author: FLY, C. J.

text:
    BRIGHT v. BRISCOE.
    (No. 5789.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1917.
    Rehearing Denied March 14, 1917.)
    1. Cancellation of Instruments <§^6 — Immaterial Issue".
    In an attorney’s suit against an administrator to cancel notes on the ground that decedent promised to cancel them in consideration of the rendition of legal services, whether decedent promised to embody his agreement in his will was immaterial.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. § 4.]
    2. Frauds, Statute of ®=»63(5) — Oral Agreement to Cancel Notes.
    Cancellation of vendor’s lien notes could be based on the holder’s oral agreement to cancel them, though the cancellation might have destroyed the lien held upon the land, and destroyed the superior title of the holder ; the statute of frauds having no application.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 101.]
    3. Frauds, Statute of <®=>63(5) — Cancellation of Lien Notes.
    Cancellation of vendor’s lien notes would not affect the superior title held by the vendor, except in so far as it would form a basis for a recovery of such title in a suit other than the suit to cancel the notes.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 101.]
    4. Executors and Administrators ®=»221(5) — Contracts of Decedent — Burden of Proof — Statute.
    In an attorney’s suit to cancel his notes held by an administrator on the ground that decedent promised to cancel them in consideration of legal services, decedont’s oral agreement to that effect must be clearly and satisfactorily proven; public policy, demanding the strict enforcement of Rev. St. art. 3690, providing that in suits by or against executors, administrators, or guardians, in which judgment may he rendered for or against them as such, neither party shall be allowed to testify against the other as to any transaction with, or statement hy, the testator, intestate, or ward.
    [Ed. Note. — For other cases, see Executors and Administrators, Centt Dig. §§ S03%‘, 1874, 1876.]
    5. Witnesses <g^ol59(13) — Transaction with Decedent.
    Under Rev. St. art. 3690, providing that in suits by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate, or ward, the attorney’s testimony that he had never been paid for his services by decedent was inadmissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 681.]
    6. Appeal and Error 1053(1) — Harmless Error — Evidence.
    Withdrawal of such testimony, the next morning after it was heard, when it had found a lodgment in the jury’s minds which could not be withdrawn by withdrawal of the testimony, did not remedy the harm inflicted; in cases where the testimony is evenly drawn, or where it is uncertain and unsatisfactory, reversal will follow the admission of illegal testimony, though it is withdrawn.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178, 4184; Trial, Cent. Dig. § 977.]
    7. Witnesses 140(1) — Competency—Interest-Statute.
    Under Rev. St. art. 3690, providing that in suits by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify as to any transaction with, or statement by, the testator, intestate, or ward, in an attorney’s action against an administrator to cancel notes held by decedent, the interest that a witness and her husband had in maintaining the attorney’s claim did not disqualify her from testifying, but went merely to her credibility; the statute applying only to parties.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 598.]

      8. Statutes ¡§=5235 — Construction. '
    A statute which ingrafts an exception on a general statute must be strictly construed^ and will not be extended by judicial construction.
    [Ed. Note.' — For other cases, see Statutes, Cent. Dig. § 316.]
    Appeal from District Court, Medina County; R. H. Burney, Judge.
    Suit by John T. Briscoe against J. H. Bright, administrator. From a judgment for plaintiff, defendant appeals.
    Judgment reversed, and cause remanded.
    J. F. Carl and R. H. Ward, both of San Antonio, Kercheville & Brown, of Devine, and John H. Bickett, Jr., P. H. Swearingen, Jr., and Geo. G. Clifton, all of San Antonio, for appellant. C. C. Harris, of San Antonio, De Montel & Fly, of Hondo, and Hertzberg & Kercheville, of San Antonio, for appellee.
   FLY, C. J.

This is a suit by appellee against appellant, administrator of the estate of J. M. Bright, deceased, to cancel certain promissory notes, executed by appellee to said J. M. Bright, amounting in the aggregate to $4,300. It was alleged that deceased had agreed with appellee, in 1914, that, in consideration of legal services rendered by appellee in the past and legal services to be rendered in the future, during the life of said J. M. Bright, he would cancel the indebtedness due by appellee to deceased. Appellee prayed for specific performance and the cancellation of the promissory notes. The cause was submitted to the jury upon one special issue:

“Did J. M. Bright, deceased, on May 28, 1914, in consideration of legal services rendered to said Bright prior to said time, and in consideration of such services to be rendered to said Bright down to the time of his death, by plaintiff, John T. Briscoe, enter into and made (make?) an oral agreement with the said John T. Briscoe wherein the said Bright agreed that he would pay said Briscoe for such leaal services by canceling all notes and indebtedness owing by the said Briscoe to said Bright at the time of his, the said J. M. Bright’s, decease?”

That question was answered in the affirmative, and judgment was rendered in favor of appellee, as prayed for in the petition.

The first assignment of error is really an attach upon the form of the issue submitted to the jury, although the attach is made through a proposition that the jury did not find that the promise of deceased was, in addition to a cancellation of the notes, to embody the agreement in the will of deceased. The promise to embody the agreement in the will was not of the essence of the suit and was not material. The suit was based on the agreement to cancel the notes. The first and second assignments of error are overruled.

The third and twelfth assignments of error are overruled. The statute of frauds is not applicable to any phase of this case. The cancellation of the vendor lien notes could be based upon an oral agreement, although the cancellation may have destroyed the lien held upon the land and destroyed the superior title of the vendor. This is not a similar or parallel case to those in which an oral agreement has been made to convey an interest in lands. The authorities cited have reference mostly to that class of cases. No one claims that the superior title held by a vendor of land does not remain with him until the purchase money is paid, nor that such title will not pass to heirs, nor that the superior title can be conveyed orally, and the cancellation of these notes would not affect the superior title held, by the estate of J. M. Bright, except in so far as it would form a basis for a recovery in another suit of such title. One of the authorities, Atterberry v. Burnett, 130 S. W. 1028, cited by appellant, holds that á verbal release of a vendor’s lien, retained in a deed, is valid, if supported by a sufficient consideration, and that such ’ a contract is not obnoxious to the statute of frauds.

In this case the evidence is very unsatisfactory. The law looks with suspicion upon any attempt to prove oral agreements with a deceased person, so much so that it is provided in most, if not all, the states of the Union, as is provided in article 3690, Revised Statutes, that in suits by or against executors, administrators, or guardians, in which judgment may be rendered for or' against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate, or ward. In cases like this, any oral agreement to bind an estate must be clearly and satisfactorily proven. Public policy demands the strict enforcement of that statute in the interest of justice and the protection of estates from ruthless spoliation. Dyess v. Rowe, 177 S. W. 1001.

The existence of the contract or agreement upon which this suit is based depends largely upon the testimony of Mrs. A. L. Ray, who admitted that she also had a claim for $1,000 and the home of the deceased, based upon an oral agreement between her and the deceased, and there was evidence to the effect that she had said she intended to swear for ap-pellee and he would help her to recover from the estate. This, if true, would cast suspicion upon her testimony which was uncorroborated, except to a certain extent by her husband. She did not swear that deceased agreed to cancel the notes, but that he said to appellee, “If you will continue to do my work as long as I live, at my death you owe me nothing,” and appellee replied: “All right. I will do your work as long as you live.” According to this testimony, appellee had, prior to the agreement, been working for deceased for seven years, and had borrowed money from and given notes to deceased. Interest had been paid by appellee to the deceased; land had been bought from him by appellee, vendor lien notes given, and not one word said about remuneration for the legal services. J. M. Bright was about 85 years old, feeble, and partially blind. No one heard of the contract sued on, although it seems from Mrs. Ray’s testimony there had been consultations between her and appellee as to her contract, for she said:

“I knew I was to get title to it (the home). That is what the lawyer told me. That was Mr. Briscoe, I think he said it. No other lawyer told me.”

The testimony of appellee, to the effect that he had never been paid for his services by deceased, was inadmissible and calculated to influence the jury. The withdrawal of the testimony the next morning after it was heard, when it had found a lodgment in the minds of the jury which could not be withdrawn by a withdrawal of the testimony, did not remedy the harm inflicted. The fact that an attorney had spent years in laboring for the old man without recompense or reward would doubtless appeal to the sympathy of the jury, and a withdrawal of the testimony would probably not destroy that sympathy. It is difficult to account for the verdict on any other ground, because the evidence presents a case so remarkable as to require the closest scrutiny and investigation. The practice of- admitting testimony which is improper and afterwards withdrawing it from the jury is not commended by appellate courts, for we know not what impression the testimony may have upon the minds of the jury. It is true that in some cases the admission of improper testimony, which is afterwards withdrawn, may not be sufficient to cause a reversal; but, in cases where the testimony is evenly drawn or where it is uncertain and unsatisfactory, a reversal will follow the admission of illegal testimony, no matter if it is withdrawn. Railway v. Levy, 59 Tex. 542, 46 Am. Rep. 269; Tucker v. Hamlin, 60 Tex. 172; Smyth v. Caswell, 67 Tex. 567, 4 S. W. 848.

The interest that Mrs. Ray and her husband had in maintaining the claim of appellee would not disqualify her from testifying, but would merely go to her credibility. As said in Gilder v. City of Brenham, 67 Tex. 345, 3 S. W. 309:

“The effect of article 2248 (now 3690) is to except from the operation of the former provision parties to a suit in which the representatives of a decedent or a guardian may be either plaintiff or defendant, in so far as the testimony upon either side relates to any conversation or transaction with the decedent or ward. No mention is made of persons interested in the issue to be tried, and hence they are not excepted from the provisions of the previous article.”

