author: HUFF, C. J.

text:
    ATCHISON, T. & S. F. RY. CO. et al. v. WORD.
    (Court of Civil Appeals of Texas. Amarillo.
    May 3, 1913.
    Rehearing Denied May 31, 1913.)
    1. Carriers (§ 203) — Live Stock — Interstate Shipment — What Law Governs.
    An action for damages to a shipment of cattle from one state to another must be disposed of under the interstate commerce act of Feb. 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), and the decisions of the federal court construing it.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 203.]
    2. Carriers (§ 230) — Carriage oe Live Stock — Notice oe Injury.
    In an action against a railroad company for injuries to an interstate shipment of live stock, the question whether a stipulation requiring notice' of claim for injury was reasonable is for the court.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    3. Carriers (§ 177) — Carriage oe Live Stook — Liability of Initial Carrier.
    Under the direct provisions of the Carmack amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) to the interstate commerce act (Act Feb. 4. 18S7, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), the initial carrier, engaged in interstate commerce and receiving property for transportation from a point in one state to a point in another, having contracted for through carriage to the point of destination, is liable to the lawful holder of the receipt or bill of lading for any loss or damage to the property, regardless on Which carrier’s lines it occurred.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.]

      4. Carriers (§ ISO) — Carriage oe Live Stock — Contracts—Consideration.
    Where an initial carrier issued to a shipper of live stock a through bill of lading which entitled him to carriage over the lines of connecting railroads, the contract with the initial carrier fixed the liability of the various carriers, the shipment being an interstate one, and consequently a new bill of lading issued by a connecting carrier which limited its liability was without consideration and ineffectual.
    [Ed. 'Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dee. Dig. § 180.]
    5. Appeal and Error (§ 1062) — Review-Harmless Error.
    In an action against several carriers, among whom was a connecting carrier, where a stipulation limiting the connecting carrier’s liability was unenforceable, being without consideration, the submission of the validity of the limitation to the jury, while improper, was harmless to the connecting carrier.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.]
    6. Evidence (§ 471) — Opinion Evidence— What Constitutes.
    In an action against a carrier for injuries to a shipment of cattle, testimony by a farmer and stock man, who saw the cattle as soon as unloaded, that they looked as though they had had bad treatment and not like cattle that were in the flesh they were in should look is not opinion evidence but is merely a statement of the facts as to the condition of the cattle as they appeared to the witness.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    7. Carriers (§ 208) — Carriage oe Live Stock — Duty.
    When a railroad company accepts live stock for transportation, it must exercise ordinary care in the handling and operation of the cars in which the live stock are riding and in transporting them within a reasonable time to their destination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 924-928; Dec. Dig. § 208.]
    8. Carriers (§ 230) — Carriage oe Live Stock — Questions eor Jury.
    In an_ action against a carrier for damages for delay in a shipment of live stock, evidence hold to raise the issue whether the carrier’s negligence proximately caused the holding of the cattle on board the cars beyond the required time.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    9. Trial (§ 296) — Carriage oe Live Stock-Actions — Instructions.
    In an action' against carriers of live stock for damages for negligent delay, an instruction that there was no evidence of partnership between any of the carriers, and therefore each was separately liable, and that no defendant could be held liable in damages for delay or injuries from any cause not occasioned proximately by its own act, cures a charge improperly permitting a finding of liability against one carrier for injury from its own negligence or that of another carrier.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. §

    10. Carriers (§ 229) — Carriage oe Live Sto ok — Damages—Measure.
    In an action against a carrier for damages to live stock, caused by rough handling and negligent delay, the shipper’s measure of damages is the difference between their market value in the condition and at the time they should have arrived and in the condition and at the time when they actually did arrive.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    11. Carriers (§ 213) — Carriage oe Live Stock — Delay—Defenses.
    Where a carrier of live stock, with knowledge of the congestion of its lines, accepted a shipment of live stock without notice to the shipper that such condition would likely cause extraordinary delay, it is no defense that the shipments were unusual and that the carrier was not prepared to handle them.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. § 213.]
    12. Carriers (§ 228) — Carriage oe Live Stock — Defenses—Burden of Proof.
    When an extraordinary delay in the transportation of a shipment of live stock is sought to be excused by the carrier on the ground of unusual congestion, the carrier has the burden of proof to show every fact essential to the validity of its excuse.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    13. Carriers (§ 213) — Carriage oe Live ■ Stock — Defenses.
    A carrier of live stock is charged with notice of the congested condition of its lines in a given locality, and so cannot excuse delay in a shipment of cattle on the ground that there were unusually heavy Shipments of cattle at that time which it was not prepared to handle.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §| 920-922; Dec. Dig. § 213.]
    14. Carriers (§ 213) — Carriage of Live Stock — Liability.
    While a carrier of live stock is not an insurer of the time at which they will arrive, it is otherwise subject to the common-law burdens and is an insurer of the safe handling of such live stock.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. § 213.].
    15. Carriers (§ 230) — Carriage of Live Stock — Actions—Instructions.
    Charges, in an action against carriers for damage to a shipment of live stock, that the basis of recovery is unnecessary and unreasonable delay, proximately causing damage to the cattle, and if otherwise it is not actionable, and that when a railroad company accepts live stock for transportation it must exercise ordinary care in the handling and operation of the cars in which such stock are riding, do not cast upon the carriers the penalty of handling the cattle at their peril so as to avoid injury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    16. Appeal and Error (§ 728) — Assignments — Sufficiency.
    An assignment of error to the exclusion of part of the testimony of two witnesses presents no question for review where the testimony was not set out, and the general statement merely was that they were not permitted to state certain facts elicited from other witnesses.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3010-3012; Dec. Dig. § 728.]
    17. Appeal and Error (§ 728) — Assignments of Error — Sufficiency.
    An assignment of error to the admission of testimony should set out the testimony objected to.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3010-3012; Dec. Dig. § 728.]

      Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by C. T. Word against the Atchison, Topeka & Santa PS Railway Company and others. From a judgment for plaintiff, defendants, except the Ft. Worth & Denver City Railway Company, appeal.
    Affirmed.
    Madden, Trulove & Kimbrough and F. M. Rybum, all of Amarillo, Terry, Cavin & Mills, of Galveston, and T. B. McCormick, of Dallas, for appellants. W. Boyce and Turner & Wharton, all of Amarillo, for ap-pellee.

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

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

   HUFF, C. J.

The appellee, C. T. Word, sued the Ft. Worth & Denver City Railway Company, together with the appellants, the Atchison, Topeka & Santa Fé Railway Company, the Southern Kansas Railway Company of Texas, and the Missouri Pacific Railway Company, for damages to three shipments of cattle. On April Í6, 1910, C. T. AVord delivered to the Ft. Worth & Denver City Railway Company, at Simmons, Tex., for shipment to Summit, Kan., 1,971 head of cattle to be transported over the lines of the above-named companies. These were shipped in two trains; the first shipment consisting of 35 cars and the second shipment containing 27 cars. On the 30th day of April, 1910, appellee delivered to the Ft Worth & Denver City Railway Company, at Simmons, Tex., for transportation, 67 head of cattle, two cars, over the lines of the Ft. Worth & Denver City Railway Company and the appellants in this case to Summit, Kan. Unreasonable delay en route, rough handling, etc., is alleged, and consequent injury to the cattle and damage therefrom.

The Ft. Worth & Denver City Railway Company answered by general and special plea, and among other things pleaded the terms of the shipping contract, limiting its liability to loss or injury occurring on its own line of road. The Atchison, Topeka & Sante Fé Railway Company and the Southern Kansas Railway Company of Texas answered jointly, generally, and specially, and the Missouri Pacific Railway Company also answered generally and specially. The respective pleas of the parties will be stated more in detail in discussing the several assignments. Judgment based upon the verdict of the jury trying the cause was rendered for appellee Word against the Atchi-son, Topeka & Santa Fé Railway Company for $1,329, against the Southern Kansas Railway Company of Texas for $771.45, and the Missouri Pacific Railway Company for $2,185.60; no damages were assessed against the Ft. Worth & Denver City Railway Company. The case appears to have been tried in the court below upon the theory that it was governed alone by the statutes and decisions of this state and the briefs of the respective parties so treat the case, but by supplemental citation of authorities counsel for the Santa Fé roads call attention to the fact that this case is controlled by the interstate commerce .act.

