source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    NEELEY v. LANE et al.
    (No. 1135.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1917.)
    1. Judgment <®=>18(2) — Personal Judgment —Sufficiency of Petition.
    In an action on a note secured by a vendor’s lien on land, a petition not seeking personal judgment against a subsequent purchaser of land, who has not agreed to pay note, will not support a personal judgment against him.
    2. Vendor and Purchaser <S^281(3) — Vendor’s Lien — Subsequent Purchaser — Agreement to Pay Note — Evidence.
    In an action on a note secured by a vendor’s lien, evidence examined, and held not to show that subsequent purchaser who was made a party to the suit had agreed to pay note so as to authorize a personal judgment against him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 794.]
    3. Covenants <®=^9G(1) — Warranty—Breach.
    Failure of grantor to pay notes, secured by a lien on land, not assumed by grantee, is a breach of warranty against incumbrances.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 111, 114, 116, 128, 129.]
    4. Exchange of Property <®=»8(2) — Incum-brances on Land — Rights of Parties.
    A judgment having been rendered for an incumbrance on land received by one in exchange, he is entitled to a judgment against the other party to the exchange and a lien on the land given to the extent of the amount he will be required to pay, where he did not take the land subject to incumbrance, and has exhausted his defenses against the claim.
    [Ed. Note. — For other eases, see Exchange of Property, Cent. Dig. § 14.]
    Appeal from District Court, Cottle County; Jo A. P. Dickson, Judge.
    Action by the First State Bank of Decatur against John G. Lane, C. D. Neeley, and others, in which Neeley filed a counterclaim against Lane and another. Judgment for plaintiff, and Neeley appeals. Reformed and affirmed in part, and reversed and remanded in part.
    Bell & Bell, of Paducah, for appellant. J. M. Whatley and J. M. Hawkins, both of Paducah, for appellees.
   HUFF, C. J.

The first State Bank of Decatur, Mich., instituted a suit complaining of S. D. Riley, L. W. Fry, C. K. Johnson, R. F. Lane, John G. Lane, and C. D. Neeley, in which it sought a judgment on a promissory note for the sum of $812.50 dated July 20, 190S, and due January 1, 1913, bearing interest from date of 10 per cent, per annum, with 10 per cent, attorney’s fees. The note was executed by S. D. Riley, made payable to L. W. Fry, and was secured by a vendor’s lien on a certain 160 acres of land situated in Cottle county. The note was afterwards transferred to the plaintiff bank. C. K. Johnson purchased the land from Riley, and assumed payment of the notes due on the land, among which was the one sued on. Thereafter R. F. Dane and J. G. Dane purchased the above-described property from Johnson, assuming the lien, and Neeley purchased from Lane, subject to the lien, with notice thereof. Neeley answered, admitting substantially the allegations in the petition, and filed a cross-petition against R. F. Lane and John G. Dane, stating substantially that he purchased this land from them and that they executed to him a warranty deed. This land was paid for by the exchange of property, and he did not assume to pay the note sued on. 1-Ie prayed for judgment over against Lane for any sum that he might be compelled to pay to free the land from this incumbrance and to establish a lien against the property given in exchange.

The case was submitted to the jury on special issues, and the jury in answer thereto say that they believed it to be the intention of Neeley to assume the payment of the note sued on, and that he knew that this note was an outstanding vendor’s lien against the land.

The assignments present error on the part of the court in refusing to instruct a verdict for Neeley on his cross-petition, and further that the evidence did not warrant the jury in so finding. Fry conveyed the land to Riley July 20, 1908, paying $400 cash, one note for $350 due January 1, 1909, and four notes for $812.50, each due, respectively, January 1, 1910, 1911, 1912, and 1913, a vendor’s lien being retained in the deed and notes on the land to secure their payment. These notes were transferred to the bank by written transfer on the 27th day of January, 1910, in which the $350 note was released, having been theretofore paid. Riley and his wife conveyed the land to G. K. Johnson, they assuming as part consideration for the land the payment of four notes for $812.50 each. In this deed it is recited that each of the notes has marked upon it an extension for 12 months, and all accrued interest upon said notes to January 1, 1910, having been paid. This deed is dated July 2, 1910. On the 12th day of January, 1912, Johnson and wife conveyed the land to R. F. Lane. Lane assumed the payment of the two notes above specified for $812.50 each, and also executed Ms note, payable to Johnson, for the sum of $2,788.50, payable at the Eirst State Bank of Paducah. A vendor’s lien was retained in the instrument of conveyance to secure the payment of these notes, and there was also recited in the deed that a deed of trust was executed to W. H. Abernathy as trustee to secure the $2,-73S.50 note. It was also recited in that deed that the plaintiff bank in this case had extended the two notes for $812.50 each to January 1, 1913 and 1914, respectively. On the 12th day of June,-1912, R. P. Lane and wife, by deed conveyed the land to C. D. Neeley, with full covenants of warranty, reciting the consideration of $4,000 cash paid by O. D. Neeley and the assumption by him of the payment of two certain promissory notes, one in the sum of $2,738.50, signed by R. P. Lane and John G. Lane, in favor of O. K. Johnson, dated January 12, 1912, bearing interest, from January 1, 1912, at the rate of 10 per cent, per annum, and due January 1, 1913, the other being in the sum of $812.50, signed by S. D. Riley in favor of L. W. Pry, dated July 20, 190S, bearing interest from date at the rate of 12 per cent, per annum, the interest being paid up to January 1, 1912, and due January 1, 1913. The deed purports to have granted and sold the land to Neeley with general covenants of warranty, but expressly reserving the vendor’s lien to secure payment of the notes above described.

On the 8th day of June, 1912, the following contract was entered into:

“This contract, entered into this day by and between C. D. Neeley of Dumont, party of the first part, and John G. Lane, of Paducah, Texas, party of the second part, witnessetb: That O. D. Neeley has sold and hereby agrees, to convey to party of the second part good ¿nd sufficient warranty deed to his gin plant at Dumont, Texas, consisting’ of the entire plant, one acre of land, and the dwelling house situated on the land belonging to Pete Holler. John G. Lane has sold and hereby agrees to convey to party of the first part, by good and sufficient warranty deed, one hundred and sixty acres of land about three miles -west of Paducah, Texas, known as the Rotan place, and being the same land conveyed to Lane by O. K. Johnson, in January, 1912.
“Party of the first part agrees to assume the payment of two notes against the one hundred and sixty acres of land; one being for $812.50, bearing interest at the rate of 8 per cent, per annum, and due January 1, 1913, and the other being for $2,738.50, in favor of the Pirst State Bank of Paducah, bearing interest from date at the rate of 10 per cent, per annum, and due January 1, 1913. The party of the second part agrees to execute his promissory note for the sum of $1,000.00 in favor of party of the -, first part, due December 15, 1912, bearing interest at the rate of 10 per cent, per annum from date, secured by a lien on the joint property; this note, according to agreement, representing- the difference in value of the two properties traded. Each party here agrees to furnish an abstract to property conveyed showing good and merchantable title, and a reasonable time shall be allowed to either party in which to correct same if found necessary, this contract to be consummated within ten days from date hereof, and either party hereto failing or refusing to carry out the terms of this contract shall forfeit to the other the sum of $500.00, for which the aggrieved party shall have his right of action by law.”

The evidence in this case shows that after Neeley purchased he paid off the note for $812.50 assumed by him, and it is also agreed by the parties that the two Lanes are insolvent, and notoriously so. It is also shown that the $1,000 note executed by Land to Neeley for the difference between the two properties was paid. Neeley and Abernathy both swear positively that Neeley did not assume payment or agree to pay the note sued on in this ease. Neeley says he knew nothing about the note, but he left the matter largely in the hands of Mr. Abernathy to draw up the contract, and Abernathy states that Neeley did not agree to pay but one note for $812.50, and while it was left to him to draw the papers and the deed, he in some manner overlooked the fact that the time extending the payment of the notes had been recited in the deed, and that they had been so extended for one year, and for that reason doubtless he did not mention the matter to Neeley. Lane’s testimony is to the effect that he procured a statement of the indebtedness against the land before he and Neeley went to look at the land and he told Neeley that he could go to Abernathy, who would figure up what was due, and that he many not have it exactly right, but that Abernathy could tell him what it was; that he had the abstract and all the papers. He testifies that he first offered $500 “to boot” between the places, and that Neeley should assume what he owed the Pirst State Bank, and what was against the farm; that Neeley said he would not do that, but if he would give him $1,000 “to boot” that he would trade. He then says that he went in and told Abernathy that they had traded, and Neeley would assume all of his indebtedness at the Pirst State Bank, and also the indebtedness against the farm. He testified that he did not know anything about “this” note (the note sued on we. presume) until Abernathy called him into the director’s room later and told him there was another note against the land. He told Abernathy that he (Abernathy) had the abstract and deed in front of him and asked why he did not put it in, and Abernathy said it was only an oversight of his, and that is how it came to get in this shape. He states that he would not have traded in the manner and at the price agreed to be paid with the $812.50 outstanding, because he was paying more than the gin was worth at that time; that he was insolvent and had no money to operate upon. He testified that he did not tell Neeley that there were outstanding two $812.50 notes against the property, and that he did not know anything about it until Abernathy told him, and, so far as he knew, Neeley did not know at the time he bought the land that there was but one $812.50 note against it. There is one witness also, Mr. James, who testified that Neeley told Mm that he was to assume the indebtedness on the place. Nee-ley says he would not have made the trade he did if he had known that there was outstanding the $812.50 note sued on in this case.