The previous article to which reference is made is one which permits parties to a suit to testify. See, also, Howard v. Galbraith, 30 S. W. 689; Barker v. Johnson, 154 S. W. 609; Dicken v. Cruse, 176 S. W. 655; and Peil v. Warren, 187 S. W. 1052.

The reason for the exclusion of the testimony of appellee applies with equal force and cogency to the testimony of Mrs. Ray and her husband, who have a similar claim, under a similar contract, to that of appellee; but the statute confines itself to parties, and the statute which ingrafts an exception on the general statute must be strictly construed and will not be extended by judicial construction. Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441.

It will be unnecessary to consider the other assignments of error, none of which we consider well founded.

Because of the admission of the evidence of appellee as to a transaction with deceased, and because the other evidence is unsatisfactory and unconvincing, the judgment is reversed, and the cause remanded.
      £xwFor other cases see same topic and KEY-NUMBER in all Key-NumBered Digests and Indexes

      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    TAYLOR v. WENTWORTH & CURTIS.
    (No. 5808.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 7, 1917.)
    1. Contracts @=>255 — Rescission.
    A contract may be rescinded by mutual agreement, the consideration being relief from the obligation of the contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1150.]
    2. Contracts @=w254^Written Contracts— Rescission by Parol Agreement.
    A written contract can be rescinded by pa-rol agreement.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1149.]
    Appeal from Uvalde County Court; T. M. Milam, Judge.
    Suit by Mrs. I. M. Taylor against C. N. Wentworth and G. W. Curtis. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Love & Ellis, of Uvalde, and Dawson & Anderson, of Corpus Christi, for appellant. E. B. Ward, of Corpus Christi, and G. B. Fenley, of Uvalde, for appellees.
   SWEARINGEN, J.

This is a suit by I. M. Taylor, appellant, against appellees, C. N. Wentworth and G. W. Curtis, to recover $960 as damages for breach of a written contract to deliver ten cars of oats; each car to contain 800 or 900 bushels, at the price of 38 and 40 cents a bushel, f. o. b. cars at Sabinal, Tex. Appellees, among other defenses, answered that the contract was mutually rescinded on the same day that it was made. The court rendered judgment in favor of Wentworth & Curtis.

Appellant assigns as error that there is no legal evidence to sustain the judgment. It appears from the testimony that a written contract substantially as alleged was entered into during the day of June 14, 1911. On the other hand, witness Curtis testified that, within a few hours after signing the contract and delivering it, he rang appellant’s agent for the purpose of canceling the contract, and that in that ’phone conversation it was mutually agreed to cancel the contract. Appellant’s agent testified and admitted the conversation as testified to hy Curtis, but said he told Curtis that he would do the best he could for him. The court determined the facts in favor of appellees, and by its judgment found that the contract was rescinded by mutual consent of both parties to the contract. The contract was executory, and no part had been performed by either party.

It is well settled that by mutual agreement a contract can be rescinded. The consideration is the relief from the obligation of the contract. Contracts and Sales, by Simpkins (3d Ed.) p. 523, § “a,” citing numerous authorities. A written contract can be rescinded by parol agreement. Simpkins’ Contracts and Sales (3d Ed.) p. 527, and authorities collated; Yockey v. Marion, 269 Ill. 342, 110 N. E. 34; Bright v. Briscoe (not yet officially reported) 193 S. W. 156. The evidence may be somewhat conflicting upon the issue of rescission by mutual agreement, but has been determined by the trial court in favor of appellees, and we do not feel that the testimony before us will justify us in disturbing that determination.

The judgment is affirmed.
      <§s*oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, Jr., C. J.

text:
    GUARANTY STATE BANK v. BRAND et al.
    (No. 122.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 1, 1917.)
    Error from District Court, Orange County; A. E. Davis, Judge.
    On motion to vacate and modify judgment.
    Motion denied and overruled.
    For former opinion, see 189 S. W. 546.
    John G. Tod. and Mark G. Fakes, both of Houston, for plaintiff in error. Holland & Holland, of Orange, for defendants in error.
   HIGHTOWER, Jr., C. J.

On November 2, 1916, this cause was finally decided by this court, as shown by its original opinion herein filed (189 S. W. 546), and there having been no motion for rehearing filed by any party herein, within the time provided by law and the rules of this court, the mandate of this court was issued upon said judgment, as provided by law, and, after the issuance of such mandate, the defendants in error herein, A. M. H. Stark and D. C. Bland, filed in this court a motion to vacate the judgment of this court, upon which such mandate issued, and to set said judgment aside, in which motion it is alleged that said judgment of this court was and is void. Said motion praying this court to vacate its said judgment and set the same aside was filed in this court December 20, 1916. In the meantime, and before this court could reach and act upon said motion of said defendants in error, said defendants in error, Stark and Bland, filed another motion, praying this court to recall its mandate, which was issued pending their motion to vacate and set aside the judgment of this court, until such time as this court might reach and act upon said motion of defendants in error to set aside and vacate said judgment. Said motion to recall said mandate was filed in this court February 5, 1917, and, after due consideration of said motion praying the recall of said mandate, said motion was granted, and it was provided by this court, in ordering the recall of said mandate, that the same was only recalled temporarily, and until this court might act upon and decide the motion of said defendants in error to set aside and vacate said judgment in this cause above referred to.

On February 14, 1917, the motion of defendants in error praying this court to vacate and set aside its said judgment in this cause was submitted on oral argument by all parties thereto, and this court, after due consideration of said motion to vacate and set aside said judgment rendered in this cause on November 2, 1916, has reached the conclusion that the same should be denied and overruled, and it is so ordered.

It is further considered by this court that its said order entered on February 5, 1917, recalling said mandate in this cause, ought to be and the same is in all things here now-vacated and set aside, and the clerk of this court is directed to reissue said mandate to the district court of Orange county, Tex., as the same was originally issued in this cause.


author: LANE, J.

text:
    THRESHER, v. McEVOY et al.
    (No. 7435.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 9, 1917.)
    Exemptions <§=m4S — ‘ ‘Tool’ ’ — “Apparatus.”
    A well-drilling rig, consisting of boiler, engine, rotary, pumps, and other parts of complicated machinery, held not a tool or apparatus exempt to an oil driller from execution sale.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61.
    For other definitions, see Words and Phrases, First and Second Series, Apparatus; Tool.]
    Appeal from District Court, Harris County ; J. D. Harvey, Judge.
    Suit for injunction by J. M. Thresher against J. H. McEvoy and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    D. H. Hardy, of Houston, for appellant. H. F. Montgomery, of Houston, for appel-lees.
   LANE, J.

This suit was instituted by J. M. Thresher, plaintiff, against J. H. McEvoy and M. F. Hammond, sheriff of Harris county, to restrain them, or either of them, from selling a certain well-drilling rig under and by virtue of an execution issued upon a judgment in favor of said McEvoy against plaintiff Thresher, or from otherwise interfering with plaintiff’s control and possession of the same by reason of such execution.

Plaintiff alleged that he is now and has been for the past 15 years an expert well driller; that his trade or calling is that of an oil well driller; that this is his sole and •only occupation; that on and prior to the 29th day of September, 1916, he was the owner of -an oil well or deep well-drilling rig and outfit, and that he has no other such rig; that the same is exempt to Mm from forced sale for the payment of his debts under the laws of this state, which exempts “all tools, apparatus, and books belonging to any trade or profession.”

Upon hearing in chambers, the trial court found that the property in question was not exempt from forced sale under execution, and refused the injunction prayed for,, but continued in force a restraining order pending this appeal. From such refusal of said injunction J. M. Thresher has appealed.

The undisputed evidence shows: That at the time said well-drilling rig was levied on by Sheriff Hammond, plaintiff Thresher was engaged in the trade or business of drilling oil wells in south Texas. That he had been engaged in drilling wells for about 15 years, and was an expert at such business. That he owned the well-drilling rig levied upon by said sheriff, and that he owned no other rig. That said rig included parts as follows: Boiler, weight approximately 10,000 pounds, value $700; engine, weight approximately 3,500 pounds, value $400; rotary, weight approximately 3,500 pounds, value $500; pumps (2), weight approximately 2,500 pounds, value $300 each, total $600; draw works, ■weight approximately 2,500 pounds, value $500; swivels (2), weight approximately 500 pounds, value $250 each, total $500; ■crown block, weight approximately 1,500 pounds, value $100. ' That the approximate weight of the major parts of such an oil well-drilling rig is 28,000 pounds, or 14 tons, and the approximate value thereof $3,300. 'That in addition to such major parts there are many minor parts indispensable to the operation of a drilling rig such as the one involved in this action. That such a drilling rig is large, expensive, and complicated steam propelled machinery. That it is incapable of ■operations without the agency of steam, none of its functions being capable of operation by hand. That the usual and customary crew required to operate such a drilling rig is five men, the driller and four others. That the driller operates by hand a lever which turns on and off the steam, and he occasionally renders assistance to the helpers. That such a drilling rig is incapable of operation by one man. That the vocation of an oil well driller is one requiring great skill, and the Rrillers are habitually employed for their skill. That it is not the universal custom in the oil business for a driller to furnish a rig when employed to drill a well. That ordinarily a drilling rig rents for a greater sum per month than the salary paid a driller. That drillers do not usually own drilling rigs, but occasionally do. That drillers can and do successfully pursue their vocations without owning a drilling rig. That an execution had been_ issued upon a judgment in favor of defendant McEvoy agaiDSt plaintiff Thresher, which had been placed in the hands of defendant Hammond and by virtue of which he had levied upon all the parts of said well-drilling rig, and was preparing to sell same to satisfy said execution when he was restrained from so doing by a temporary restraining order granted by the court.