The first, second,' third, fourth, fifth, and sixth assignments relate to pleadings and contracts of shipment of the two roads, the Atchison, Topeka & Santa Fé and the Southern Kansas Railway Company of Texas, designated by us for brevity as the Santa Fé, setting up and pleading certain clauses of the shipping contract with reference to notice of claims for damages as a condition precedent to the right of recovery. The contracts so set up are those executed by the Santa Fé. The fourth paragraph (a, b, and c) of the Santa Fé’s answer is as follows:

“(a) That the liability of each carrier should be and was limited to its own acts and lines, and terminated upon its delivery or upon tendering delivery to its succeeding connecting carrier, and that such defendant was in no wise to be held liable for any loss or damage occurring off its line of railway; that these defendants received said cattle at Amarillo, Tex., and transported the same over their lines of road to Wichita, Kan., at which place their connection with said shipments ceased; that they transported and handled said stock with reasonable care and dispatch, and no damages or injuries whatever occurred to said stock while on their line of road or while in their charge.

"(b) That defendants further stipulated and provided in said shipping contracts, under terms of which said stock was transported by these defendants, that the plaintiff should load, unload, and reload said stock, and look after and care for same while in transit; that, if plaintiff’s said cattle sustained any damages as alleged in his petition, such damages resulted from plaintiff’s failure to properly load, unload, and reload said stock and properly look after and care for same while in transit, and his failure to properly load, unload, and reload and look after and care for said cattle while in transit, as provided for in said shipping contracts, and plaintiff’s own negligence in these respects and in these particulars became and was the direct and proximate cause of any and all such damages as he may have sustained.

“(c) That no claim for damages to said cattle should be recoverable, unless written claim therefor should be presented to the defendant carrier within 91 days after .such damages occurred. Defendants would represent that no claim in writing claiming damages to said several shipments of cattle, as sued for'in plaintiff’s petition, was within the 91 days after such damage had occurred ever in fact presented to these defendants, or to either of them, as required under the terms of said written contract. And defendants plead said shipping contract in bar of plaintiff’s right to recover herein.”

The appellee, Word, replied to said answer as follows:

“And for further answer herein, plaintiff says that his cattle were shipped on a through rate, billed from Simmons, Tex., to Summit, Kan., the freight being paid in advance to the initial carrier, the Ft. Worth & Denver City Railway Company. That thereupon all defendants were bound to transport •said cattle without further contract. That said contracts were executed after said cattle were loaded and had been transported •over a portion of their journey and were without further or additional consideration. That said contracts were printed in such small type that it is very difficult for an •ordinary person to read them and of such great length that it would require great delay in transportation for the parties who executed such contracts to take the time to read over and understand such contracts. That they contain many illegal and void provisions, and in particular the provisions referred to in said contracts in paragraph c of subdivision 4 are so intermingled with and •dependent upon other provisions contained in said contract, which are illegal and void, that the same cannot be separated from said void and illegal provisions. That said contracts are so printed in such small type, at such great length, and intermingled with said void and illegal provisions for the fraudulent purpose on the part of the defendants of entrapping, confusing, and misleading persons to whom said contracts were presented for signature and for the purpose of preventing a reading thereof on the part of the shippers and an understanding on their part of .such provisions, if the same should be read. That the plaintiff did not read said contracts •before signing same and did not know that such contracts contained the provision set forth in said paragraph of said answer. That under the law the initial carrier in such a shipment, to wit, the Ft. Worth & Denver •City Railway Company, would be responsible to the plaintiff for the entire damages .sustained in the course of such transportation. That the plaintiff within due time presented notice of his said claim to said defendants, and that the provision in said ■contracts with the othei defendants, requiring the presentation of notice to them, was unreasonable and void.”

The contracts entered into by the appellee with the Ft. Worth & Denver City Railway Company were all of the same form and were alike, except as to dates, numbers of •cars, cattle, etc., and in part are as follows:

“Live Stock Contract.

“Executed at Simmons station, 4/16/1910. This agreement made between the Ft. Worth & Denver City Railway Company of the first •part, herein called the carrier, and C. T. Word, of the second part, herein called the •shipped, Witnesseth: That, for the consideration and the mutual covenants and conditions herein contained, the said carrier acknowledges receipt at Simmons and agrees ■•to transport for the shipper the live stock! described below, together with the parties in charge thereof, as hereinafter provided, viz.": 27 cars, said to contain 875 head of cattle from Simmons station to Summit, Kansas, consigned to C. T. Word, Summit, Kansas” —giving the number of cars, initials, number of cattle, etc. It is further provided in case the cattle were to be transported over the roads of any other railway company that the carrier should be released from liability of every kind after said stock shall have left its road, and that its liability should be limited to its own line of railway. This is substantially all of the Denver Railway Company’s contract, as set out in the record.

The contract set up by the Santa Fé occupies some 17 pages of the record, but the clause set out and upon which stress is laid by said Santa Fé is No. 8, and is as follows:

“Eighth. In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated and the fact and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company’s road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or, if delivered to consignee at a point beyond the company’s road, to the nearest station agent of the last carrier making such delivery before such stock shall have been removed from the place of destination above mentioned,! or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stock yards until the expiration of three hours after the giving of such notice; and a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages. The written notice herein provided for cannot and shall not be waived by any person except a general officer of the company, and he only in writing. Nor shall any such damage be recoverable unless written claim therefor shall be presented to the company within 91 days after the same may have occurred.”

The testimony shows that all the freight money was paid on the three shipments to the Ft. Worth & Denver City Railway Company from Simmons, Tex., to Summit, Kan., and the bills of lading were issued by that road to Summit, Kan., from Simmons. The cattle were transported by the Denver from Simmons to Amarillo, at which point they were delivered to the Santa Fé, which road transported them from Amarillo, Tex., to Wichita, Kan. The Santa Fg delivered the cattle to the Missouri Pacific Railway Company at Wichita, Kan., which latter road completed the voyage to Summit, Kan.; the entire distance from Simmons to Summit being about 402 miles. The appellee testified he signed the contract of the Santa Fg at Amarillo upon the delivery of the cattle at that point to the Santa F'g Railway; that he did not read it but that he expected to sign it when he went to the Santa Fg yards. The contract looked to him about like all of them and he thought it about the usual one. He stated he had never read one of the contracts and that it was with difficulty he could read the fine print; that he signed it up as a pass and did not know that it contained the stipulation requiring notice to be given of the damage within 91 days.

The assignments from 1 to 6, inclusive, complain of the court’s charge in submitting to the jury the reasonableness of the stipulation contained in the contract, refusal of certain requested special charges, and with reference to the admission of certain testimony. We have concluded it is not necessary to set out the charge of the court or to give the requested instructions. The contention of appellee in reply to appellant is that under the statutes of this state (article 3379, Sayles’ Statutes) and the decisions of the courts of this state it was proper for the court to submit to the jury the question of whether or not the stipulation requiring notice was reasonable. Appellee cites us to Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 838; Railway Co. v. Bryce, 49 Tex. Civ. App. 608, 110 S. W. 529; Railway Co. v. Barber, 30 S. W. 500; Railway Co. v. Battle, 107 S. W. 635; Railway Co. v. Childers, 1 Tex. Civ. App. 302, 21 S. W. 76; Railway Co. v. Leibold, 55 S. W. 369; Railway Co. v. Honea, 84 S. W. 267; Railway Co. v. Harris, 67 Tex. 166, 2 S. W. 577. There appears to be a conflict between some of the decisions as to the question upon whom the burden rests to show the reasonableness or unreasonableness of stipulations requiring notice of damage to shipments of cattle. Appellants cite us to authorities which hold, as we believe, that when ■■the contract requires notice not less than 90 days, especially since the Act of 1897, art. 3379, it is incumbent on the shipper to allege and prove that the stipulation for notice is unreasonable. Railway Co. v. Mayes, 44 Tex. Civ. App. 31, 97 S. W. 318; Railway Co. v. Heittner, 42 Tex. Civ. App. 617, 94 S. W. 189; Railway Co. v. Gallagher, 70 S. W. 97; Railway Co. v. Byers, 73 S. W. 427; Railway Co. v. Davis, 88 Tex. 594, 32 S. W. 510. We do not think the ease of Railway Co. v. Curtis Bros., 44 Tex. Civ. App. 477, 99 S. W. 566, can be said to fully support appellant’s proposition. This exact provision was under review by the courts in several cases, and especially the case of Railway Co. v. Evans-Snider-Buel Co., 42 Tex. Civ. App. 60, 93 S. W. 1024, and 100 Tex. 190, 97 S. W. 466. The Court of Civil Appeals held that the clause requiring 91 days’ notice as a condition precedent to the right to sue therefor was so connected with certain illegal stipulations in the same clause as to render all of them void. The Supreme Court granted a writ of error on that holding, but disposed of the ease on other grounds without determining the validity of the clause. 100 Tex. 190, 97 S. W. 466. It might be, as the evidence indicates in this case, that the shipper could not ascertain the full extent of the injury or damage to his cattle until some time after the delivery of the cattle. If it is meant that he should at the delivery state his damage at that time when he is not fully aware of the extent of the injury to the cattle himself and be thereby bound by such notice or claim, it might be requiring of him an unreasonable thing. However, we do not care to express an opinion as to what the rule is or should be with reference to shipments wholly within this state.