The judgment rendered by the court in this case is rendered against Neeley personally for the principal, interest, and attorney’s fees of the note. Under the pleadings of the plaintiff no personal judgment was sought against Neeley, and it occurs to us that the court was not authorized to render a personal judgment for the debt against Neeley under the plaintiff’s petition, as he could only foreclose the lien against the land for that amount, foreclosing the rights of Neeley thereto. This, however, is not assigned as error by Neeley, but we simply call attention to it for the reason that we do not believe the petition will support the judgment.

The facts adduced in this case we do not think are sufficient to show an agreement between Lane and Neeley that Neeley should pay the $812.50 sued on. Neeley and Abernathy both swear positively that Neeley was not to pay it. The recited consideration in the deed shows that he was only to pay one note for that sum, which he paid, and the written contract expressly provides that he was to pay only one note for that sum, while the evidence shows there were two notes for that amount outstanding. Lane admits that he never said anything about the two notes for that amount being against the land to Neeley, only stating that the abstract showed what was against the land, and certainly, if Lane and Neeley did not discuss this note in any way, and it was not mentioned between them, there could have been no agreement to pay it.

Lane’s covenant of warranty was breached in the fact that there was this outstanding vendor’s lien note, which he has not paid, and which the appellant, Neeley, will be required to pay in order to prevent the sale of his land. He therefore was entitled to recover oh his warranty for the amount which he will be compelled to pay, and he should have judgment for whatever amount he is forced to pay in order to clear his land from this incumbrance. This being an exchange of land to the extent of the amount paid by him, he would have a lien against the property exchanged for the 1(10 acres in question. This case will fall under the rule established by the Supreme Court in White v. Street, 67 Tex. 177, 2 S. W. 529; also Parish v. White, 5 Tex. Civ. App. 71, 24 S. W. 572; Seibert v. Bergman, 44 S. W. 872.

We have concluded not to reverse and render the case as requested, but to remand the case for further trial. The appellee Lane does not allege or pretend that there was fraud in inducing him to sign the written contract. He only contends there was a mistake on the part of Abernathy in failing to mention the note in the contract, and that there was a contract between him and Neeley that he assumed the payment of this note. As above suggested, the fact that this note was outstanding was never discussed between Neeley and Lane. This is clearly inferable from Lane’s testimony; therefore there could have been no agreement. If the facts upon another trial are the same as upon this, the court should instruct a verdict for Neeley and establish a lien against the property exchanged as prayed for.

The judgment in this case will be reformed so as not to render a personal judgment against Neeley for the amount sued for, but in all other respects the judgment of the bank will be affirmed, and only the issues between Neeley and Lane, as set up by the cross-petition of Neeley, will be reversed for trial in the court below.

Affirmed in part, and reversed and remanded in part.
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    FT. WORTH & D. C. RY. CO. v. DECATUR COTTON SEED OIL CO.
    (No. 8515.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 27, 1917.)
    1. Evidence <@=>474(1) — Admissibility — Ex-feet Testimony.
    In an action against a railroad company for the killing of cattle, a witness familiar with the locality may, though not an expert as to the operation of trains, testify that the place where the cattle were killed had not for several years been used for the switching of cars.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§' 2196, 2205, 2207.]
    2. Evidence <@=>474(5) — Opinion Evidence— Qualifications.
    In such case a witness who testified that he had handled cattle for years, and that other cattle being fed with those killed weighed 1,180 pounds, is prima facie qualified to give Ms opinion as to the weight of the cattle killed.
    [Ed. Note. — For ’ other cases, see Evidence, Cent. Dig. § 2199.]
    3. Evidence <@=>471(20) — Qualifications of Witness.
    A witness who stated that he was familiar with the market value of cattle at the place where they were killed is competent to testify as to the value, unless further interrogation developed facts, showing that he did not know the value of the cattle.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § .2162.]
    4. Railroads <@=>446(7) — Injuries to Animals on Tracks — Switchins Yards.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6603, declaring that each and every railroad company shall be liable to the owner for the value of all stock killed or injured by its cars and locomotives in running over their respective railways, but, if the company fence its road, it shall only be liable for injuries resulting from a want of ordinary care, does not require a railroad company, to escape liability, to fence its tracks passing over public roads and streets or where it would be dangerous because constituting depot grounds and switching yards, and a railroad company cannot escape liability for the killing of stock by showing that the accident occurred within the switching hounds arbitrarily established by the company, and, where there was evidence to show that switching operations were not and could not be conducted at the point where the accident occurred, the submission of the special issue whether the building of a fence would have inconvenienced railroad employés was not error.
    [Ed. Note. — Eor other eases, see Railroads, Cent. Dig. § 1634.]
    5. Appeal and Error <§=>1062(1) — Review— Harmless Error.
    Where the finding on a special issue was unnecessary to support the judgment, the submission of the issue, though erroneous, is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212.]
    6. Railroads <§= 441(6) — Killing oe Stock-Burden oe Prooe.
    In an action against a railroad company for the killing of stock, the burden is on the company, the place of the accident not being fenced, to show that it was not permitted by law to fence such place, or that to do so would endanger train operatives or. inconvenience the public.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1583-1587.]
    7. Trial <§=121(3) — Argument oe Counsel— Rigiit oe Wat — Fencing.
    A railroad company seeking to escape liability for the killing of cattle, though it had not fenced its right of way as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6603, on the ground that the place of the accident was part of its switching yards, can claim the exemption which rests upon grounds of necessity only where the necessity exists, and argument of counsel that the terminal of the switches would constitute the terminal of the switching yard is not open to objection.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 297.]
    8. Trial <§=121 (2) — Argument oe Counsel-Propriety.
    In an action for the killing of cattle, argument of counsel that, inasmuch as a witness could see a train a given distance those in charge of the train might have seen the cattle, though possibly illogical, is not objectionable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 296.]
    9. Appeal and Error <®=930(1) — Review — Verdict.
    In passing upon whether there is sufficient evidence to sustain a verdict, the appellate court must reject all evidence favorable to the defendant, and consider only that favorable to the verdict, in which case, if the jury might have reached the verdict they did, it cannot be set aside.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3755, 3756, 3758.]
    10. Evidence <§=588 — Weight and Sueei-oiency.
    A jury is not required to believe a witness, though he makes a plain statement of what is not impossible, and is neither impeached nor contradicted, but may discredit him on account of the manner of testifying and attendant circumstances.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2437; Witnesses, Cent. Dig. § 1164.]
    Appeal from Wise County Court; J. W. Walker, Judge.
    Action By the Decatur Cotton Seed Oil Company against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Thompson & Barwise and George Thompson, Jr., all of Ft. Worth1, and McMurray & Gettys, of Decatur, for appellant. Ratliff & Spencer, of Decatur, for appellee.
   BUCK, J.

This is the second appeal of this case. On the first appeal the judgment of the trial court was reversed and the cause remanded, as shown in 179 S. W. 1104. The statement of the pleadings there given we adopt' for this appeal, except that on the second trial the defendant admitted in writing that plaintiff’s cattle were not struck at a public crossing, or at any crossing, on defendant’s right of way. The cause was submitted to a jury on special issues, and in answer thereto the jury found as follows:

(1) That the reasonable market value of the cattle killed was $319.
(2) That the cattle in question were not running or remaining at large with the knowledge or consent of the plaintiff, or its employés.
(3) That the cattle were not killed within the switching limits of defendant’s railroad yards at Decatur.
(4) That the employés of plaintiff who were out looking for the cattle in question after they had escaped from the pens on the night in question were not negligent in failing to drive the cattle which were afterwards killed from defendant’s yard and track when such employés found them there, and in going after other cattle as they did.
(5) That the plaintiff was not negligent in the way and manner of constructing and maintaining the fence surrounding the pens where said cattle were kept and from which they escaped.
(6) That the defendant railway company did not use in 1913 the right of way and track at the place where the said cattle were struck in coupling and uncoupling cars for switching purposes.
(7) That the defendant did not use said place or places for the purpose of switching its ears or trains thereover during the year 1913.
(8) That a fence constructed along defendant’s right of way and attached to the south end of the trestle (shown in the evidence) would not have endangered or inconvenienced the defendant’s employés in switching and coupling cars south of the trestle.
(9) That defendant’s agents were negligent in striking said cattle after they discovered them on the right of way.

The court further defined ordinary care and proximate cause, and instructed the jury that the burden of proof was on the defendant to show by a preponderance of the evidence the defenses set up by it, but that the burden of proof was upon the plaintiff to show by a preponderance of the testimony that the defendant, or its agents, was negligent in striking said cattle after discovering them.

Upon the verdict of the jury the court rendered judgment for the plaintiff in th’e sum of $319, and defendant appeals.