The only question presented for our decision is: Is the well-drilling rig in controversy exempt to appellant Thresher from forced sale for the payment of a judgment against -him, under the exemption laws of this state? While the courts of this as well as other states which have similar statutes to ours have, very properly, been exceedingly liberal in construing exemption statutes favorable to the debtor, we have been unable to find a decision of any court which has been so liberal in its construction of such statutes as to hold that machinery, such as that in controversy in this case, was either a “tool or apparatus belonging to any trade or profession,” as those terms are used in exemption statutes. The nearest approach to such holding is that line of cases which hold that a printing press, type, cases, etc., of an editor and publisher of a newspaper is exempt as tools and apparatus of his trade or profession. It has been held that the apparatus belonging to the trade of a publisher must of necessity include the press, type, cases, etc., which are essential to the conduct of that business. Green v. Raymond, 58 Tex. near bottom of page 83, 44 Am. Rep. 601. But as shown by the undisputed facts in the present case, a well-drilling rig is not generally owned by a well driller, but, on the contrary, for such rig to be owned by such driller was a very unusual thing.

The decision in the case of Green v. Raymond, supra, which appellant strongly relies upon to support his contention that the well-drilling rig in controversy is exempt as a “tool or apparatus” belonging to his trade or business, was made in 1882, at which time printing presses were generally of simple construction and were generally, if not universally, propelled by hand, and were not then expensive, ponderous, and complicated machinery propelled by steam power, as printing presses are now constructed and propelled. We therefore think it entirely doubtful that if the question as to whether or not the printing presses, together with the motive power necessary to propel the same, and other appurtenances thereto, in general use at the present day, constituted tools or apparatus belonging to tbe trade or business of an editor and publisher of a newspaper, and exempt from forced sale under our exemption laws, was now submitted to tbe courts they would hold them to be exempt as siich tools or apparatus.

In the case of Willis v. Morris, 66 Tex. 628, 1 S. W. 799, 59 Am. Rep. 634, Judge Gaines, speaking for our Supreme Court in 1886, says:

“Expensive and complicated machinery propelled by steam power, or any power other than hand, is not exempt as ‘tools of trade,’ the latter phrase being held to apply only to simple instruments used by hand. Thompson’s Homestead and Exemptions, § 756. The word ‘apparatus’ used in the statute may take a wider range and embrace such minor machinery as may be operated by hand, and such as courts of high authority have held not to be included under the term ‘tools’ as used in similar enactments. Buchingham v. Billings, 13 Mass. 82; Sallee v. Waters, 17 Ala. 482.”

In Tucker v. Napier, 1 White & Wilson C. C. § 670, it is held that a mowing machine, a hay rake, and harness necessary to -operate the same, wrenches and oil cans used in connection with said mowing machine, were not exempt to- one who had been engaged in the business of cutting and storing hay for 15 years as his only occupation, as tool or apparatus of his trade or business. It is there declared that a mowing machine is not a “tool” belonging to the trade of a mower of grass; that so complicated a piece of machinery as a mowing machine cannot be held to be a tool belonging to his trade or occupation. In Ford v. Johnson, 34 Barb. (N. K.) 364, the court held that a threshing machine, requiring horses for its propulsion and ten men to work it, was not exempt; that the word “tool” is never applied to such machinery as a thresher. Again in Tucker v. Napier, supra, it is said:

“The word ‘tool’ is not understood, either in its strict meaning or popular use, as designating complicated machinery, which, in order to produce any useful effect, must be worked by combining distinct parts or separate pieces, the aid of more hands than one being necessary to perform the operation. In Batehelder v. Shapleigh, 10 Me. 135 [25 Am. Dec. 213], a sawmill was held not to be a tool because it was not an instrument worked by hand or muscular power. So in Seeley v. Gwillim, 40 Conn. 106, it was held that the terms ‘tools’ and ‘implements’ do not include machinery, but do include tools of improved and expensive character. Nor do we believe that a mowing machine is embraced in the terms ‘apparatus belonging to any trade or profession.’ Mr. Webster gives the following definition of ‘apparatus’: ‘Things provided as a means to some end, as the tools of an artisan, the furniture of a house, instruments of war. In more technical language, a complete set of instruments or utensils for performing any operation or experiment.’ The word ‘apparatus’ is not understood either in strict meaning or popular sense as designating a complicated piece of machinery. .Such exemptions, being remedial, should, so far as practicable; be construed beneficially to the debtor, as just and humane provisions against rapacity and cruel exactions of creditors. Courts are not, however, in any case, for whatever object, to strain the law beyond its fair and just meaning. This would be especially -inexcusable in this state, in which the law, upon -any fair construction places debtors beyond the reach of the rapacity or cruelty of creditors, not only with regard to the necessaries, but reasonable comforts, and many of the conveniences, of life.”

In Comer v. Powell, 189 S. W. 88, after quoting from Willis v. Morris, 66 Tex. 628, 1 S. W. 799, 59 Am. Rep. 634, the court says:

“Upon this authority we hold that the threshing outfit was not exempt property.”

See, also, A. & E. Ency. vol. 12, p. 119; Thompson on Homestead and Exemptions, p. 756.

If a mowing machine and thresher, as held by the courts, is of a class of machinery too complicated to be classed as a tool or apparatus belonging to a trade or occupation, then how can it be contended, much less held by this court, that such complicated machinery as that in controversy in this case is such tool or apparatus? We decline to uphold the contention of appellant that a well-drilling rig such as described herein is either a tool or apparatus belonging to a trade or profession.

The judgment of the trial court is affirmed.

Affirmed.
      ÍS=?For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS & N. O. R. CO. v. CUMMINS.
    (No. 7312.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 20, 1917.)
    1. Continuance <§=o20(3) — Absence oe Counsel.
    Voluntary absence of counsel on account of important professional business in the Court of Civil Appeals is not ground for continuance, especially where it is not affirmatively shown that his client will suffer by his absence.
    [Ed. Note. — For other case, -see Continuance, Cent. Dig. § 55.]
    2. Continuance <@=»26(4) — Absence oe Witness — Diligence.
    Failure of defendant, railroad to notify its attorney of discharge of its employs, an important witness, that proper process might issue for such witness, was such negligence as justified the trial court in finding that proper diligence to have the witness present at the trial was not exercised by the road, so that continuance for his absence was properly denied.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 78.]
    3. Appeal anb Ebbok i§=>1043(7) — Harmless Ebboe — Denial oe Continuance.
    Action of the trial court in overruling motion for continuance to procure cumulative testimony of an absent witness does not present such error as should cause reversal of the judgment entered against defendant, who asked continuance.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4121.]
    4. New Tbial <®==>102(3) — Newly Discovebed Evidence — Diligence.
    In suit against a railroad for damages to an automobile in a crossing collision, where, in defendant’s motion for new trial for newly discovered evidence, there was no statement as to what effort was made by defendant to learn of the witness’ presence at the time and the place of the accident, and, though it was shown that the witness at the time of the accident was the employé of a company in the city, no postponement of trial was requested by defendant to try to obtain the witness’ testimony, and no subpoena asked to compel his attendance after another witness had testified and apprised defendant of the importance of his testimony, and several other witnesses introduced by defendant testified practically to all the material facts that the absent witness would have testified to if present, the trial court properly overruled defendant’s motion for new trial.
    [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. § 212.]
    Appeal from Harris County Court at Law; Murray B. Jones, Judge.
    Suit by William H. Cummins against the Texas & New Orleans Railroad Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Lane, Wolters & Storey and Thos. B. Blanchard, all of Houston, for appellant. Cooper & Merrill, of Houston, for appellee.
   LANE, J.

This suit was instituted by William H. Cummins, plaintiff, against the Texas & New Orleans Railroad Company, defendant, on the 21st day of August, 1913, to recover for damages alleged to have been occasioned by the negligence of the servants of said railroad company.

Plaintiff alleged, among other things, that on or about the 12th day of July, 1913, his automobile was in charge of and being driven by one W. Richardson, and that while driving said automobile across defendant’s tracks at a public street crossing, known as Hardy Street crossing, in the city of Houston, said automobile was struck by one of the defendant’s engines and damaged. The only grounds of negligence alleged that were submitted by the court were: Pirst, that the defendant had constructed a flagman’s booth which was so situated as to prevent the said Richardson, when approaching the crossing, from seeing the engine as it approached; and, second, that the flagman stationed at said crossing failed to warn the driver of plaintiff’s automobile of the approach of said engine, and was acting in such manner as to lead the said Richardson to believe that said crossing was clear. Defendant answered by general demurrer, general denial, and specially alleging that the locomotive which struck plaintiff’s automobile was being operated in a careful and cautious manner, and by experienced employés, at the time of the accident complained of; that the bell was rung and the whistle blown as the train approached said crossing, as required by law, and that said engine was being operated at a rate of speed not exceeding four miles an hour; that the driver of plaintiff’s automobile was guilty of contributory negligence, in that he was driving said automobile at a rapid and dangerous rate of speed, and that said driver did not use ordinary care in approaching said crossing to discover the approach of said engine upon said track, and that by the use of ordinary care said driver could have discovered said approaching engine in time to have avoided the injury and damage complained of, and that he drove said automobile upon defendant’s track in a reckless and dangerous manner, and wholly disregarded the safety of himself and said automobile.