This case must be disposed of under the interstate commerce act and the decisions of the Supreme Court of the United States, and under the holdings of that court we would feel it-to be our duty to reverse the case upon the charge of the court under the pleadings and evidence, if that was the only issue. The 'Supreme Court of the United States, discussing the interstate commerce act, through Mr. Justice Lurton, in Railway Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed.-, says that the question as to whether such provision is reasonable is one of law for the determination of the court. We believe under the construction of the interstate commerce act by that court that it was the duty of the trial court to have instructed the jury to return a verdict for the Santa Fg road unless the contract pleaded was in violation of the law and without consideration.

The appellee Word did not base his cause of action on a contract pleaded by the Santa Fé, but alleged a contract with the Ft. Worth & Denver City Railway Company for a shipment from a point in one state to a point in another state. The evidence established that he made such a contract and paid the freight charges for such shipment, “together with the parties in' charge thereof.” After this contract was entered into the Santa Fg required him to execute another contract. What was the consideration for this contract? He had paid the freight charges prior thereto to the Ft. Worth & Denver Railway Company and received his receipt or bill of lading for a through shipment. There is no allegation or proof showing any such limi-' tation in the bill of lading executed by the Ft. Worth & Denver City Railway Company for the shipment of the cattle. The question, therefore, depends alone upon whether the bill of lading issued by the Santa Fg is to be treated as a contract of shipment over its line or as. a part thereof.

By the Carmack amendment to the interstate commerce act, “the initial carrier is liable to the lawful holder thereof [the receipt or bill of lading] for any loss, damage or injury to such property, caused by it.” Mr. Justice Lurton said, in the case of Atlanta C. L. R. Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7: “The indisputable effect of the Carmack amendment is to hold the initial carrier engaged in interstate commerce and ‘receiving property for transportation from a point in one state to a point in another state’ as having contracted for through carriage to the point of destination using the lines of the connecting carriers as its agents.” Again, on page 199 of 219 U. S., on page 167 of 31 Sup. Ct. (55 L. Ed. 167, 31 L. R. A. [N. S.] 7), of the above report that court said: “Along with this singleness of rate and continuity of carriage there grew up the practice by receiving carriers, illustrated in this case, of refusing to make a specific agreement to transport to points beyond its own line whereby the connecting carrier, for the purpose of carriage, would become the agent of the primary carrier. The common form of receipt, as the court may judicially know, is one by which the shipper is compelled to make with each carrier in the route over which his package must go a separate agreement limiting the carrier liability of each separate company to its own part of the through route. As a result the shipper could look only to the initial carrier for recompense for loss, damage, or delay occurring on its part of the route. If such primary carrier was able to show a delivery to the rails of the next succeeding carrier, although the packages might and usually did continue the journey in the same ear in which they had been originally loaded, the shipper must fail in his suit. He might, it is true, then bring his action against the carrier so shown to have next received the shipment. But here, in turn, he might be met by proof of safe delivery to a third separate carrier. In short, as the shipper was not himself in possession of the information as to when and where his property had been lost or damaged, and had no access to the records of the connecting carriers who, in turn, had participated in some part of the transportation, he was compelled in many instances to make such settlement as should be proposed. This burdensome situation of the shipping public in reference to interstate shipments over routes, including separate lines of carriers, was the matter which Congress undertook to regulate.” Again that court says on page 205 of 219 U. S., on page 169 of 31 Sup. Ct. (55 L. Ed. 167, 31 L. R. A. [N. S.] 7): “Reduced to the final results, the Congress has said' that a receiving carrier, in spite of any stipulation to the contrary, shall be deemed, when it receives property in one state, to be transported to a point in another, involving the use of a connecting carrier for some part of the way, to have adopted such other carrier as its agent and to incur carrier liability throughout the entire route, with the right to reimbursement for a loss not due to his own negligence.”

If the Ft. Worth & Denver Railway Company was a principal in making the contract for the through shipment and received the consideration therefor, the act of the Santa F§ procuring a contract for such shipment over the same route, was, as we think, without consideration and contrary to law. It was but the agent of the Denver Road and under the law was charged with the duty of carrying out the contract of its principal, with no right or power to ingraft new conditions and stipulations on the contract already lawfully executed, binding it fully to perform its part of the contract of carriage under the terms of said contract. # Stipulations in the contract of the initial carrier were ineffectual in so far as not authorized by the interstate commerce act, whether for its benefit or that of the intermediate carrier. Any provision valid in the initial carrier’s contract for its own benefit will therefore inure to the benefit of the connecting carrier. Kansas City S. R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. -. In that case it is said: “The liability of any carrier in the route * * ♦ for loss or damage is that imposed by the act as measured by the original contract of shipment so far as it is valid under the act.” Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314; Railway Co. v. Latta, 226 U. S. 519, 33 Sup. Ct. 155, 57 L. Ed. 328; Railway Co. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323; Railway Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. -.

It will be see'n from the above authorities that the contract of the initial carrier is one fixing the liability of the parties executing the contract, as well as that of the connecting carrier. It follows that any contract made, or attempted to be made, by the intermediate carrier has no binding effect with reference to the shipment while, in the course of transportation. The case of Railway Co. v. Carl, supra, appears to be authority for the shipper to sue the intermediate carrier direct. Railway Co. v. Ray, 127 S. W. 281. And we hold that he may sue the initial carrier, together with the connecting carriers, over whose lines of road the shipment is routed, and the respective liabilities of the parties fixed in that suit.

We therefore conclude that the provision pleaded by the Santa Fé, as part of the contract executed by it, was no part of the contract for the transportation of the cattle from Simmons, Tex., to Summit, Kan., executed and delivered by the Ft. Worth & Denver City Railway Company to the appel-lee, Word, and therefore the error committed by the trial court in its charge or in refusing the requested instructions and in the admission of the testimony, with reference to matters relating to the contract, are harmless, and no such injury resulted to the appellants as will require a reversal of the case. The assignments from 1 to 6, inclusive, are therefore overruled.

By the seventh assignment, appellant asserts that the court erred in admitting that portion of the statement of the witness D. R. Blankenship and in permitting it to be read to the jury: “They (the cows) looked as though they had had bad treatment. They didn’t look like cattle should that were in the flesh that they were in.” The objection is that the witness states an opinion and conclusion not based upon the facts within his own knowledge. The bill indicates the witness at least saw the cattle and looked at them and observed their flesh and condition. Mr. Blankenship, from his testimony, as found in the record, shows that he was a farmer and handled cattle and that the cattle were pastured on his place. He appears to have seen the cattle in the yards at Summit soon after they were unloaded. While he does not appear to have been used as an expert, we do not think the bill shows any such injury to appellants, by reason of his testimony, as will require a reversal. It is sometimes hard to determine just what is opinion and what is fact, but the testimony simply appears to be an effort to convey the facts with reference to the condition of the cattle.

By the eighth assignment it is urged the court erred in giving the fourth paragraph of his charge, which is as follows: “When a railway company accepts live stock for transportation it becomes its duty to exercise ordinary care in the handling and operation of its cars in which such live stock are riding, so as to avoid injury to the stock, and must exercise ordinary care to transport them to their destination, or to the next connecting carrier over whose lines such stock must be transported. What would be a rea-soiiable time in a given case must be determined by the jury from all the facts and circumstances of the case, as shown by the testimony, in view of the character of the shipment and its liability to injury, either in the handling or in the time of transportation.” We think the charge is substantially correct. P. & N. T. Ry. Co. v. Bitting, 140 S. W. 382; Railway Co. v. Ellison, 70 Tex. 491, 7 S. W. 785; Martin v. Railway Co., 87 Tex. 117, 26 S. W. 1053. The appellants evidently knew that the cattle were delivered to them for transportation over their lines of road and must have known something of the probability of injury to the cattle by delay or rough handling.

Complaint is made to paragraph 5 of the court’s charge, because it is asserted the evidence did not raise the issue of negligence of the Atchison, Topeka.& Santa Fé Railway Company in holding appellee’s cattle on board the cars after the expiration of 36 hours. The particular portion of the charge complained of is as follows: “Or if you find and believe from the evidence that the cattle in the first shipment of 35 cars were held on the cars for an unreasonable length of time without being unloaded for food, water, and rest, and that such act was due to the negligence, if any, of the defendant, the Atchison, Topeka & Santa Fé Railway Company or the Missouri Pacific Railway Company, and that by reason thereof the cattle sustained injury thereby, then you will find for the plaintiff such damages as you may find from the evidence he sustained by reason of such negligence, if any, in respect to any of the matters hereinbefore charged, and you will assess the damages against the particular defendant responsible therefor, as hereinafter directed.”

