain.
    4. Venue &wkey;>70 — Change—Evidence Admissible.
    Evidence that defendant delivered a draft and certain vendor’s lien notes to plaintiff, for the purpose of paying the indebtedness sued upon, was immaterial and irrelevant upon question of defendant’s right to change of venue.
    Appeal from District Court, Taylor County; Joe Burkett, Judge.
    Suit ’by the J.' M. Radford Grocery Company against E. H. Flynn. From the judgment rendered, plaintiff appeals.
    Reversed and remanded.
    G. W. Smith, of Abilene, for appellant. E. J. Miller, of Brownwood, for appellee.

       Vernon’s Ann. St. Supp. 1918, art. 1903.

   HALL, J.

Appellant sued appellee, Flynn, in the district court of Taylor county to recover án amount alleged to be due from the Bangs Mercantile Company, a partnership, of which Flynn was a member. The debt was for goods purchased by said mercantile company during the years 1911, 1912, and 1913. Appellee, Flynn, filed his plea of privilege to be sued in Brown county, alleging that to be the place of his residence. To defeat the plea of privilege plaintiff set up a certain financial statement made by Flynn for the Bangs Mercantile Company, in which there is this recital:

“We hereby agree that all indebtedness to the J. M..Radford Grocery Company is payable in Abilene, with interest at 10 per cent, per annum from maturity of the bill and 10 per cent, on the amount unpaid for attorney’s fees if placed with an attorney for collection. [Signed] Bangs Mercantile Company, per B. H. Flynn, Member of the Firm.”

Reference ■ to the statement of facts discloses that the plea of privilege was introduced in evidence, but that no other testimony was produced to sustain the facts al-. leged in it. The court qualified the bill ofi exception as follows:

“This bill of exception examined, found correct, and signed and approved and ordered filed as part of the record in this case, this the 30th day of March, A. D. 1917, with the qualification that it was an undisputed fact that defendant did live and at present reside in Brown county, Tex., and plaintiff did not accept on the ground that defendant did not- make formal proof of his residence.”

Appellee’s brief states that in open court every material fact alleged in plaintiff’s petition was admitted, as well as every material fact in defendant’s plea of privilege. We find no such admission in the record. Without the introduction of any testimony whatever to sustain the plea except the plea itself, introduced as evidence, the court ordered the venue changed to Brown county. Under one assignment of error appellant insists that this ruling is incorrect. This assignment must be sustained. Under Acts of the Thirty-Fifth Legislature, p. 388, a plea of privilege, duly verified and filed, is made prima facie evidence of the facts therein stated, but this law was not in operation when this case was tried. The only other evidence introduced, as shown by the statement of facts, is the written agreement signed by Flynn, as a member of the firm of the Bangs Mercantile Company, binding his partnership to pay all indebtedness then existing and subsequently incdrred, at Abilene. In his plea of privilege Flynn sets up the facts that he was not aware at the time of making the financial statement that it contained the provision making the firm’s indebtedness payable in Abilene; that he was deceived by plaintiff’s agent in signing the statement with such provision in it; that the firm account in suit had been satisfied in a certain real estate deal wherein he sold to one Gill, the vice president of appellant company, certain property in the town of Bangs, paying the debt with cash and vendor’s lien notes delivered to him by Gill, in payment for- said property. No evidence other than the plea itself was offered tending to establish these facts. The only testimony before the court at the time of his ruling sustaining the plea of privilege was the sworn plea and the written agreement to pay the indebtedness sued upon, in Abilene.

The general rule is that the plea is not admissible as evidence. Graves v. First National Bank, 77 Tex. 555, 14 S. W. 163; Texarkana & Ft. Scott Ry. Co. v. Shivel, 114 S. W. 196; Ragland v. Guarantee Life Insurance Co., 157 S. W. 1187; Hopson v. Caswell, 13 Tex. Civ. App. 492, 36 S. W. 312. The plea having been introduced as evidence, however, without objection, the court was authorized to consider it as proof of the allegations contained in it, in so far as it tended to prove his residence in Brown county, but the statement in the plea that none of the exceptions to exclusive venue in Brown county existed in the cause were disproved by the introduction of the written promise to pay the debt in Abilene. Plynn did not deny the execution of the writing, but sought to avoid its force by allegations of fraud and settlement.

The case is before this court in this condition: The plea of privilege was filed as a pleading, and so far as the record shows was not excepted to, and we are not called upon to pass upon its sufficiency as a pleading, but it was also introduced in evidence, and the question is: Do its allegations of fraud show sufficient facts to avoid the force and effect of the written credit statement? We think not. Fraud is alleged in general terms.

The rule is that a pleading setting up fraud must contain specific allegations of the acts and conduct relied upon, and must be definite and certain. This plea contains no allegation of materiality, intent, or scienter, and if we admit everything alleged in it to be true, there is a failure of proof.

That portion of the plea wherein Plynn alleges that he delivered a draft for $500 and certain vendor’s lien notes made by G. W. Gill to appellant for the purpose of paying the indebtedness sued upon is immaterial and irrelevant upon the question of venue, and while the general rule is that, if hearsay and incompetent testimony is admitted without objection, it is the duty of the jury or trial court hearing the case without a jury to give such evidence its full probative force, the rule was modified by the Supreme Court in Henry v. Phillips, 105 Tex. 459, 151 S. W. 533, to the extent that, if the evidence so admitted is irrelevant and immaterial, it will not be considered by the court even though it appears in the record without objection. The transaction between Plynn and Gill could in no way affect the question of jurisdiction, and the evidence on this point is immaterial except upon the issue of payment and settlement. Because the plea of privilege is insufficient' in failing to allege facts showing fraud in the execution of the written credit statement and because the credit statement itself proves appellant’s right to maintain the suit in Taylor county under the fifth exception to the venue statute, we think the trial court erred in changing the venue.

The judgment is therefore reversed, and the cause remanded.
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