The case was tried before a jury upon special issues to which they answered in substance as follows:

(1) The flagman of the defendant at the point of accident did not use ordinary care to give the driver of the automobile in question any signal or warning of the approach of the engine which came in contact with and damaged plaintiff’s automobile.

(2) The driver of said automobile could not, by the exercise of ordinary care, have observed the approach of the engine which damaged said automobile in time to have prevented the same from being struck by said engine.

(3) The driver of said automobile exercised ordinary care in approaching the railroad crossing where said automobile was damaged, to discover the approach of said engine.

(4) The driver of said automobile was not guilty of “negligence,” as that term has been defined to us, in attempting to cross the track of the defendant company at the time of said accident.

(5) The market value of said automobile immediately before it was struck by said railroad engine was $575, and its market value immediately after being struck was $250.

Upon such answers of the jury the court rendered judgment for plaintiff against defendant for the sum of $372.40.

By appellant’s first assignment it is insisted that the trial court erred in refusing the defendant’s application for a postponement of the trial. It being made to appear by said application that Lee O. Ayers, of the firm of Lane, Wolters & Storey, was leading counsel for defendant, and that he had been ill for several months prior to the day said cause was called for trial, and therefore had not been able to give the case such attention as was necessary to prepare it for trial, and that the case had been turned over to Raul Kayser, of said firm, for attention, and that on the day said case was called for trial Paul Kayser was in attendance upon the Court of Civil Appeals at Galveston, and for that reason was not present to conduct the trial of this ease. It being further alleged in said application that said Ayers could not conduct the trial of the case in such manner as to do justice to the defendant because of his recent illness.

It appears from the record before us that this suit was instituted in August, 1913, and was continued from term to term and was finally set down for trial by the court on the 16th day of December, 1915; that such setting had been made for several weeks before the day set and was known to counsel for both parties; that Mr. Lee C. Ayers and Mr. Adamson, of the firm of Lane, Wolters & Storey, were present and actively participated in tlie trial of said canse. If the rights of defendant suffered by reason of the absence of Mr. Kayser there is nothing in the record to show it. There is no attempt to show that Messrs. Ayers and Adamson did not in fact give the ease proper attention and look after defendant’s rights with their usual skill and ability. It is nowhere shown that any probable injury resulted to defendant by the refusal of the court to grant the postponement asked. The voluntary absence of counsel on account of important professional business in the Court of Civil Appeals is not ground for a continuance. Especially is this true where it is not affirmatively shown that the party had suffered by such absence of counsel. Hagerty v. Scott, 10 Tex. 520. We overrule the first assignment.

After defendant’s application for postponement had been refused by the court, defendant filed and presented its motion for a continuance, because of the absence of their witness, William Sharbeart, a former flagman of the defendant. It is stated in said motion that if said witness was present, he would testify that at the time of the accident and immediately before the same, he was, as such flagman, at his post of duty, and that when the driver of plaintiff’s automobile approached the point where Hardy street crosses defendant’s railway track, witness gave said driver warning of the approach of the engine which injured said automobile; that he did flag said driver, but the driver disregarded said warning and drove his automobile very rapidly upon the track of defendant, and tried to cross said track ahead of said engine. It is further stated in said motion:

“That said witness is not absent with the consent or on the procurement of this defendant, but this defendant fully expected said witness to be present at the trial of this case to-day; that at the time of said accident and for a long time prior thereto said witness was an employé of this defendant, and in response to its request has heretofore been present as a witness in said case at each previous setting of this case where said ease was not continued prior to the date of the setting; that as shown by the docket of this court there was no setting of this case between October 9,1914, and October 7, 1915, and on said latter date, while the docket entry is to the effect that the case was continued by defendant, the case in reality was continued by agreement between the attorneys on each side of the case, on account of the illness of the said Tee O. Ayers, but .under said agreement the continuance was charged to this defendant, and said cause was not continued on account of any of said witnesses, and when said agreement was reached, the attorneys in charge thereof immediately advised the defendant’s claim department of the continuance of said case, and that it was unnecessary to have any of said witnesses present, and this affiant cannot state as a fact whether or not the said flagman was present in court on October 7, 1915; that as soon as defendant’s counsel ascertained that this case was set for December 16,1915, they immediately notified defendant’s claim department of the setting of said case, and requested the presence of all of its witnesses, and was not informed until this morning that the said flagman had left the employ of defendant, and his whereabouts could not at this time be ascertained; that while the defendant will probably, and expects to, prove by other witnesses that they saw said flagman at his post of duty waving his flag as warning of the approach of said engine at said time, yet such testimony is not as strong or as satisfactory as the testimony of said flagman himself, who will testify as hereinbe-fore set out; that no subpoena was issued for said witness for the reason that said witness was an employé of this defendant, and was subject to its orders; that since this case has been set_ for trial and notice thereof given to the claim department, this affiant is informed by defendant’s claim agent that he has made diligent effort to ascertain the whereabouts of said witness by inquiring of said witness’ former friends and acquaintances, but that so far he has been unable to locate him, but he has every reason to believe,_ through defendant’s claim department, that said witness can be located before the next term of court and will be present at the trial of this case at said term.”

This motion was verified by Lee O. Ayers, attorney for defendant. The court overruled said motion, and the action of the court in so doing is made the ground for appellant’s second assignment of error.

We do not think the court erred in overruling said motion because, first, proper diligence to procure the attendance of the witness is not shown. If the witness had been discharged by defendant, it, of course, knew that fact, and knew that said witness was no longer under its control. It then became the duty of defendant to notify its attorney of such discharge, so that he might have proper process to issue for said witness, if he desired to obtain his testimony. The failure of defendant to so notify its attorney of such discharge that such process might issue was such negligence as justified the trial court in finding that proper diligence to have the witness present at the trial was not exercised by defendant.

It is also shown that the witnesses A. J. McOrocklin, John Wilson, and Robert Coleman all testified that the flagman, Sharbeart, was at his post of duty, and that he flagged those approaching the crossing in question at the time of the accident that caused the injury to plaintiff’s automobile. It is thus made to appear that the testimony of the absent witness would have been cumulative of the facts proven. In such case the action of the court in overruling a motion for continuance to procure the testimony of the absent witness does not present such error, if any, as should cause a reversal of the judgment entered against the appellant for such continuance. We overrule the second assignment.

In appellant’s motion for new trial the trial court was asked to grant it a new trial that it might have the benefit of what is alleged to be newly discovered evidence material to its defense. It is alleged in the motion that after Robert Coleman, a witness for appellant, defendant in the court below, had testified that he was present at the time and place where the accident in question in this case occurred, and that he was the driver of a certain lumber wagon, shown by all the evidence to have -been near the place of the accident, one Charlie Jones was introduced by plaintiff as his last witness in rebuttal, and that said witness Jones testified: That Robert Coleman was not present at the time and place of the accident. That Robert Coleman was not the driver of said wagon that was stopped near the scene of the accident, but that one Tom McKinney was the driver of the wagon, and that he, Jones, stopped the driver of the wagon when he approached the railroad crossing. That appellant attaches to- said motion the affidavit of Tom McKinney, as follows:

“Houston, Texas, December 18, 1915.
“State of Texas, County of Harris.
“Before me, the undersigned authority, on this day personally appeared Tom McKinney, who, being by me duly sworn, deposes and says: That during the summer of 1913 I was in the employ of the W. T. Carter Dumber Company, and some time during that summer I was present on Hardy street, driving a loaded wagon containing lumber, on one of the Carter Lumber Company’s wagons, going north on Hardy street, and just before I reached the T. & N. O. crossing on Hardy street a flagman stationed at said crossing waved his flag for me to stop, and in compliance with said warning I stopped my team so that the heads of my mules were about 15 feet from the first railroad track. After I had stopped my team I noticed that the flagman was still waving his flag, and I looked back to see what he was waving it for, when I noticed an automobile being driven rapidly, approaching said crossing on my left. The automobile was being driven rapidly. It made a whizzing sound as it passed me, and continued across said railroad track, swerving to the left, as it appeared to me, in order to beat the engine across. The automobile was near the west side of Hardy street, or the left-hand side, of said street, going north, and near the curbing when the engine struck the automobile.
“I know Charlie Jones quite well, and have known him nearly 20 years. I did not see him that morning until after the engine struck the automobile. Mr. Jones did not holler to me to stop, neither did he say anything to me until after the accident happened. After the accident happened Mr. Jones walked by my wagon and said to me: ‘Did you see that accident?’ I told him I did. And he said: ‘It looks like the fellow tried to kill himself, didn’t it?’ I am positive that the flagman gave me warning of the approach of the engine, and that I stopped my team in compliance with said warning. I am also positive that Mr. Jones did not attempt to stop my team, and did not say a word to me until after the accident in question, neither did I see Mr. Jones until after the accident.
“I know Robert Coleman well. He was working with the Carter Lumber Company at the same time that I was. When I left the lumber yard that morning he was on his wagon, leaving the yard about a block behind me. I did not notice him after that, neither do I know where he was when the accident occurred. I was the first man that was stopped by the flagman. He continued to flag, and I noticed that several other vehicles were stopped behind me, but I paid no attention as to whose they wore, neither do I know who were in those vehicles. When I was stopped by the flagman I. could plainly see the engine at least 50 feet east of Hardy Street.
“The accident that I have referred to above was the only accident I ever saw at the Hardy street crossing- of the Texas & New Orleans Railroad Company. Tom McKinney.”