Appellant Santa Fé asserts that the evidence shows that when the cattle were delivered to the Missouri Pacific Railway Company at Wichita, Kan., that the cattle had only been on the cars 28 hours and 40 minutes, and that th'e shipper in charge of the train requested that the time be extended to 36 hours. There is testimony in the record from which the jury could have found that the customary time for making the trip with the shipment of cattle was from Simmons, Tex.,' to Summit, Kan., from 24 to 30 hours, and that the usual and ordinary rate of speed for the transportation of cattle trains was from 14 to 18 miles per hour. The jury had testimony which would have warranted them in finding that the Santa Fé on the last division ran only about 12 miles per hour and on the division next to the last only about 13 miles per hour, and that the cattle were held by it at Wichita nearly two hours before they were delivered to the Missouri Pacific Railway Company. We think there was sufficient evidence of slow time in running and delays en route from which the jury could have found that the Santa Fé was negligent and that such negligent delay proximately contributed to holding the cattle on board the cars without feed or water beyond the required time.

Be that as it may, we think the jury was sufficiently instructed not to find anything against the appellant if they found it was not guilty of negligence proximately causing injury to the cattle. The court sufficiently, we think, guarded the rights of the respective parties in the charge complained of and in other portions of the main charge. Paragraph 6 of the court’s charge is as follows: “There is no evidence of any partnership between any of the defendants; therefore each defendant, if liable at all to plaintiff under the law and testimony of this case, is only and separately liable for only such damages as resulted from its own negligence or that of its agents, servants, and employés, if any, in the handling of said shipments of cattle. If you find from the evidence that one or more of the defendants were negligent, as elsewhere defined in this charge, and that plaintiff sustained damages in consequence thereof, then you will find for the plaintiff against such defendant as appears from the testimony was guilty of the negligence that proximately caused the injury, if only one of them, and, if more than one of the defendants were negligent proximately causing injury and damage to plaintiff’s cattle, then you will find against such defendants separately, stating the amount you find for plaintiff against each of them, and you will find in favor of such defendant or defendants as you do not find were negligent.” Again, in pargraph 7 of the court’s charge, he told the jury: “And no defendant in this case can be held liable in damages for any delay or injuries to the plaintiff’s cattle from any cause not occasioned proximately by its own negligence.”

In the tenth assignment complaint is made at the action of the court in refusing to give special charge No. 14, which in substance is that the jury, in arriving at the market value of the cattle at Summit, Kan., in the condition in which they arrived there, might consider the subsequent history and development of said cattle in fixing such market value. The court instructed the jury on that point as follows: “If, under instructions given you, you find that the plaintiff is entitled to damages * * * on account of injury to cattle resulting in depreciation of their market value because of the negligent acts of the defendants, or any of them, as herein charged, then the measure of plaintiff’s damages will be as follows: Second. As to the cattle that remained alive and were injured, if you find that they were injured by the negligent acts of the defendants, the difference, if any, in the market value at Summit, Kan., of such cattle in the condition and at the time they arrived at Summit, Kan., and their market value in the condition and at the time they would have arrived at said place had they been transported with ordinary care and dispatch. Fifth. Xou may consider the evidence introduced as to the condition of plaintiff’s cattle on the dates subsequent to their arrival at Summit for the purpose of determining their true condition and the extent of the injury to them, if any, at the time of their arrival at Summit.”

All the cattle were shipped to Summit for pasturage and were all held there until July, 1910, and a part of them until October, 1910. There is much testimony in the record as to the condition qf the cattle upon their arrival at Summit, as well as opinion testimony as to the time it would take for them to recover, as well as some testimony as to how the cattle prospered while in the pasture at that place. If it was proper for the court to charge on the question at all, we think the court’s charge substantially submitted the proposition as requested by appellant. The charge of the court, we think, is substantially correct in presenting the measure of damages. Railway Co. v. Word, 51 Tex. Civ. App. 206, 111 S. W. 753; Railway Co., v. Stanley, 89 Tex. 42, 33 S. W. 109; Guinn v. Railway Co., 142 S. W. 63.

The appellant the Missouri Pacific-Railway Company alleged that it transported the cattle in question from Wichita, Kan., to-Summit, Kan., and that on the 17th and 18th days of April there developed an unexpected and serious congestion of traffic on-its line of railway between said two points, due entirely to unprecedented heavy delivery of cattle to said appellant by connecting carriers; that it had prepared to meet the-usual and ordinary shipments for that season of the year, with trackage, cars, and motor power, but was not notified of the unprecedented shipments at that time, and' therefore was not prepared to handle the-shipments in question in the usual and ordinary time, and that any delay in the handling of the shipments was due to such congested condition; and further alleges: “That any and all delays that were experienced by the plaintiff in the handliug of his cattle at Wichita and Summit were caused and due-entirely to said unexpected and unprecedentedly heavy offering of cattle, and that the defendant did not know of such impending rush of business, and by the exercise of ordinary care could not have known of the same-in time to have provided extra equipment, trackage, and men in time to have handled said cattle, including the plaintiff’s, all within the usual and customary time. That it had used due care to provide in advance of' the spring cattle movement at such points a sufficient quantity of motive power, cars,, men, and trackage to carry safely and expeditiously all cattle and such increase as-from its past experience could reasonably be-anticipated as being offered for shipment by it at and between Wichita and Summit, Kan.”

There is no allegation that it notified the appellee, Word, or the shipper in charge of the cattle of the congested condition with reference to the traffic at the time it received and accepted the cattle for shipment. There is testimony which suggests that, at the time the cattle in question were handled' by the Missouri Pacific Railway Company over its line of road, there was an unusual heavy shipment of cattle to the pasture grounds in the Flint I-Iill country in Kansas, to which point the cattle in question were consigned. The evidence indicates that there were unusual delays while the cattle were en route from Wichita, Kan., to Summit on account of the number of cattle trains being unloaded at various points, engines and trains passing for water and the like, from, which a jury could have inferred that there was an unusual shipment of cattle at that time. Some of the witnesses state they had no previous notice of the shipment of' cattle in question. One witness states, however, that they had from 6 to 12 hours notice before the arrival of the cattle at Wichita, Kan. There is nothing in the record which shows that appellant or that any of the connecting carriers at the beginning of the voyage, during its continuance or at Wichita, Kan., or anywhere, notified appellee or his shippers or employés that there was any congestion or an unusual heavy trafile. They each and all accepted such cattle for transportation in the usual and ordinary way, without giving such notice. Under the pleadings and evidence, the trial court instructed the jury to disregard the plefi. of appellant, setting up the unusual condition with reference to the traffic.

Appellant requested the following special charge: “You are instructed that, if you find and believe from the evidence that such congestion arose and existed as pleaded by said defendant as above set out, then said defendant would not be liable for and you cannot find against it for any damages resulting to the plaintiff’s cattle from delay or delays due solely to said congestion. If you do not find and believe from the evidence that such congestion arose and existed as pleaded by the defendant, then the same would not be a defense to such damages, if any, to the plaintiff’s cattle as you may find proximately resulted from' negligence, if any, on its part, in causing or permitting such delays.” The foregoing portion of this charge is subject, however, to the following proviso: “If, before or at the time of accepting the plaintiff’s cattle, said congestion had arisen or was arising, and such fact was known to said defendant or by the exercise of ordinary care on its part could have been anticipated, and it was known by it or by the exercise of ordinary care, it would have reasonably anticipated said cattle would be delayed in their transportation from Wichita to Summit by reason of its inability on account of such congested condition to transport them within the usual time, then, in order for such congestion to be a defense to damages resulting from delays caused thereby, said defendant must allege and prove that it notified the plaintiff or his authorized representative or person in charge of the cattle, in tendering them to the defendant for shipment, of said congestion or anticipated congestion and consequent liability of the occurrence of such delay or delays. Said notice would not be necessary to said defense if said congestion arose subsequent to the time said cattle were accepted, or if the defendant before or at the time of accepting the said cattle did not know, and by the exercise of ordinary care would not have known, that such congestion had arisen or was arising or would arise, and that the same would render it unable to transport plaintiff’s cattle in the usual time required for such transportation.” This charge was refused by the trial court.