D. 3. Moss was the manager and W. E. Mitchell was the superintendent of the plaintiff company, and each of them was permitted to testify, over the objection of the defendant, that during the several years of his connection with the plaintiff company he had not seen th’e employes of the defendant railway company use the space south of the culvert or trestle for switching purposes.

Under appellant’s first assignment the action of the court in overruling its objection to this testimony is assailed. The objection is founded on the contention that the testimony elicited was with reference .to an expert matter concerning railroading, or the operation and handling of trains and cars, and especially the making up of trains and the placing of cars, and that these witnesses failed to qualify as experts, and did not show themselves to have had any experience in such matters, or any special knowledge with reference thereto, and consequently were not competent to testify upon this point. Appellant cites El Paso Elec. Ry. Co. v. Davidson, 162 S. W. 937, and Metropolitan Life Ins. Co. v. Wagner, 50 Tex. Civ. App. 233, 109 S. W. 1120, in support of this assignment. But we do not think that the assignment presents error, or .that the authorities cited are pertinent to th'e question here presented.

In the first case cited the El Paso Court of Civil Appeals held that in a case involving a collision between a street car and an automobile the evidence of the motorman whose car struck deceased’s automobile to the effect that after he saw deceased was about to turn -his automobile across the track the street car could not have been stopped by the use of any means within the motorman’s power in time to have avoided the accident was not admissible; that being a question for the jury’s determination, and it being as well qualified to form an opinion thereon as the expert witness.

In tlie second case cited, Life Ins. Co. v. Wagner, supra, one of the main issues to be decided was whether the deceased had committed suicide or not. There was no question as to the fact that deceased bad died as a result of the wounds inflicted upon him, but only as to whether such wounds were self-inflicted or not. Under this state of facts, the Court of Civil Appeals for the Fourth District held that a physician who saw the body of th'e deceased a short time after his death, and who examined the location, nature, character, and extent of his wounds, could not give his opinion as an expert that such wounds were self-inflicted.

But the question presented in the instant case is not that presented in either one of the cases cited. We do not think the testimony complained of constituted an invasion of the province of th'e jury, or that such testimony was inadmissible because the witnesses did not qualify as experts in railroading. Both witnesses testified to years of service at the oil mill .in the near vicinity of that part of defendant’s right of way and track where the cattle were killed, and we think it was permissible for plaintiff to show by such witnesses that during the years of such opportunity said witnesses had not seen the railway company do any switching on that portion of the track south of the trestle -or culvert. This was a question of fact, to testify concerning which it was not necessary that the witness be shown to be an expert. In many cases witnesses may testify to the existence and nonexistence of the very fact to be found by the jury. Scalf v. Collins County, 80 Tex. 514, 16 S. W. 314; Southern Cotton Oil Co. v. Wallace, 23 Tex. Civ. App. 12, 54 S. W. 638; F. W. & D. C. Ry. Co. v. Ayers, 149 S. W. 106S. 5 Encyclopedia of Evidence, p. 654, § 4, reads as follows:

“However, the exception to the general rule that witnesses cannot give opinions is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill, or learning, but it includes the evidence of common observers testifying to the results of their observation made at the time in regard to common appearances, facts, and conditions which cannot be reproduced and made palpable to a jury.”

This assignment is overruled, and also the second, which complains that the court erred in admitting the evidence of the witness Moss concerning the weight of the four head of cattle killed. Said Moss testified that' he had handled cattle for about ten years, and had had occasion to view and look at cattle a great deal during that time and estimate their weights, that he sold the other cattle, some 220 head, which were being fed in the pen at the time these four steers were killed, and that said steers sold weighed 1,180 pounds per head. The four steers killed -were the largest steers that he had, and in his opinion they would weigh about 1,200 pounds each. No request was made by defendant for permission to further test the qualification of the witness. We think that the witness made a prima facie showing as to his qualification, and that any objection to his 'testimony goes rather to the weight than to its admissibility.

The third assignment complains of the testimony of the witness Moss concerning the market value of such cattle at Decatur at the time they were' killed. He was asked if there was a market at Decatur for such cattle at the time they were killed, and, if so, what was such market value. He answered that there was a market value at Decatur, that he knew it, and that it was $7.25 per hundred. It is urged by appellant that it was a matter for the court to determine whether there had been sufficient sales of such cattle in sufficient • quantities at the place in question and often enough to show a market value, and that the defendant had the right to have the matter shown and determined in a legal manner before the witness was permitted to express his opinion as to such value; that, before a witness could state an opinion as to the value of property, the facts showing his qualification to do so must be shown. Having plainly stated that he knew the market value, he was competent to testify as to such value (Davis v. Fain, 152 S. W. 218), unless upon request of the defendant the court had permitted its counsel to further question the witness, and such interrogation developed facts going to show that the -witness did not know such value (Railway Co. v. Vogel, 179 S. W. 268, writ denied, 188 S. W. xvi). In G., C. & S. F. Ry. Co. v. Jackson, 99 Tex. 343, 89 S. W. 968, 970, cited by appellant in support of this assignment, it was merely held by the Supreme Court that, where a plaintiff, claiming damages for injuries to his cattle in transportation, testified as to the difference between the value of the cattle uninjured and their value as injured at the point of destination, but showed no knowledge of their market value there except as derived from the estimate of commission men who loaned money on them, it was error to exclude cross-examination of the witness in order to test his qualification. But no such question is presented here. The assignment is overruled.

The fourth assignment complains of the submission of special issue No. 9, to wit:

“Would a fence constructed and built along-defendant’s right of way and attached to the south end of the trestle have endangered or inconvenienced defendant’s employés in switching and uncoupling cars south of the trestle?”

Objection to the submission of this question was made in the trial court, and is here urged, on the following ground, among others:

“Because no legal duty rested upon the defendant to fence its switchyards and grounds, however much or little it might inconvenience its employés. * * ' * The plaintiff is not entitled to predicate liability against the defendant upon any finding that employés of the railway company would not have been endangered or inconvenienced by such fencing, it being the lawful privilege of the defendant to have its switchyards and grounds as free from obstruction as it might see fit in order to facilitate the prompt handling of its cars and trains thereover and provide for the safety and convenience of its employés in doing such work.”

Plaintiff introduced evidence tending to show that no switching was done during the year 1913 as far south as the place where the cattle were killed; that the distance from the south end of the southernmost switch to the north end of the trestle was 152 feet, and that the trestle was 34 feet across; that the 'cattle were killed south of the trestle; that the track for some distance north and south of the trestle was on a dump some 10 to 20 feet; and that a trainman, because of this dump, could not, from the ground, couple and uncouple ears and perform other services connected with switching. Plaintiff further attempted to show by testimony that fences running from the south end of this trestle and connecting with the right of way fence on either side would have prevented cattle from getting on the right of way at the place where these cattle were killed, and that such fence or fences would not interfere with the switching of trains and the coupling and uncoupling of ears, inasmuch as such duties were necessarily performed by the trainmen on the cars, rather than on the ground, because of the existence of such dump. As amended in 1905, article 6603, Vernon’s Sayles’ Texas Civil Statutes, reads:

“Each and every railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and ■ cars of such railroad company in running over their respective railways, which may be recovered by suit before any court having_ competent jurisdiction of the amount. Such liability shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets, and cattle: Provided, however, that in all cases, if the railroad company fence its road, it shall only be liable for injury resulting from a want of ordinary care.”

As said in our opinion on the former appeal of this case (179 S. W. 1104^-1106):

“While the statute quoted does not, in specific terms, require the railroad company to fence its track, it is usually referred to in the decisions as having that effect, since, in the absence of a compliance with that statute, the railway company is held liahle as an insurer against loss for the killing of cattle upon its track by its trains. According to the well-established rule of our decisions, that statute has.no application within the switch limits of a railway company at and around its stations, where the fencing of the track would endanger the safety of its em-ployés in coupling and uncoupling cars, and would impede their movements in performing that service” — citing cases.

The statute requires railway companies to fence their tracks in order to avoid liability for killing stock, but the courts have, from the necessities of the case, read into the statute certain exceptions; for instance, where it would be unlawful for a railway company to fence its tracks, as in the case of public roads and. streets; also, where it would be dangerous'to its employés to construct cattle guards and dig pits, such as are necessary in fencing a railroad track, at places, such as depot grounds and switching yards, where employés are required to go upon the track day and night for the purpose of switching and making up trains. Railway Co. v. Blankenbeckler, 13 Tex. Civ. App. 249, 35 S. W. 331; Railway Co. v. Cole, 35 S. W. 526; I. & G. N. Ry. Co. v. Schram, 138 S. W. 195. We think it was properly held in the last-cited case that mere proof that the place of the accident is within the switching bounds" arbitrarily established by the company, but not in fact used by it for switching purposes, is not sufficient to exempt the railroad from liability. As was said in H. & T. C. Ry. Co. v. Holbert, 182 S. W. 1180:

“The burden of proof was upon appellant to show that it could not fence its track at the point whore the injury occurred. It is true that the animal was killed within the switch limits, but there is nothing to show that the railway could not have been fenced at this point without inconveniencing the public; and, if this were true, then it is not necessary for appellee to show negligence on the part of appellant in order to recover; the mere killing being enough —citing authorities.

We think the quotation above states the correct doctrine, provided the term “public” includes the employés of a railway company. Therefore we hold there was no error in submitting special issue No. 9, quoted above.

The fifth assignment urges error in submitting special issue No. 10, to wit:

“Was the defendant or its agents negligent in striking said cattle after they discovered them on the right of way?”

No issue of discovered peril had been made by the pleadings, and we are inclined to the opinion that this issue should not have been .submitted, but we cannot say that any prejudicial error is here presented. The finding upon this issue was not necessary to support the judgment rendered, and therefore the submission thereof by the court and the finding thereon by the jury would become immaterial. Morris v. McSpadden et al., 179 S. W. 554; Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; Douglas v. Baker, 79 Tex. 499, 508, 15 S. W. 801. Therefore the fifth assignment and the thirteenth, the latter attacking the finding of the jury as to this issue, are overruled, and also the sixth, which complains of the refusal of the court to submit a charge tendered placing the burden of proof upon the plaintiff to establish the contention that the track and grounds of defendant used for switching purposes could have been fenced without endangering or inconveniencing its employés doing such switching. We think, under the authority of Railway Co. v. Holbert, supra, and Railway Co. v. Dawson, 174 S. W. 850, the burden of proof was on the defendant to show that it was not permitted by law to fence the place where the accident occurred, or that to do so would endanger train operatives, or that the public would be inconvenienced thereby. .

The seventh assignment complains of the failure of the court to instruct the jury to not consider the arguments and statements of plaintiff’s counsel that the terminals of the switches constitute the switching limits. The testimony of John Beer, an employe of and witness for the defendant, was to the effect that there was no yard limit board at Decatur, and that the extreme switch was the yard limit. The exemption from liability under the statute (article 6603, Vernon’s Say les’ Texas Civil Statutes), read into said statute by .judicial construction, rests upon necessity, and where the necessity ceases the exemption also ceases. We think the argument complained of was permissible under this doctrine and under the evidence in the case.

Nor do we find any error, as complained in the eighth assignment, in the refusal of the court to instruct the jury not to consider the argument of plaintiff’s counsel to .the effect that, inasmuch as the witness Milhol-land could see the train 150 yards on the night in question, therefore the engineer of such train which killed the cattle could have seen the cattle at a distance of 150 yards, and could therefore have stopped the train in time to have prevented striking the cattle. This objection, as shown by the bill of exception, is predicated, not upon the theory that the argument complained of improperly introduced the issue of discovered peril, but that it was an improper comparison, “and calculated to prejudice and mislead the jury by making them believe that the engineer behind the headlight could see as far out into the dark as one out in the dark could see the train with its headlight,” etc. Even if it be conceded that the argument of plaintiff’s counsel was not logical, and that the deduction he sought to draw was not justified by the facts, the court would not be required to instruct the jury to disregard and not consider such argument. The facts being admitted, the jury may accept or reject the deductions and conclusions which counsel may in argument see proper to draw.

The ninth specification complains of the finding of the jury as being contrary to and unsupported by the evidence to the effect that the cattle were not killed within the switching limits of defendant’s yards, and the tenth assignment urges the lack of evidence to support the finding of the jury in response to the eighth issue, to the effect that the place where the cattle were struck was not used by defendant company for the purpose of switching its cars or trains there-over during the year 1913. It is true that a number of witnesses, principally employés of defendant, testified to facts which would indicate that the place where the cattle were killed was used by the railway company for the purpose of switching during the year of the accident. But the testimony of Mitchell and Moss heretofore mentioned tended to show that the place of the accident was not used during said year, and had not been so used for years prior thereto, for the purpose of switching, and in this condition of the record we would not be authorized in holding that there was not sufficient evidence to warrant and support the verdict as to these two issues. In passing upon whether there is sufficient evidence to sustain a verdict, an appellate court must reject all evidence favorable to defendant, and consider only that sustaining the verdict, and if the jury might have reached such a verdict on the evidence, the court on appeal cannot set it aside. Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696; F. & M. Gin Co. v. Simmons, 178 S. W. 621.

A jury is not required to believe a witness, although he makes a plain statement of what is not impossible, and is neither impeached nor contradicted, but may discredit him on account of the manner of testifying and attendant circumstances. G. H. & S. A. Ry. Co. v. Murray, 99 S. W. 144 (writ denied); Traction Co. v. Berry, 187 S. W. 415. Therefore both assignments are overruled, and likewise the eleventh, twelfth, fourteenth, and fifteenth, which present questions kindred to those discussed with reference to the ninth and tenth assignments.

All assignments are overruled, and the judgment is affirmed.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes '


author: HIGGINS, J.

text:
    GALVESTON, H. & S. A. RY. CO. et al. v. PACKARD et al.
    (No. 674.)
    (Court of Civil Appeals of Texas. El Paso.
    March 1, 1917.
    Rehearing Denied March 22, 1917.)
    1. Carriers <&wkey;305(l), 411 — Injury to Passenger-Concurrent Proximate Causes.
    Negligence of the Pullman Company in not closing the gate at the end of its ear next the baggage car when the train stopped where it knew the train would be cut between the two ears, and negligence of the railway company in cutting the train without seeing that the gate was closed, were concurrent proximate causes of injury to a passenger from the cutting of the train as she was stepping from one to the other of such cars.
    [IOd. Note. — For other cases, see Carriers, Cent. Dig. §§ 1136-1139, 1245, 1579, 1581.]
    2. Negligence <&wkey;136(3) — Proximate Cause-Determination by Court.
    Any duty of the court to determine proximate cause was performed when, on the jury’s special findings of negligence of each defendant being a proximate cause, it rendered judgment against both.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 280.]
    S. Appeal and Error &wkey;>729 — Assignment oe Error — Sueeiciency.
    Assignment of error, “Because the court erred in submitting * * * any question that * * * could or did suggest * * * that there were joint duties and liabilities of defendants,” is insufficient to point out the matter complained of; many issues being- submitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2998, 3013.]
    4. Appeal and Error <&wkey;1050(l) — Harmless Error — Admission oe Evidence.
    Admission of testimony as to duty of employes is not reversible error; other like testimony, subject to the same objection, that it disclosed that the witnesses were not qualified to testify, being admitted without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.]
    5. Appeal and Error <&wkey;683 — Kecord—Ke-view — Objections to Deposition.
    It not appearing how long the deposition had been on file, right to make objection, at the trial, to it, relating to the form and manner of taking it, is not apparent.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2907.]
    6. Appeal and Error <&wkey;1060(l) — Harmless Error — Argument.
    Any error in permitting counsel in argument to jury to read and comment on a part of the original answer was harmless, where it could not, especially in view of findings of the jury, have had any influence on them in determining the issues, and the amended answer was practically the same.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135.]
    Appeal from District Court, El Paso County ; Ballard Coldwell, Judge.
    Action by Maud Packard and another against the Galveston, Harrisburg & San Antonio Kailway Company and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Beall, Kemp & Nagle and Burges & Burges, all of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for appellants. T. A. Falvey and Walthall & Gamble, all of El Paso, for appellees.
   HIGGINS, J.

Mrs. Packard was a passenger from Houston to El Paso upon a train of the Galveston, Harrisburg & San Antonio Bailway Company. She had Pullman transportation issued by the Pullman Company, entitling her to space in a standard Pullman, which was a part of the train equipment. A Pullman tourist car also constituted a part of the equipment. The tourist car was immediately behind the baggage car. There was a door in the rear end of the baggage car. The rear end of the baggage car had no platform. Entrance to the baggage ear could be effected by stepping through the door from the front platform of the tourist car. Mrs. Packard boarded the train in Houston at 10 p. m., accompanied by a small dog, which she carried in a basket. She rode in the standard Pullman in the space assigned to her. The next morning she was required by the Pullman porter to take the dog out of the Pullman. For this purpose she proceeded through the train, accompanied by the porter, to the baggage car, where it was her purpose to leave the dog in care of the baggagemas-ter. She entered the baggage car through the door above mentioned. The porter returned to his ear, passing out of the baggage car through the end door. Mrs. Packard reached the baggage car a short time before the arrival of the train at Del Bio. When she reached the car she inquired of the baggage-master how long it would be before the train reached a stopping place. He informed her it would arrive at Del Bio in a few minutes. She then inquired if the train would stop long enough to ,give the dog some exercise. 1-Ie replied she would have ample time to take the dog off and return it before the train departed. At the invitation of the bag-gagemaster she waited in the car until the arrival of the train at Del Rio. In a short time the train reached Del Rio, and Mrs. Packard with her dog passed through the end door to the platform of the tourist car, thence to the ground or platform, where she gave the dog some exercise. She then started to return to the baggage ear with her dog in the same way as she had made her exit. She testified the baggagemaster directed her to return the dog to the ear the same way she went out. As she was in the act of stepping through the vestibule of the tourist car from the platform of such car through the door of the baggage car, the two cars were i separated by a switching movement of the train. By reason thereof, she was precipitated to the ground, and sustained serious personal injuries. On account thereof she and her husband brought this action to recover damages against the Railway and Pullman Companies. Among other grounds of negligence, it was alleged that defendants were negligent in failing to close the gate at the end of the platform of the tourist car before the cut of the train was made and in failing to have same closed when the cut was made. There is evidence that it was the duty of the Pullman employés to close the gate and keep it closed when a cut of the cars was to be made, and that it was also the duty of the employés of the railway company to see that the gate was closed before making a cut of the cars, and to close the same if it was open. The design and purpose of closing such gates upon the cars was to prevent passengers passing from one' car to another when a switching operation was to be made, involving a cut of the cars. The facts stated above, in connection with the facts established by the findings of the jury, are all that is necessary to be stated in passing upon the various assignments.

In response to special issues, the jury-found the following facts: That plaintiff was caused to fall from the car at Del Rio as claimed in her petition and injured as complained; that defendants, or one of them, failed to exercise ordinary care in switching and separating the cars of the train at Del Rio, or in opening the end gate or permitting the same to be opened; that she was not guilty of contributory negligence, and had sustained damages in the sum of $5,200.65; that her injuries were caused by the negligence of both the defendants; that the negligence of the Pullman Company was not the Sole, proximate cause of the injuries, but that the same were proximately caused by 'the negligence of both defendants; that it was the 'duty of the employés of the Pullman Company, either alone or in connection with the employés of the railway company, to close the gate of the tourist car and to see that it was kept closed while the train in question was being cut at Del Rio; that the employés of the Pullman Company failed to close the gate of the tourist car, or failed to keep -the gate closed while the train was being cut at Del Rio, and that such failure upon the part -of the employés of the Pullman Company was negligence, and that such failure was the proximate cause, or one of the proximate causes, of the injury; that it was the duty of the Pullman Company, in the exercise of ordinary care, either alone or in conjunction with the railroad company, to have had some one stationed at the gateway of the tourist car next to the baggage car while switching was being done, to have seen that the gate was closed, or to have warned passengers that said cars were to be separated; that the Pullman Company did not have any one stationed at the gateway to see that the gate was closed or to so warn the passengers, and that its failure so to do was negligence, and was the proximate cause, or one of the proximate causes, of the injury to plaintiff; that plaintiff did not tell the Pullman porter she intended to take her dog out for exercise at Del Rio ; that the Pullman porter who accompanied her to the baggage car, after conducting her there, left open the gate of the tourist car next to the baggage car, and that in so doing he was negligent, and such negligence on his part was the proximate cause, or one of the proximate causes, of plaintiff’s injuries; that she was riding in the baggage car of the railway company at the time the train arrived at the station in Del Rio; that the baggagemaster upon the train was an employé of Wells Par-go & Co., acting for the railway company; that plaintiff made known to the baggage-master her desire to and intention of leaving the car at Del Rio for the purpose of exercising her dog on the railway station platform and of returning it to-the baggage ear; that the baggagemaster did not notify her that the cars of the train would be separated at Del Rio, and that the failure to warn her thereof was negligence; that the baggage-master instructed her how to return the dog to the ear; that the baggagemaster did not direct the train porter or some other person to show plaintiff out of the baggage car; that no one opened the end door of the baggage car and directed plaintiff to pass out that way; that plaintiff did not communicate to the employés of the Pullman Company her intention of_taking her dog out for exercise at Del Rio, and that she would undertake to re-enter the baggage car; that the railway company, or its employés, by the use of ordinary care and prudence could have known that the Pullman employés had left open the gate between the baggage car and tourist car, and they took no steps to avoid the .consequences of leaving such gate open; that the railway company, its servants, agents, or employés, separated the baggage car from the tourist car, knowing the vestibule gate of said tourist car was opened, or at such time as they, in the- exercise of or--dinary care and prudence, could have known that said gate was open, and that their action in so moving said car was negligence, and was tlie proximate or a proximate cause of plaintiff’s injuries.

Upon the facts so found, the court entered judgment for plaintiffs against both defendants for said sum of $5,200.65, and the defendants appeal.

We will first dispose of the assignments presented by the Pullman Company.

According to the evidence and jury’s findings, both defendants were guilty of negligence; the Pullman Company, in not closing the gate at the end of the tourist car next to the baggage car when the train stopped at Del Rio and when it was known to it that the train would be cut between the two cars, and the railway company was negligent in separating the cars without seeing that the gate was closed. It appears that if the Pullman Company had not been negligent in failing to close the gate, Mrs. Packard would not have been injured. It also appears that if the railway company had not been negligent in separating the cars without seeing that the gate was closed, she would not have been injured. The Pullman Company insists that its negligence was not the imoximate cause of the injury, but that the injury was proximately caused by the independent an'd intervening act of negligence of the railway company. It is quite clear that if either defendant had performed its duty, the passage from the platform of the tourist car into the baggage car would have been barred and the accident and consequent injury to Mrs. Packard would not have occurred. But both defendants were negligent, and the injury, we think, was caused by the concurring negligent acts of them both, and both acts were proximate causes of the injury. Neither act of negligence, independent of the negligent act of the other, would have caused the injury. To absolve the Pullman Company from liability for its negligent act in leaving the gate open as a concurring proximate cause of the injury and hold that the sole, proximate cause was the negligent act of the railway company, it must appear that the act of negligence of the railway company was an efficient and independent cause of the injury, and that the injury was not dependent upon the negligent act of the' Pullman Company. If it appears that the injury would not have occurred but for the connected acts of negligence of both appellants, that the act, of negligence of both,, each dependent on the other, caused the injury, neither can claim that its negligent act was remote and not a proximate cause. We think it so appears and both acts should be considered as proximate causes of Mrs. Packard’s injuries. The Pullman Company cannot be heard to say:

“It is true that I was guilty of negligence in leaving the gate open, but if the railway company had guarded against my negligence, it would not have caused the injury.”

Nor can the railway company say:

“It is true that I was guilty of negligence in separating the cars without seeing that the gate was closed, but no injury would have occurred unless the Pullman Company had been guilty of negligence in leaving the gate open.”

Neither can be guilty of negligence that caused the injury and free itself from liability therefor upon the ground that it had the right to presume that the other would not be guilty of negligence. But each party must perform its duty for the protection of the passengers without regard' to the acts of the other. The injury to Mrs. Packard, as a result of the failure to close the gate, ought reasonably to have been foreseen by the Pullman Company. It concurred with the subsequent negligence of the railway company in causing the injury; There was an unbroken connection between the original negligent act and the result. The facts show a continuous succession of events so linked together as to malte a natural whole. The negligent act of the railway company cannot be considered as the intervention of a wholly independent causative agency. Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Markham v. Navigation Co., 73 Tex. 247, 11 S. W. 131; Gonzales v. City of Galveston, 84 Tex. 6, 19 S. W. 284, 31 Am. St. Rep. 17; Railway Co. v. McWhirter, 77 Tex. 356, 14 S. W. 26, 19 Am. St. Rep. 755; Railway Co. v. Cardwell, 187 S. W. 1073; Shippers, etc., v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032. The court submitted this issue:

“If you find that the accident or injury to Maud Packard, if any, was caused by the negligence of defendants, or either of them, then state which of them, and if you find both of them, so state.”

Error is assigned to the submission of this issue, two propositions being urged, namely:

“It is error for the court to submit to the jury an issue not raised by the pleadings nor suggested by the evidence.”
“The question presented was a mixed question of law and fact, and it was the duty of the court, and not the duty of the jury, to determine which was the proximate and which the remote cause of the injury.”

The first proposition is without merit. The pleadings and evidence plainly raised the issue of which defendant’s negligence caused the injury, or whether it was caused by the negligence of both.

As to the second objection, if it was the duty of the court to determine which was the proximate cause of the injury, then it has done so by its action in rendering judgment against the Pullman Company.

The sixth assignment reads:

“Because the court erred in submitting to the jury any question that by reason of its phraseology could or did suggest to the jury that there were joint duties and liabilities of defendants, and the failure to perform which by either would make both defendants jointly liable to the plaintiff.”

This assignment is insufficient to advise us what question it is contended is subject to the objection made. There were, a great many issues submitted, and so far as the assignment is concerned, it does not advise this, nor did it point out to the trial court in what way it violated the rule contended for. But in any event, the rule asserted in the assignment has no pertinency here. In response to special issues the jury has found, and its finding is supported by the evidence, that both defendants were negligent in the particulars noted above. And under the views expressed above, the Pullman Company became liable jointly with the railway company, since its negligence proximately concurred with that of the railway company in causing the injury.

The seventh, eighth, ninth, and tenth assignments complain of the admission of testimony of certain employés of the railway company that it was the duty of the employés of the Pullman Company to close the vestibule gate on the platform of the tourist car. It is objected that the witnesses by their own testimony disclosed that they were not qualified to testify as to the duty of the Pullman employés in that particular. Other testimony of like nature and subject to the same objection was admitted without objection. The assignments therefore present no reversible error.

Error is assigned to the admission of certain answers of the witness Williams, who testified by deposition. The objection related to the form and manner of taking the deposition. It does not appear how long the deposition had been on file. The right to urge such an objection to the deposition upon the trial of the cause is therefore not apparent. Furthermore, we think the answers were fairly responsive to the questions asked.

Error is assigned to the action of the court in permitting counsel for the railway company in argument to the jury to read and comment upon a portion of the Pullman Company’s original answer, which portion of the answer had been made upon information and belief and had theretofore been excluded when offered in evidence by the railway company. The portion of the answer so read and commented upon reads:

“And thereupon the said porter and the said Mrs. Packard did proceed to the baggage car to turn over the aforesaid dog to the baggagemas-ter, whereupon the said Mrs. Maud Packard did insist upon and did remain in the baggage car of this defendant’s eodefendant, directing the porter of this defendant to return for her in five minutes, which said porter did, and was thereupon advised by the said Sirs. Packard that she would continue in the baggage car until she reached the city of Del Rio, Tex., where she would take the dog from the car and exercise it on the depot platform.”

We cannot see how reading and commenting upon this paragraph of the answer could possibly have had any influence upon the jury in determining the material issues submitted to them. Especially so, in view of the fact that the jury found that Mrs. Packard did not tell the Pullman porter or other employés of the Pullman Company that she intended to take her dog out for exercise at Del Rio. Furthermore, the pleading upon which the cause was tried made substantially the same allegations in practically the same language. The error, if any, was harmless.

The assignments presented by the railway company are urged only in event it is held reversible error is shown by the assignments of the Pullman Company. Finding no error in the Pullman Company’s assignments, the railway company’s assignments stand as waived.

Affirmed.
      ©n5>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    MOORINGSPORT OIL CO. v. ALDRIDGE et al.
    (No. 8509.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 27, 1917.
    On Motion for Rehearing March 3, 1917.)
    1. Brokers &wkey;>88(l) — Sale of Stock — Action for Compensation — Submission of Special Issues.
    In suit for commissions for selling stock in defendant company, where the evidence showed that stock issued in lieu of stock owned by the president was traded by him for a lot, it was error to refuse to submit special issue of whether the stock belonged to the president or to the company, since, if it belonged to the president, plaintiff would have no right to recover commissions from the company, and the submission of the issue of whether “the trade” was finally made between the purchaser and the president personally, or as agent for the company, did not cure the error.
    [Ed. Note — For other cases, see Brokers, Cent. Dig. §§ 128, 129.]
    2. Corporations <&wkey;139 — Issue of Stock Certificate — Evidence of Ownership.
    The mere fact that a certificate of stock was signed by the president and secretary did not prove that it was then owned by the company instead of^ by the president individually as alleged.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 467, 469.]
    3. Corporations <&wkey;300 — Liability for President’s Act.
    Acts of the president of a corporation beyond the objects of the corporation and without the scope of his authority cannot bind the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1320-1323.]
    4. Brokers <&wkey;86(6) — Sale of Stock — Action . for Compensation — Sufficiency of Evidence.
    Evidence showing that stock issued in lieu of stock owned by the president was traded by him for a lot held insufficient to bind the corporation to pay a broker’s commission for negotiating the trade, although the president might be personally liable.
    [Ed. Note. — For other cases, see Brokers. Cent. Dig. § 117.]
    Appeal from Johnson County Court,1 B. J. Jackson, Judge.
    Suit in justice court by J. N. Aldridgt and others against the Mooringsport Oil Company. Judgment for plaintiffs, and defendant appealed to the county court, where on trial de novo plaintiffs liad judgment, and defendant appeals.
    Reversed and remanded.
    Walker & Baker, of Cleburne, for appellant. Johnson & Harrell, of Cleburne, for appellees.
   CONNER, C. J.

This suit was instituted in a justice court of Johnson county by J. N. Aldridge and others to recover $200 commission upon an alleged sale of stock belonging to the company to one F. H. Barlow. The suit was founded upon the following letter which was declared upon:

“Ft. Worth, Texas, February 7, 1914.
“Mr. J. N. Aldridge, Cleburne, Texas — Dear Sir: This is to advise that we will in future pay you 20 per cent, commission where you collect not less than 50 per cent, in cash with the sale, and 15 per cent, when you collect less than 50 per cent.
“We feel that the above commission is exceedingly liberal.
“We have instructed our vice president, Mr. Hardy, to have the timbers gotten out for the derrick. This he will do at once.
“Yours very truly,
“E. R. Mooring, President.”

It was alleged, in substance, that by virtue of the terms of this letter J. N. Aldridge and another associated with him sold stock in the Mooringsport Oil Company to said Barlow of the value of $1,000, and prayer was for the recovery of the 20 per cent, commission authorized by the contract.

Appellant pleaded the general denial, and specially, among other things, that the transaction was not a sale of stock, but an exchange of property for stock made by E. R. Mooring in person and in which he traded his individual stock to Bar low for a lot in Cleburne.

The trial in the justice court resulted in a judgment in favor of the plaintiffs in the suit, and upon an appeal to the county court in a de novo trial they again,recovered a like judgment, from which the appellant company has appealed.

Pretermitting a discussion of evidence and questions deemed not material, it will be sufficient to state, we think, that the uncontra-dicted evidence shows that after some negotiations initiated by the appellee Aldridge and his associate, E. R. Mooring, president of the appellant company, closed a contract with Barlow, whereby Barlow acquired $1,-000 of stock in the appellant company in exchange for a certain lot situated in the town of Cleburne, Mooring, in addition to the $1,-000 of stock forming a part of the consideration, further agreeing to assume an indebtedness of $1,500 constituting a charge against the lot.

The case was submitted to a jury upon special issues, and the jury found that Al-dridge and his associate were agents for the appellant company and were the procuring cause of the trade that was finally made, whereby Barlow became the owner of the 50 shares of stock in the Mooringsport Oil Corn-pany. The foUowing further issue was submitted:

“(3) Was the trade as finally made one between F. H. Barlow and E. R. Mooring personally, or between F. H. Barlow and E. R. Mooring as the agent and manager of the Mooringsport Oil Company for such company?”

To which question the jury answered:

“As agent and manager for said oil company.”

Appellant requested the submission of the following further special issue, which was refused by the court, and to which action on the part of the court error has been duly assigned, viz.:

“Were the 50 shares of stock acquired by Barlow .the property of E. R. Mooring or of the Mooringsport Oil Company?”

We are of the opinion that this issue was material, and that the court erred in refusing to submit it. Appellees insist, in substance, that the answer of the jury to the third special issue submitted by the court, and which we have above set out, sufficiently comprehends the issue embodied in the special instruction requested, but we do not feel quite prepared under the evidence to concur in this contention. E. R. Mooring, the president of the appellant company, and J. J. Nunnally, who testified that he was the secretary and treasurer of said company at the time of the exchange under consideration, testified in relation to the transfer of stock substantially to the effect that the certificate of stock issued to Barlow was No. 211; that it had been issued in lieu of certificate No. L9, previously issued to and owned by Mooring; that at the time of the issuance of certificate No. 211 Mooring came to said secretary and submitted certificate No. L9 and requested the issuance in lieu thereof of certificate No. 211, which was done. The secretary in testifying exhibited the stubs of the certificates which showed the issuance of certificate No. L9 for 50 shares direct to Mooring on July 15, 1913, and the exchange in question occurred and certificate No. 211 was issued to Barlow on March 5, 1914. The book further showed, as testified to by the secretary, that certificate No. L9 had been canceled on March 16, 1914, by himself as secretary and treasurer. The seqretary further in testifying gave an explanation of how it occurred that the cancellation of certificate No. L9 appeared on the books to have been made some days later than the issuance of certificate No. 211, but the explanation is not thought at this time to be material, and we need not cite the evidence. The secretary further' testified, however, specifically that:

“The Mooringsport Oil Company had not a cent’s interest in this 50 shares of stock in ques^ tion which were issued to F. H. Barlow. The stock belonged to E1. R. Mooring individually.”

Mooring testified, among other things:'

That he told Aldridge and his associate at the time that “I couldn’t make that trade with Barlow; that I couldn’t sell him stock in which the company was interested, because in that case I would be required to pay the money — a certain amount of it — for developing purposes; that, if I made tlie deal, I would have to let Mr. Barlow have some of my own individual stock so that I would not be required to pay any money. * * * i afterwards made the deal with Mr. Barlow. * * * I suppose it was about a week or ten days or two weeks from the telephone conversation I had with Mr. Barlow until this trade was made with him. * * * I was familiar with certificate No. L9, and also with certificate No. 211. Certificate L9 was for 50 shares of my own individual stock in which the Mooringsport Oil Company was not interested at all. It was my individual property. *' * * Certificate No. E9 for 50 shares owned by me was canceled and reissued to E. H. Barlow as certificate No. 211.”

Mooring further testified to the effect that he was manager of the company, and as such had authority to make contracts for the sale of the company’s stock and fix the terms of such sales, and in fact “had authority to make any and all contracts that I deemed necessary for the interest of the company’s business.”

It further appeared that Barlow, in making the exchange, conveyed the lot in Cle-burne to Mooring direct, and not to the appellant company, and there is certainly no direct contradiction of the testimony of Mooring, the president, and Nunnally, the secretary, to the eifect that it was the individual stock of Mooring that was conveyed to Barlow, nor is it insisted that .the method adopted in the issuance of stock certificate No. ■211 acquired by Barlow was not the proper method of transferring the' stock of an individual stockholder.

The mere fact, therefore, that certificate No. 211 for the 50 shares of stock acquired by Barlow was signed by Mooring as president of the company and Nunnally as secretary did not prove that the stock was that owned by the company instead of stock owned individually by Mooring, although doubtless this fact was made the basis of the jury’s finding to the third special issue submitted by the court that the trade as finally made was between P. H. Barlow and E. R. Mooring,, as the agent and manager of the Mooringsport Oil Company for the company. The appellant, therefore, under the circumstances, we think, was at least clearly entitled to have a specific finding upon the specific issue requested of whether the 50 shares of stock acquired by Barlow was the property of E. R. Mooring or of the Moorings-port Oil Company; for, if the stock actually acquired by Barlow was the individual property of Mooring and conveyed to Barlow in a transaction whereby Mooring individually acquired real estate and assumed a personal obligation, then it seems too plain for argument or citation of authority that the appellees would not be entitled upon the written contract declared upon to recover commissions.

The charter of the company was not in evidence, and the authority of Mooring as the president and manager other than we have stated was not shown. Mooring was but an agent of the corporation, and an act on his part beyond the purposes and objects of the corporation and without the scope of his authority would have no binding force whatever upon the corporation. And it seems clear to us that without other and further authority than has been shown the appellant company a corporation cannot be held bound to pay commissions for an exchange of property made by its president for his individual benefit. The president himself might be liable under a quantum meruit for the value of such services, if any, as appellees rendered in making the exchange, but by no principle of law that we know of can the corporation be made liable to pay for services thus rendered.

It is accordingly ordered that the judgment be reversed, and the cause remanded for a new trial.

On Motion for Rehearing.

We have carefully considered the appel-lees’ motion for rehearing and read with interest the able argument of appellees’ counsel in support of the motion, but we yet think the judgment should be reversed, and the cause remanded for a new trial. It is to be remembered that 'this is not a suit on the part of the Mooringsport Oil Company to establish a trust and seek to avail itself of the benefits, if any, of the trade by its president, but a suit on the part of the appellees against the company to recover commissions upon an alleged sale of stock owned by the company and for its benefit, and while there may seem to be force in appellees’ present contention that the fact that the stock actually conveyed to Barlow is in its nature evidentiary rather than vital as an issue, yet under the circumstances of this case we think appellant was entitled, to a specific finding upon any controverted issue that would tend to make more certain its defense that its president was .acting in his own interest and for his own benefit alone. This seems particularly true in view of the fact that the stock actually transferred to Barlow was stock issued by the president and secretary in the name of the company. The jury might readily therefrom find, as they did, that the trade as finally made was by Mooring as agent and manager of said oil company. It may be furthermore said that it can hardly be contended with reason that, by virtue of its charter, or otherwise, does the record disclose a power in the president of the corporation to make a contract for the company, and bind it as a trading corporation to purchase real estate and assume the payment of debts operating as a lien thereon.

We conclude on the whole that the motion for rehearing should be overruled; and it is so ordered.
      <g^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEW, J.

text:
    WILLIAMS v. HARRIS.
    (No. 1758.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 1, 1917.
    Rehearing Denied March 22. 1917.)
    1. Venue <g=>10 — Change—Nonresident Executor Substituted as Defendant.
    Vernon’s Say los’ Ann. Civ. St. 1914, art. 1830, subd. 6, requiring suits against personal representatives to he brought in the county of administration, does not require a suit instituted against a deceased to be transferred to the county of administration after his personal representative is substituted as defendant pursuant to article 1S8S..
    [Ed. Note. — For other eases, see Venue, Cent. Dig. § 19.]
    2. Abatement and Revival <S=s52 — Obtaining Property by Fraud.
    An action for obtaining property by fraudulent representations is not abated by the defendant’s death.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 24S-254.]
    3. Damages @=»G9 — Interest—Fraudulently Acquiring Property.
    In a damage action for acquiring property by fraudulent representations, interest is allowable as an element of damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 137-149.]
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Action by D. J. Harris against W. N. Williams, executor. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Louisa J. Harris, aunt of appellee, died intestate in Hopkins county, Tex., on March 26, 1913. The deceased, a feme sole, left an estate amounting to about $35,000, consisting of land, money, notes, accounts, and live stock. The larger part of tbs estate was 797% acres of land of the value of $25,000, and cash on deposit in several banks in the sum of $6,734. Thomas A. St. Clair transacted all the business and affairs of Louisa J. Harris during her lifetime, signed her name to her checks, and was conversant with the nature, character, and value of the property and estate of Louisa J. Harris at the time of her death. Appellee, who lived in Oklahoma, was an heir of Louisa J. Harris and entitled to a one-twelfth inheritable interest in the estate; and on April 4, 1913, he made conveyance of his entire inheritable interest in the estate to Thomas A. St. Clair for the sum of $800. The action is by appellee to recover damages, claiming that Thomas A, St. Clair wrongfully acquired his inheritable interest in the specific property for greatly less than its value by reason of fraud and deceit. The case was tried before a jury and a verdict was rendered in favor of appellee upon all issues of fact and for the sum of $1,906.
    There is evidence to support the findings that Thomas A. St. Clair, through his agent Willie Williams, represented and stated to the plaintiff, who was in Oklahoma, that the entire.estate of Louisa J. Harris consisted of S00 acres of land of the value of $S,000, money and notes together of the value of $1,000, cattle of the value of $240, mules of the value of $300, and horses of the value of $300; that the entire estate of Louisa J. Harris would not exceed $10,000 in value; and that the interest and share of the plaintiff in the estate would not exceed $800. The plaintiff had no knowledge of the nature, extent, or value of the estate, but Thomas A. St. Clair and his agent Willie Williams did have such knowledge; and plaintiff, acting upon the representations so made of the nature, extent, and value of the estate, executed the conveyance to Thomas A. St. Clair of his entire interest in the estate for the sum of $800. There is involved in the verdict of the jury, which has evidence to support it, that the representations and statements made to the plaintiff were untrue and false and were made for the purpose of misleading and inducing the plaintiff to act thereon and to sell and transfer his interest in the estate to the said Thomas A. St. Clair.
    D. Thornton, of Sulphur Springs, and R. T. Wilkinson, of Mt. Vernon, for appellant. R. B. Keasler, of Sulphur Springs, O. B'. Riegel, of Snyder, Old., J. A. Lenertz, of Lawton, Old., and R. H. Towne, of Snyder, Okl., for appellee.
   LEW, J.

(after stating the facts as above). The appellee filed his original petition in the district court of Hopkins county on August 12, 1914, to recover of the defendant, Thomas A. St. Clair, damages for wrongful acquisition of specific property by reason of fraud and deceit. The defendant, St. Clair, resided in Hopkins county, Tex., and made answer to the suit. The defendant, St. Clair, died April 1, 1916, before trial of the suit, leaving a will. The will named W. N. Williams as executor and was probated by the county court of Franklin county, and the estate is now being administered in that county. On August 14, 1916, the plaintiff in the suit filed his amended petition, suggesting the death of the original defendant, Thomas A. St. Clair, and praying that scire facias issue to the executor, W. N. Williams, requiring him to appear and defend the suit. The executor, W. N. Williams, filed a plea setting up that the estate of Thomas A. St. Clair is being administered in the county court of Franklin county, and asked as a plea of privilege .that the venue of the cause be changed to Franklin county. The court overruled the plea of privilege, and this ruling is made the basis of the first assignment of error. The suit was not an original suit against the executor so as to make applicable subdivision 6 of article 1830, Vernon’s Sayles’ Statutes. The suit was pending against the testator, Thomas A. St. Clair, as defendant at the time of his death, and the executor, Williams, was made a party sub-statute upon the death of the defendant, under article 18S8, Vernon’s Sayles’ Statutes. The article just mentioned is designed to prevent the abatement of and to continue the suit already instituted, and it is thought controls the venue in this case. The assignment is-therefore overruled.

The appellant contends that the suit against the testator, St. Clair, abated by reason of his death, and the court erred in not so holding, because the cause of action was one purely for tort, which, by the common law, did not survive the death of the tort-feasor. It is believed that the court did not err in the ruling complained of, for the action is one for damages for the wrongful acquisition of specific property by reason of fraud and deceit. The personal actions which at common law die with the person are causes of action where the damages are personal in nature; as, for instance, anguish of. mind, injury to character, deprivation of liberty, and bodily injury. Peary v. Hamilton, 110 Ind. 45, 39 N. E. 516; Gibbs v. Belcher, 30 Tex. 79; Railway Co. v. Goodman, 20 Tex. Civ. App. 109, 48 S. W. 778; Stebbins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. Dec. 146; Watson v. Loop, 12 Tex. 11. But where the damages sustained affect property rights or interest therein, the right of action survives against the executor or administrator. 1 Corpus Juris, p. 185; 1 Cyc. p. 49; 1 R. C. L. p. 28; Railway Co. v. Smith, 35 Tex. Civ. App. 351, 80 S. W. 247. As stated in Re Payne’s Appeal, 65 Conn. 407, 32 Atl. at p. 952, 33 L. R. A. 418, 48 Am. St. Rep. 215:

“The principle involved is: In the case of a tort directly resulting in the wrongful acquisition of property, the law imposes on the wrongdoer the duty of returning that property to the owner. This duty may be treated as a quasi contract, and the neglect to perform it may become a breach of such contract. In such case, the damage resulting from the tort is substantially the value of the property, and the damage resulting from the broach of contract is substantially measured in the same way; and so, for determining the question of survival, the substantial cause of action may properly be treated as founded in contract, although the form of action might sound in tort. But such principle cannot apply unless property is acquired.”

The second and third assignments of error are therefore overruled.

It is thought that there is no reversible error in respect to the evidence complained of in the fourth, fifth, and seventh assignments of error, and they are overruled.

The court did not err in sustaining objection to the proof offered, as complained of in the eighth assignment of error. Railway Co. v. De Bord, 21 Tex. Civ. App. 691, 53 S. W. 593; Boon v. Weathered, 23 Tex. 686; Johnson v. Brown, 51 Tex. 65.

It is believed that the court’s charge correctly and clearly applied the law to the facts, and that assignments of error Nos. 9, 10, 11, 12, 13, 15, 16, 18, 20, 21, and 23 should be overruled.

The court’s main charge and the special charges given fully covered the case it is thought, and there is no reversible error in the refusal of special charges complained of in the fourteenth, seventeenth, nineteenth, twenty-fourth, twenty-fifth, and twenty-sixth assignments of error.

Assignment of error No. 22 should be overruled, it is thought; for interest as an element of damages may be allowed in that character of cases. Watkins v. Junker, 90 Tex. 584, 40 S. W. 11.

The evidence made an issue of fact for jury, and the court did not err in refusing to give a peremptory charge; and it is therefore concluded that assignment of error No. 27 should be overruled.

The judgment is affirmed.
      <S=oEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WILLIAMS v. ADAMS et al.
    (No. 1759.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 1, 1917.
    Rehearing Denied March 22, 1917.)
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Action by Dollie Adams and others against W. N. Williams, executor. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Louisa J. Harris, aunt of appellee Dollie Adams, died intestate in Hopkins county, Tex., on March 26, 1913. The deceased, a feme sole, left an estate amounting to about $35,000, consisting of land, money, notes, accounts, and live stock. The larger part of the estate consisted of 797% acres of land of the value of $25,000, and cash on deposit in several banks in the sum of $6,734. Thomas A. St. Clair transacted all the business affairs of Louisa J. Harris during- her lifetime, signed her name to her checks, and was conversant with the nature, character, and value of the property and estate of Louisa J. Harris at the time of her death. Appellee, who lived in Oklahoma, was an heir of Louisa J. Harris and entitled to one-twelfth inheritable interest in the estate; and on April 4, 1913, appellee made conveyance of her entire inheritable interest in the estate to Thomas A. St. Clair for the sum of $800. The action is by appellee to recover damages, claiming that Thomas A. St. Clair wrongfully acquired her inheritable interest in the specific property for greatly less than its value by reason of fraud and deceit. The case was tried before a jury, and a verdict was rendered in favor of appellee upon all issues of fact and for the sum of $2,110.20.
    There is evidence to support the findings that Thomas A. St. Clair, through his agent Willie Williams, represented and stated to the plaintiff, who was in Oklahoma, that the entire estate of Louisa J. Harris consisted of 800 acres of land of the value of $8,000. money and notes together of the value of $1,000, cattle of the value of $240, mules of the value of $300, horses of the value of $300 ; that the entire estate of the said Louisa J. Harris would not exceed $10,000 in value; and that the interest and share of the plaintiff in the estate would not exceed $800. The plaintiff had no knowledge of the nature or value of the estate, but Thomas A. St. Clair and his agent Willie Williams did have knowledge of the nature, extent, and value of the estate; and plaintiff, acting upon the representations so made of the nature, extent, and value of the estate, executed the conveyance to Thomas A. St. Clair of her entire interest in the estate for the sum of $800. There is involved in the verdict of the jury, which has evidence to support it, that the representations and statements made to the plaintiff were untrue and false and were made for the purpose of misleading and inducing- the plaintiff to act thereon and to sell and transfer her interest in the estate to the said Thomas A. St. Clair.
    D. Thornton, of Sulphur Springs, and R. T. Wilkinson, of Mt. Vernon, for appellant. R. B. Keasler, of Sulphur Springs, O. B. Riegel, of Snyder, Okl., J. A. Lenertz, of Lawton, Okl., and R. H. Towne, of Snyder, Okl., for appellees.
   LEW, J.

(after stating the facts as above). The appellee filed her original petition in the district court of Hopkins county on August 12, 1914, to recover of the defendant, Thomas A. St. Clair, damages for wrongful acquisition of specific property by reason of fraud and deceit The defendant, St. Clair, resided in Hopkins county, Tex., and made answer to the suit. The defendant, St. Clair, died April 1, 1916, before trial of the suit, leaving a will. The will named W. N. Williams as executor and was probated by the county court of Franklin county, and the estate is now bieng administered in that county. On August 14, 1916, the plaintiff in the suit filed her amended petition, suggesting the death of the original defendant, Thomas A. St. Clair, and praying that scire facias issue to the executor, W. N. Williams, requiring him to appear and defend the suit. The executor, W. N. Williams, filed a plea setting up that the estate of Thomas A. St. Clair is being administered in the county court of Franklin county, and asked as a plea of privilege that the venue of the cause be changed to Franklin county. The court overruled the plea of privilege, and this ruling is made the basis of the first assignment of error. We can perceive no error in the court’s ruling. The suit was not an original suit against the executor so as to make applicable subdivision 6 of article 1830, Vernon’s Sayles’ Statutes. The suit was pending against the testator, Thomas A. St. Clair, as defendant at the time of his death, and the executor, Williams, was made a party substitute upon the death of the defendant, under article 1888, Vernon’s Sayles’ Statutes. The article just mentioned is designed to prevent the abatement of and to continue the suit already instituted, and, it is thought, controls the venue in this case. The assignment is therefore overruled.

The appellant contends that the suit against the testator, St. Clair, abated by reason of his death, and that the court erred in not so holding, because the cause of action was one purely for tort, which, by the. common law, did not survive the death of the tort-feasor. It is believed that the court did not err in the ruling complained of, for the action is one for damages for the wrongful acquisition of specific property by reason of fraud and deceit. The personal actions which at common law die with the person are causes of action where the damages are personal in nature; as, for instance, anguish of mind, injury to character, deprivation of liberty, and bodily injury. Feary v. Hamilton, 140 Ind. 45, 39 N. E. 516; Gibbs v. Belcher, 30 Tex. 79; Railway Co. v. Goodman, 20 Tex. Civ. App. 109, 48 S. W. 778; Stebbins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. Dec. 146; Watson v. Loop, 12 Tex. 11. But where the damages sustained affect property rights or interest therein the right of action survives against the executor or administrator. 1 Corpus Juris, p. 185; 1 Oye. p. 49: 1 R. C. L., p. 28; Railway Co. v. Smith, 35 Tex. Civ. App. 351, 80 S. W. 247. As stated in Re Payne’s Appeal, 65 Conn, at pages 407 and 408, 32 Atl. at page 952, 33 L. R. A. 418, 48 Am. St. Rep. 215:

“The principle involved is: In the case of a tort directly resulting in the wrongful acquisition of property, the law imposes on the wrongdoer the duty of returning that property to the owner. This duty may be treated as a quasi contract, and the neglect to perform it may become a breach of such contract. In such case, the damage resulting from the tort is substantially the value of the property, and the damage resulting from the breach of contract is substantially measured in the same way; and so, for determining the question of survival, the substantial cause of action may properly be treated as founded in contract, although the form of action might sound in tort. But such principle cannot apply unless property is acquired.”

The second and third' assignments of error are therefore overruled. This same question was decided in the companion case of W. N. Williams, Ex’r, v. D. J. Harris, 198 S. W. 403, this day decided by this court

• It is thought there is not reversible error presented by assignments Nos. 4, 5, 11, and 13.

It is believed that the court’s charge correctly and clearly applied the law to the facts, and that assignments of error Nos. 6, 7, 9, 16, 17, and 19 should be overruled.

The main charge of the court it is thought fully covered the case, and there is no reversible error in refusing special charges complained of in the eighth, tenth, twelfth, fourteenth, fifteenth, and twentieth assignments of error.

Assignment of error No. 18 should be overruled, it is thought; for interest as an element may be allowed in that character of cases. Watkins v. Junker, 90 Tex. 584, 40 S. W. 11.

The evidence made an issue of fact for the jury, and the court did not err in refusing to give a peremptory charge, and it is therefore concluded that assignment of error No. 21 should be overruled.

The judgment is affirmed.