That the testimony of Tom McKinriey can be procured at the next term of the court if a new trial is granted, and that he will testify substantially as indicated in the affidavit. That defendant or its agents or attorneys knew nothing of this testimony until after the same was disclosed by the testimony of Charles Jones. That defendant’s claim agent made search for Tom McKinney after the trial, and brought him into the office of defendant’s counsel, who procured his affidavit attached to the motion.

The court overruled the motion, and appellant has made the action of the court in so doing the grounds of its third assignment of error. That the testimony of Tom McKinney as disclosed By his affidavit was relevant and material to the defense of the defendant must be admitted. But in view of the fact that there is no statement in the motion as to what effort was made by defendant to learn of the presence of Tom McKinney at the time and place of the accident, and in view of the fact that, although it was shown that Tom McKinney was at , the time of the accident an employé of the Carter Lumber Company in the city of Houston, and that no postponement of the trial was requested by defendant for the purpose of trying to obtain the testimony of said witness, and no subpoena asked for to compel his attendance upon the court after Charlie Jones had testified and apprised defendant of the importance of McKinney’s testimony, and in view of the further fact that several witnesses introduced by defendant have testified practically to all the material facts which McKinney would have testified to if present, we do not think the court erred in overruling the motion. We think the trial court could very reasonably have concluded that if diligent inquiry had been made by defendant as to who was present at the time and place of the accident, it could not have failed to have discovered that McKinney was there, and, after having so discovered, could have informed itself as to Ms testimony, and that its failure to so do showed a want of proper diligence. We also think the court would have been justified in concluding that defendant was negligent in not making some effort to get the witness before the court after Jones testified, it being made to appear that the witness lived in Houston and was probably in the employ of a lumber company whose place of business was well known. We also think the court must have concluded that the material testimony expected of the witness was cumulative only of other testimony on the same issue. Eor the reasons stated the third assignment is overruled.

We have very carefully reviewed and considered the evidence tending to support ap-pellee’s contention that appellant’s flagman did not use ordinary care to flag the driver of appellee’s automobile, or otherwise warn him of the approach of the engine which ran against and damaged said automobile, as well as that with reference to the question of negligence on the part of said driver, and have reached the conclusion that such evidence was sufficient to require the trial court to submit these issues to the jury, as well as to support the verdict of said jury. We have considered all of appellant’s assignments, and believe that what has been stated disposes of all of them. Finding no error committed by , the trial court in the trial of this case, the judgment of such court is affirmed.

Affirmed.
      ©=oEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    FIRST TEXAS STATE INS. CO. v. BURWICK.
    (No. 110.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 8, 1917.
    Rehearing Denied March 21, 1917.)
    1. Judgment <@=>256(2) — Conformity to VeE-dict — Special Issues.
    Where jury’s verdict is returned upon special issues submitted, and is within itself unambiguous, the trial court has only two alternatives, and must either enter judgment on the verdict, or set it aside and grant a new trial.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. § 447.]
    2. Appeal and Erbob <©=>719(10) — Assignments op Error — Consideration.
    In an action submitted on special issues, the verdict was for plaintiff. In its motion for a new trial, defendant claimed in general terms that the verdict was unsupported by the law, and the evidence, but on appeal did not assign as error the action of the trial court in refusing to set aside the verdict on any of the special issues submitted on the ground that it was unsupported by the evidence. Defendant, however, assigned errors that the court erred in entering judgment for plaintiff on the ground that the verdict was unsupported by and contrary to the overwhelming preponderance of the evidence. Rev. St. 1911, art. 1986, declares that a special verdict shall as between the parties be conclusive as to the facts found. Held, that the assignments of error complaining that the special verdict was unsupported by the evidence could not be considered, for where a special verdict is unambiguous, the court must either render judgment thereon or set it aside and grant a new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2979, 2982, 3490.]
    3. Insurance <@=>602 — Accident and Health Policies — Attorney’s Fee.
    In an action on an accident and health policy, brought after the time provided by statute for payment, where the jury found for plaintiff, the award of the statutory penalty and a reasonable attorney’s fee is proper.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498.]
    4. Evidence <©=>44S — Parol Evidence — Insurance Policies — Ambiguity.
    Where the fact that blanks left for answers to questions in application as to whether insured was suffering from diseases, etc., showed that he was not so suffering, oral evidence that when the insured denied a diseased condition, the answers were left blank, was inadmissible; the policy itself being unambiguous.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084.]
    5. Appeal and Error <©=>1050(1) — Review-
    Harmless Error.
    In an action on a health and accident policy, where the only notice by the insurer of a denial of liability was to the attorney for the beneficiary, the admission of testimony that, the attorney had instructed the beneficiary to notify him if she received notice of a denial of liability, was not prejudicial if erroneous.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.]
    6. Evidence <©=>536 — Opinion Evidence —
    Admissibility.
    In an action on an accident and health policy, where deceased met his death by a gunshot wound, one who'had made experiments with pistols in determining how far the weapon would have to be from the object to powder-burn it, may testify as to that fact; it appearing that he tested a number of pistols of different calibers.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2343, 2344, 2347.]
    Appeal from Jasper County Court; C. C. Brown, Judge.
    Action by Mrs. M. A. Burwick against the First Texas State Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood and J. C. Townes, Jr., all of Houston, for appellant. Powell & Huffman, of Jasper, and Parker & Kennerly and J. J. Bee, all of Houston, for appellee.
   HIGHTOWER, C. J.

This is a suit upon an accident and health insurance policy. On November 30, 1914, Charley Burwick, of Kir-byville, Tex., made application in writing to the First Texas State Insurance Company, appellant here, for an accident and health policy, stating his occupation as that of “sawmill foreman, supervising only,” and warranting (among other things) that he had not had any surgical or medical treatment during the past five years, and that .he had not suffered from any disease or infirmity, mental, physical, nervous, venereal, .chronic, or inherited, and had not been disabled by any accident or illness during the past 5 years.

Upon this application the insurance company issued its policy to said Charley Bur-wick, agreeing to pay various amounts under various circumstances. The policy provided that if the insured lost his life as the result of bodily injury, sustained solely through external, violent, and accidental means, within 90 days from the date of the accident, the company would pay the beneficiary, Mrs. M. A. Burwick, mother of Charley Burwick, $750, subject to certain conditions set out in the policy. The insurance contract further provided that if the insured was injured fatally, or otherwise, after'having changed his occupation to one classified by the company ás more hazardous than that stated in the policy, or if he was injured while doing any act or thing pertaining to any occupation so classified, that the liability of the company would be only for sucb proportion of tbe principal sum, or other indemnity, as the premium paid by him would purchase, at the rates fixed by the company for such more hazardous occupation. The insurance contract further provided that in the event of death, loss of limb or sight, caused by injuries intentionally inflicted upon the insured by himself, or any other person (excepting only attacks upon the person of the insured for the sole purpose of effecting robbery or burglary), the company should pay but one-tenth the amount otherwise payable. The schedules, agreements, and warranties made by Charles Burwick were incorporated in and made a part of the insurance contract. The premium agreed upon to be paid by Charley Burwick was $2.46 per month.

On the night of January 5, 1915, at which date said policy was in force, Charley Bur-wick, while engaged with other local white men in a search for a negro accused of having committed a crime, received two gunshot wounds, from which he instantly died. Mrs. M. A. Burwick, mother of deceased, ap-pellee, filed with the insurance company proof of death in the form of an affidavit, dated January 21, 1915, in which she stated, among other things, that the deceased died from gunshot wounds while acting in the capacity of deputy sheriff. This affidavit and proof of death was filed with the insurance company about January 21,1915, and appellee, about the same time, demanded of appellant the payment of said sum of $750, which demand was in writing, and appellant refused to pay the same. Whereupon, on June 3, 1915, this suit was filled in the county court of Jasper county, Tex. The petition sets out the insurance policy in full, and further alleges that Charley Burwick died on January 5, 1915, from violent, external, and accidental means. Appellee prayed for judgment for $750, the full amount of the policy, and for 12 per cent, penalty, and $150 attorney’s fee.

Appellant filed its first amended original answer on October 6,1915, which consists of: (1) General demurrer. (2) General denial. (3) A special denial of the allegation that the deceased met his death directly and exclusively from accidental causes. (4) That at the time and upon the occasion of the death of Charley Burwick, he was not acting in the capacity of sawmill foreman, but was acting in the capacity of deputy sheriff, and that he was doing an act or thing pertaining to an occupation which the company- classes as more hazardous than that of sawmill foreman, and that, therefore, the appellee could in no event r.ecover more than $600, the amount of insurance which the premium paid by Charles Burwick would purchase in the more hazardous occupation. (5) Further, that the death of assured was caused by injuries intentionally inflicted upon him, and that, consequently, under the terms of the policy, the appellee could in no event recover more than one-tenth of the amount otherwise payable. (6) By way of further special defense, that the policy sued on was void and entirely uncollectible, because procured by means of fraud and false statements and warranties, made by the assured in his application for the policy; these misrepresentations and breaches of warranties are set out at length in the answer; they are to the effect that the assured in fact suffered from a serious disease material to their risk, and was treated by a physician in less than 5 years before the making of the application, and misstated the facts with reference to his condition and treatment; further, that the defendant company did not discover the falsity of these statements or warranties until on or about January 22, 1915, and within less than 90 days from that date, notified the appellee, through her agent and attorney in fact, that it refused to be bound by the terms of the policy.

The case was tried before a jury, under a charge in the form of special issues, and on the answers of the jury to these issues, a judgment was entered in favor of appellee for the full amount sued for, including penalty and attorney’s fee.