Assignments from 1 to 5, inclusive, will be considered together. The appellant, upon accepting the cattle, undertook to transport them with reasonable dispatch to their destination, and if, when it accepted them, it had knowledge of the condition of the heavy shipments at that time, it was made its duty to notify the shipper of such condition, which would likely cause extraordinary delay so that he might determine for himself whether he would take the risk of the delay. When the delay occurs out of the usual and ordinary, which the carrier seeks to excuse by showing the existence of unusual conditions, it assumes the burden and must by its pleading and its evidence show the very fact to the validity of its excuse. Appellant alleged that there unexpectedly developed a serious congestion of traffic on the 17th and 18th, and that it did not know of such impending rush. Whether this rush was on or before or after the arrival of the cattle at Wichita and after their acceptance by appellant, the pleadings are not clear on that point. The evidence, we think, in conclusive that the cattle were accepted and were started on appellant’s road; but, on account of the fact that trains were being unloaded on its line of road, the appellee’s cattle were held on the track for several hours longer than necessary. The conductors state that they were laid out on account of engines running for water, passing passengers trains, and by reason of the unloading of other trains ahead of them. We do not believe a jury would be warranted in finding that appellant did not know, or could not have known by ordinary diligence, that appellant had trains of cattle on its line of road to be unloaded at points, which would interfere with the movement of appellee’s cattle. Certainly appellant was charged with knowledge of the trains and shipments on its own line of road. These shipments clearly appear to have been on the road when it received the. cattle. If it had refused to accept the cattle, or if it had notified the shipper or its connecting carriers of the then unusual condition on its line of road, such condition might have been an excuse for the delay. The question would have been different if appellant had refused to accept the cattle. The plea under such condition might have presented a good defense. M., K. & T. Ry. Co. v. Stark Grain Co., 103 Tex. 542, 131 S. W. 410, and authorities cited; Railway Co. v. McAulay, 26 S. W. 475; Railway Co. v. Anderson, 3 Tex. Civ. App. 8, 21 S. W. 691; Railway Co. v. Smith, 63 Tex. 326; Railway Co. v. Felker, 40 Tex. Civ. App. 604, 90 S. W. 532.

If the congested condition arose on account of unexpected traffic after accepting the cattle without its knowledge or which could not have been reasonably anticipated by the exercise of ordinary care, appellant asserts such would be a defense to the charge of delay. If this is true, which we do not now decide, we do not think the pleadings or testimony show such a condition. It is not alleged that such condition did not exist and was not known to, and could not in the exercise of ordinary care have been anticipated by, appellant, when the cattle were accepted for shipment. It is alleged: “That at the time these cattle were received it did not, on account of the unexpected heavy oiler of cattle for shipment to such point, have a sufficient quantity of motive power or rolling stock, nor did it have sufficient trackage facilities to handle the cattle, including plaintiff’s, within the ordinary time.” The first train of cattle was received by appellant at Wichita, Kan., April 17th, at 9 :40 p. m., and the second shipment at 2 a. m., April 18th. Plaintiff’s witnesses show that on April 15th there were some delays and April 16th considerable delay and heavy traffic and on the 17th delays causing congestion, whether before or after receiving the cattle in question the evidence does not show. It is shown the distance from Wichita to Summit was less than 50 miles. The cattle were started out on appellant’s road but were delayed several hours on its tracks on account of delay in unloading other trains on the track ahead of the cattle in question, by engines passing for water, and by the passing of passenger trains. To our mind it conclusively appears other trains were on the track of appellant before it accepted the cattle and left Wichita. In that short time and distance it must have known of the condition on its own line of road, which, if congested, the jury must have found that appellant, with any sort of diligence, would have ascertained when it accepted and received the cattle for shipment. We believe there was, no error in the court’s action in instructing the jury, under the evidence and the pleadings, to disregard the defense so set up and refusing appellant’s requested instruction. The assignments are therefore overruled.

The sixth and seventh assignments complain of the fourth paragraph of the court’s charge. We refer to what has been said in answer to the Santa PS’s eighth assignment for paragraph 4 there set out. We also set out the seventh paragraph of the court’s charge: “Delay to cattle in transit to be actionable and to afford a basis of recovery by the owner against the defendant, upon whose line the same occurs, must be shown by the evidence to be unnecessary and unreasonable and proximately caused damage to the cattle; otherwise it is not actionable and does not afford a proper basis for damage, and no defendant in this ease can be held liable in damages for any cause not occasioned proximately by its own negligence, even though said injuries may have developed on its line of road while the cattle were in its possession.” We do not think the charge as a whole subject to the criticism that it burdened the appellant with the penalty of handling the cattle at its peril, “so as to avoid injury to the cattle.” The carrier, perhaps, does not occupy the position of insurer as to the time in which the cattle are to be transported. Trout & Newberry v. Railway Co., 111 S. W. 220. But as to handling them otherwise, we think the rule of the common law prevails in this state and is also recognized by the Supreme Court of the United States in the absence of an agreement between the parties relaxing the rules of the common law. Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; Railway Co. v. Trawick, 68 Tex. 314, 4 S. W. 567, 2 Am. St. Rep. 494.

The eighth and ninth assignments are overruled for the reason given in disposing of the Santa Fé’s tenth assignment.

The tenth and eleventh assignments complain of the action of the court in excluding part of the testimony by deposition of T. J. Stone and Bumstead. The assignment, proposition, or statement do not disclose the particular evidence excluded, the objection made, or anything from the record which will enable us to determine from the brief whether the court was in error in excluding the offered evidence. We are simply referred to the record to find out what the testimony was. The proposition under the assignment is in the nature of an argument based upon certain asserted conditions surrounding the witnesses. The general statement in the assignment is that the witness was not permitted to state that the delay was occasioned by the blockade along the line ahead of him. We cannot tell what the witness said was the occasion of the blockade from the assignment or statement. We do find as a fact set out in appellant’s brief, as well as that of appellee, that several witnesses testified that the trains were delayed by unloading of other stock trains ahead of them and engines passing for water. We do not think any injury is shown to appellant by the rulings of the court.

The twelfth assignment is overruled for the reasons given in considering this appellant’s first to fifth assignments, inclusive.

The thirteenth assignment is not briefed in accordance with the rules. The testimony objected to is not given, the objection made or any of the attending circumstances set out by the brief, so this court can determine just what issue he passed upon. We are referred to the transcript for information. From what is stated by appellant and the appellee, the ruling of the court on the objection made was correct but if not, in the light of the entire record, his ruling was harmless and no injury resulted to appellant therefrom.

We do not think there is reversible error shown, such as will require a reversal of the case, and we therefore affirm it.

Affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    CHEATHAM & HANEY v. DANSBY.
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 5, 1913.)
    Beokees (§ 60) — Action fob Commissions— Exchange of Property — Quantum Mer-uit.
    Where defendant made no agreement to pay broker’s commissions to plaintiffs unless the sale of defendant’s property should be completed by an actual exchange, plaintiffs in the absence of an exchange could not recover on a quantum meruit, though they had performed services and expended money in an effort to bring it about.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §, 91; Dee. Dig. § 60.]
    Appeal from District Court, Bosque County; O. L. Lockett, Judge.
    Action by Cheatham & Haney ¿gainst Charles E. Dansby. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Alva Bryan, of Waco, and Cureton & Cure-ton, of Meridian, for appellants. Waller S. Baker, of Waco, and Jas. M. Robertson, of Meridian, for appellee.

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

   CONNER, C. J.

Appellants during November of 1910 were doing business at ÍYaco, Tex., as real estate agents, and as such had listed with them for sale certain property situated in Waco belonging to one R. B. Carpenter; Mr. Cheatham of the appellant firm met 'Mr. Chester Smith, who stated that he had 526 acres of land in Hill county which he would like for Cheatham to sell. Appel-lee Dansby was the owner of the land in Hill county referred to in the conversation just stated, and Smith was his farm superintendent, who had been requested to find a purchaser, but who was not empowered or authorized to sell, nor to place the lands in the hands of any agent for sale. Nevertheless, Mr. Cheatham made one or more trips to Hill county and finally exhibited the land to said Carpenter. Appellee was thereupon requested to come to Waco, which he did, and as a final result of the negotiations between Carpenter and Dansby they entered into a written contract for an exchange of lands. The form or sufficiency of the contract is not questioned, and therefore need not be set out. It provided, however, for the deposit by Carpenter of $1,000 in the bank, to be paid Dansby as a forfeit in event of Carpenter’s failure to comply with the contract. Carpenter later did refuse to comply with the contract, and Dansby accepted the $1,000 forfeit, whereupon appellants instituted this suit, claiming $700 as commissions, which it is alleged Dansby agreed to pay them. The trial resulted in a verdict and judgment in favor of the defendant, Dansby, and hence this appeal.

As we find it, the issue is a very simple one. It is not contended that Smith had any authority to list with appellants the lands belonging to appellee situated in Hill county; but it is specifically alleged "that, prior to the actual signing of said contract, defendant promised and agreed to pay plaintiffs a commission of $700; that being the amount of commission agreed upon prior to the execution of said contract.” The testimony of appellant Cheatham supports this allegation; but it was specifically denied both in the pleadings, and in the evidence of appellee, Dansby, and the court, after instructing the jury that the contract between Carpenter and Dansby was binding as a contract for the sale of the lands therein described and that the undisputed evidence showed that Cheatham and Haney were the procuring cause of making the said contract of sale, thus submitted the issue: “Now if you believe from a preponderance of the evidence that for the making of said contract of sale the defendant, Charles E. Dansby, promised to pay to Cheatham & Haney the sum of $700 then, in that event, you will find said sum of money for the plaintiffs. On the other hand, if you believe from the evidence that Charles E. Dansby only promised to pay a commission for making said contract of sale, on condition that said contract of sale should be completed by an actual exchange of said property, etc., then if you so believe you will find for the defendant.”

Appellants assign error to the charges quoted, because they excluded a recovery of a less sum than $700 on a quantum meruit, as had also been pleaded by them. But if true, as evidently found by the jury, that appellee made no agreement for the payment of commissions whatever unless the sale should be completed by an actual exchange of the property specified in the contract, then nothing was recoverable by appellants on the theory of a quantum meruit, notwithstanding they may have performed services or expended money in the effort to effectuate a sale. Parties are at liberty to make such contracts as they may choose when not forbidden by the law, and there is no contention in this case that the contract entered into between the appellee and Carpenter had been completed by an actual exchange of the property specified therein. We, therefore, think we must overrule appellants’ first, second, and third assignments of error.

Appellants’ fourth assignment of error is to the action of the court in refusing a special instruction, which was properly refused, if for no other reason, because it entirely ignored appellee’s defense that the agreement was that he was in no event to pay commissions unless the contract of sale should be completed by an actual exchange of the prop ■ erty therein specified.

What we have already stated sufficiently shows that the court did not err in overruling the motion for new trial.

It is, accordingly ordered that the judgment be affirmed.


text:
    RULE v. RICHARDS.

    (Court of Civil Appeals of Texas. Amarillo.
    May 17, 1913.
    Rehearing Denied June 7, 1913.)
    1. Vendor and Purchaser (§ 242) — Junior Purchaser — Prior Unrecorded Deed — Burden oe Proof — Notice.
    A junior purchaser of land attempting to defeat the title of the holder of a prior unrecorded deed from the same grantor of the same land 'has the burden of showing by evidence, outside the recitals in his conveyance, _ that he purchased for a valuable consideration and without notice of a prior conveyance.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. § 242.]
    2. Judgment (§ 788) — Lien — Holder of Prior Unrecorded Deed — Burden of Proof — Notice.
    As against a creditor whose lien has been fixed on land by legal process against his debt- or, the holder of an unrecorded deed from such debtor has the burden of proving notice of his right to such purchaser at the time of or before the attachment of the lien.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1368, 1369; Dec. Dig. § 788.]
    3. Evidence (§ 318) — Ex Parte Affidavit.
    On an issue as to the validity of an execution sale of certain land as against the holder of. a prior unrecorded deed from the debtor, the ex parte affidavit of the judgment creditor that his wife purchased the land under the order of sale and paid for the same out of separate funds was inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §,§ 1193-1200; Dec. Dig. § 318.]
    4. Evidence (§■ 178) — Best and Secondary Evidence — Attachment—Return.
    Where an original attachment and a return thereon was lost and the contents of the attachment and return could not therefore be proved by the writ in the ordinary manner, secondary evidence was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 5S0-594; Dec. Dig. § 178.*]
    5. Justices of the Peace (§ 124) — Real Property — Lien — Foreclosure — Judgment.
    Rev. St. 1895, art. 213, creates a lien on property when levied on by attachment, and article 214 declares that, when land is levied on by attachment issued out of a justice’s court, no decree foreclosing the lien shall be necessary, but the judgment shall briefly recite the issuance of levy of attachment, and such recital shall be sufficient to preserve the lien. Held that, since where land is attached under a justice’s judgment it is not necessai'y that the judgment foreclosing a lien be entered, a recital of such foreclosure in a judgment did not render it void but should be considered as a noting of the fact of the issuance and levy of the attachment and preservation of the lien.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§, 389, 393, 394; Dec. Dig. § 124.]
    6. Justices of the Peace (§ 135) — Designation— Order of Sale.
    The fact that the execution issued on the judgment foreclosing an attachment lien on land was called an order of sale did not affect its validity, since the term “execution” applies to all process issued to carry into effect the final judgment of the court.
    [Ed. Note.- — For other cases, see Justices of the Peace, Cent. Dig. §§ 426-447, 749; Dec. Dig. § 135.]
    7. Evidence (§ 372) — Records —Ancient Documents — Defective Acknowledgments.
    Rev. St. 1895, art. 2312, as amended by Acts 30th Leg. c. 165, provides that every instrument which had been or shall thereafter be actually recorded for ten years, whether proved or acknowledged as required or not, shall be admitted in evidence in any suit in the state and shall be admitted without the necessity of proving its execution, provided no claim adverse or inconsistent to the one evidenced by the instrument shall have been asserted during the ten years. Held, that such act did not render a defectively acknowledged bond for title admissible' in evidence as against one claiming under an attachment lien on the property as that of the grantor in the bond, where the latter’s rights were asserted within a year after -the recording of the bond.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1613-1627; Dec. Dig. § 372.]
    8. Trespass to Try Title (§ 35) — Pleading.
    Where plaintiff in trespass to try title pleads his title specifically, he will be required to prove his allegations as laid.
    [Ed. Note. — For other cases, see Trespass to Try Title, Gent. Dig. §§ 50-52; Dec. Dig. § 35.]
    9. Execution (§ 319) — Sale — Sureties— Deeds — Recitals.
    A sheriff’s deed for real property reciting a sale by virtue of an order of sale was insufficient to prove that the sale was pursuant to a valid judgment and execution which the holder of the title was required to establish by other evidence.
    [Ed. -Note. — For other cases, see Execution, Cent. Dig. §•§ 935-939; Dec. Dig. § 319.]
    Appeal from District Court, Cottle County; Jo A. P. Dickson, Judge.
    Action by T. J. Richards against Johnnie Floyce Rule. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    See, also, 149 S. W. 1073.
    M. M. Hankins and W. T. Perkins, both of Quanah, and Veale & Davidson, of Amarillo, for appellant. R. D. Browne, of Paducah, for appellee.

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

       Writ o£ error granted by Supreme Court.

   HUFF, C. J.

On April 14, 1910, the ap-pellee, T. J.. Richards, sued Johnnie Floyce Rule, appellant, to remove cloud from 27 town lots in the town of Paducah, Cottle county, in which he sets out his title specifically about as follows: First. Patent to R. Potts, dated September 20, 1893. Second. Warranty deed from R. Potts to R. E. Avent November 2, 1893, recorded April 4, 1894. Third. Judgment for debt, foreclosing attachment lien on the lots in question in a suit against R. E. Avent by S. B. Harwell, attachment levied on the property the 11th day of June, 1894. Fourth. Sheriff’s deed, reciting therein a sale, by virtue of an order of sale issued on said judgment, dated January 23, 1895, and filed for record January 30, 1895. Fifth. Warranty deed from S. B. Harwell and wife, N. A. Harwell to T. J. Richards, dated February 11, 1909, filed for record March 16, 1909. The appellee also pleaded three, five, and ten years’ statutes of limitations, and further alleges: “Plaintiff will further show to the court that the defendant’s claim to said land and premises herein-above described is founded upon the following instruments, to wit: (a) Deed from R. E. Avent to J. H. Rule, dated December 18,1893, filed for record July 14, 1894, recorded in volume 6, p. 38, deed records of Cottle county, Tex.; (b) quitclaim deed from Mrs. Mary Rule, widow of J. H. Rule, to Johnnie Floyce Rule, dated June 2, 1910, filed for record June 13, 1910, and recorded in volume 18, p. 200, deed records of Cottle county, Tex. Fifth. This plaintiff will further represent to the court that the defendant is setting up some claim of title to the above-described lots and premises under and by virtue of said instruments, notwithstanding your plaintiff, by reason of the premises and matters herein set forth, is vested with full and complete fee-simple title to said land and premises and all the right, title, and interest that the defendant or those under whom he claims ever had, if any, in said land and premises has long since been divested out of defendant and those under whom she claims and is now vested in this plaintiff; that said instruments last mentioned and claims of the defendant thereunder operate as a cloud on the title of this plaintiff to said lands ana premises, which your plaintiff is entitled to have removed.” The petition closes with a prayer to remove the cloud and to recover the lots in question.

The appellant answered by general exception, general denial, plea of not guilty, and pleaded the title of appellant is as alleged, except that it consisted in part of a certain bond for title, executed May 19, 1893, by R. A. Avent to J. H. Rule, filed for record May 23, 1893, and recorded May 24, 1893, in the deed records of Cottle county. The court overruled the appellant’s general exceptions and after trial rendered judgment for appel-lee, vesting the title in appellee to the lots and removing the cloud created by the instruments set out in appellee’s petition.

The appellant, by the first assignment, alleges error in the action of the trial court in overruling the appellant’s general exception to the petition, and by the second assignment that the court erred in admitting in evidence the testimony of S. B. Harwell to the effect that he did not have notice or knowledge that any person other than R. E. Avent owned or claimed any interest in or to the lots in question at the time he instituted suit against R. E. Avent, and at the time he had the attachment levied upon the property. Appellee objected to the testimony because it was immaterial, irrelevant, and incompetent. S. B. Harwell was the plaintiff in the suit against R. E. Avent in the justice court, precinct No. 1, Cottle county, in which attachment was issued and levied on the lots in question and foreclosed by the judgment of that court. The grounds in part of the appellant’s exception and objection appears to be that it was incumbent on appellee to allege and prove that Harwell, when the land was levied on, did not have notice of appellant’s claim to the lots. The petition did not allege the want of notice on the part of Harwfell when the levy was made upon the lots.

On the former appeal of this case, on motion for rehearing, this court held: “It is necessary for him (appellee) to show by the evidence that either he or his vendor (Mrs. N. A. Harwell) bought said land for a valuable consideration without notice of the claim under which appellant holds, and, having failed in this because of the execution and record of the deed above referred to, it then becomes necessary for appellee to show affirmatively, in order to recover, that, at the time of the fixing of S. B. Harwell’s attachment lien, he (the said S. B. Harwell) had no notice of the claim under which appellant holds.” The court cited a number of decisions holding that a junior purchaser under a voluntary sale was required to show he had no notice of the previous unrecorded deed, and also cited the cases of L. & H. Blum Land Co. v. Harbin, 33 S. W. 153, and Walker v. Downs, 64 S. W. 682, which appear to place the burden on the junior claimant to prove that the execution plaintiff did not have notice of the adverse claim at the time of the levy. The two authorities support the court’s holding in this case on the former appeal, but, as we now understand the holdings of the Supreme Court, this ruling was error. Barnett v. Squyres, 93 Tex. 193, 54 S. W. 241, 77 Am. St. Rep. 854; Turner v. Cochran, 94 Tex. 480, 61 S. W. 923. A discussion of the rule as announced by the Supreme Court will be found in the following cases: Rogers v. Houston, 60 S. W. 446, 448; Rogers v. Houston, 94 Tex. 403, 60 S. W. 869; Whitaker v. Farris, 45 Tex. Civ. App. 378, 101 S. W. 457; Bell Hardware Co. v. Riddle, 31 Tex. Civ. App. 411, 72 S. W. 613.

In the case of Barnett v. Squyres, supra, the Supreme Court said: “The decisions of this court have determined the rule to be otherwise, placing the burden upon the person asserting right under unrecorded instruments to show notice to the creditor prior to the acquisition of the lien.”

In the case of Turner v. Cochran, Judge Williams, who rendered the Squyres decision, again speaking for the Supreme Court, said: “The decisions of this court have settled two propositions respecting the burden of proof in such eases: First. That a junior purchaser of land, attempting to defeat the title of the holder of a prior unrecorded deed from the same grantor for the same land, has the burden to show, by evidence outside the recitals in his conveyance, that he purchased for valuable consideration and without notice of the previous conveyance. Watkins v. Edwards, 23 Tex. 443; Hawley v. Bullock, 29 Tex. 217; Rogers v. Pettus, 80 Tex. 425, 15 S. W. 1093. Second. That, as against a creditor whose lien has been fixed upon land by legal process against Ms debtor, the holder of a prior unrecorded deed' from such debtor has the burden of proving notice of his right to such creditor at the time of or before the attaching of the lien. Linn v. Le Compte, 47 Tex. 442; Wright v. Lassiter, 71 Tex. 644, 10 S. W. 295. These cases were followed in Barnett v. Squyres, 93 Tex. 193 [54 S. W. 241, 77 Am. St. Rep. 854].”

Under the authority of the Supreme Court, we now hold the burden was not on appellee to allege and prove want of notice to S. B. Harwell, but that burden was on appellant, and on that point the first and second assignments are overruled. We will, however, consider the general exceptions in the further discussion of the case.

We do not think admissible the ex parte affidavit of S. B. Harwell to the effect that his wife, N. A. Harwell, purchased the lots at the sale under the order of sale and paid for the same out of separate funds.

The testimony of S. B. Harwell, to the effect that he instituted suit and that an attachment issued and was levied on the lots, is not ordinarily admissible to prove the contents of attachments or judgments, but was doubtless admitted in this case only to identify the witness as the party named in the proceedings. - In order to prove a lien by virtue of an attachment, the writ itself should be produced, but in this case the original attachment was lost, together with the return thereon, and hence secondary evidence was admissible.

R. E. Avent is the common source of title. On the 5th day of October, 1894, S. B. Harwell obtained judgment against R. E. Avent in the justice court, precinct No. 1, Oottle county, Tex., by default in the sum of $164.30, and reciting therein the foreclosure of an attachment lien which was levied on the lots in question with others on the 11th day of June, 1894. Plaintiff introduced in evidence certified copy of the attachment records of Cottle county, Tex., Book 1, p. 7, as follows: “S. B. Harwell against R. E. Avent, amount of debt, $164.33, justice court 1, Cottle county, June 9, 1894. Return of Officer: Came to hand on this the 31th day of June, A. D. 1894, and executed on this the 11th day of June, A. D. 1894, at 4 o’clock p. m., by levying upon and taking into my possession the property of the within-named defendant, R. E. Avent, all of the following described property, situated in the town of Paducah, county of Cottle, state of Texas.” Then follows the description of lots.

Appellee next introduced a sheriff’s deed to Mrs. N. A. Harwell, conveying the lots, reciting that the sum of $50 was bid on the same and paid to the sheriff by Mrs. N. A. Harwell, reciting that the sale had been made by virtue of an order of sale, issued out of the justice court in the above case, which deed is dated January 23, 1895, and recorded January 30, 1895. A deed from S. B. Harwell and wife, N. A. Harwell, to T. J. Richards, conveying the lots for the recited consideration of $200, dated the 11th day of February, 1909, and properly recorded. The evidence shows that the papers in the case of Harwell v. Avent were lost and could not be found in the justice court’s office. It is further shown that the execution docket of said court had no entry showing that an execution or order of sale was issued and entered upon such docket, or entry showing a return on it of any execution or order of sale. There is no oral testimony either from the justice of the peace, sheriff, or any one else that the execution or order of sale issued. In fact, the only evidence of such writ is that contained in the sheriff’s deed.

Appellant suggests fundamental error in the rendition of the judgment by their reply brief, because no execution or return of the sheriff thereon showing the sale of the lots was introduced in evidence, and by the third assignment of error suggests the insufficiency of the evidence, apparently upon other grounds than that mentioned in the reply brief.

The testimony in this ease shows that the original papers in the justice court, precinct No. 1, were lost; hence we think the recitation of the judgment entry that the writ of attachment had been issued June 11, 1894, and levied upon the property in question, together with the record of the same in the records of Cottle county, kept for recording attachment liens, were sufficient to establish the attachment and the levy on the lots. Article 213 of the Revised Statutes of 1895 creates a lien on the property when levied upon by attachment. Article 214 is to the effect when land is levied on by virtue of an attachment, issued out of a justice court, that no decree foreclosing the lien “shall be necessary, but the judgment shall briefly recite the issuance and levy of such attachment, and such recital shall be sufficient to preserve such lien. The land so attached may be sold finder execution after judgment, and the sale thereof shall vest in the purchaser all the estate of the defendant in attachment in such land at the time of the levy of such writ of attachment.” The order of sale or execution issued on that judgment is not in the record. The evidence shows that the execution docket of the justice court had no entry upon it showing the .issuance of execution in the case of S. B. Harwell v. R. E. Avent. All papers appear to have been lost from the files. The sheriff’s deed recites that he made the sale by virtue of an order of sale, issued out of the justice court, precinct No. 1, Cottle county, in the case of S. B Harwell v. R. E. Avent, on a certain judgment and decree of sale rendered the 5th day of October, 1894, and recites all the necessary precedent steps as to advertisement, time and place of sale within the hours prescribed by law, and sale to Mrs. N. A. Harwell, for the sum of $50, of the lots in question. We do not believe the testimony offered, after the proof of the loss of the papers from the files of the court, is sufficient to support the Judgment of the trial court that the necessary precedent power was in the sheriff to make the sale and execute the deed. The objection is made that the judgment of the justice court, foreclosing the lien, is void as it had no power to render such judgment. This court held on the former appeal that the judgment was not void for that reason, basing its opinion on the case of Hillebrand v. McMahan, 59 Tex. 450; Gizzard v. Brown, 2 Tex. Civ. App. 584, 22 S. W. 252. We think the opinion of this court in that holding correct. It will be noted the statute referred to provides it shall not be necessary to foreclose, but by noting the fact of the issuance of the attachment and the levy on the property the lien is preserved. The fact that the judgment recites the lien is foreclosed we think in this case should be treated as a notation preserving the lien. Our attention has been directed to the cases of Patterson v. McMinn, 152 S. W. 223; Hamill v. Samuels, 135 S. W. 746. In the Patterson Case, supra, it is said: “The court was in error, however, in foreclosing the lien; the proper practice in cases of foreclosure of attachment liens in the county court being briefly to recite,” etc. To the same effect is the Hamill Case. The judgment in those cases was reversed in part because of the violation of this proper practice. The recital in the judgment in question of this ease that the lien was foreclosed did not destroy the lien which was created by the statute when the levy was made. We think the judgment in a collateral attack would be good for the amount rendered and the property could be sold* under execution to satisfy the same.

The fact that the execution was called an order of sale will not affect its validity as an execution. “The term ‘execution’ applies to all processes issued to carry into effect the final judgment of a court.” Pierson v. Hammond, 22 Tex. 585; Sedwick v. Ritter, 128 Ind. 209, 27 N. E. 610-611.

In addition to the instruments set out in appellee’s petition as being a cloud upon ap-pellee’s title and under which appellant claims, appellant offered in evidence a bond for title covering the land in question from B. E. Avent to J. H. Rule, dated the 19th day of May, 1893. The acknowledgment to the instrument is as follows: “State of Mississippi, County of Sunflower. Before me, the undersigned authority, on this day personally appeared B. E. Avent, who acknowledged signing the foregoing instru-, ment for the purposes and consideration therein expressed. Signed and delivered the 19th day of-, A. D. 1893. U. D. Link, Justice of the Peace, Sunflower county, Mississippi.”

It was recorded on the 23d day of May, A. D. 1893, in the deed records of Cot-tle county. The appellee objected to the introduction of this instrument because it was acknowledged before a justice of the peace of another state, and because it is not shown to have been taken before a notary public or that such justice of the peace was a notary public. That there was no seal of the officer taking the acknowledgment and because the maker of the instrument is not identified in the certificate of acknowledgment. The trial court sustained the objection to the introduction of this deed, which ruling is assigned as error. We approve of what was said by this court as to this instrument on the former appeal, but the additional ground is urged on this appeal that article 2312, Bevised Statutes, as amended by the act of April 27, 1907, by the Thirtieth Legislature, p. 308, made the same admissible.' The amendment affecting this case is as follows; “Every instrument which has been or hereafter may be actually recorded for a period of ten years in the book used by said clerk for the recording of such instruments, whether proved or acknowledged in such manner or not, shall be admitted as evidence in any suit in this state without the necessity of proving its execution: Provided no claim adverse or inconsistent to the one evidenced by such instrument shall have been asserted during that ten years.” If the filed instrument had been recorded ten years, it is admissible in evidence whether the acknowledgment “is in form or substance such as required by the laws of this state.” As will be seen from the statement heretofore made of this case, this bond or deed was recorded May 24, 1893, while the levy of the attachment of the lots was made on June 11, 1894, as the property of B. E. Avent and the lots sold as his under execution in January, 1895, and the sheriff’s deed duly recorded at that time. In the case of Sims v. Sealy, 53 Tex. Civ. App. 518, 116 S. W. 630, it is said: “The act in question by its terms does not apply as against a claim adverse to or inconsistent with that evidenced under the instrument, which has been asserted during the first ten years that the instrument has been upon the record.” We do not think the statute will authorize the introduction of the bond as evidence or as notice against appellee, as his claim of title through an attachment lien on the lots as the property of Avent is inconsistent to the claim of appellant and' was so asserted within a year after the recordation of the bond and his rights, if any he had, were fixed under the law as it then existed. Had the appellee not pleaded limitation, we believe the general exception to the petition should have been sustained for the reasons hereinafter mentioned.

As we understand the law to be in this state, in the action of trespass to try title, when the plaintiff pleads his title spe-eifically he will be held to prove his allegations as alleged. Sterling v. Self, 30 Tex. Civ. App. 284, 70 S. W. 240; Edwards v. Barwise, 69 Tex. 84, 6 S. W. 677. Pleadings form the basis of every recovery, and in order to sustain the judgment it must be found that pleadings allege facts necessary to a recovery.

The pleadings in this case only allege a sheriff’s deed, and, as we interpret the allegation, that the deed recites a sale by virtue of an order of sale. There is no allegation that there was in fact issued out of the justice court an execution or order of sale, by virtue of which the property was sold. The evidence does not show that such order of sale was issued out of the justice court, but on the contrary, negatives that it was so issued. There is no entry of any such issuance on the execution docket or of the return of any such order of sale. The only evidence of the issuance of the execution or the order of sale is that contained in the recitals of the sheriff’s deed. In order to support a sheriff’s deed it has been repeatedly held that there must be shown a valid judgment and a valid execution. Howard v. North, 5 Tex. 311, 51 Am. Dec. 769; Sadler v. Anderson, 17 Tex. 245; Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53; McKay v. Paris Exchange Bank, 75 Tex. 181, 12 S. W. 529, 16 Am. St. Rep. 884; Leland v. Wilson, 34 Tex. 79; Tudor v. Hodges, 71 Tex. 392, 9 S. W. 443; Kruegel v. Cobb, 124 S. W. 726; Lamar County v. Talley, 127 S. W. 277; Trevino v. Fernandez, 13 Tex. 630.

In Howard v. North, supra, it is said: “The statute directs the sheriff, after sale has been made and the terms complied with, to execute and deliver a conveyance to the-purchaser, but does not prescribe the facts which shall be stated in the deed, or that the authority under which the sheriff acted shall be recited. The recital in the deed is not made by the statute, nor is it on general principles of law a substantial and efficient part of it, nor is it evidence of the facts recited in it, except between the immediate parties to it. * * * The usage of incorporating in the sheriff’s deed a recital of the authority under which he sold was commended as productive of great convenience, as well to the sheriff as to the purchaser. It would point the former to his authority to sell and would facilitate the latter in deriving his title; but it was held to be not indispensable. The recital of the power to sell and convey did not give the right, nor was it evidence of the right”

In Wofford v. McKinna, 23 Tex., supra, the court said: “A sheriff’s deed is inoperative without proof of the power to sell. It is no evidence of title without the introduction of the judgment or execution.”

In the case of Leland v. Wilson, 34 Tex., supra, it is said: “A sheriff, by the recitals in his deed, cannot bind a party whose land he may have improperly sold; the recitals are to be regarded only as inducement. Howard v. North, 5 Tex. 290, 51 Am. Dec. 769; Jackson v. Pratt, 10 Johns. (N. Y.) 381. The maxim, ‘Omnia prsesumuntur recte,’ is only applicable to the record of judicial proceedings, and is not to be applied to the exercise of ministerial functions. In the ease of Jackson v. Roberts, Ex’rs, 11 Wend. (N. Y.) 433, the court says: ‘We may well inquire whether a sheriff has power to make evidence in favor of his own acts against others, which shall be conclusive against their rights. If it is evidence against a stranger, of what is it evidence? Of all the facts necessary to make out the grantee’s title, or part only? If the former, it must be evidence of judgment and execution and of the debtor’s title to the premises; yet it is well settled that it is not evidence of these things, hut they must he proved, aliunde. The shériff sets forth in his deed that he sold, by virtue of an execution, the property of the defendant in that suit. If his dictum is conclusive evidence of this, I can conceive of no safeguard against sales on pretended or forged executions.’ ”

The sheriff’s deed is not necessary in proving title. The essential prerequisites of title is the valid judgment and execution. The deed is but the ministerial act of the officer executing it. It proves nothing but the sale. If he should misdescribe the judgment or execution, it would not affect the title to the land sold, or in fact, if no deed was made, the sale under execution would be sufficient to pass the title without a deed. It may well be doubted whether the recitation in the deed of the sale of land can be used as evidence, binding those who are not the immediate parties thereto. In this case, there being no allegation that an execution was issued and levied upon the lots by virtue of which they were sold, and there being no evidence in the record that an order of sale or execution was in fact issued on the judgment, there is no power shown in the sheriff to make the deed, and without such power his deed would be ineffectual and of no validity. The records of the justice court, if they prove anything, prove the execution or order of sale did not issue. There is no entry of the issuance of any such writ on the execution docket. We therefore conclude the court was in error in holding that appellee proved title and in rendering judgment for him for the lots and in canceling the instruments by which he alleges appellant claims some interest in the land.

This case having been heretofore appealed and is now before this court without any change in the allegations of the petition as to title, we believe, under the evidence adduced, it should be reversed and here rendered, and it is accordingly so ordered.