text:
    KLUTH v. LANE, State Comptroller.
    (Court of Civil Appeals of Texas. San Antonio.
    April 1, 1914.)
    Intoxicating Liquors (§ 108) — Licenses— Action to Reinstate — Evidence.
    The trial of a suit in the district court against the State Comptroller to reinstate a liquor license canceled by him on evidence taken before a notary public is de novo, so that evidence in addition to that taken before the notary is admissible.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 116-118; Dec. Dig. § 108.]
    Error to District Court, Guadalupe County; M. Kennon, Judge.
    Suit by Herman Kluth against W. P. Lane, State Comptroller. Judgment for defendant, and plaintiff brings error.
    Reversed and remanded.
    H. E. Short, H. H. Weinert, and P. E. Campbell, all of Seguin, for plaintiff in error.

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

   CARL, J.

On March 6, 1913, defendant in error, W. P. Lane, Comptroller of the state of Texas, rescinded and canceled the retail malt liquor dealer’s license of Herman Kluth, plaintiff in error. The license was canceled by the Comptroller upon the return of evidence taken before J. S. Slaughter, a notary public in and for Guadalupe county, in pursuance of section 9, c. 17, of the Acts of the Thirty-First Legislature (1st Ex. Sess.). Subsequent to the cancellation of the license, on May 2, 1913, plaintiff in error filed suit, as the aggrieved party, in the district court of Guadalupe county to reinstate said license, and upon the trial of the cause the record evidence taken before J. S. Slaughter, justice of the peace for precinct No. 6, Guadalupe county, on February 5, 1913, was introduced. The court refused to permit the introduction of any evidence, except that taken before the justice of the peace and notary public on February 5, 1913, and upon the introduction of said record evidence, which was conflicting as to a violation of the law by Kluth, the court instructed the jury to return a verdict for defendant in error, W. P. Lane. This was done, and Kluth has brought the case here on writ of error.

Kluth was charged with having had his -saloon open on Sunday, August 11, 1912, as well as upon September 15, 1912. In the hearing before the justice of the peace, the Comptroller had various witnesses introduced, some of whom testified that they saw the saloon open on the Sundays about which complaint is made, but Kluth himself testified that he did not have the saloon open, and proved by various parties they had never seen the saloon open on Sunday. In the trial in the district court, the plaintiff in error attempted to introduce other evidence, especially his bartender, by whom he offered to show that on the day mentioned he did not have his saloon open; but the trial court declined to hear any evidence except that taken at the aforesaid hearing, and, since the court held that same did not show an abuse of discretion by the Comptroller, the peremptory instruction aforesaid was given and the jury complied with same.

The trial court was evidently of the opinion that the Legislature, in passing the law first above mentioned, intended that the district court should only have the power to determine whether the Comptroller had abused his discretion or had acted in an arbitrary manner in canceling such license. Judgment was rendered in this cause on May 2, 1913, and the case of Lane v. Hewgley, 156 S. W. 911, had not then been decided, nor the still later case of Lane v. Chappell, 159 S. W. 905. In the Hewgley Case, supra, Chief Justice Fly said: “However, we are of opinion there is nothing in the statute authorizing the suit against the Comptroller that indicates that the court should hear only the evidence taken by the Comptroller. The law in many instances would offer no redress if the evidence was confined to the testimony taken by or for the Comptroller.”

Again, in the Chappell Case, supra, Chief Justice Pleasants holds that an action like this is a civil suit, and says: “Being a ‘cause of action,’ as that term is used in the section of the Constitution above cited, the procedure provided for the trial of civil actions in the district court would be applicable, and it was not necessary for the Legislature, in authorizing the suit, to make any special provision as to the method of procedure in such suit. If the suit be regarded as a special proceeding, the article before quoted expressly confers upon the district court jurisdiction of the subject-matter of the suit and of the parties, and if the procedure provided for the trial of ordinary causes of action was not applicable, or sufficient for this proceeding, the district court would be authorized to adopt such rules of procedure, not inconsistent with the Constitution and statutes of this state, as might be necessary to properly try and determine the issues raised by the suit. Ashford v. Goodwin, 103 Tex. 491, 131 S. W. 535, Ann. Cas. 1913A, 699.”

The assignment was made in that case that the district court had no power to do anything except review tlie action of the Comptroller in revoking the license, and could not enter into a trial de' novo, “for the purpose of determining whether the plaintiff in the suit has violated the conditions of his bond as found by the Comptroller.”

“We do not think the statute should be so construed. It gives a cause of action to the person whose license has been forfeited by the Comptroller, not a right of appeal or review by the district court. It confers upon the district court jurisdiction to try the suit brought to reinstate the license, and in such trial its authority is not limited to a determination of the question of whether the action of the Comptroller was arbitrary; but the court should determine, from all the evidence adduced, whether the plaintiff has violated the conditions of his bond, and in decid-ig this question is not bound by the rule which requires an appellate court to sustain the judgment of the lower court, if there is evidence sufficient to support such judgment. In the case of Lane v. Hewgley, 156 S. W. 911, the Court of Civil Appeals for the Fourth District holds that, upon the trial of . a suit of this kind in the district court, evidence other than that upon which the Comptroller acted might be heard and considered by the court. If this holding is correct, it necessarily follows that the trial in the district court is not confined to a determination of whether the evidence heard- by the Comptroller was sufficient to sustain his findings:' but the district court must determine for itself from all the evidence whether the plaintiff’s license was properly forfeited.”

Since even the evidence taken on behalf of the Comptroller was conflicting on the main issue, and since the courts have held that the trial in the district court is not limited to the testimony taken before the notary public, but that it should be a trial de novo, this cause will be reversed and remanded.

The right of trial by jury is vouchsafed by the Constitution with the assurance that it shall remain inviolate, and, when the Legislature provided a method of ex parte proceedings for gathering information necessary for the Comptroller’s guidance, it was not •intended that the right of trial by jury should be destroyed. If a -jury should only be permitted to pass upon the question of whether the Comptroller had acted in an arbitrary manner or had abused his discretion, and at the same time were limited to the testimony taken upon such hearing, at the instance of the Comptroller, the boasted right of trial by jury is an iridescent dream. We do not believe that the Legislature intended any such radical departure from our ancient landmarks, and, if that was the intention, it cannot be done now, and it is to be hoped the -time may never come when it may.

We think the court erred in refusing to hear other evidence, and in giving a peremptory instruction for defendant in error. The other matters complained of will doubtless not occur on another trial.

Judgment reversed, and the cause remanded.


source: Caselaw Access Project

author: MOTJRSTIND, J.

license: Public Domain

text:
    INTERNATIONAL & G. N. R. CO. v. WALTERS.
    (Court of Civil Appeals of Texas. San Antonio.
    March 4, 1914.
    Rehearing Denied April 15, 1914.)
    1. Master and Servant (§ 286) — Action for Injuries — Question for Jury.
    In a car repairer’s action for injuries by being struck by an engine, .held, on the evidence, that the question whether defendant’s employés knew that plaintiff was ignorant of the approach of the engine was for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    2. Master and Servant (§ 286) — Action for Injuries — Question for Jury.
    In a car repairer’s action for injuries by being- struck by an engine when he jumped from a car on a parallel track, held, under the 'evidence, a question for the jury whether the trainmen could have foreseen that plaintiff would probably jump from the car.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    3. Master and Servant (§ 278) — Action for Injuries — Sufficiency of Evidence.
    In a car repairer’s action for injuries caused by being struck by an engine on an adjoining track when he jumped from a car, evidence held sufficient to support a finding that those in charge of the engine should have foreseen that, when plaintiff should jump off, he would be in close proximity to the engine, and might step in front thereof, if ignorant of its approach.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956^958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    4. Evidence (§ 5) — Judicial Notice — Matters of Common Knowledge.
    Courts can take judicial notice that engines and cars extend outside the rails upon which they run; it being a matter of common knowledge.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig, § 4; Dec. Dig. § 5.]
    5. Appeal and Error (§ 1170) — Reversal-Technical Errors.
    Where the substantial and final issues were submitted to the jury and found adversely to the complaining party, any errors in submitting the minor details should not cause a reversal of the case under Court of Civil Appeals rule 62a (49 S. W. x).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    On second motion for rehearing.
    Affirmed.
    For former opinion, see 161 S. W. 916.

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

   MOTJRSTIND, J.

Because of the additional fact found by us on motion for rehearing, we have entertained and considered a second motion for rehearing, which presents appel-lee’s contentions based upon such additional finding.

No brief was filed by appellee in this case, and consequently no objection was made to the consideration of the assignment of error sustained by us until upon motion for rehearing. The objection came too late, but it must be admitted that the only proposition submitted under the assignment was entirely too general. The assignment complains of the charge. No objections are stated in the assignment. The proposition is to the effect that, as to some four or five matters, the charge submits issues not supported by evidence. The four or five issues referred to as not supported by evidence are pointed out in the statement and argument as follows: (1) That those in charge of the engine knew of plaintiff’s position on the car. (2) That they knew plaintiff was probably ignorant of the approach of the engine. (3) That they could have foreseen that plaintiff, under the circumstances, would probably jump from the car. (4) That they had knowledge of such facts, that they could have foreseen that plaintiff would probably run across the track. (5) That he would run across the track in such a way that he1 would be exposed to danger of being struck by the engine. We have heretofore held that the first contention is not well taken. As to the second ground of insufficiency above alleged, it may be said that the operation of running back for water was not a usual or customary one, though it is deducible from plaintiff’s own testimony that he knew it was sometimes done, but even then, as is shown by the roadmaster’s testimony, it was uncertain upon which of the many tracks the engine would go back. Plaintiff mounted the ears upon a curve, and kept his back turned towards the engine. While the rules did not require the bell to be rung in the yards, plaintiff testified it was the custom to do so when engines were moving to and fro. There were absolutely no facts upon which the crew could predicate a belief that plaintiff did not know where the engine was, and, under the circumstances, we think that we were in error in holding that the facts were such that a jury could not find that, by exercising ordinary care, the crew would know that plaintiff probably did not know the engine was coming down track 2. Plaintiff had his back turned to the engine, and, if the circumstances reasonably indicated to those in charge of the engine the probability of his not knowing the engine was coming down track 2, they were not authorized to speculate on whether he knew or did not know such fact. If it reasonably appeared that plaintiff was ignorant of the approach of the engine, the signals should have been given. Then the presumption may be indulged that they will be heeded. Railway v. Harvin, 54 S. W. 632; Railway v. Smith, 62 Tex. 254. We conclude, after further consideration, that the third is without merit. The crew knew plaintiff was an inspector riding down to inspect cars, and would naturally expect him to jump off either after the cars struck the others or just 'before. He jumped off just before they struck, and, we think, regardless of .any anticipation of danger to him by his remaining on the cars, the engine crew, in the exercise of ordinary care, would anticipate that he might jump off before the cars collided with the others, either to avoid the shock or to begin inspecting the cars behind the one he was riding upon. We still think the facts were not such as to require them to foresee that plaintiff would probably run across the track; but we think the evidence was sufficient to justify the jury in finding that those in charge of the engine should have foreseen that, when plaintiff jumped off, he would be in close proximity to track 2, and might step upon said track, if ignorant of the approach of the engine. The distance between the two tracks was ten feet. Courts can take judicial notice of the fact that engines and cars extend outside the rails upon which they run. It is a matter of common knowledge. Railway v. Mertink, 102 S. W. 155. If these cars extend out, say, two feet, and plaintiff’s body covered a foot or a foot and a half, he would have a fairly small space in which to alight. He would naturally alight two or three feet from the cars, and would be close to where the engine would pass. If a person was standing that close to the track with his back turned to the engine crew, it might become necessary, in the exercise of ordinary care, to warn him to keep him from stepping too close or upon the track. In Railway v. Wininger, 151 S. W. 586,.it was held that a conductor who saw persons walking along the right of way, and knew that a public crossing was blocked, was chargeable with knowledge that such persons might attempt to cross said cars at the first opening between the same, and, in attempting to do so, would be in a position of danger, and it was his duty to keep a lookout in that direction before giving a signal for the movement of such cars. So in this case, knowing that plaintiff was going to alight in such close vicinity to the track that his momentum might carry him into danger, or that he might inadvertently step into danger after alighting, it may have been necessary that those in charge of the engine, in the exercise of ordinary care, should give signals to warn him of the engine’s approach. The fifth contention is without merit. If they could be required to anticipate that plaintiff would come close to or upon the track, they would anticipate that he might do so-at a time when it would be dangerous. The-engine was gaining upon the kicked cars, and they are bound to have known it would be close to him when he alighted, if he alighted close to the place where the stationary cars were.

We have come to the conclusion that the evidence will support the verdict, and that the errors in the charge complained of required of plaintiff too great a burden of proof, but could not have injured appellant, and that the substantial and final issue of whether the employes failed to give signals, and whether it was negligence to fail to do so, and whether such negligence caused plaintiff’s injuries, having been submitted and found favorably to appellee by the jury, the errors, if any, in submitting the minor details should not cause a reversal of the case. Rule 62a for Courts of Civil Appeals (149 S. W. x); Railway v. Allen, 35 Tex. Civ. App. 356, 80 S. W. 240; Johnson v. Railway, 45 Tex. Civ. App. 146, 100 S. W. 208.

All assignments are overruled, and the judgment affirmed.


author: HALL, J.

text:
    ST. LOUIS, S. F. & T. RY. CO. v. WALL.
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1914.
    Rehearing Denied April 11, 1914.)
    1. Trial (§ 340)—Verdict—Direction.
    Where, in an action for damages to a shipment of cattle, the jury’s findings showed that the verdict had been rendered for too great an amount only by a mistake in computation, the court was not required to either set the verdict aside or render judgment for the amount returned, but, the facts as to the number of cattle damaged and the amount of depreciation having been agreed on, it was proper to render judgment for the correct amount.
    [Ed. Note.—Por other cases, see Trial, Cent. Dig. §§ 795-799; Dec. Dig. § 340.]
    2. Carriers (§ 218)—Transportation op Animals—Notice of Injuries—Waives.
    Where defendant carrier had notice of plaintiff’s claim for damages to a shipment of cattle, and, through its agent, conferred with plaintiff with reference to the claim, the agent promising to help plaintiff collect it, a provision in the vjritten contract of shipment for notice in writing of any damages sustained, within 91 days after delivery of the cattle was waived.
    [Ed. Note.—Por other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.)
    3. Trial (§ 357)—Special .Findings—Correction.
    In an action for damages to a shipment of cattle, an answer to a special interrogatory asking whether there was a written contract between plaintiff and defendant on the shipment in question and whether it was the one introduced in evidence by defendant, that “there was a contract considered for transportation,” was not fatally defective, as unresponsive and evasive, where the jury’s answers to previous interrogatories propounded plainly stated that there was a written contract between the parties.
    [Ed. Note.—Por other cases, see Trial, Cent. Dig. § 855; Dec. Dig. § 357.]
    4. Trial (§ 216)—Instructions—Damages.
    Acts 33d Leg; c. 59, art. 1984—a, amending Rev. St. 1911, c. 14, tit. 37, provides that, in submitting special issues, the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues. Reid that, under such section, where a case is submitted to the jury on special issues, it is not necessary that the court charge on the measure of damages.
    [Ed. Note.—Por other cases, see Trial, Cent. Dig. § 484; Dec. Dig. § 216.]
    5.Pleading (§ 422) — Verification — Failure to Verify—Waiver.
    Failure to verify a plea of failure of consideration is waived, unless objected to in the trial court before.going to trial.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1414^-1417; Dec. Dig. § 422.]
    Appeal from Hardeman County Court; W. S. Banister, Judge.
    Action by E. J. Wall against the St. Louis, San Francisco & Texas Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Fires, Decker & Clarke, of Quanah, for appellant. M. M. Hankins and J. C. Marshall, both of Quanah, for appellee.

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

   HALL, J.

This is a suit by the appellee against the appellant filed in the county court of Hardeman county for damages to a shipment of cattle from Quanah, Tex., to Kansas-City, Mo. It was submitted to a jury on special issues, resulting in a verdict in favor of appellee in the sum of $599.48.

The first assignment of error is that the court erred in rendering judgment for-$599.48, when the finding of the jury in reply to the question, “What, if anything, do. you think plaintiff has been damaged by the-negligence of defendant?” was, “Seven hundred and forty-four and twenty-five one hundred dollars,” appellant’s contention, under-this assignment, is the court was bound by this finding, and should have either set the-verdict aside, or rendered judgment for $744.-25. Upon further issues submitted to the-jury, they found that the shrinkage per head upon the grown cattle amounting to 175 in. number, was 30 pounds, and that the shrinkage per head of the 17 calves was 15 pounds; that the market value of the cattle on the-24th day of March, when they should have-reached the market, was 15 cents per hundredweight higher than on the 25th, when, they reached the market and were sold. The-court, reciting in the judgment that it appearing by an agreement and stipulation in writing filed by the attorneys in the case that the account sales might be introduced for the-purpose of showing the weight of the cattle- and the price at which they were sold, proceeded to calculate the amount of damages,, and ascertained that the jury had made a miscalculation. The court then entered judgment for the correct amount, based upon the-above findings. We are cited by appellant to several cases which hold that the court cannot, in rendering judgment upon special, findings, refer to the evidence for facts upon which to base the judgment, but is confined to such facts as appear from the special verdict. It was not necessary for the courti to submit to the jury the questions of the weight of the cattle, nor the price at whieji they were sold. These were agreed facts, and the court properly referred to them, even though there had been no finding of the jury upon such issues. Boyd v. Liefer, 144 Cal. 336, 77 Pac. 953; Jennings v. Frazier, 46 Or. 470, 80 Pac. 1011.

The second assignment is that the court erred in not giving appellant’s peremptory instruction to find for appellant upon the terms of the written contract of shipment stipulating that appellant should give notice in writing, within 91 days after delivery of the cattle, of any damages sustained by him. The jury found that the cattle were loaded by defendant under a verbal contract, and that there was no new consideration moving to plaintiff as an inducement to him to sign the written contract; that the same was signed after the cattle were loaded, and no time was given him in which to read it, but that it was understood between the parties that it was signed in order to obtain transportation for the caretaker accompanying the shipment.

The jury further found that the stipulation for notice was unreasonable, and that defendant had notice of plaintiff’s damages, and, through its agent, conferred with appellee with reference to the claim, promising to help him collect it. Under these findings, this assignment must be overruled, and the stipulation must be held to have been waived, even if we should hold it reasonable. What is here said disposes of the third assignment also.

Appellant’s fourth assignment urges the proposition that judgment cannot be rendered upon the jury’s findings where an answer to a special issue submitted to them on a material issue in the case is vague, uncertain, unresponsive, and evasive, and when it cannot be determined definitely what the answer is. This assignment is predicated upon the following question and answer: “Was there a written contract between plaintiff and defendant on the shipment in question, and was it the one introduced in evidence by defendant?” To which the jury answered: “There was a contract considered for transportation.” If there is anything uncertain in this answer, it is rendered certain by the answers of the jury to previous questions propounded to them, in which they state plainly that there was a written contract between the parties.

The fifth assignment is that the court erred in not giving to the jury, in connection with the tenth question, the measure of damages to guide them in arriving at the amount of damages plaintiff was entitled to. The tenth question is: “What, if anything, do you find plaintiff has been damaged by the negligence of the defendant?” The rule announced in Q., A. & P. Ry. Co. v. Galloway, 154 S. W. 653, and authorities there cited, to the effect that the court should charge on the question of damages, whether specially requested so to do or not, has no application to a case submitted upon special issues. Acts of the 33d Legislature, p. 113, art. 1984 — a, amending chapter 14, tit. 37, R. S., provides: “In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues” — and this seems to be the extent of the charge required by the statute in such cases. Under this statute, it was not necessary for the court to charge upon the measure of damages. The jury having found the facts upon which the extent and amount of appellee’s damages could be ascertained, the court could enter judgment accordingly.

The sixth assignment of error submits the proposition that, because the plea of failure of consideration filed by appellee was not sworn to, the court should not have submitted the question of failure of consideration to the jury. Failure to verify a plea of failure of consideration is a defect which must be raised in the trial court and before going to trial; otherwise it is waived. Ashcroft v. Stephens, 16 Tex. Civ. App. 341, 40 S. W. 1036; G., C. & S.F. Ry. Co. v. Jackson & Edwards, 86 S. W. 47; Phillips v. Patillo, IS Tex. 518; Williams v. Bailes, 9 Tex. 61.

Appellant’s brief fails to assign any reversible error, and the judgment is affirmed.


author: RAINEY, C. J.

text:
    MISSOURI, K. & T. RY CO. OF TEXAS v. DENAHY.
    (Court of Civil Appeals of Texas. Dallas.
    March 28, 1914.
    Rehearing Denied April 18, 1914.)
    1. Commerce (§ 27) — Railroads — Federal Employers’ Liability Act.
    An employs engaged in repairing in railroad shops a car which had been and which was intended to be used indiscriminately in interstate and intrastate commerce is within the .federal Employers’ Liability Act (Act April 22, 1908, c. 149, 85 Stat. 65 [ü. S. Comp. St. Supp. 1911, p. 1322]).
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.]
    2. Master and Servant (§ 297) — Injury to Servano^Special Verdict.
    In an action for injuries to an employs, a finding that the employer used ordinary care to adopt reasonably safe methods, and a finding that the employer was negligent in failing to use ordinary care to adopt a reasonably safe method to do the work, were contradictory and did not justify a judgment for the employs.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.]
    3. Trial (§ 350) — Issues to be Submitted— Injury to Servant — Negligence.
    Where, in an action for injuries to a car repairer by metal flying off the chisel and hammer used in cutting bolts, the negligence relied on was failure to exercise ordinary care to adopt a reasonably safe method of doing the work, to furnish a reasonably safe place, and to provide reasonably safe appliances, and the employer relied on the fact that the employe was experienced and knew the dangers and assumed the risks, the court should submit the issues whether in doing the work the employés chose the method they would use and whether the injury was the result of an accident, and charge that an accident was a thing occurring without fault of any one, and that if neither the employer nor employs was negligent the jury must answer the issues affirmatively.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Action by D. B. Denahy against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment fqr . plaintiff, defendant appeals.
    Reversed and remanded.
    A. S. Coke and A. H. McKnight, both of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. Freeman & Batsell, of Sherman, and E. J. Smith, of Denison, for appellee.

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

   RAINEY, C. J.

Appellee being in appellant’s service, and while repairing a box car with the use of chisel and hammer in cutting bolts, and being assisted by another employs, had one eye injured by a small piece of metal flying off of the chisel and hammer when the chisel was struck by the hammer, striking him in the eye. He sues to recover damages of appellant, alleging negligence on defendant’s part in this, to wit: “(1) In failing to exercise ordinary care to adopt and cause to be used a reasonably safe manner and method of doing the work upon which plaintiff was engaged. (2) In failing to exercise ordinary care to furnish plaintiff a reasonably safe place in which to do this work. (3) In failing to provide and cause to be used suitable, proper, and reasonably safe tools and appliances for the work upon which plaintiff was engaged, and especially for the purpose of cutting off said bolts. (4) In furnishing and permitting to be used in such work a hammer and chisel which were defective and dangerous, not properly tempered, and which were battered, chipped, shivered, clivered, cracked, and in condition to throw off particles of metal with great force when struck against hard, substances in the manner of their ordinary intended use, and in the manner in which they were being used. That said acts of negligence, and each of them, were the direct and proximate cause of plaintiff’s injuries, and such defects and dangers therefrom were well known to defendant, or would have been known to it by the use of ordinary care and were unknown to plaintiff, or if known to him the defendant was not relieved from liability thereby because a person of ordinary prudence, situated as plaintiff was, would have continued in the service of the defendant with such knowledge.” Defendant answered by general denial and specially that the car upon which plaintiff was working had been indiscriminately used in hauling interstate traffic; that the last trafile hauled by said car before the injury, and the first hauled after its repair, was interstate traffic, etc.; that plaintiff’s cause of action, if any he has, is one controlled by the act of Congress known as the “Employers’ Liability Act” ; that plaintiff was an experienced car repairer and knew the kind and character of tools which were being used, etc., knew all the dangers incident thereto, and assumed all the risks arising therefrom; that the cutting of bolts with hammer and chisel in the manner used by plaintiff was one adopted by railroads generally and is a proper method, and the injury sustained by plaintiff was one brought about by his own negligence. The trial resulted in a verdict and judgment for plaintiff, and appellant prosecutes this appeal.

The case was submitted to the jury on special issues, and one of the issues was: “Was the, car which plaintiff was repairing, at the time just before or just after he claims to have been injured, one which was then being used or intended to be used indiscriminately in hauling freight having its origin in one state and its destination in another and freight having its origin and destination in the same state?” Appellant complains of this question as being too restricted, in that it confines the jury to the use of the car to just before and just after the injury. The car had been idle in the shop some time before plaintiff was tart, and during tlie time it was in the shop it was not used for either interstate or intrastate shipment, as it was there for repairs; but the character of its use should have been determined from the time before it was placed in the shop and its use after it was repaired. The court erred in the particular stated, and should have submitted the issue in the manner requested by appellant as follow: “Question 1. Was the car which plaintiff was repairing at the time he was injured one which prior to his injury had been and was to be used indiscriminately in hauling freight having its origin in one state and its destination in another, and freight having its origin and its destination in the same state?” We think that the evidence shows that plaintiff was engaged in work pertaining to interstate commerce, and on another trial it would be well for the trial court to try the case under the act of Congress known as the “Employers’ Liability Act.”

The answers of the jury to the sixth and eighth questions propounded by the court were contradictory, in that they said that defendant used ordinary care to adopt reasonably safe method and manner of doing the work in which plaintiff was engaged, and also in saying defendant was negligent in failing to use ordinary care to adopt a reasonably safe manner and method to do the work. From these answers it cannot be told whether defendant was negligent or had used care.

The court erred in not submitting the following issue requested by defendant, viz.: “Question 1. Were the bolt clippers in repair and condition for use at the time plaintiff was injured? You will answer the above question from a preponderance of the evidence. If you believe from a preponderance of the evidence that the clippers were, in proper repair for use when the plaintiff was injured, you will answer the above question in the affirmative.” The court should have submitted the following issues requested by the defendant, viz.: “Question No. 1. In doing the work of repairing the cars in defendant’s shops, did the employés, car repairers,' choose the method they would use in cutting bolts?” And also in failing to submit the following, viz.: “Question 1. Was the injury to the plaintiff the result of an accident? In connection with your answering the above question, you are instructed that an ‘accident’ is a thing that occurs without fault of any person. If you find that neither the defendant nor plaintiff was negligent in such manner as directly caused plaintiff to be injured, you will answer the above question ‘yes.’ ” These -last two issues were pertinent, and their submission-was called for by the evidence.

The judgment is reversed and cause remanded.


author: HIGGINS, J.

text:
    RUTH et al. v. COBE.
    (Court of Civil Appeals of Texas. El Paso.
    March 19, 1914.
    Rehearing Denied April 16, 1914.)
    1.Appeal and Eebob (§ 732) — Assignments op Ebboe — Motion foe New Teial.
    Where assignments of error contained in the brief were not true copies of the corresponding paragraphs of the motion for a new trial, which by Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, constitute the assignments of error, they will not be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.]
    2. Appeal and Eebob (§ 724) — Assignments op Ebboe — Sufficiency.
    An assignment of error, which fails to point out the particular action of the court of which complaint is made, consisting merely of a statement of what it is contended is shown by the evidence, is insufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001,. 3022; Dec. Dig. § 724.]
    3. Appeal and Ebboe (§ 719) — Assignments op Ebboe — Necessity.
    Where a verdict was returned on a peremptory instruetionj the propriety of the court’s action is a question of fundamental error, which will be reviewed without an assignment of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    4. Bills and Notes (§ 497) — Teanspeb—De-fenses.
    Where plaintiff sued on notes for the price of land, alleged to have been transferred to him by the vendor before maturity, defendants having pleaded fraud and want of consideration, the burden was on plaintiff to prove in rebuttal that he was a bona fide purchaser.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dee. Dig. § 497.]
    5. Bills and Notes (§ 333) — Teanspeb — Bona Fide Pubchaseb.
    S., having contracted to sell land to defendants, conveyed the land to plaintiff, who thereafter reconveyed the same to enable him to carry out his contract with defendants, S. agreeing to transfer to plaintiff the notes to-be executed ,by defendants for the unpaid portion of the price, which he subsequently did. Held, that S., in taking a reconveyance and selling the ■ land, acted as plaintiff’s agent, and that plaintiff was therefore not a bona fide purchaser of' the notes.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 806-811; Dec. Dig. §• 333.]
    Appeal from District Court, Reeves County ; S. J. Isaacs, Judge.
    Action by Ira M. Cobe against Elizabeth-Ruth and others. Judgment for plaintiff,, and defendants appeal.
    Reversed and rer manded.
    Ben Palmer, Hudson & Canon, and J. W., Parker, all of Pecos, for appellants. Ross &. Hubbard, of Pecos, for appellee.

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

   HIGGINS, J.

Cobe brought suit against appellants upon certain promissory notes - secured by lien upon realty, and upon trial-before a jury a peremptory instruction was given in his favor, in response to which verdict was so returned and judgment thereon rendered.

The first three assignments, as copied in brief, are not true copies of the corresponding paragraphs of motion for new trial which, under provisions of article 1612, Rev. Stat. 1911, as amended by chapter 136, p. 276, Acts of 1913, Regular Session, constitute the assignments of error. Those appearing in the brief constitute rewritten and reconstructed assignments, and such practice cannot be permitted.

In this connection we reaffirm what was said by this court, commenting upon a similar condition of the record, • in Fessinger v. El Paso Times Co., 154 S. W, 1171, as follows: “The rules contemplate that the assignments as copied in the brief shall be true copies of the original assignments, and there is no excuse for making changes therein; upon the slightest reflection it will be obvious that the practice of making changes in the original assignment upon incorporation in the briefs should not be countenanced. We expressly disclaim any reflection upon the motives of counsel in the instant case in this connection; but, adhering to a practice which this court has adopted, and which is deemed salutary, we decline to consider these assignments.”

And in Mt. Franklin, etc., v. May, 150 S. W. 756, viz.: “With reference to the changes in the assignment as copied in the brief, and as it appears in the record, we will not ■pause to inquire whether or not the changes are material. The rules contemplate that the assignment shall be correctly copied, and there is no excuse for changes to be made. Where it is apparent that the difference is due to some typographical error, we do not think that the court should decline to consider it, but it is only in such a case that we think it proper for the court to consider an assignment which has been incorrectly copied in the brief.”

And in Biggs v. Miller, 147 S. W. 632, viz.: “Of assignments 1 to 10, the eighth and tenth are not correctly copied. Our rules provide that assignments of error must be copied into the brief, and this, of course, necessarily implies that they shall be correctly copied. For the reason stated, the said assignments will not be considered.” See, also, Horseman v. Coleman County, 57 S. W. 304; Martin v. Bank, 102 S. W. 131; Alexander v. Bowers, 79 S. W. 342; Railway Company v. Adams, 55 Tex. Civ. App. 245, 118 S. W. 1155; Bowers v. Goats, 146 S. W. 1013.

The impropriety of countenancing the practice of making changes in the original assignments is readily apparent, as was noted in Fessinger v. El Paso Times Company, supra, and the rulé adopted by this court relative to this matter will be adhered to. The high character of appellant’s counsel forbids the suspicion that any improper mo-' tive controlled the changes here made, and it seems that no change of a substantial nature was made, but this affords no sufficient ground in the opinion of this court to warrant a departure from the rule heretofore followed.

The fourth assignment, as it appears in the record, is insufficient in that it fails to point out any particular action. of the court of which complaint is made. It consists merely of a statement of what it is contended is shown by the evidence. Its generality renders it insufficient. For the reasons indicated, the assignments cannot be considered, but since the verdict was returned upon a peremptory instruction given by the court, the propriety of its action in this respect will be passed upon without the necessity of an assignment under the rule of practice applied in Railway Company v. Kinkel, 158 S. W. 214, and Irving v. Railway Company, 164 S. W. 910, recently decided by this court.

Plaintiff, Cobe, averred that on July 28, 1909, Chas. W. Swenson, Jr., entered into a written agreement with defendants Ruth for sale of certain realty, the price and terms of payment being likewise averred; that in August, 1910, said Swenson, in compliance with such contract, conveyed the premises to defendant Elizabeth Ruth, who, in part payment therefor, executed the notes sued upon, payable to Swenson’s order; that prior to August, 1910, Swenson had conveyed. the land to plaintiff, Cobe, and that plaintiff reconveyed the same to Swenson, to enable him to carry out his contract with defendants, in consideration whereof Swenson had agreed to indorse and deliver ito plaintiff the notes to be executed by defendants; that thereafter Swenson, for the consideration stated, transferred and delivered said notes to plaintiff before their maturity; that said notes were secured by vendor’s lien upon said premises, retained in the deed of conveyance. The additional allegations in the usual form were made, showing the maturity of the notes, the accrual of the attorney’s fees provided for therein, and concluded with prayer for recovery of principal, interest, and attorney’s fees due upon notes with foreclosure of lien. Defendants answered,' alleging false and fraudulent representations made to them by Swenson, and fraud practiced,' inducing them to purchase said premises, paying part cash and executing the notes sued upon to cover the balance of the purchase money, and prayed for a rescission of the contract, cancellation of the notes, and recovery of the cash payment. As a bar to the notes sued upon, the answer in effect constituted a plea of failure of consideration, based upon alleged ^ false' and fraudulent representations. lt_was agreed by the parties that the .introduction in evi-deuce of the notes sued upon and deed of •conveyance should constitute a prima facie case for plaintiff. Whereupon plaintiff offered the same in evidence, and rested his case. Defendants introduced without objection evidence showing false and fraudulent representations to have been made and fraud practiced by Swenson in sale of the land, and procuring of notes sufficient to raise an issue as. to failure of consideration in part, at least, of notes sued upon. Plaintiff offered no rebuttal evidence. Defendants having offered evidence tending to establish the allegations noted, a prima facie defense, or at least issue in respect thereto, was raised. Fraud practiced in procuring the notes, and failure of consideration in- whole or part, constituted a good defense. It would be available though they had passed into the hands of Cobe, unless he had acquired the same before maturity, for a valuable consideration, and without notice of facts impeaching their validity as between the original parties. This was affirmative matter which must have been pleaded and proven by him in order to authorize a recovery upon his status as such. There is neither plea nor proof that he acquired the notes without notice, and without such he cannot recover upon such a theory. Therefore the defensive issue raised by defendant’s plea and evidence should have been submitted to the jury.

'Appellee seems to rely upon the agreement of defendant’s counsel that the introduction of the notes and deed should prove a prima facie case. As to this it may first he remarked that the bona fide nature of Oobe’s ownership was no part of a prima facie case, and did not become a pertinent issue until evidence had been offered impeaching the validity of the notes as between the original parties. The agreement did not cover matters in confession and avoidance of the defensive issue, but the prima facie case made by the petition only. Even if the agreement had extended to all the allegations contained in the petition, it would not reach this phase of the case, because there is no allegation that Cobe acquired the notes in good faith without notice. Furthermore, the burden did not rest upon defendants to affect Cobe with notice of the original vice in the paper, as is assumed by appellee. Upon the contrary, his status as a bona fide purchaser was matter in confession and avoidance which it was incumbent upon him to plead and prove. It is true he might have anticipated defensive matter to which it would apply, and pleaded it in his original petition rather than by supplement, but an allegation of this nature is lacking, and proof as well. Upon no possible theory could it be contended that the agreement with respect to a pri-ma facie case would extend to allegations not made.

For reasons indicated the cause must be reversed and remanded, and, in view of a new trial, it should be said that, under the facts pleaded by Cobe, it appears that he is not an innocent purchaser. It seems that Swenson contracted to convey to the Ruths, but prior to carrying out his contract he conveyed to Cobe. Whether Cobe purchased without or with notice of the contract to convey to the Ruths is not apparent, but is of no consequence in either event. Cobe recognized and acquiesced in same, and recon-veyed the land to Swenson, who in turn was to convey, and did convey, to the Ruths, received the purchase-money notes, and turned them over to Cobe as the real owner thereof. It is plainly apparent that Swenson acted in this matter as the agent of Cobe, and as an intermediary merely to pass title from Cobe, the then owner, to the Ruths, the purchasers. Cobe was the real vendor, and the’ equitable owner of the notes from the very instant1 of their execution and delivery. He was not a purchaser thereof, but the owner from their inception. Being an original party, all defenses could be urged against him which affected the validity of the same. That he was the real grantor is plainly apparent, and this fact is not in any wise altered-by the circumstance that he was conveying in pursuance of a contract to convey, made by a former owner, which he saw fit to recognize and carry out; .and, if he would avail himself of the benefits of that contract, he must likewise assume and bear the burdens incident thereto. It matters not whether he had any notice of the fraud and deception practiced by Swenson. He, the owner of the land, conveyed in pursuance of Swenson’s contract, originating in.and procured by fraud, and certainly all defenses would be available against enforcing payment of the purchase-money notes which were based upon that fraud. It seems that the cash payment was received by Swenson when the contract between the parties was originally made. At that time Oobe had no apparent connection with the transaction. Therefore nothing said in this opinion is to be construed as an intimation that Oobe would be liable on defendant’s cross-action for reeovéry of such cash payment, unless it should appear that he received the same, or was otherwise such a beneficiary in respect thereto, or so connected with the original contract of sale, as to render him liable for the cash payment so made to Swenson.

Reversed and remanded.


author: HENDRICKS, J.

text:
    McCLUNG v. WATSON.
    (Court of Civil Appeals of Texas. Amarillo.
    April 4, 1914.)
    1. Evidence (§ 472) — Opinion Evidence— Conclusions.
    Evidence was not admissible, in garnishment proceedings, that garnishee did not have “actual possession” of the live stock garnished, especially where that was the principal question in issue.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. § 472.]
    2. Evidence (§ 472) — Opinion Evidence— Conclusions.
    A party cannot testify that he. owned certain property the ownership of which is in issue.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. § 472.]
    3. Appeal and Eeeoe (§ 742) — Assignments op Eeeoe — Sufficiency.
    Where a proposition under an assignment of error suggests the specific objection to the admission of evidence which is made in the bill of exceptions, which is full and complete on the question, the question will be regarded as being suificiently raised.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.)
    4. Gabnishment (§ 25) — Pbopeety Subject - "Effects."
    In view of Rev. St. 1911, art. 5502, providing that the singular and plural number shall each include the other, etc., and article 5504, providing that the word “effects” includes all personal property and all interest therein the word “effects,” as used in the garnishment statutes (Rev. St. 1911, arts. 273, 274), would include live stock in the hands of a bailee, so as to make such stock subject to garnishment.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 41, 42; Dec. Dig. § 25.

    For other definitions, see Words and Phrases, vol. 3, pp. 2320-2323.]
    5. Gabnishment (§ 54) — Peopeety Subject —Possession by Bailee.
    The fact that the debtor had the right to resume possession of live stock which was pastured in another’s field at the time they were garnished by the creditor would not prevent them from being garnished while in the field of the .bailee.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 105-107, 109, 112; Dec. Dig. § 54.]
    6. Gabnishment (§ 191*) — Gabnishment op Live Stock — Cost of Keeping.
    Under Rev. St. 1911, art. 307, providing that, where a garnishee is discharged upon his answer, the cost of the proceeding, including a reasonable compensation to the garnishee, shall be taxed against plaintiff, the garnishee would be entitled, in a proper case, to reasonable compensation for the cost of keeping horses garnished pending the suit.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 372-379; Dec. Dig. § 191.]
    7. Costs (§ 146) — Expenses op Litigation.
    Expenses incident to litigation, which are properly attributable thereto, are always considered as costs.
    [Ed. .Note. — For other eases, see Costs, Cent. Dig. §§ 567-569, 572-574; Dec. Dig. § 146.]
    8. GARNISHMENT (§ 112) — DELIVERY OF Goods.
    The act of a garnishee, in whose pasture the garnished horses were, in agreeing to their sale by the debtor was a constructive delivery of the horses to the debtor and thence to his purchaser, contrary to the garnishment statute, and constituted a conversion of the property by the garnishee when considered in connection with the resale of the horses to the garnishee by prearrangement.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 235; Dec. Dig. § 112.*]
    Appeal from Armstrong County Court; H. L. Mobley, Judge.
    Proceeding by J. C. McClung against J. O. Watson, garnishee. From a judgment for garnishee, plaintiff appeals.
    Reversed and remanded, with directions.
    W. A. Wilson, of Claude, for appellant. J. S. Stallings, of Claude, for appellee.

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

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

   HENDRICKS, J.

A writ of garnishment, as ancillary to his main suit, was caused to be issued by appellant, plaintiff in the court below, and served upon the appellee, J. O. Watson, garnishee in the court below; and the record discloses that one J. D. Davis was indebted to the appellant upon a promissory note, and judgment was rendered in the original action, with the costs of suit, amounting to $177.87, against said Davis. In the garnishment proceeding appellee, Watson, answered, denying that he owed the said Davis any sum, or that he had any effects in his hands or possession belonging to said- debtor; this answer was controverted by appellant, alleging that, at the time the writ was served, the garnishee had in his possession certain live stock which was the property of the said J. D. Davis; arid the record discloses that the debtor, Davis, was a tenant on appellee’s farm, and was entitled to pasture for his said stock, and that during the tenancy Davis, being also indebted to Watson, and contemplating leaving the country, solicited from Watson, the garnishee, a “standing bid” or offer for all the personal property that he (Davis) possessed, and thereupon Watson made an offer on said property, which included the live stock in controversy. During the pendency of this offer the appellee Watson became dissatisfied with the manner in which certain of the horses were being handled, and complained to Davis that the stock was being abused by his boys; also informing Davis that he desired to ship the stock, but, on account of the manner in which they were being handled, that he would call his bid off. Davis insisted that Watson permit his bid to stand, and it was then arranged that ten head of the live stock, designated and selected by Watson, should be placed in the latter’s field at his home place, and that, upon that consideration, he would let his bid stand in the manner made, to which Davis agreed. We infer from the record that the oat field upon which Davis’ stock were pastured was Watson’s home place, and inclosed separately, with accessible water in said field for the use of stock, distinct from any pasture Davis formerly used, or had the right to use. Watson testified that “he was Just merely pasturing and watering it [the stock] to get it up in good shape,” and.that he had some of his own stock in the same field with that of Davis, and to that extent he had the possession of the stock. The testimony indicates that during 'the pasturage of Davis’ stock by Watson the former had the right to resume possession of the horses at any time. Immediately after the garnishment' was served upon Watson, Davis sold the stock to one Oollins, and Collins immediately resold to Watson for $5 less money than he paid for said stock; previous' arrangement having been made between Collins and Watson for the resale of the property. Part of the consideration between Collins and Davis, and Watson and Davis, was indebtedness that Davis owed each.

The question of the possession of Watson of the stock, whether sufficient, under the statute of garnishment, as “effects” in the hands or in the possession of Watson to sustain garnishment, seems to have been the crucial question litigated between the parties, also submitted to the jury, who decided in favor of the garnishee,

The appellant assigns .error, -complaining that the court permitted the garnishee, Watson, to testify that he did not have actual possession of the stock in controversy, on the ground that such testimony was a conclusion involving a mixed question of- law and fact, and was one for the jury to determine from the evidence. Appellant argues that particularly in this character of case, where the question of possession was the deciding issue in the controversy, that to permit a witness to inform the jury that he did not have actual possession, that the latter would be probably led to believe — the court having sanctioned the admissibility of the testimony — that the garnishee did not have, and the facts did not raise, that character of control and custody of the stock as to make the same subject to garnishment. We think this complaint is just; that, as to the distinct issue in the character of case presented here, a conclusion by a witness that he did not have a certain character of possession, permitted to the jury under the sanction of the court, might mislead a jury, and the credibility of the witness would . stamp such a conclusion with more or less strength as to its correctness. This is equivalent to permitting a witness and a litigant to testify that he owned certain property, where ownership of the same was in litigation between the parties, which is not admissible. National Bank v. Ricketts, 152 S. W. 616. Appellee says that appellant’s statement is insufficient, in that the ground of the objection is not stated in the brief. One of the propositions under the first assignment of error complaining of the particular tes'timony involved suggests the very objection made in the bill of exceptions, which latter is full and complete when we go to the record, and, in' the exercise of our discretion regarding the assignment upon a question directly involving the merits, we think such an objection should be overruled. In regarding this assignment as well taken, it necessarily opens the record to the merits of the case, and it is our view that, upon the undisputed facts in'this controversy, judgment should have been rendered in the lower court in favor of the creditor and against the garnishee for the- value of Davis’ equity in the ten head of live stock, excluding the amount of chattel mortgage liens thereon.

The garnishor, in his application for the writ (article 273, R. S.), is required to state, among other things, that he “has reason to believe, and does believe, that the garnishee * * * is indebted to the defendant, or that he has in his hands effects belonging to the defendant”; and the garnishee is required “to answer upon oath what, if anything, he is indebted to the defendant, and was when such writ was served, and what effects, if any, of the defendant he has in his possession, and had when such writ was served”; and the effect of the service of such writ is to make it unlawful “for the garnishee to pay to the defendant any debt or to deliver to him any effects,” subject, of course, to the right of replevin. Articles 274, 279, R. S.

There seem to be two phases of appellant’s defense in this matter: Eirst, that his possession is not such a custody and control of this property as to constitute the possession contemplated by the statute; and, second, live stock is not subject to garnishment, whatever the possession may be. It may be that appellee is not expressing his position in the manner expressed by us; but, when resolved, we think the contentions are as stated, and both will be treated by us to-, gether.

We believe the testimony clearly' establishes that Watson, the garnishee, is a bailee, and that the bailment of said property was for the mutual benefit of both parties. Watson was a prospective purchaser of the horses, had made a standing bid for same, and had been entreated by Davis to permit the bid to stand for an indefinite time; and during the pendency of that offer, on account of the rough handling of the stock— it being contemplated that the same would be shipped by him when purchased — Watson proposed to' abandon the bid made by him, and, as a result of the continued existence of said bid, it was agreed that said stock would be placed upon the oat field and within the inclosure of said Watson. Davis thereby procured a continuity of the bid, and Watson, if the bid were accepted, procured a .bettered condition of his horses, in view of the future purchase and contemplated disposition of same by bim. While it has some features of a total want of consideration, it bas features of an unilateral contract, to tbe extent that, if Davis • bad accepted tbe offer during tbe period of pasturage of the live stock witbin a reasonable time, Watson would bave been bound; hence it is clearly a bailment until tbe relationship was terminated.

With reference to tbe meaning of tbe word “effects” in our garnishment statute, we are not relegated to the decisions, and the reconciliation of conflicts in tbe same; but our Revised Statutes of 1911, arts. 5502 and 5504, in regard to the construction of Laws and tbe rule governing the same, prescribe that tbe word “effects” “includes all personal property and all interest therein.” Necessarily live stock constitutes “effects,” unless by some rule of construction you would be required to read tbe same out of tbe statute. To eliminate from tbe statute live stock in the bands of a bailee (if sufficiently in bis possession), and declare that it is not comprehended witbin tbe letter and tbe spirit of the law, is to our minds legislating by forced interpretation — yielding to some instances of inconvenience, instead of yielding to tbe statute.

We also infer that appellee contends that, because tbe record shows that Davis, tbe debtor, bad tbe right to resume tbe possession, or take tbe live stock off tbe field of the bailee, at any time, tbe latter’s possession was not that character of control contemplated by tbe statute. . Possession and right of possession are distinct elements, illustrated, we think, rather forcibly by tbe case of Loyles v. Hodges Bros., 44 Ga. 648. In that cause the plaintiff proved that tbe defendant debtor bad left with tbe garnishee a large box, for safekeeping only; tbe latter declining to be responsible for tbe box, but permitting tbe debtor to leave it in the storehouse. It was in tbe storehouse at the time of the service of tbe garnishment, and removed by tbe defendant debtor with tbe permission of tbe garnishee; tbe box containing goods of a certain value. Tbe Supreme Court of Georgia said: “Our law (Code, § 3226) requires the garnishee to answer what be is indebted to the defendant, or what effects of bis be bas in band, or bad at tbe service of tbe summons. Was not this box and its contents in store with tbe garnishee? True, be held it without risk; but it was none tbe less in his charge. He would bave been liable for gross neglect bad any damage come to it. * * * We see nothing to justify us in saying that there were not ‘effects’ of tbe defendant in the hands of tbe garnishee. They were in bis custody, in bis possession, as (at) tbe will of tbe owner, and tbe verdict of tbe jury was right. Tbe goods were turned over to tbe defendant by tbe garnishee, at bis own risk, after tbe service of tbe summons.” Further, and with regard to tbe question of tbe accessibility by tbe bailor, and his right to resume possession of tbe property, destroying tbe proposition of possession, we cite tbe ease of Brown v. Davis, 18 Vt. 212. That case discloses that one Davis bad loaned a wagon to another for tbe purpose of use; tbe bailee used tbe wagon in his business when necessary, and be bad no claim upon tbe same, “nor any right to use it any longer than Davis should choose to leave it in bis possession;” and that tbe wagon was, at tbe time of answer, on tbe premises of the trustee, subject to tbe control of Davis, who could legally claim it. Tbe statute of Vermont prescribes that “every person, having any goods, effects or credits of tbe particular defendant intrusted or deposited in bis bands or possession, or which shall come into bis bands or possession, after tbe service of tbe writ and before disclosure is made, may be summoned as trustee.” The Supreme Court of Vermont said: “It is very manifest, from tbe facts disclosed by Hacket [tbe trustee], that tbe wagon in question was intrusted or deposited in his hands or possession. The case, then, would seem to fall clearly within tbe terms of tbe statute.” We do not think that tbe words “intrusted” or “deposited” would make that difference between tbe Vermont statute and tbe Texas statute as to make tbe decision cited and quoted inapplicable to the facts of this ease. The fact that in this case tbe particular live stock were on tbe field and within tbe inclosure at tbe home place of the garnishee does not differentiate it from tbe character of possession by tbe garnishee of tbe same live stock if cared for in bis barn, and fed by bim three times a day. Appel-lee, however, contends that “live stock requiring much expense and trouble- to keep, and being perishable property, are not the subject of garnishment, and can only be reached by writ of attachment, with tbe attaching officer as trustee,” etc. Tbe argument is that tbe garnishment bond is made payable to Davis, tbe debtor, and that tbe garnishee would be without remedy, subjecting bim to considerable inconvenience and expense in keeping tbe property and responding to tbe writ. This is an argument of expediency which we are not inclined to think should prevail as against tbe unambiguous language of tbe statute. Article 307, R. S., under Garnishment, prescribes: “Where tbe garnishee is discharged upon bis answer, tbe costs of tbe proceeding, including a reasonable compensation to tbe garnishee, shall be taxed against tbe plaintiff; where tbe answer of tbe garnishee has not been controverted and tbe garnishee is held thereon, such costs shall be taxed against tbe defendant and included in the execution provided for in this chapter; where tbe answer is contested, tbe costs shall abide tbe issue of such contest.”

We are inclined to think that a reasonable interpretation of this statute would entitle a garnishee in a proper case to a reimbursement to the extent of a reasonable compensation for the costs of keeping the horses during the pendency of the suit. Expenses incident to litigation, properly attributable thereto, in proper cases, are always considered as costs. The statute does not specifically mention attorney’s fees as reasonable compensation to be adjudged to the garnishee where one has been employed to aid the garnishee in answering the suit. Attorney’s fees cannot properly be designated as court costs in any case, except those proceedings unnecessary to mention, and a reasonable compensation to the garnishee for the purpose of compensating an attorney who aids the former in answering the suit does not come within the purview of the language, “costs of the proceeding,” any more than a reasonable compensation to the garnishee as costs brought about by this proceeding for the purpose of keeping the live stock to deliver to the sheriff in the event the plaintiff recovers. Associate Justice Gaines said, in the case of Johnson & Co. v. Blanks, 68 Tex. 496, 4 S. W. 558: “By compensation is meant a sufficient sum to remunerate the garnishee for expenses necessarily incurred in protecting his interest in the proceeding.” If a case arises where the garnishee would be too heavily burdened or inconvenienced, the court, in the exercise of its power, may possiby reach such a condition of affairs when confronted with the same; that, however, is not before us.

Without attempting to discuss the cases cited by appellee, most of which we do not think have any bearing whatever to the case at bar, we think that, as applied to the undisputed facts in this case, with reference to the possession of Watson of the live stock in his inclosed farm, and under his card and custody, the same was subject to the writ of garnishment; and such conclusion requires us to reverse and remand this cause, with directions. If we could more definitely ascertain the amount of the mortgage liens of Collins and Watson upon said 'ten head of horses, and the value of Davis’ equity over and above said amount, we would reverse and render this cause to that extent. We regard the actions of Watson in agreeing to the sale of the horses by Davis to Collins as a constructive delivery of said horses to Davis and thence to Collins, which is in violation of the garnishment statute, and such acts, taken in connection with the resale of said horses 'by Collins, to him (Watson) by virtue of a prearrangement between them, should be treated by the courts in the nature of a conversion of the property; and, if the facts are the same upon another trial, the trial court is ordered to direct a verdict for McClung against Watson for the amount of his debt upon appropriate pleadings, if Davis’ equity in the stock over and above the mortgage liens exceeds or equals that amount; the recovery by McClung, of course, not to exceed the value of such equity in any event; Watson to pay the costs occasioned by him in the garnishment suit in the trial court and the costs of this appeal.

Reversed and remanded, with directions.


text:
    LOCK et al. v. CITIZENS’ NAT. BANK.
    (Court of Civil Appeals of Texas. Amarillo.
    March 7, 1914.
    On Motion for Rehearing, April 11, 1914.)
    1. Bills and Notes (§ 354) — Bona Fide PURCHASERS — CONSTRUCTIVE NOTICE.
    The amount paid by the purchaser of a note of a solvent maker may be so disproportionate to its face value, especially if bought from a stranger as to imply a guilty knowledge or a willful ignorance of facts connected with the execution of the paper which could have been ascertained by reasonable inquiry, but this rule does not require that the full face value should be paid.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 904, 905; Dec. Dig. § S54.]
    2. Bills and Notes (§ 354) — Bona Fide Purchasers — Constructive Notice.
    That a bank discounted the note of a solvent maker purchased from a stranger about 10 per cent, did not deprive it of the standing of a bona fide purchaser where, at the time of the purchase, the makers did not know of the fraud committed by the payee, and the bank, had it made inquiry, would therefore not have learned of the fraud.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 904, 905; Dee. Dig. § 354.]
    3. Monopolies (§ 17) — Validity —Restraint op Trade.
    A contract giving one party an exclusive right to vend an article throughout a specified district and fixing a price below which he was not authorized to sell did not violate the antitrust statute of this state if the article was a patented one; the object of the patent law being to create a monopoly.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.]
    4. Monopolies (§ 17) — Interstate Commerce-Application op State Laws.
    A contract giving an exclusive right to sell an article in a specified district and fixing the selling price was not in violation of the antitrust statute of this state, where the articles were to be manufactured and delivered to the party given the exclusive right in another state.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.]
    5. Bills and Notes (§ 354) — Bona Fide Purchasers — Extent op Recovery.
    A purchaser of a negotiable security before maturity, who is not personally chargeable with fraud, is entitled to recover its full amount against the maker, though he may have paid less than its par value whatever the original infirmity in the security.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 904, 905; Dec. Dig. § 354.]
    6. Bills and Notes (§ 534) — Actions—Burden op Proop — Attorneys’ Fees.
    In an action on a note stipulating for attorneys’ fees, where there was no proof that the stipulated fees were unreasonable or unconscionable, the court was authorized to act on the stipulation and enter judgment for the stipulated amount.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1916, 1947; Dec. Dig. § 534.]
    On Motion for Rehearing.
    7. Trial (§ 396*) — Parol Evidence — Effect op Admission Without Objection — Findings.
    Oral statements of a party prior to the execution of a written contract were merged therein, and, ■ though received in evidence without objection, could not form the basis of a finding or judgment.
    [Ed. Note.- — For other cases, see Trial, Cent. Dig. §§ 935-938; Dee. Dig. § 396.]
    8. Trial (§ 26) — Adjournments—Discretion.
    In an action on a note by an indorsee, where it appeared that at the time of its purchase the makers did not know of the fraud practiced by the payee and that had the indorsee made inquiry it would therefore not have, learned of the fraud, the court did not abuse its discretion in refusing to suspend or delay the case to enable a witness to produce the indorsee’s books for the purpose of showing the exact amount of the discount; the witness testifying that he could not tell the exact amount without the books.
    '[Ed. Note. — For other cases, see Trial, Cent. Dig. § 42; Dee. Dig. §§ 26.]
    9. Courts (§ 247) — Certifying Questions to Supreme Court.
    The Court of Civil Appeals will not certify to the Supreme Court a question which in its opinion has been previously decided by that court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    Appeal from Hale County Court; W. B. Lewis, Judge.
    Action by the Citizens’ National Bank against C. E. Lock and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Austin C. Hatchell, of Plainview, for appellants. Geo. L. Mayfield and L. R. Pearson, both of Plainview, for appellee.

      For other ca,ses see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexe.

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

   HENDRICKS, J.

This suit was filed by the appellee, the Citizens’ National Bank of Plainview, Tex., in the county court of Hale county, Tex., against C. E. Lock and F. M. Lock, the appellants, on a promissory note payable to the order of G. A. Henderson, which was negotiated by Henderson to the appellee bank. The appellants claim that the note was procured by fraud, of which appel-lee had full knowledge, was without consideration, and was in contravention of the antitrust' laws of the state. The trial court, after the close of the evidence, instructed the jury to find for the plaintiff against the defendants Lock for the principal and interest of the note and 10 per cent, attorneys’ fees.

At the time of the execution of the note, a written contract was executed by G. A. Henderson and C. E. Lock and F. M. Lock, by the terms of which the Locks were ostensibly appointed as sole and exclusive agents for the sale of a combined educational chart, drawing board, and writing desk, in Smith county, Tex., from the 14th day of December, 1911, to August 9, 1917, in consideration of the agents purchasing from Henderson 36 of said articles at $8.50 per chart, to be delivered f. o. b. Muneie, Ind., and to be shipped to Lock & Son within 30 days from the date of the contract; the said Henderson granting to the said Lock & Son an equal right with Henderson and his other agents to have all orders filled by the manufacturer at Muneie, Ind., according to the manufacturer’s contract with Henderson at the wholesale price of $1.50 per chart. Besides the exclusive agency for the sale of the charts in Smith county, Lock & Son were granted another agency with equal privilege with Henderson and his other authorized agents, to sell said chart in the counties of Hale, Swisher, Floyd, and Briscoe, for the same period of time. Aside from the written contract, as abbreviated above, appellants testified, in substance, that Henderson orally represented that as to the Panhandle counties named no other person would have any right to sell the chart in that territory and that no other person would be able to purchase the same chart except from him (Henderson), the latter claiming absolute control over the sale of the same, that none of the agents were permitted to sell the charts for less than $8.50 each and stated that they were constructed out of the best oak wood; however, testifying that they read the contract and the note and signed the same. ’ The appellants stated that the 36 charts received by them were made of inferior material, and that in attempting to sell the charts in some of the Panhandle territory it developed that they were in competition with other charts listed by a mail order house at $2.75, which, with the freight added, would have made the chart cost in that territory $3.25, and, because other firms were selling the same chart in other territory for less money, the particular contract to them was worthless. At the time the written contract and the note were executed, O. E. Lock addressed a letter at the solicitation of Henderson, to the Citizens’ National Bank, the appellee, as follows: “I have this day made one note, payable to G. A. Henderson, for $306.00, due November 15, 1912. Will be agreeable with me for you to take up my note.”

When Henderson negotiated the note to the bank, he presented the letter, and the bank discounted the note about 10 per cent., and we infer from the record that this transpired within a short time after the execution of the note and contract. The president of the bank testified that he had an idea that the note purchased was given for school supplies; that an agent of Henderson, selling charts for him, was staying at his house at that time; that he knew nothing of any statements made to Lock by Henderson, and, as we construe, tbe record, tbis is tbe only knowledge of any fact in connection witb tbe transaction possessed by any officer of tbe bank. Appellants contend that tbe discount is such, coupled witb tbe purchase of tbe note in suit from a stranger, and tbe knowledge of tbe bank fhat O. E. Lock, the father, was solvent, was such constructive notice as to put tbe bank upon inquiry. The case of Oppenheimer et al. v. Farmers’ & Merchants’ Nat. Bank, 97 Tenn. 19, 36 S. W. 705, 33 L. R. A. 767, 56 Am. St. Rep. 778, by tbe Supreme Court of Tennessee, cited by appellant upon another proposition, is authority against tbe contention. It is true that tbe real amount of tbe consideration in some cases and under some circumstances is important in determining good faith and constructive notice in tbe purchase of negotiable paper. Tbe amount paid by a purchaser of paper executed by a solvent maker may be so disproportionate to tbe face value of the security, and especially so if bought from a stranger, which would imply' a .guilty knowledge, or a willful ignorance of facts, in connection witb tbe execution of tbe paper which could have been ascertained by reasonable inquiry. However, it is uniformly held that tbe rule does not require tbe full face of tbe paper to be paid in its purchase, and a contrary principle would not only deprive commercial paper of one of tbe most essential and valuable incidents of negotiability—that is, the sale of same—but necessarily affect tbe business and commerce of the country. King v. Doane, 139 U. S. 166, 11 Sup. Ct. 465, 35 L. Ed. 87.

Tbe officers of tbe bank testified that they relied upon tbe letter in tbe purchase of tbe paper. It was some time after tbe execution of the contract and tbe negotiable paper in question that the Locks received tbe shipment of the charts purchased. If tbe paper had been sold to the bank prior to tbe delivery of the charts and tbe bank had inquired of the Locks, what information would they have received as to any fraud between tbe Locks and Henderson? Tbe Locks bad none until they received the charts and attempted to sell tbe same. We necessarily overrule tbe assignment insisting upon tbis contention.

Neither do we think that it is sufficiently shown that the note, as a part of the contract, is in violation of the anti-trust statute of this state. This contract has the usual earmarks of a sale of the exclusive right to vend a patented article throughout a specified district, especially as to Smith county. The Locks testified that Henderson informed them that the article was patented, and if so the evidence suggests that Henderson assumed to control it. The object of tbe patent law is monopoly, “and the rule is, with few exceptions, that any conditions which are not in their very nature illegal with regard to this kind, of property, imposed by the patentee and agreed to by the licensee for the right to * * * sell the article, will be upheld by the courts. The fact that the conditions in the contracts keep up the monopoly or fix prices does not render them illegal.” Bement & Son v. National Harrow Co., 186 U. S. 91, 22 Sup. Ct 755, 46 L. Ed. 1069.

A contract of the character indicated by tbe quotation was held by that court as not void as an unlawful restraint on interstate trade or commerce and was not forbidden by the act of Congress on that subject.

The iSupreme Court of Texas held, in the case of Albertype Co. v. Gust Feist Co., 102 Tex. 219, 114 S. W. 791, that where the former agreed to sell the latter 2,000 copies of souvenir albums, and further agreed not to sell any of said albums in tbe city of Galveston for one year to any other person, where tbe articles were to be manufactured in a foreign state and shipped into this state, was not a contract in contravention of our antitrust statute for tbe reason that tbe transaction under consideration constituted interstate commerce, and such commerce is not subject to tbe anti-trust laws of this state. Tbis contract seems to contemplate tbe right of the Locks to purchase charts at a certain price, to be manufactured at Muncie, Ind., witb which the said Henderson had another contract providing for the sale and manufacture of same. If it were not a patented article, we are inclined to think that interstate commerce is such a salient feature of the contract as that the Supreme Court case cited would apply to this record.

The appellants also contend that if there was fraud between.the maker and the original payee, and the note was fraudulently put into circulation, the bank as an innocent holder should be limited in its recovery to the amount that it paid for the note with interest and attorneys’ fees on that amount, and cite the following cases in support of the contention: Sperlin v. Peninsular L. & D. Co., 103 S. W. 232; People’s Nat. Bank v. Mulkey et al., 61 S. W. 528; Oppenheimer v. Farmers’ & Merchants’ Bank, 97 Tenn. 19, 36 S. W. 705, 33 L. R. A. 767, 56 Am. St. Rep. 778; Campbell v. Brown, 100 Tenn. 245, 48 S. W. 970. Tbe .two latter are Tennessee cases. Daniel on Negotiable Instruments asserts tbe same doctrine, witb a conflict of authority, though by tbe different courts of tbe country on tbe question. The Supreme Court of this state, however, in the case of Petrie & Bro. v. National Bank, 83 Tex. 427, 18 S. W. 752, 29 Am. St. Rep. 657, adopted the rule on this subject declared by the Supreme Court of the United States in the case of Cromwell v. Sac County, 96 U. S. 60, 24 L. Ed. 681: “A purchaser of negotiable security before maturity, in cases where be is not personally chargeable with fraud, is entitled to recover its full amount against its maker, though he may have paid less than its par value, whatever may have been its original infirmity.” The same question again arose in the case of Petri & Bro. v. Fond du Lac Nat. Bank, 84 Tex. 212, 20 S. W. 777, and was again decided in the same manner.

We are unable to grasp the distinction between paper fraudulently put in circulation and any other fraud in connection with the execution of negotiable paper as to the rights of an innocent holder who has paid value without notice. There are cases, of course, where a negotiable note has been fraudulently put in circulation, in which, with reference to the inception of the paper and circulation of same, the holder, although innocent, has not any rights whatever; but such eases are not applicable here. The rule of the Supreme Court of the United States, followed by our court, is based upon what is considered as the better policy as an aid to commerce in the use of such paper as an evidence of credit in substitution for actual money. Our Supreme Court having adopted the rule, we are concluded by its decision.

The appellants insist that the evidence did not justify a peremptory instruction for the attorneys’ fees, because that feature of the note is merely a contract of indemnity. Our Supreme Court, in the case of First National Bank of Eagle Lake v. Robinson, 135 S. W. 372, concludes the appellant on this question. There is an absence of plea and proof in this ease by the appellants that the attorneys’ fees agreed upon in the note are unreasonable, or unconscionable; hence “the court is authorized to act upon the amount of such fees as agreed upon by the parties and enter judgment accordingly.” Upon the above consideration of this record, the cause having been decided upon its merits, it is unnecessary to pass upon the question of the result of a failure to except to a charge of the court, where the instruction to the jury is peremptory.

We conclude that the action of the trial court was correct, and the judgment is in all things affirmed.

On Motion for Rehearing.

In this cause the written contracts in substance set out in our original opinion, if deemed contracts of sale, on the question of the same being condemned by our anti-trust statutes, upon a close consideration and the comparative legal effect between the same and the one considered by the Supreme Court of the state in the case of Albertype Co. v. Gust Feist Co., 102 Tex. 219, 114 S. W. 791, we think clearly places this cause, on that question, within the scope of that case, and not within the purview of the case of Watson Medical Co. v. Johnson et al., 162 S. W. 394. If appellee contends that the testimony of the Locks, as to the statements made by Henderson prior to the time that the written contracts were made, brings this cause within the scope of the latter case cited, and that the contract, viewed as a whole, supplemented by this oral testimony, as the contract between the parties, is condemned by the case last cited, the answer is in the condition of this record that the testimony as to the previous statements and representations made by Henderson cannot constitute the contract between them. The rule that a written memorial which merges previous negotiations excludes such proof is for the reason that the testimony is incompetent. Wigmore says (volume 4, § 2300, subd. 1): “The rule is in no sense a rule of evidence, but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. * * * What the rule does is to declare that certain kinds of fact are legally ineffective in the substantive law; and this, of course (like any other ruling of substantive law), results in forbidding the fact to be proved at all.” The Supreme Court of the state, in the case of Henry et al. v. Phillips, 105 Tex. 466, 151 S. W. 538, with reference to a certain character of testimony in a case different in its status from the cause here, announced, however, what we believe to be the same principle, when it said: “Such incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the recbrd without objection. When the appellate court comes to apply the law to testimony constituting • the facts of the case, it can only base its conclusion upon such testimony as is under the law competent. That which is not competent testimony should be given no probative force.” While we are not inclined to think the oral testimony would bring this cause within the principle of the case of Watson Medical Co. v. Johnson, supra, however, when we come to the written contract, we are clearly of that opinion.

Appellants insist that the trial court committed error as ’ follows: On cross-examination of'the cashier of the bank, the witness had testified that he could not tell exactly what the bank gave Henderson for the note, but to the best óf his recollection it was an amount less about a 10 per cent, discount; that he could not testify to the exact amount without going to the book at the bank recording the purchase. Counsel for defendants asked the witness to secure the book and from it give the exact amount paid for the note. The court stated that he did not consider the amount as material and that it would take up too much time to secure the book. The president of the bank, who negotiated the purchase of the note, had testified that they had discounted the note about 10 per cent. When the bank purchased the note, whatever amount they paid for it, if they had inquired of the Locks in regard to the transaction between the latter and Henderson, the only information that the Locks could have imparted to the officers of the bank was that they had madé a certain contract with Henderson for the purchase of certain charts and the right to purchase more to sell in certain territory, upon certain representations made by Henderson. Whether false or true, or fraudulent or not, at that time no one knew or had any means of knowing. We concede there are cases where the court could have abused his discretion in refusing to suspend or delay a case, even though a litigant has not attempted to avail himself of the proper process to obtain information from the opposite party, or to compel the production of his papers into court; but under the record here we do not think an abuse of discretion upon the real merits of the cause is exhibited.

We refuse to certify.to the Supreme Court a question which we conceive has been previously decided by that court, in the case of Petri & Bro. v. National Bank, 83 Tex. 427, 18 S. W. 752, 29 Am. St. Rep. 657, and again repeated in 84 Tex. 212, 20 S. W. 777.

The motion for rehearing is in all things overruled.