At the conclusion of the testimony, appellant requested the court to peremptorily instruct the jury to find in favor of the defendant, which request was refused, and appellant excepted, but there is no assignment in this court challenging the action of the court in overruling the peremptory instruction. After the peremptory instruction requested by appellant was refused, both appellee and appellant requested the court to submit the case to the jury upon special issues, as follows:

Issue No. 1: Was Charley Burwick killed intentionally or unintentionally? The jury answered, “Unintentionally.”

Issue No. 2: Was Charley Burwick acting as deputy sheriff at the time he was killed, or was he doing any act or thing pertaining to such office? The jury answered, “No.”

Issue No. 3: Did J. C. Townes, attorney for the defendant, on April 13, 1915, and after the defendant learned that Charley Bur-wick had a venereal disease within 5 years prior to the issuance of the policy, notify J. J. Lee, attorney for the plaintiff, that the defendant refused to be bound by the policy or contract? The jury answered, “No.”

There were no further issues or questions submitted to the jury for their answers, nor any further charge of any character given them. Thereafter, and in due time, appellee filed her written motion, praying the court to enter judgment in her favor upon the verdict of the jury, and in response to the motion the court entered judgment in favor of appellee for the full amount of the policy, $750, with 12 per cent, penalty prayed for, and attorney’s fee in the sum of $150.

The record does not disclose that appellant, in the court below, made any request of the court to set aside the jury’s verdict, as being unsupported by the evidence, or any of the issues submitted, but the record does disclose that appellant objected to the court’s entering judgment in favor of appellee, as requested by appellee.

Appellant, in its motion for new trial, did claim, in general terms, that the verdict of the jury was “unsupported by the law and the evidence adduced on the trial.” On this appeal, appellant does not assign as error the action of the trial court in refusing to set aside the verdict of the jury on any of the special issues submitted, for the reason that the verdict was unsupported by the evidence; but the complaint made by appellant, as shown by its assignments in its brief, commencing with assignment of error No. 1, to assignment of error No. 10, inclusive, is that the court erred in entering judgment in favor of the appellee on the verdict of the jury, on the ground that such verdict was not supported by the evidence, but was contrary to the overwhelming preponderance thereof.

By these first ten assignments of error, appellant challenges the correctness of the action of the court in entering judgment on the verdict as to every issue found in favor of appellee, but nowhere in its brief have we been able to find an assignment challenging the action of the trial court in refusing to set aside the verdict of the jury, or challenging the action of the court in refusing to grant a new trial on the ground that the verdict of the jury in favor of appellee was unsupported by the evidence. Therefore as to the first ten assignments of error made by appellant, we have concluded that the same must be overruled, because we understand it to be the rule, well established in this state, that where a jury’s verdict is returned in favor of a party upon special issues submitted, and" the verdict, within itself, is. unambiguous and inconsistent, the trial court has only two alternatives, that is to say, the court must set aside the verdict of the jury and grant a new trial, or must enter judgment upon the verdict in favor of the party in whose favor the verdict is. If the party against whom the verdict is returned feels aggrieved, and thinks that the verdict is unsupported by the evidence, he should move the court to set aside the verdict for that reason, and if the court should refuse to set aside the verdict upon such request, and the party complaining appeals from the judgment rendered against him, the action of the court in refusing to set aside the verdict on the ground of the insufficiency of the evidence to support same should be challenged by proper assignment of error in the appellate court But in this case, as before stated, there was no request by appellant made to the court below to set aside the jury’s verdict on the ground that same is unsupported by the evidence, unless the general complaint in the motion for new trial, that the same was “contrary to the law and the evidence adduced on the trial,” but even then, we could not consider said assignments of error, for the reason that appellant nowhere challenges, by assignment, the action of the court in refusing to grant appellant’s' motion for new trial on the ground that the verdict of the jury was unsupported by the evidence.

In the case of Smith v. Hessey, 134 S. W. 256, the controversy there was submitted to the jury upon special issues, and the appellant in that case sought, on appeal, to attack the verdict of the jury on the ground that the same was unsupported by the evidence, etc., and the court said, among other things:

“It does not appear from appellant’s brief that he made any motion to set aside the findings of the jury, and for a new trial, and, if he did so, he has not assigned error on the action of the court thereon. All of the assignments of error are to the action of the court in rendering judgment for the amount of $1,958.41, except one,. which is as to the refusal of the court to submit a special issue requested by appellant. In the case of Scott v. Bank, 66 S. W. 485, this court, speaking through its present Chief Justice, said:. ‘It seems quite clear that, when a special verdict has been returned which entitles one of the litigants to a judgment, there are but two alternatives for the trial court. One is to set aside the verdict and grant a new trial, and the other is to render judgment upon and in conformity with the verdict. If the verdict is not supported by the testimony, what is the remedy of the party dissatisfied with it? * * * Can such dissatisfied party remain inactive and on appeal complain of tire verdict or the failure of the court to set it aside on its own motion? Clearly not, because it is not the duty of any court to set aside a verdict unless requested so to do. * * * The law charges the party against whom the jury finds the facts with the knowledge of the fact that the verdict is contrary to his success, and that, unless he secures its removal, it will be followed by a judgment against him, regardless of what the-evidence may be. This being the case, he must not only ask the trial court to set the verdict aside, but, if on appeal he seeks to complain on account of the verdict, he must do so under an assignment of error addressed to the action of the court in refusing to set it aside and grant a new trial.’ ”

See, also, article 1986, R. S. 1911; Hicks v. Armstrong, 142 S. W. 1195; Scott v. Bank, 66 S. W. 493; Waller v. Liles, 96 Tex. 21, 70 S. W. 17.

In view of the law, as announced by the above authorities, the reasoning of which we approve, we hold that appellant’s assignments of error from 1 to 10, inclusive, cannot be considered by this court, and the same are overruled.

Appellant’s eleventh and twelfth assignments of error challenge the action of the court in rendering judgment in favor of appellee for attorneys’ fee in the sum of $150, and for penalty in the sum of $90; but the same must be overruled, for the reason that jury, by the answers to special issues, found, in effect, that appellee was entitled to recover the sum of $750, the full amount of the policy, and It was shown on the trial that the attorney’s fee of $150 was a reasonable fee, and since the verdict of the jury must he upheld in this court, for reasons hereinbefore shown, and since it wg.s shown by the undisputed evidence that appellee made written demand of appellant for the payment of said policy, as required by the statute, and did, not file suit until the time had expired, as provided by statute, for the payment of such policy, in order to recover such penalty, the court had no other alternative than to render judgment in favor of appellee, both for the attorney’s fee claimed, and the penalty provided by statute.

By its thirteenth assignment of error, appellant challenges the action of the trial court in refusing to allow it to show by its witnesses, Bird and Flick, that under the fixed policy and custom of appellant, its agents were instructed to leave the answers to warranties in an application for insurance blank, unless the answer of the applicant showed that he had been suffering from disease, or had had medical treatment within five years next preceding the taking of the application. Appellant expected to show by these witnesses, who were its agents, that under the custom of the defendant company, leaving the answers blank, indicated to the company that the answers of the applicant were favorable to the risk, that the application was, in this respect, ambiguous, and that the ambiguity made parol evidence admissible, under the pleadings. We overrule this assignment, because there is nothing in the contention that the application was ambiguous, but it is clearly apparent therefrom, and must have been so to the jury, that the applicant, Charley Burwick, did state that he had had none of the diseases mentioned, or had not been treated, as therein mentioned, within the period of five years next before -the application. The assignment is overruled.

By its fourteenth assignment of error, appellant claims that the court erred in permitting appellee’s witness, J. J. Lee, who was her attorney, to testify with reference to what he (Lee) advised his client about notifying him as to any notice given her by the defendant denying liability under the policy, etc., on the ground that such advice was self-serving and hearsay, and secondary evidence, was testimony as to an ex parte transaction between Lee and the plaintiff, and was irrelevant and immaterial, and prejudicial. It was not contended by appellant on the trial below that any notice, other than the claimed notice to the witness Lee, as attorney for ap-pellee, was given by appellant that liability under the policy was denied. We do not think that the action of the court in permitting Lee to state that he had advised appel-lee to notify him if the company should notify her that liability was denied was prejudicial error, if error at all. Lee did not testify to anything that appellee told him about the matter, and .the matter dropped right there. The assignment is overruled.

We have examined appellant’s fifteenth assignment of error in connection with the record, and without discussing the same hold that the same shows nothing prejudicial to appellant, and the same is overruled.

By its sixteenth assignment of error, appellant challenges the action of the court in permitting appellee’s witness, O. S. Smith, to testify with reference to the distance that a pistol would have to be from an object to powder-burn the same, on the ground that the witness did not qualify himself as an expert in such matters, and further, because the evidence showed that different pistols have different results in this respect, owing to the size and caliber, and kind of cartridge, and the kind of powder used, and that it was not shown that the witness had ever observed the kind of pistol involved in this suit, as to whether it would produce powder burns, and at what distance, etc.

Wle have carefully considered this assignment, and have read the testimony of the witness O. S. Smith, which is to the effect that he was the sheriff of Jasper county; that he had had many years of experience in handling and using pistols of different makes and kinds; that he had owned more than 50 different pistols in his lifetime, and had used them frequently; that he had on different occasions experimented to see how far a pistol would powder-burn an object fired at; that he had tried it from a foot to several feet distance; that he had handled and made the experiment with Smith & Weston pistols, caliber 38, as well as with other pistols, etc. When taken as a whole, the witness’ testimony shows that he was competent to testify on this point. The assignment is overruled.

Finding no reversible error in this case, the judgment of the court below will be affirmed • and it is so ordered.
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author: CONNER, C. J.

text:
    KNIGHT REALTY CO. et al. v. WILLIAMS.
    (No. 8516.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 10, 1917.)
    1. Brokers @=84(1) — Action for Commissions—Evidence—-Burden oe Prooe.
    In a broker’s suit for commissions on exchange of land in which defendant admitted the material allegations, and interveners claimed a portion of the commissions for 'broker’s service in the transaction, and there were no material issues between plaintiff and defendant, the interveners had the burden of proof to establish by a preponderance of the evidence their allegations that there was a universal custom where more than two brokers are interested to pool commissions, and that they had such agreement with plaintiff.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. § 104.]

      2. Trial @=25(4) — Right to Open and Close — Interveners.
    The interveners were entitled to the benefit of the statute (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1963), providing that after the evidence is concluded, the parlies may submit the case to the jury in argument, and the party having under the pleadings the burden of proof on the whole case shall be entitled to open and conclude the argument, and where there are several other parties having separate claims or defenses, and represented by different counsel, the court shall prescribe the order of argument between them, and refusal to allow them the right to open and close was reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 47, 69-75.]
    3. Trial @=325(4) — Right to Open and Close.
    The .fact that defendant had paid the money into court and asked his costs did not deprive the interveners of their right to open and close under the statute, as having the burden of proof.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 47, 60-75.]
    Appeal from Wise County Court; J. W. Walker, Judge.
    Suit by I. R. Williams against C. R. Hoge, in which the Knight Realty Company and A. L. Lane intervened. Judgment for plaintiff against interveners and defendant, and in-terveners appeal.
    Reversed and remanded.
    McMurray & Gettys, of Decatur, and Fitzgerald & Cox, of Wichita Falls, for appellants. Ratliff & Spencer, of Decatur, and Hunter & Peary, of Ft. Worth, for appellee.
   CONNER, C. J.

I. R. Williams instituted this suit in the county court of Wise county on the 4th day of August, 1915, against G. R. 1-Ioge, to recover $720 alleged to be due the plaintiff as commissions on an exchange of property between said G. R. Hoge and one G. W. Riley. The Hoge property was located near Rhome, in Wise county, and Riley’s property was located in Wichita Falls, Wichita county. Hoge filed an answer admitting the material allegations of the plaintiff’s petition, and tendered into court the sum of $720.

The Knight Realty Company of Wichita Falls, a real estate firm, and A. L. Lane, a real estate agent, also of Wichita Falls, filed pleas of intervention, wherein it was alleged, in substance, that the interveners were the procuring cause of the exchange upon which Williams based his claim for commissions; that they had.acted together with said Williams in bringing the respective owners together; and that prior to the exchange it had been agreed on the part of Williams that the commissions paid and to be paid by the respective owners of the property should be pooled and equally divided among the real estate firm and parties named. It was further alleged by the interveners that it was a universal custom among real estate men, under circumstances such as alleged, to so pool and so divide commissions.

The plaintiff Williams answered denying the agreement and custom set up by the in-terveners, and the trial resulted in his favor against Hoge for the fuil amount of the commissions and against the claims of the interveners, and the interveners have appealed.

After the introduction of the evidence and after the court had charged the jury, interveners in open court requested the privilege of being allowed to open and close the argument in the case. This request was refused, exception duly taken, and error is now assigned to said action of the court. We think the assignment must be sustained. The evidence very sharply conflicted upon the issue of the agreement to pool and divide commissions, and upon the issue of a custom of like effect, both of which issues were specially and separately submitted, and both of which were answered by the jury in appellee Williams’ favor, and as to which the court charged as follows:

“The burden of proof is upon the interveners to show by a preponderance of the testimony that there was a universal custom existing in this section where more than two real estate brokers are interested, to pool their commissions; and if they failed to discharge that burden you will answer special issue No. 1 in the negative.
“The 'burden of proof is upon the interveners to show by a preponderance of the testimony that plaintiff agreed with them to pool his commissions with theirs, and if they have failed to discharge this burden you will answer special issue No. 2 in the negative.”

We have a statute (Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1953) relating to the subject reading as follows:

“After the evidence is concluded, the parties may -submit the case to the jury in argument; the party having under the pleadings the burden of proof on the whole case shall be entitled to open and conclude the argument; where there are several other parties having separate claims or defenses, and represented by different counsel, the court shall prescribe the order of argument between them.”

It seems quite clear to us that the inter-veners were entitled to the benefit of this statute. There was no denial on the part of interveners of appellee’s agency for Hoge, or of his agreement with Hoge as such agent for commissions. There was no denial of Williams’ allegations, to the effect that he was entitled under the terms of such agreement with Hoge, his principal, to recover from 1-Ioge the full sum sued for, nor did the principal, Hoge, deny- this fact. As between Williams and Hoge no material fact was in issue. The material issues were only those affirmatively presented in the pleadings of the interveners, and the court very properly placed the burden upon them to establish by a preponderance of the evidence the truth of those allegations. Under such circumstances we see no reason why the article of the statute quoted should not apply. The privilege is a valuable one, and its advantage in the present case seems to have been emphasized by the fact that interveners were attempting to establish their claims in the county of Williams’ residence and before a court and jury to whom the interveners were strangers, and who, therefore, were in a situation to listen favorably to Williams. A denial of the privilege under such circumstances has frequently been held to constitute reversible error. Hillboldt v. Waugh, 47 S. W. 829; Meade v. Logan, 110 S. W. 188; Fain et al. v. Nelms et al., 113 S. W. 1002; Byrd Irr. Co. v. Smyth, 157 S. W. 260; Cunningham v. M. W. & B. G. Daves, 141 S. W. 808; J. W. Carter Music Co. v. Bailey, 179 S. W. 547.

Appellee, through his able counsel, insists that, because of the fact that Hoge in tendering into court the amount of commissions involved prayed for the recovery of his costs, the plaintiff Williams, under the pleadings, still had resting upon him a burden of proof to relieve himself from such costs, and that hence interveners were not within the statute quoted. It is also further insisted that the benefits of the statute can be invoked by a defendant only, and that at most it was within the discretion of the court to allow or refuse interveners the privilege. But we have felt unable to concur in these contentions. It is true the defendant Hoge prayed for the recovery of costs. He, however, had not sought to interplead the interveners; he admitted every material allegation of appellee’s petition; he did not allege that he had tendered the amount of commissions prior to the institution of the suit, nor set up an equity of any kind. Under such circumstances we know of no rule, and no rule or decision has been cited, that would entitle Hoge to his costs, and while under some circumstances it might be within the discretion of the court, as illustrated by some of the decisions, to deny a party upon whom the burden of proof apparently rests the right to open and close, we think the case before us is distinguishable from such cases. Here the right seems clear, and that a denial of the right was of probable injury also seems clear, and the further contention that the statute was intended for the benefit of defendants only and not for interveners cannot be maintained. While it is well settled that an intervener must take the case as he finds it, and cannot object to the reading of depositions previously taken on the ground that he had no opportunity to cross-examine, and that all previous orders and rulings are as binding on him as if he had been before the court when they were made, yet, says Mr. Townes in his work on Pleading, page 295, that:

“After a proper intervention, the rights of the intervener cannot be destroyed by a dismissal of his case by the plaintiff or by a settlement between the plaintiff and defendant. Of course the intervener cannot prevent such action by the parties, but he can insist upon a trial and hearing of all issues presented by him as the basis of affirmative relief, just as any other plaintiff, or a defendant presenting ar cross-action might.”

In the following paragraph on page 296, he further says:

“The position of the intervener in the suit is determined by the court in accordance with the particular facts. If he is an actor seeking to enforce rights and to obtain affirmative relief, he will be a .plaintiff and subject to all the rules of practice governing plaintiffs. * * * Each case is to be determined by its own facts. It is not material by what name the intervener is designated; so far as he sets up rights in himself and seeks affirmative relief, the courts will apply to him the rules governing plaintiffs; so far as he simply resists the alleged rights of others, he will be governed by rules applicable to defendants.”

In Sayles’ Justice Practice (5th Ed.) p. 624, § 707, it is said:

“While the right to intervene in a proper case will not be denied, the intervener must assert his rights promptly. He will not be permitted to retard the principal suit; neither can he except to mere formal defects or irregularities not going to the merits or foundation of the action. He cannot change the nature of the suit or require the introduction of a new party. If, however, the intervener is a necessary party defendant, or if the court could have ordered him to be made defendant upon the suggestion of either party, or if he has been made defendant upon the application of the original defendant, he is entitled to all the privileges peculiar to defendants.”

We concur in the views expressed by these authors, and on the whole ease conclude that the court erred as assigned.

Appellants present a number of other assignments going to the sufficiency of the evidence to sustain the verdict and judgment, etc., all of which, in view of the conclusions noted, are immaterial on the present appeal and which we need not, therefore, consider. For the error discussed, however, it is ordered that the judgment be reversed, and the cause remanded for a new trial.

Reversed and remanded.
      <S=For'other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: BROOKE, J.

text:
    GOODHUE v. FULLER et al.
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1917.
    Rehearing Denied March 28, 1917.)
    1. Appeal and Ekrok <&wkey;248 — Scope of Review — “Fundamental Eeeor.”
    Error is fundamental if it goes to the merits of the cause of action.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1432, 1443.
    For other definitions, see Words and Phrases, First and Second Series, Fundamental Error.]
    2. Appeal and Eeeoe <&wkey;248 — Scope of Review — Peeseevation of Exceptions.
    In the absence of fundamental error, errors assigned cannot be considered unless promptly called to the attention of the trial court, with exception taken in the proper manner.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1432.]
    Appeal from Jefferson County Court, at Law; D. P. Wheat, Judge.

      Action by E. T. Puller against H. L. Trum-bore, wherein John P. Goodhue intervened. Judgment for plaintiff, and intervener appeals.
    Affirmed.
    Herbert W. Reed and Samuel O. Lipscomb, both of Beaumont, for appellant. Roger L. Burgess and A. P. Jatho, both of Beaumont, for appellees.
   BROOKE, J.

This was a suit on promissory notes, in which a writ of sequestration was issued and levied upon certain musical Instruments, which were replevied by the defendant. Prom a judgment in plaintiff’s favor against defendant, with foreclosure of chattel mortgage lien, and against the inter-vener, as surety upon the replevin bond, in the sum of §300, or so much thereof as may remain, after crediting proceeds of sale of re-plevied property, the surety alone appeals.

It will be necessary to give, perhaps, a more complete statement of the case as being essential to a correct understanding of the points involved. Appellee brought this suit against H. L. Trumbore to recover upon eight promissory notes, aggregating the sum of $300, alleging that he was the owner and holder by transfer of a certain chattel mortgage, executed by defendant June 6, 1914, to secure an indebtedness evidenced by such notes, and upon statutory allegations prayed for writ of sequestration. The affidavit describes the property minutely, and alleged that plaintiff was the owner and entitled to possession thereof, that it was “situated in Jefferson county, Tex.” and “all of the total value of $300.” A writ of sequestration was issued October 13, 1914, and executed October 17, 1914, and the property released to the defendant Trumbore by the sheriff on October 24, 1914; the bond being in the sum of $350, with appellant as surety, and approved October 23, 1914. The defendant filed a motion to quash January 5, 1915; the surety intervened on the same date, setting up that the sequestered property was in his (the surety’s) possession, adopted the pleading of defendant, and asked to be permitted to become a party to the cause, to the end that his rights might be protected, and no further, and insisted upon quashing the affidavit. On the same date, January 5, 1915, the court overruled both motions. On April 6, 1915, plaintiff amended his petition, setting up that all of the notes had matured, and prayed for judgment accordingly, together with interest, costs, attorney’s fee, and general and special relief. On January 28, 1916, the cause was called for trial in the county court at law, to which jurisdiction thereof had been transferred by the act of the Thirty-’ Fourth Legislature (chapter 29), when the defendant Trumbore abandoned further defense. Plaintiff and intervener announced ready for trial, and the court proceeded to hear the cause upon the record and testimony introduced by plaintiff, and continued the cause, without prejudice, to the February term, for arguments upon the legal questions pertaining thereto. On February 15, 1916, the cause came on, pursuant to agreement and orders of the court, and defendant Trum-bore wholly made default. Thereupon the intervener requested leave to file certain additional pleadings, styled “Amended Motion to Quash Writ of Sequestration,” and “Xnter-venor’s Second Amended Answer,” which was granted by the court, over objection of plaintiff, and thereupon the court announced that it would enter a mistrial, and hear the cause anew upon the pleadings and record, whereupon it was continued until the succeeding day. By such amendment, in lieu of all pleadings theretofore filed, intervener again claimed the right to make any and all defenses as defendant would, if defending in person, and renewed his motion to quash upon the ground, among others, that the affidavit does not set out the value of each article of property sought to be sequestered; and by way of answer sought to contest the right of plaintiff to recover, alleging that the amended petition increased the cause of action against the defendant without notice of such increase, and again set up that the sequestered property was in his (surety’s) possession, that he had tendered it to the sheriff, who had refused it, and had offered to deliver it to plaintiff, who had declined to receive it. On February 16, 1916, the cause came on for hearing pursuant to orders of the court, when plaintiff filed a motion to dismiss and strike out 'all pleadings of the intervener. The court sustained such motion of the plaintiff, and such pleadings were ordered stricken out and dismissed. The court then reserved the cause for decision, and rendered judgment February 21,1916, in favor of plaintiff against defendant for $300, the amount of the notes sued upon, with interest from date and attorney’s fee, and costs of court, with foreclosure of chattel mortgage lien upon the musical instruments described in the chattel mortgage, and directed issuance of an order of sale, as under execution, with application of proceeds in satisfaction of judgment against defendant, and providing, if proceeds insufficient, that balance be made out of any other property of defendant, and the judgment further recites issuance of writ of sequestration, seizure of property, and release to defendant upon replevy bond with intervener, as surety, in the sum of $350; that such property was then in possession of the intervener, and from the evidence introduced upon the trial was of the value of $300, at the time it was sequestered; and awards recovery in favor of plaintiff against Intervener, as surety upon the re-plevy bond, in the sum of $300, or so much thereof as may remain after crediting the proceeds derived from the sale of the property replevied, made as hereinabove provided upon the judgment hereinabove rendered against the defendant, which shall likewise operate as a satisfaction pro tanto of the judgment herein rendered against said surety upon such bond, further adjudging costs against the intervener as a litigant, all other costs taxed against the defendant. Prom an order overruling the motion for new trial, intervener appeals. The defendant Trum-bore, as stated, abandoned the defense, and is not appealing, nor is he joined by the surety in this appeal, who alone complains.

No exceptions were taken to any order of the court or any ruling of the court in the trial of the case, and the record, therefore, is without a bill of exceptions. Therefore, without there is fundamental error, apparent upon the face of the record, the case will have to be affirmed.

The following are the findings of fact and conclusions of law filed by the trial, court:

“Findings of Pact.
“(1) I find that on dune 6, 1914, defendant executed and delivered to plaintiff eight certain promissory notes, all of said date, and due consecutively one each month after date, the first two for the principal sum of $30 each, and the remainder for the principal sum of $40 each, aggregating the total sum of $300, all bearing interest at the rate of 10 per cent, per annum from date until paid, and an additional amount of 10 per cent, as attorney’s fees, in ease of default.
“(2) That default was made in the payment of same, that plaintiff placed the same in the hands of attorneys for collection, and that the full amount of principal, interest, and attorney’s fees is due and unpaid.
“(3) That on said 6th day of June, 1914, defendant secured the signature of Sidney Mayer, Sam Gusemano, and G. R. Nogueria as indors-ers on said notes and as collateral security to said Mayer, Gusemano, and Nogueria, on the said 6th day of June, 1914, defendant executed a chattel mortgage to said Mayer, Gusemano, and Nogueria, the same being file NO. 19338, upon the chattel mortgage records of Jefferson county, Tex., upon certain musical instruments therein described, and valued in the aggregate sum of $300, and intended to secure the payment of said indebtedness; that on October 8, 1914, plaintiff, for a valuable consideration, became the owner and holder of said chattel mortgage by duly executed transfer from said Mayer, Gusemano, and Nogueria.
“(4) That a writ of sequestration was issued in this cause upon the 13th day of October, 1914, whoroundor said musical instruments were seized by the sheriff of Jefferson county, and that same were replevied by the defendant on October 23, 1914,, and were released to him by the sheriff upon replevy bond signed by him with Jno. P. Goodhue, as surety, in the sum of $350, conditioned as provided by statute.
“(5) That the defendant filed a motion to quash the writ of sequestration, and that said surety intervened, joined in said motion, with request to be released from said replevy bond; and upon which a hearing was had on January 5, 1915, before the then county court of Jefferson county, and that said motion was overruled and said request denied.
“(6) That the intervener has tendered the said musical instruments to the sheriff of Jefferson county, and that the sheriff has refused to receive the same, and that such property is now in the possession of the intervener.
“(7) That the value of such property at the time it was sequestered .was the sum of $300.
“Based upon the foregoing facts, I find the following:
“Conclusions of Law.
“1. That the plaintiff is. entitled to judgment against the defendant for the aggregate amount of said notes, to wit, the sum.of three hundred dollars, together with ten per cent, interest from dáte thereof, and the additional sum of ten per cent, as attorney’s fees, together with all costs.
“2. That plaintiff is further entitled to foreclosure of the chattel mortgage lien held by him upon said musical instruments, and to an order of sale and application of proceeds in satisfaction of such judgment, with execution for any balance remaining unpaid after such application.
“3. That the property having been tendered to and refused by the sheriff of Jefferson county, the conditions of the statute have been met, and the plaintiff, under articles 7109 and 7106, Vernon’s Sayles’ Texas Civil Statutes, is entitled to judgment against the surety upon the re-plevy bond for the value of the property, to wit, the sum of $300, with provision that the application of the proceeds of the sale of the property sequestered upon the judgment rendered against the defendant shall likewise operate as a satisfaction pro tanto of the judgment against said surety upon such bond.
“4. That all costs in this cause be adjudged against the defendant, except the costs upon the motion to quash and upon the motion to dismiss and strike out, wherein the surety became a litigant, and these are adjudged against the intervener.”

We have made a careful examination of the record, in order to find if there was any fundamental error, such as would authorize and empower this court to revise the action of the trial court in this matter.

Error is defined to be fundamental which goes to the merits of the plaintiff’s cause of action, and should be considered where the justice of the case seems to require it. We have been unable to find such error in this record, and the errors complained of are such as should have been promptly called to the attention of the trial court and exception taken in the proper .manner, and cannot be otherwise considered.

Finding no error in the action of the lower court, the judgment is in all things affirmed. It is so ordered.
      <&wkey;>Eor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes