author: CARL, J.

text:
    FOX v. FOX.
    (No. 5616.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 27, 1915.)
    1. Divobce <@=124r — Jurisdictional Facts— Residence in County— Sufficiency or Evidence.
    Evidence in a wife’s action for divorce and for the recovery of her separate property held to sustain a finding that at the time of the filing of her petition plaintiff had been an actual bona fide inhabitant of the state for twelve months, and had resided in the county where the suit was brought for six months next preceding the filing of the petition, within the jurisdictional requirement of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4632.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 392-398, 450, 455, 456; Dec. Dig. <@= 124.J
    2. Divobce <@=62 — Jurisdiction—Residence —CONSTKUCTION—STATUTE.
    Under Vernon's Sayles’ Ann. Civ. St. 1914, art. 4632, requiring that a petition for divorce, and proof in support thereof, show that at the time of its filing the plaintiff had been an actual bona fide resident of the state for twelve months, and a resident of the county where suit was brought for six months next preceding the filing of the petition, a long-continued absence from the state or county would not be a substantial compliance with the requirement that the party be a bona fide inhabitant of the state, but a temporary absence from the state or county during the six months preceding the filing, of a petition for divorce would not affect the right to maintain it.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. 200-202, 208-216, 220, 282; Dec. Dig. <@=62.j
    3. Venue <§=8 — Statute.
    Where a wife furnished money to her husband to be loaned upon real estate securities in her name and for her benefit, but the husband converted it to his own use in B. county, or placed it upon securities and retained the evidence thereof in his own name and refused to deliver them, the wife’s action charging such fraud, that some of the property was situated in B. county, and seeking the establishment of a resulting trust, was properly brought in B. county, within the express provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, § 7.
    [Ed. Note. — For other eases, see Venue, Cent. Dig, § 17; Dec. Dig. <@=8.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Action by Ida West Fox against E. A. Fox for divorce and the recovery of separate property. From an order of injunction, defendant appeals.
    Affirmed.
    Arnold, Cozby & Peyton, M. W. Davis, and Davies & Davies, all of San Antonio, for appellant. Carlos Bee, C. C. Todd, and Ball & Seeligson, all of San Antonio, for appellee.
   CARL, J.

Appellee, Ida West Fox, on May 11, 1915, filed suit against appellant, E. A. -Fox, for divorce, and for the recovery of her separate property, and obtained an injunction against appellant. On August 31, 1915, the court overruled a motion to dissolve this injunction, and continued same in force until the further orders of the court. This is the order from which this appeal is prosecuted.

The petition alleges that the plaintiff was, and had been at the time of the filing of the petition, a bona fide resident of the state of Texas and county of Bexar for one year before such filing of the petition. In addition to the allegations in support of the divorce prayed for, the petition charges that appellant married her in order to secure all her available money, and had appropriated the same to his own use; that prior to the marriage the appellant persuaded appellee to loan him $2,500, and executed a deed of trust on certain real estate in San Antonio, which he never owned, but which stood in the name of his daughter, Blanche Fox, and since the marriage he has taken from appellee the notes and deed of trust covering this loan so that she would not have any evidence of said debt; and, further, that since the marriage appellant had secured from her $10,-000, agreeing to lend same for her and give her the securities for same, which he has failed and refused to do, and refuses to account to her for the same. The petition also alleges that a certain $2,000 vendor’s lien note was. purchased out of her said money, and that certain other property and purchases were made with her money, and charges that funds in the State Bank & Trust Company are a part of her said sum of money.

A divorce was prayed for; also a judgment for $12,500 so fraudulently obtained, and that same be declared a lien upon property alleged to belong to appellant; and for an injunction restraining the bank from paying out any of said money upon appellant’s checks, and to restrain' the defendant from disposing of the real estate pending the suit.

The motion to dissolve the injunction was based mainly upon the following grounds:

(1) That the plaintiff was not a bona fide resident citizen and inhabitant of the county of Bexar, state of Texas, ano was not at the time of filing the suit; that when defendant and plaintiff married on February 13, 1915, appellee gave her residence as the city of St. Louis, in the state of Missouri, and was not at that time, and never had been, a resident citizen of the state of Texas. It is alleged therein that after the marriage they came to Texas and moved out on a ranch in Medina county, where they resided at the time this suit was filed, and that by reason thereof the Thirty-Seventh district court of Bexar county had no jurisdiction to try the cause, which, it is alleged, is a' suit for divorce, and that neither plaintiff nor defendant was an actual bona fide resident citizen of Bexar county.

(2) That tbe injunction issued and served upon the State Bank & Trust Company impounded and tied up funds belonging to E. A. Pox, defendant, and prevented bim from selling any property.

Tbe plaintiff below denied these allegations, and replied that it was necessary for her health, pleasure, and business that she be away from Bexar county a great deal, but that she had, while gone, kept her room here, in which her personal effects were left. She admitted that they went upon the ranch in Medina, Bexar, or Bandera county, but says she thinks it was situated partly in all of said counties, but says that this sojourn was never intended by either of them to be aught but temporary. She alleges that appellant did not own the ranch, but had merely a contract or option to buy same, and that a large part of her separate funds, acquired as formerly stated from her by defendant, was invested in same and improvements thereon, and asserted that she was entitled to an equitable lien on same. She alleges, further, that she believes that appellant has conspired with Becher, the man from whom he obtained the contract for said land, to surrender his contract or convey same to Becher, or some other person, to defraud her of the equity therein.

This supplemental petition and reply further alleges that the fraudulent acts of the defendant were committed in whole or in part in Bexar county, and that some of the stock purchased with the money fraudulently acquired from 'her were in Bexar county, and that since the injunction was issued defendant had disposed of a part of the stock, and converted the proceeds to his own use. Harry Becher was made a party. The injunction issued was later modified so that it would not prevent E. A. Fox from collecting from the State Bank & Trust Company the money on deposit in the name of E. A. Fox or the Fox Realty Company, and he was permitted to check all he desired either as E. A. Fox or Fox Realty Company.

Any further statement necessary will appear in course of the discussion which follows.

The main contention is that the evidence does not show that the plaintiff had been an actual bona fide inhabitant of the state of Texas for one year and had resided in Bexar county for six months next preceding the filing of the petition. This case, as it comes to us on the question of jurisdiction, must be controlled by the facts in evidence as to the residence of Mrs. Fox, the plaintiff below.

Under the law, as it now stands (article 4632, Vernon’s Sayles’ Statutes), the petition and proof in support thereof must show that at the time of the filing- of such petition the plaintiff had been an actual bona fide inhabitant of the state for a period of twelve months, and had resided in the county where the suit is brought for six months next preceding the filing of the same.

Defendant testified that he met the plaintiff about December 24, 1914, and they were married on the 13th of February, 1915, at St. Louis, Mo. There is an affidavit in evidence, made by both the parties to this suit for the purpose of obtaining a marriage license in St. Louis, in which the residence of appellee is given as 5331A, Ridge avenue, St. Louis, Mo. When they married they came to San Antonio, and he says they first lived at 121 Uvalde street, where they arrived on February 15th, which they were to vacate on March 1st. He says they vacated the house on Uvalde street, and stayed at the Travelers’ Hotel. The house on Uvalde street was his home up to that time, according to his statement, and he brought his-wife there to that house, which he says, however, was in his daughter’s name. He says, further, that on the 2d of March they went to the Travelers’ Hotel, but that on the 11th or 12th of March she made a trip to St. Louis, and came back on March 28th, and went out to the ranch with him. This ranch, according to his testimony, is in Medina county.

There is a great deal of testimony on both sides as to the matter of residence; but, since the court heard evidence on that issue and determined it in favor of the appellee, we will direct our investigation towards ascertaining whether there is sufficient evidence to sustain that finding.

Mrs. Fox says that prior to her marriage with Mr-. Fox, in February of the present year, she lived in San Antonio most of the time for the past six years, and that she had an understanding with Mr. Fox prior to their marriage that they were to be here in San Antonio; that they were to go to the ranch for a short time to get things in order, and then come back to San Antonio, where he would carry on the real estate business. She says that she had a room here in the city all the time before she was married, and kept said room, with her furniture in it, during the time she was away from San Antonio, in St. Louis, Chicago, and other places, where her health, pleasure, or business called her. She says she went to St. Louis for an operation on her throat, but she says that, notwithstanding her trips and the periods of time she stayed away from San Antonio, it has always been her home for the past six years, and that her understanding and agreement with Mr. Fox was that their home would continue to be in 'San Antonio, as it had been in the past, except for that temporary absence for improving and preparing the ranch for the market. She says that Mr.-Fox said it would be a useless expense to take the p-iano out to the ranch, and they left it at G-oggan’s music store. Further testifying, she said that he told her they would just go out there long enough to get some fences fixed up and the bam fixed, and get things in running order. This is further substantiated by the fact that Mr. Fox wrote to her on February 13th, before their marriage, that he did not think either of them would want to live on the ranch, and that he would keep a house in town. On February 6th he wrote that his son would give up the cottage on TJlvalde street when wanted.

There is other evidence that Mr. Fox had stated to divers people that he did not intend to live on the ranch, and the further fact that he took a guaranty of title, of date March 20th, in which he gave his residence as Bexar county, Tex., together with the further fact that on April 26, 1915, he brought his wife and her trunk to San Antonio and paid her room rent and occupied the room with her.

So we have the positive statement of Mrs. Fox that San Antonio had been her home for six years next preceding the filing of the petition; that she had never abandoned it, and had been away only on trips for her health, pleasure, or business. She explained the affidavit made ip, St. Louis by saying that she told the clerk before whom it was made that she was in Louis a part of the time, where she was staying with a sister. A great part of the year preceding the filing of the petition for divorce she was out of the state, in St. Louis, Chicago, and other places; but she says that these trips were made on the advice of physicians, for her health, and in looking after her business interests in Illinois, as well as partly for pleasure. It is even made to appear that she was out of Bexar county more than she was in the county during that year, if we consider the time they lived at the ranch, which is said to be in Medina county.

The question of whether parties have or have not resided in the county six months or been bona fide inhabitants of the state for twelve months before the petition is filed, while jurisdictional in its nature and necessary to be established before a divorce will be granted, is nevertheless a question of fact to be determined like any other issue in the case, and, the trial court having heard the evidence and determined that issue in favor of appellee, or in favor of the jurisdiction of the court, we would not be authorized to disturb that finding, where there is as much evidence as there is in this record that Mrs.Fox had lived here six years and had never abandoned her residence.

Supposing that appellant's ranch is in Medina county, that fact, which is relied upon to break the continuity of residence in Bexar county, is itself a disputed issue; that is, as to whether their residence there was merely temporary, or whether it was intended to be permanent. She testified that it was only a sojourn, temporary in its nature, and that neither of them ever intended to make that their home, but that both of them recognized that their home was in San Antonio. There is other evidence besides that of appellee along this line, including that of Mantón, the Ezells, and others.

There is no doubt that a long-continued absence from the state or county, such as is shown in the Michael Case, 34 Tex. Civ. App. 630, 79 S. W. 76, where the plaintiff had been residing in Illinois for more than sixteen years prior to the filing of the suit, would not harmonize or be a substantial compliance with the requirement that the party must be an actual bona fide inhabitant of the state for the legal time prior to exhibiting the petition ; or, as in the Haymmond Case, 74 Tex. 414, 12 S. W. 90, where the plaintiff left his family in Bell county in 1881 and went to Central America, where he stayed for many years, and then returned to Bell county and filed his suit, alleging that he had never abandoned that as his home. Of course, there is a distinction between a legal residence for the purpose of voting, etc., and a residence contemplated by the divorce statute. In the Haymmond Case, however, Judge Henry, speaking for the court, expressly stated :

“We do not think that a temporary absence from the state or county of an inhabitant of the state during the six months next preceding the filing of his petition for divorce would affect his right to maintain it.”

And so it was held by Chief Justice Rain-ey, speaking for the Dallas court in the case of McLean v. Randell et al. (Civ. App.) 135 S. W. 1119, in dealing with a case where Mrs. McLean left Sherman and went to Beaumont, where she resided with a married daughter for several months, that the district court of Grayson county had jurisdiction of her cause of action for divorce.

The construction of any law ought to be a reasonable and common-sense construction, and, if we were to construe article 4632 of the Revised Statutes as requiring that a party should spend the entire year in the state or the entire six months in the county before bringing a suit of that nature, we think it would be an unreasonable construction. Many people in good faith claim San Antonio, for instance, as their home; but their business calls them away to such an extent that they may spend more time away from this county than they do in it. This is notably true of some traveling salesmen, and yet they have no home anywhere else. Would it be just for such a person to be denied the jurisdiction of the courts of the county where his home is? Or, if a person falls into bad health, and it becomes necessary to leave his home for the purpose of obtaining a cure, should he thereby lose the protection the laws of his home give him? We do not believe that absence in cases of this kind destroys the bona fides of residence, nor do we think that the fact that Mrs. Fox’s health and business affairs called her away from San Antonio a great deal would preclude her from maintaining her suit in Bexar county, when she testifies positively that this had befen ber borne for six years, and that her absence was made necessary in the manner detailed. The Thirty-Seventh district court of Bexar county did have jurisdiction to entertain the bill for divorce.

There is another reason, independent of the divorce phase of the case, which would give appellee the right to maintain this action in Bexar county, which is the allegation, supported by testimony, that money was furnished to the defendant for the purpose of being loaned upon real estate securities in the name and for the benefit of the plaintiff below, but that the defendant, instead of so loaning the money, converted it to his own use in this county, or placed it upon securities and retained the evidence thereof in his own name, refusing to deliver the same to Mrs. Fox. In other words, she charges that he practiced fraud upon her in Bexar county, Tex., and that some of the property is there situated. Her petition specifically sets these matters out, and asks that a resulting trust be established and fixed upon said properties. This would bring it squarely within the provisions of section 7 of the exceptions to article 1830 of Vernon’s Say les’ Statutes. It is well established in Texas that a wife may maintain a suit against her husband for the protection of her separate property, and the petition in this case does not seek to deal with community property. Dority v. Dority, 96 Tex. 222, 71 S. W. 950, 60 D. R. A. 941. And if she has instituted such a suit for the protection of her separate property, and the alleged fraudulent acts of the defendant were committed in Bexar county, there is no reason why this suit should not there be maintained. O’Brien v. Hilburn, 9 Tex. 297; Ryan v. Ryan, 61 Tex. 473; Hall v. Hall, 52 Tex. 298, 36 Am. Rep. 725; Price v. Cole, 35 Tex. 471. In the case of Dority v. Dority, supra, we find a very learned discussion by Judge Williams.

The judgment of the trial court is in all things affirmed.
      <£=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    STEWART v. THOMAS et al.
    (No. 8252.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 30, 1915.)
    1.Vendor and Purchaser @=>253 — Vendor’s Lien — Foreclosure — Uncertainty as to Land Sold.
    Where the description of land in a deed was defective as showing only three surveyor’s calls, while the only description of the land in the purchase notes was by reference to the deed, in suit on the notes to recover personal judgment against the maker and indorser, and also for foreclosure of the vendor’s lien, decree of foreclosure was erroneous, in the absence of proof that the omission in the description was by mutual mistake of the parties, or proof to show what property they really intended should be conveyed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 637-64(5; Dec. Dig. @=253.1.
    2. Evidence @=>185 — Best Evidence — Secondary Evidence oe Deed.
    Where, in a suit to foreclose a vendor’s lien, plaintiff alleged that the original deed to the land was in defendant’s possession, and that the latter had been duly notified to produce the same and had failed to do so, there was a proper predicate for secondary evidence of the contents of the original deed by means of the deed record.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 642-660; Dee. Dig. @=>185.]
    3. Judgment @=>951 — Admission in Evidence.
    In suit to foreclose a vendor’s lien, where the only objection to the original judgment of partition admitted in evidence to show that title to the purchase money notes was vested in plaintiff’s wards was that such judgment affected title to land and had never been recorded, its admission was proper.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1808-1812; Dec. Dig. @=>951.]
    4. Bills and Notes @=>129 — Suit as Election to Declare Due.
    Where, in suit to foreclose a vendor’s lien and for personal judgment against maker and indorser of the purchase-money notes, the notes contained stipulations that a failure to pay one when due should, at the election of the holder, mature both notes, one of the notes being loug past due when suit was brought, the institution of suit was of itself sufficient to show an election by the holder to declare the second note due.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 283-292; Dec. Dig. @=> 129.]
    Appeal from District Court, Comanche County ; J. II. Arnold, Judge.
    Suit by Austin Thomas and others against H. L. Stewart and another. Judgment for plaintiffs, and the named defendant appeals.
    Reversed and remanded for another trial as to appellant.
    Kearby & Kearby, of Comanche, for appellant. Smith & Palmer, of Comanche, for ap-pellees.
   DUNKLIN, J.

H. L. Stewart purchased a tract of land from J. H. Magness, and in part consideration therefor executed two promissory notes for $250 each, one payable November 1, 1913, and the other one year later. Thereafter the notes were sold to W. Thomas by Magness, who duly indorsed them. Later, in a certain suit for partition, styled Ada Thomas v. W. Thomas, the in-dorsee, the notes were set aside to Austin Thomas and other minors. The guardian of these minors instituted this suit to recover personal judgment against the maker and in-dorser, and also for a foreclosure of the vendor’s lien upon the land for which they were executed, and from a judgment against both defendants for the relief prayed for H. L. Stewart has appealed.

In plaintiff’s petition it was alleged that, through clerical error in drafting the deed from Magness to Stewart, one of the calls in the description of the land was inadvertently omitted, such omission being a mutual mistake of the parties; that the land which they intended to be embraced in said deed was the tract correctly described in the petition. The judgment of foreclosure described the land according to the alleged corrected description. The deed executed by Magness to Stewart at the time the notes were executed was introduced in evidence and also the notes. The description of the land contained in the deed showed only three surveyor’s calls and was wholly insufficient as a predicate for the foreclosure, while the only description embraced in the notes was by reference to the deed. No evidence was introduced to sustain the allegation that such omission in the description was by mutual mistake of the parties, or' to show what property the parties to the deed really intended should be conveyed; and, in the absence of such proof, the decree of foreclosure was erroneous. The deed from Magness to Stewart had been recorded in the deed records of Comanche county, and this record was introduced in evidence instead of the original or a certified copy. Stewart objected to this proof on the ground that it was secondary evidence and plaintiff had failed to file with the papers a certified copy of the deed and give notice to Stewart of such filing. But, as shown in the court’s explanation of the ruling, plaintiff had alleged that the original deed was in the possession of Stewart, and he had been duly notified to produce same upon the trial and had failed to do so. This showed a proper predicate for secondary evidence of the contents of the original deed.

Likewise, there was no error in admitting in evidence the original judgment of partition in the suit of Ada Thomas v. W. Thomas to show that title to the notes described in plaintiff’s petition was vested in plaintiff’s wards; the only objection offered to such proof being that said judgment affected title to land, and had never been recorded in the deed records of Comanche county.

The notes in suit each contained a stipulation that a failure to pay same or any installment of interest thereon when due should, at the election of the holder, mature both notes. One of the notes was long past due when the suit was instituted, and the institution of the suit to collect both was of itself sufficient to show an election by the holder to declare the second note due without further proof of that fact on the trial, as appellant insists should have been furnished.

Since the judgment against Stewart is to be reversed, and as he has undoubtedly entered his appearance for another trial, other assignments of error questioning the sufficiency of service of citation upon Stewart will not be discussed.

Eor the error indicated, the judgment against appellant Stewart is reversed, and the cause is remanded for another trial as to him; but the judgment against defendant Magness, who has not appealed, is undisturbed.
      @=5>For other cases see same topic and KEY-NUMBER in all Key-xNumbered Digests and Indexes


author: HUFF, O. J.

text:
    HOLMES v. TYNER.
    (No. 837.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1915.)
    1. Principal and Agent <@=23 — Automobile —Sale — Repudiated Agent — Suepicien-cy of Evidence.
    In an action by an automobile dealer for the value of a car purchased by defendant from one representing himself as agent for plaintiff, evidence held to support a finding of agency.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. <@=23.]
    2. Principal and Agent <@=14 — Implied Agency.
    The relation of principal and agent does not arise from an express appointment merely, but also by implication from the words and conduct of the parties and the circumstances of the particular transaction.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 26-33; Dec. Dig. <@=14.]
    3. Husband and Wipe <@=23% — Agency op Wipe — Scope op Authority.
    In an action by an automobile dealer for the value of a car purchased by defendant from ohe representing himself as agent for plaintiff, evidence held to warrant a finding that plaintiff’s wife was his agent with authority to employ salesmen. !
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 145, 146; Dec. Dig. <@= 23%.]
    4. Principal and Agent <@=>100 — General Manager — Scope op Authority — How Determined.
    A general agent for the management of a business has authority, coextensive in scope with the business intrusted to him, to do what is customary in such business; consideration being given to the character of the business and the usual manner in which it is conducted.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 262-273, 345, 364, 368-373; Dec. Dig. <@=100.]
    5. Principal and Agent <@=>103 — Business Necessity — Automobile Demonstrator — Implied Authority.
    Where it appeared that to succeed as a going concern the nature of plaintiff’s business required that salesmen travel about the country to demonstrate and sell cars, and the facts show an implied intention on plaintiff’s part to authorize another to act as such agent, a sale by the latter was binding on plaintiff, since such agent had implied authority to sell.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. <@==>103.]
    6. Principal and Agent <@=>103 — Agency — Salesman — Authority to Employ.
    Where plaintiff’s wife was left in general charge of his automobile agency and she employed one to act as a demonstrator and, salesman, such being customary in the business, or necessary to carry it on, a sale by the employé was binding on plaintiff, since, under such circumstances, the wife had implied authority to so employ.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. <¿=>103.]

      7. Principal and Agent <©=>145 — Express oe Implied Authority — Third Person — Knowledge of Authority — Immateriality.
    Where the act by which it is sought to bind the principal was within the authority actually conferred by the principal either expressly or by implication, one contracting with the agent need not show that he had knowledge of such authority and acted on the faith of it, since under either form of authority the act of the agent is that of the principal.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 499, 513-520; Dec. Dig. ©=>145.]
    8. Principal and Agent ©=>137 — Unauthorized Act op Agent — Estoppel—How Created.
    Liability on the principal’s part for the unauthorized acts of his agent rests upon estoppel arising from words or conduct of the principal indicating the existence of authority in the agent to do the thing in question upon which there is a reliance in good faith.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 492^494; Dec. Dig. ©=>
    9. Principal and Agent ©=>103 — Sales — Agency — Barter Excluded.
    In general, the power of the agent to sell does not include the power to barter.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 307; Dec. Dig. ©=>103.]
    10. Principal and Agent ©=>100 — Apparent Authority — Determinable—Effect.
    In determining the question of apparent authority, the character of the service, together with the usual practice of agents in such employment, may be looked to, and the agent is held to have implied authority to do all those acts which are naturally and ordinarily done and reasonably necessary in such cases.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 262-273, 345, 364, 368-373; Dee. Dig. ©=>100.]
    11. Customs and Usages ©=>4 — Scope of Agent’s Authority — Duration of Custom.
    A custom or usage to enlarge an agent’s express authority must be shown by clear and satisfactory evidence, and must have existed long enough to make it widely and generally known, and such as will warrant the presumption that the principal had it in view at the time of appointing the agent.
    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. § 3; Dec. Dig. ©=>4.]
    12. Principal and Agent ©=>123 — Automobile Demonstrator — Power to Barter — Evidence — Sufficiency.
    In an action by an automobile dealer to recover the value of a car alleged to have been bartered by his Sales agent in excess of authority, evidence held insufficient to establish authority in the agent to barter under his express, authority or that implied by custom.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. ©=>
    13. Principal and Agent ©=>152 — Unauthorized Act — Automobile—Barter—Effect.
    Where defendant procured an automobile by barter from one holding himself out as a sales agent for plaintiff, an automobile dealer, but who had no authority to barter, defendant was liable as for a conversion, since, in the absence of authority in the agent to barter implied by custom or otherwise, defendant was bound at his peril to ascertain the agent’s true authority.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 567-569; Dec. Dig. ©=> 152.]
    14. Principal and Agent ©=>40 — Demonstrator-Authority to Sell — Revocation —Sufficiency of Evidence.
    In an action by an automobile dealer to recover the value of a car procured by defendant through barter with plaintiff’s sales agent, evidence held insufficient to show a revocation of the agent’s authority prior to such sale.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 63; Dec. Dig. ©=>40.]
    Appeal from District Court, Childress County; J. A. Nabors, Judge.
    Action by M. A Holmes against W. C. Tyner. From a judgment for defendant, plaintiff appeals.
    Reversed.
    Fires & Diggs, of Childress, for appellant. Jos. I-I.. Aynesworth, of Childress, for ap-pellee.
   HUFF, O. J.

The appellant, Holmes, instituted this suit for the conversion of an automobile of the alleged value of $2,050, by appellee, Tyner, alleging the title in himself. The appellee, Tyner, answered, admitting the possession and alleged he purchased same through appellant’s agent; that one Hawkins was the agent of appellant and brought the machine to Childress and exposed it to sale and claimed to be the agent of appellant, who it is alleged held Hawkins out as such and that appellee was informed by Hawkins and others that he was the agent of appellant; that Hawkins offered to sell the car and distributed literature of appellant and had possession of the car for the purpose, of selling and demonstrating the car to prospective purchasers, and did show to appellant and others the car and held himself out as agent of appellant with power to sell, and solicited the sales of other cars of the same make and manufacture; that, after full notice of the acts of Hawkins, appellant paid divers and sundry costs and expense bills for him, and ratified and confirmed the acts of Hawkins, and directed Hawkins to proceed with the sale and to advertise and demonstrate the merits of the car and to seek and sell prospective purchasers for the car, and that thereby appellant was estopped to deny the right and authority of Hawkins to make the sale; that all of said acts of Hawkins were within the apparent scope of his authority, “and was within the ordinary and customary authority of one so using, demonstrating, and offering for sale cars when they are permitted to handle, demonstrate, and use cars, and that plaintiff well knew such to be the usual, ordinary, and customary object of one out so demonstrating, and, if the plaintiff did not in fact give and authorize the said Hawkins full power to make the sale in question that said plaintiff was negligent in permitting tlie said Hawkins to make suck use of the car and is now estopped to say that Hawkins had no such authority”; that appellant, relying upon the acts and conduct of Hawkins, and the permission of Hawkins by appellant to so act, which was known to appellant, or by the exercise of ordinary care could have been known to him, induced appellee to purchase the ear and pay full value to Hawkins, to wit, $950 cash and one E. M. F. car, as the consideration therefor, and thereby appellant was estopped to deny the agency.

Appellant, by supplemental petition, denied specifically all the allegations in the answer, and denied that appellee got possession of the car from an agent of appellant, or that he purchased the same from such agent, but that in acquiring possession thereof he did so by barter and trade with Hawkins and never paid the value of the car in cash to any person. It is admitted therein that Hawkins was in possession of the car, but was so unlawfully, etc. The fact of Hawkins’ possession and the manner by which he obtained and held it was specifically alleged, showing a wrongful possession. The facts hereinafter set out will indicate the specific facts relied on as showing an unlawful possession as relied on and set out in the supplemental petition.

A verdict was rendered for the appellee, upon which judgment was entered. The appellant requested the court to instruct a verdict for him, and also, in his motion for new trial, requested that the verdict of the jury be set aside for the reason that there was no evidence supporting the verdict, because: (a) It is admitted in the pleadings that appellant was the owner of the car, and the evidence did not warrant the jury to find Hawkins was his agent to sell and use the car in Childress county; (b) if he was the agent to sell, he was not authorized to accept in part payment trade as alleged by ap-pellee; (c) if prior to the sale he was the agent, such agency was revoked before the trade to appellee, and the agency was not at any time known to appellee; (d) that ap-pellee by his own evidence shows that he dealt with Hawkins as the owner and not as an agent.

In stating our conclusions of the facts we shall state them from appellee’s standpoint. Appellant, Holmes, at the time of the transaction, had the state agency for the Jackson cars, situated in Ft. Worth. The car in question was one of that make. The cars, when delivered to appellant, were paid for by him and he employed agents thereafter to resell them. About the 20th day of April, 1913, appellant turned the car over to J. A. Hawkins, as he testifies, to go up the Denver road as far as Alvord or Decator, and to bring to Ft. Worth some prospective purchasers, which Hawkins claimed to have, and to show them the Jackson ears at Ft. Worth. The facts in this case show that Hawkins at some time thereafter went to Childress with the car in issue, and showed and tried to sell it, and represented that he had authority to do so. Mr. Knight, who it appears was the local agent for the Jackson car at Childress, by virtue of a contract entered into with appellant at some time before the sale, went with Hawkins to visit the appellee. On this trip Hawkins showed the car to appellee and the manner of its working and at this time gave appellee some literature with reference to the Jackson make of cars. T. F. Abbott, who during this transaction was employed as an agent for appellant in the sale of these cars, testified that at that time he resided in Ft. Worth and in the absence of both appellant and his wife managed the office at Ft. Worth. This witness says, about five days before Hawkins left with the car on April 20th, he (witness) returned from a trip and found Hawkins in the office and was introduced to him by Mrs. Holmes. This witness states that when he left to go to Clarendon (from the trip thereto, from which he had just returned when he first met Hawkins) appellant was not at the office and was out somewhere, and when he returned appellant was still out of the office, but during the time had been back and had gone away. At the time the witness got back Mrs. Holmes was in charge of the office. The witness testified Mrs. Ilolmes introduced him to Hawkins and he thinks Mrs. Holmes then said, “or something to the effect she had a salesman there. I do not remember her exact words, but that is nearly as I can remember them. We did not talk but little.”. Hawkins appears to be the person there referred to. At the direction of Mrs. Holmes, Hawkins took the witness home from the office in a car. After this first conversation with Mrs. Holmes with reference to Hawkins, witness asked Mrs. Holmes if she knew anything about him.

“She said she had ’phoned to the manager of the Carter car, Mr. Mathews, and that he said he was a good man but would steal anything he got his hands on. Mathews claimed the fellow had sold one of the tires off of a car and had put on an old one in its place, and I said, ‘No business man in town would keep a man on that recommendation,’ and I think she replied she would keep him and try him, or that was the meaning of it.”

The witness also testified the only car other than the one in issue, that he knew of Hawkins taking out, was one on the evening he (witness) returned. He took out a gray Roadster and took some one in it to show it. The witness testified that Holmes himself turned the car over to Hawkins, who left with it for some point up the Denver, and witness’ understanding was that he was to work some territory up there. He testified that he thinks Hawkins first stopped at Alvord, and that he knew he stopped at Wichita Falls from the fact that the office got hotel bills from there. The bill was not paid by Mrs. Holmes then nor after, that he knew of. The next he heard of Hawkins was at Childress. He heard this either through Mr. or Mrs. Holmes. There was then something said about recalling him from Childress, and he thinks it was Mr. Holmes that mentioned that. At this point he testified:

“I came into the office about the time Mr. Holmes finished a telephone conversation with some one up here (Childress), and he told me he had told whoever he had talked to up here to take the car and put it in the garage, and that this man at this end of the line said there was a chance to sell it, and he told this man here to put it in the garage, or if it was sold to have the check or draft made out to M. A. Holmes.”

A day or two before Holmes ’phoned, he said:

“He thought he would go after the car, or that he had gotten a letter from Hawkins, or perhaps a telegram, saying he would be in with the car in a day or two, with some prospects. Holmes said he would be in with the car and two or three men he thought he would sell cars to. Hawkins was in Childress at that time, I believe.”

This witness testified the duties of a demonstrator was to go out and get hold of a man who looked like he wanted an automobile and to either bring him in or sell him, or both. He also stated:

“It was customary, while I was working for Mr. Holmes, for him or me, a,nd for other parties working for him, to go out and bring in prospects and sell them at the office. If we could not sell them the model we had out and thought we could land them, we would bring them to the office. If they liked the model we had out, we would sell it to them.”

1-Ie further stated he (witness) had no authority to sell except for cash, unless he got permission from the office.

“I frequently took in old cars when the trade was satisfactory to Mr. Holmes. Whenever he said it was all right, I took in old cars on new ones. So far as my knowledge of the automobile business goes, it is the usual and customary way of placing cars, where the customer requires it and the conditions necessary to make a trade, take an old car and make a reasonable value on it where you can get the old car at a price you can turn it quickly for cash and enough cash for the new car.”

The appellee testified that he had seen the car for some time previous to its purchase, in and around Childress. The week previous to the time he traded for the car Hawkins came to his place with the car in company with Mr. Knight, the local agent for the Jackson car at Childress, and two other parties, and showed him the ear. In the next week after the above visit Hawkins brought the car down to his place and they traded. 1-Ie paid $950 cash for the car; that is, he paid $900 cash to Hawkins and reserved back $50 which was deposited in the bank until he should receive some repairs from the agency at Ft. Worth and put in on the trade his old E. M. F. car. This and the money was the consideration for the auto in question. In answer to what Hawkins represented as to his being the agent and demonstrator for the car, he answered: “He said he— he talked like he was one of the main men to me.” He testified he had never seen Holmes prior to the trade or had any conversation with him or did any business with him. On the Monday following his purchase, the week before, he had a talk with Holmes in Childress at that time. Holmes said Hawkins was a demonstrator. When he bought the car he did not know Holmes was the owner. Hawkins told him he was the demonstrator of the car.

“I bought the car thinking he (Hawkins) was the agent for the car. You ask me if I did not think he owned it? I do not know what you might call it. I thought I was buying from the right man. Q. The man who owned it? A. Yes, sir; I thought he was a member of the outfit, and that is the reason I bought it. You ask me if it is not a fact I did not buy it relying on his representation that he was the agent? I will say that he made me think he was part of the firm. I thought then for that reason that I was buying it from the owner, and acting on that I did buy it. Up to that time Holmes had never done any act that had led me to believe this man Hawkins was the agent. He had never had any transaction with mo to cause me to believe that, and he never made any statement to me to cause me to believe that. I never knew him at all before that time and did not know him until after I bought the car.”

In one portion of his testimony, on direct examination, he said that he bought the car because he thought Hawkins was the agent of Holmes, which was one of the reasons for the purchase. On redirect examination he testified:

Hawkins said “he was a part owner of the firm down there. I relied on his statement, and what I saw and observed, and thought he had authority to. sell the car.”

Mrs. Caroline Holmes, the wife of the appellant, testified that her occupation was that of a housekeeper and assisting her husband in his business of selling automobiles; that the car in question, as she understood, was her husband’s, and if it had ever been sold she did not know it; that she knew J. A. Hawkins and had had some business transactions with him in reference to the car in question; that after he had taken the car she learned that he was in Childress. Tex., by a draft drawn on them indorsed by Knight for $25. She says she paid the draft on the indorsement of Knight and told Mr. Knight not to indorse any more drafts for Hawkins; that she never authorized Hawkins to sell or dispose of in any manner the automobile in question to anybody, and did not authorize its sale to the appellee, and that when she learned that Hawkins was in Childress with the car she ’phoned him some two or three times relative to the car and tried to get him to return it, and at last told him to place the car in some garage subject to the order of John Knight, the local distributor. Her husband was not at home, and she did not know what else to do. She testified that there was no expense bill paid for Hawkins prior to his going to Childress, but that she did pay one such expense bill by draft for $25. She testified that if Hawkins was the agent for Holmes in Child-ress she did not know it, but she did know that Knight was the local distributor there, and she knew of no authority given Hawkins to demonstrate in Childress county.

“I heard Mr. Holmes tell Mr. Knight he could sell the car to some person living in Childress, and if Knight did not make that sale for him to put the car in the garage; that he did not want Hawkins running it or making any more bills, and if Knight did soil the ear to get the draft and send it to Mr. Holmes. Mr. Holmes’ instructions were that, if Mr. Knight did not sell the ear, for him (Knight) to leave it in the garage and Mr. Holmes would go for it. I tried to get Mr. Hawkins immediately after I got the draft to bring the car back”

—and that she did not know that Hawkins was trying to make a sale in Childress or any other place.

The appellant himself testified that he gave no authority to Hawkins to sell the car to Tyner or any one else; that the last time he saw the car before he saw it in Tyner’s possession was the 20th or 25th of April. When Hawkins left with the car, he had known him about two weeks. He testified: That he or his wife did not employ Hawkins. “My wife usually managed the business while I was gone, and I was gone some of the time. No, she did not manage it during the month of April, 1913.” That he let Hawkins take the car, and his wife knew nothing about it. The witness stated he let Hawkins have the car to go up the Denver road to Decatur and Alvord to bring some prospective purchasers in the car to Ft. Worth. He states that Mr. Abbott says when Hawkins took the ear it was the 20th, but that he was under the impression that it was a week later, but he might be mistaken as to the date. He states that he heard of Hawkins at Childress on the Sth or 9th of May, and that he learned this upon his return from Michigan to Ft. Worth. That he had gone to see his mother, who was sick in Michigan, and that his wife had charge of the office during the time he was absent from the city. “My wife was in charge of the office while I was gone. She was my duly authorized agent during my absence. I have discussed this matter with her. I have not seen letters of messages to her from Hawkins. She simply looked after the business while I was away.” He says that he never employed Hawkins for-any purpose except to unload the cars, but that he let him have the car to go up after prospective purchasers, and that he did not take the car without his consent. After his return from Michigan he stated;

“I had a conversation over the ’phone with John Knight of Childress, and he told me he had the prospect for selling one car. He did not say he had a prospect for selling more than one. I did not tell him at that time to go ahead and sell this particular car that Hawkins had up here. I told him I had given Hawkins instructions on Saturday night to put the car in the garage and leave it there, and he (Knight) said he thought I was making a mistake, and I said ‘If you can sell this car, all right, and, if you do, get a draft made out to me and send it to me, but I don’t want Hawkins to have anything more to do with the car.’ ”

ne says lie left for Michigan on the 23d or 24th of April, and returned home about the 8th of May, and learned at that time from his wife that Hawkins was in Childress. That he called Hawkins over the ’phone, but did not get him when he first called, but did get him the next day. That he called through Mr. Knight, who was selling the Jackson car at that place. Knight told him that Hawkins was there, but he did not tell the witness that he was trying to sell the car. He did not talk to him much. That he told Knight not to let Hawkins have anything more to do with the car and told him he did not want Hawkins to have the car. Hawkins said, “All right.” Hawkins and Knight were there together at the time, and he then had a conversation with Hawkins, who said he would put the car in the garage, and he told Hawkins that he and his wife would come up Saturday night and drive the car back Sunday. That he did not know when the car was sold after that time. The following Sunday he went to Childress. In the meantime he received a letter from a Mr. Hughes at Quanah, stating that Hawkins had sold the car. On receipt of the letter, he ’phoned Knight, who said the car was in the garage. “I told him there must be a mistake about it and about receiving the letter.” Knight asked him to hold the ’phone until he could go and see about it, and he came back and said it was gone. He says the conversation he had with Knight in regard to a good prospect for selling the car was not after it had been sold; that that conversation was just a week previous to the last conversation over the ’phone about the car being gone. “At that time he told me he had a man he thought he could sell the car to, and he told me who it was, but I do not remember the name.” The facts in this case further show that the trade between Hawkins and appellee was made about the 11th day of May, and that the letter from Hughes to appellant, notifying him of the sale, was received by appellant about the lGth of May, when he called up Knight making further inquiry about the car.

The relation of agency does not depend upon express appointment, but it must be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular ease. If, from the facts and circumstances, it appears that there was at least an implied intention to create the relation, it will by implication be held to exist. The appellee has not, it may be conceded, proved an express agency, constituting Hawkins appellant’s agent; that js as made by himself; but we believe the facts and circumstances raise an implied intention to create the relation, and the court would not have been warranted in instructing a verdict or setting aside the verdict on the ground alone that no agency was shown, or no sufficient evidence of agency shown. Meehem on Agency (2d Ed.) vol. 1, § 708; McAlpin v. Cassidy, 17 Tex. 449; Railway Co. v. Jones, 82 Tex. 156, 17 S. W. 534; Bradstreet v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768. Again, we think the fact will warrant the inference that the wife of appellant was in charge and management of his business in the absence of appellant. True, he seeks by his testimony to limit her authority to employing hands to unload cars, etc.; but all the parties agree that she controlled the office and business in the absence of her husband. He was absent when Hawkins was employed by the wife, if Abbott’s statement is correct, and while she was in the management of the business. A general agent for the management of the business has authority coextensive in scope with the business intrusted to him to do what is usual and customary to do in the business. Due consideration should be given to the character of the business, the manner in which it is usual to 'carry it on, and the manner in which it has been previously carried on. Collins v. Cooper, 65 Tex. 460; Wright v. Blackwood, 57 Tex. 644. If the acts done are reasonably necessary to keep the same a going concern, etc. Sun Printing & Pub. Ass’n v. Moore, 183 U. S. 642, 22 Sup. Ct. 240, 46 L. Ed. 366. The nature of appellant’s business required the employment of salesmen to go out over the country in search of purchasers and to sell and demonstrate the cars. Such an agency, in order to succeed as a going concern, required such employment. If the facts and circumstances will warrant the inference that there was an implied intention to authorize Hawkins to make the sale of the car by the appellant, or if in the absence of appellant his wife was in management of the business and she then employed Hawkins to sell the car and such act was usual and customary in the conduct of such business or reasonably necessary to carry it on, then Hawkins would be such an agent. If Hawkins was such agent, by implication or by employment, of the wife, and if the sale to appellee was otherwise unobjectionable, the title passed to him, whether he knew of such agency or not. 2 Corpus Juris, § 215, on page 576; Kempner v. Dillard, 100 Tex. 505, 101 S. W. 437, 123 Am. St. Rep. 822; Hamm v. Drew, 83 Tex. 77, 18 S. W. 434; Hackett v. Van Frank, 105 Mo. App. 384, 79 S. W. 1013; Simpkins on Contract and Sale (3d Ed.) p. 1049.

Where the act, by which it is sought to bind the principal, was within the authority actually conferred by the principal, whether expressly or impliedly, it is not necessary for a third party to show that he'had knowledge of that authority and acted on the faith of it; for, if the facts and circumstances justified the implication of an agency, then the act of the agent is the act of the principal. This should not be confused with the principles which govern an unauthorized act of the agent, for then, if we understand correctly, such act must be such that the third party can invoke estoppel. We do not think agency by estoppel is in this ease. Estoppel can only be relied on when the third party knew and relied upon the words or conduct of the principal. It is essential, in order to estop a man to deny the authority of another to act for him, that his representations of authority, whether by word or by conduct, should have been believed and relied on in good faith by the person asserting the estoppel. Mechem on Agency, vol. 1, 722 et seq.; 2 'Corpus Juris, § 73, Agency, p. 465; Simpkins, Contract and Sales (3d Ed.) p. 1012 et seq. The facts in this case negative any reliance by appellee upon the words or acts of appellant. 1-Ie did not know him; never saw him; knew nothing of his business. The mere possession of the car by Hawkins was not sufficient to invoke estoppel. Assuming the testimony is sufficient to support a finding that there was1 an implied authority in Hawkins to sell the car or to support the finding that the wife, as manager, in the absence of her husband, had authority to employ salesmen, and that she did so employ Hawkins, the question yet remains: Had he authority to sell for anything but cash? In other words, could he barter the car? As a general rule, a power to sell does not include the power to barter. Stember v. Keene, 152 S. W. 663; Griffith v. Morrison, 58 Tex. 46; Fitzhugh v. Franco, etc., 81 Tex. 306, 16 S. W. 1078; Equitable Life, etc., v. Cole, 13 Tex. Civ. App. 486, 35 S. W. 720; Low v. Moore, 31 Tex. Civ. App. 460, 72 S. W. 421. There is no implied authority to exchange or barter property in the contract of agency to sell. Mechem on Agency (2d Ed.) vol. 1, § 895; Kearns v. Nickse, 80 Conn. 23, 66 Atl. 779, 10 L. R. A. (N. S.) 1118, 10 Ann. Cas. 420.

In determining the question of apparent authority, the character of the service, together with the usual practice of agents in such employment, may be looked to, and the agent is held to have implied authority to do all those acts naturally and ordinarily done in such cases, which are reasonably necessary and proper to be done. Mechem on Agency, vol. 1, § 715. The appellee in this case pleaded authority to sell, such as was within the ordinary and customary authority. As above suggested, the law will not imply authority to barter. Clearly the evidence does not raise such authority in the implied agency in this case.. On the other hand, it is shown that no exchange was authorized by Holmes to be made by his agents without being submitted to him for approval. The evidence of Abbott is not sufficient to establish a custom or usage. He only purported to state in so far as he knew, it was the custom, etc. He did not say he knew the custom.

A usage or custom to affect the agent’s power must be shown by clear and satisfactory evidence and must have existed for a length of time so as to become widely and generally known, such as will warrant the presumption that the principal had it in view at the time of appointing the agent. Meehem on Agency, vol. 1, § 716; Wootters v. Kaufman, 67 Tex. 488, 3 S. W. 465. In this case there was no allegation that the exchange of property by the agent was the usage or custom known or practiced by agents generally. This must be alleged. We do not think the facts in this case, or the law, authorized the appellee to assume that Hawkins had authority to exchange the car for an old one. In this exchange he acted at his peril, and he was' bound to take notice of the assumed agent’s authority. Baker v. Kellett, etc., 84 S. W. 661; Sackville v. Storey, 149 S. W. 239. On this ground we think the court should have granted a new trial.

We are not inclined to believe that the evidence in this case conclusively shows that appellant revoked the authority of Hawkins prior to the sale of the car. After he learned Hawkins was at Childress with the car, and after he was informed of the proposed purchaser, he instructed that if it was sold to send the draft to him. For a week he did nothing about the car, and not then until he received a letter from Hughes. The mere fact that he directed the car to be placed in the garage did not necessarily evidence the fact that he revoked the power to sell the car. Appellee, as is shown by the testimony, was evidently the proposed purchaser. Knight and Hawkins had visited him previously thereto with the car, and it may well be inferred this was the purchase to whom Knight referred when he informed appellant he was making a mistake. At any rate, when so admonished by Knight, he directed the sale of the car and if made to send him the draft. The evidence is not conclusive in our judgment that appellant revoked the authority of Hawkins to sell the car, if any such was granted him, before the sale to appellee.

It will not be necessary to discuss the other assignments. • However, we think the charge of the court is subject to some of the criticisms made by appellant, as that it assumed the wife was the agent of appellant; and with reference to that part which instructed the jury if they found the car was' sold for the consideration he did sell it for, or without any limitation as to what the consideration should be, etc. The law fixes the limitation for the consideration of the car as cash, not barter nor trade. We think the court should not have charged on estop-pel, and that the fifth paragraph of his charge was therefore error. We believe that he should have excluded the testimony of Abbott, complained of in the twenty-seventh assignment of error, for the reasons heretofore suggested by us. The other exceptions to the testimony of the declarations made by Hawkins, with reference to his agency, we think were properly admitted under the facts of this case.

For the reasons above suggested, the case will be reversed and remanded.
      <g^}For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: CONNER, C. J.

text:
    GRISHAM et al. v. WARD et al.
    (No. 8251.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 30, 1915.)
    1. Execution <©=>201 — Claims by Thikd Persons — Issues and Questions Determinable.
    On the trial of a claim by third persons to property levied upon under an execution, there was no valid objection to the enforcement of an agreement by the claimants to pay the judgments by virtue of which the executions were issued by the delivery of the property levied upon at a specified price.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 531, 582; Dec. Dig. <3=201.]
    2. Compromise and Settlement <3=6 — Consideration — Sufficiency.
    Where a judgment debtor’s sons were living with him as members of his family, and there was support for the judgment creditor’s claim that hay levied upon, claimed by the sons, was the property of the judgment debtor, an agreement by the sons to pay the judgments by the delivery of the hay at a price exceeding its market price was not without consideration, since the mutual promises of the parties to thus settle the legal controversies existing between them constituted a sufficient consideration, as agreements for the compromise and settlement of disputes are favorably regarded, and are supported not only as beneficial in themselves, but as conducive to peace and harmony.
    [Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. <3=6.]
    3. Execution <3=184 — Claims .by Third Persons — Amendment of Claim.
    Where, though a claimant’s oath alleging that property levied upon under execution was the property of the claimant and his minor brother did not specifically aver that he was acting for his minor brother as well as for himself, this was evident on the face of the paper, the court did not err in permitting an amendment so as to include a specific allegation that in making the claim he was also acting for his brother.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 549-551; Dec. Dig. <g=184.]
    Appeal from Nolan County Court; John H. Cochran, Jr., Judge.
    Proceeding on a claim by J. L. Ward and another to property levied upon under executions in favor of R. N. Grisham and others. From a judgment in favor of the claimants, the execution creditors appeal.
    Reversed and remanded.
    R. N. Grisham, and J. S. Grisham, both of Sweetwater, for appellants. Beall & Dout-hit, of Sweetwater,, and E. R. Spencer, for appellees.
   CONNER, C. J.

On the 7th day of December appellants R<. N. Grisham, J. J. Monday, and Mrs. J. F. Eidson caused the levy of several writs of execution in their favor upon 750 bales of hay as the property of the judgment debtor, J. W. Ward, the value of the property so seized being fixed by the sheriff at $262.50. On December 12th thereafter appellee J. D. Ward, for himself and minor brother, W. H. Ward, presented to the county court a claimant’s oath and bond, alleging that the hay levied upon was the joint property of the claimants. Thereafter issues in writing were presented by the respective parties for the trial of the right to the property under the title of our statutes relating to that subject (See Vernon’s Sayles’ Texas Civil Statutes, title 129), and the case went to trial before the judge without the intervention of a jury, and resulted in a judgment in favor of appellees J. D. Ward and W. H. Ward. From this judgment appellants have duly prosecuted an appeal.

Among other pleadings presented by appellants was a special plea to the effect that, on or about the 14th day of December, 1914, J. Ij. Ward claimed the hay as his own, but agreed with appellant R. N. Grisham, acting for himself and the other appellants, that he, J. D. Ward, would pay off and discharge the judgments by virtue of which the executions had issued by the delivery to Grisham of hay at the price of 65 cents per bale. It was alleged that Grisham, for himself and other api)ellants, assented to so receive said hay and discharge the judgment at the price per bale stated, notwithstanding the fact that the market price of the hay was but 35 cents per bale. The prayer of the plea was to the effect that, if upon the trial it should be found that J. L. AVard owned the hay, or any part 'thereof, the agreement might be enforced. The court sustained exceptions to this plea, and refused to hear proof in its support, to which action of the court appellants have assigned error.

Under the circumstances alleged we see no valid objection to the enforcement of this plea. The mutual promises of the parties to thus settle the legal controversies existing between them would seem to constitute a sufficient consideration for the agreement. See Hilliard v. White, 31 S. W. 553; Little v. Allen, 56 Tex. 133. Indeed, the agreement is not attacked on the ground of a want of consideration, and no other sufficient objection to its enforcement occurs to us, or has been presented. Agreements for the compromise and settlement of disputes are favorably regarded both in courts of law and equity, and are supported, not only as beneficial in themselves, but as conducive to peace and harmony. See 8 Cye. 535; 5 Ruling Case Law, § 23, bottom page 901; Taylor Co. v. Baines Gro. Co., 31 Tex. Civ. App. 385, 72 S. W. 260. This principle, we think, has proper application under the circumstances shown here. It appears that J. L. Ward and W. H. Ward, the claimants, were sons of J. W. Ward, the defendant in the executions; that the sons lived with the father as constituent members of the family, and appellants’ claim that the • property levied upon was in fact owned by J. W. Ward, the father, was not without at least circumstantial evidence in its support. We conclude that under the circumstances the court erred in the particulars indicated.

In the original oath made and filed by J. L. Ward, it was not specifically averred that J. L. Ward was acting for the minor, AV. H. Ward. The writing, however, declared that the hay levied upon was the property of J. L. Ward and W. H. Ward, and it is evident on the face of the paper that J. L. Ward was acting for his brother. The action of the court, therefore, in later permitting an amendment of the oath so a? to include a specific allegation that J. L. Ward in making the claim was acting also for his brother, W. H. Ward, cannot be said to constitute error.

We find nothing in other assignments requiring discussion, but for the error first noted it is ordered that the judgment be reversed, and the cause remanded.
      <g=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    ELKINS v. HOULIHAN et al.
    (No. 8259.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 19, 1915.
    Rehearing Denied Oct. 16, 1915.)
    Appeal and Error <§=3784 — Taking Appeal —Notice op Appeal — Statutes.
    Under Arernon’s Sayles’ Ann. Civ. St. 1914, art. 2084, providing that an appeal may be taken during the term at which final judgment is rendered by notice of appeal in open court within 2 days thereafter or 2 days after judgment overruling a motion for a new trial, and by filing an appeal bond as required by law within 20 days after the term, appellant, whose notice of appeal was not given before the last day of the term, and who filed no appeal bond within 20 days after the expiration of the term or at any time did not perfect his appeal so as to give the Court of Civil Appeals jurisdiction, and it will be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3126, 3127; Dec. Dig. <§=> 784.]
    Appeal from Cooke County Court; R. V. Bell, Judge.
    Action between R. P. Elkins and J. J. Houlihan and others. Judgment for Houli-han and others, and Elkins appeals.
    Dismissed.
    Stuart, Bell & Moore, of Gainesville, for appellant. Davis & Davis and C. R. Pear-man, all of Gainesville, for appellees.
   .On Motion to Dismiss Appeal.

BUCK, J.

Appellees have filed their motion to dismiss this appeal, predicated upon the following grounds, to wit: First, that the judgment attempted to be appealed from was rendered December 31, 1914; second, that the December term of the county court of Cooke county ended on the day preceding the first Monday in January, 1915, which was January 4th of that year; third, that the motion for new trial was not acted upon during the December term, nor was notice of appeal given during said term, as provided in article 2084, Vernon’s Sayles’ Texas Civil Statutes, nor was an appeal bond filed within the 20 days after the expiration of the term, as provided by law, in order to give this court jurisdiction.

Appellees cite in support of their contention the case of Wells Fargo & Co. Express v. Mitchell, which case is reported on the original hearing on motion to dismiss appeal in 165 S. W. 139. On this hearing the Court of Civil Appeals for the Seventh District overruled the motion to dismiss, but it appears from the motion of appellees and the written agreements of both appellees and appellant that, on motion for rehearing, the Amarillo court granted appellees’ motion for rehearing, and dismissed the appeal. While neither appellees nor appellant cites us to the report containing the opinion of the court on this last-mentioned action, yet there appears attached to appellees’ argument, in support of their motion to dismiss the appeal in this case, what purports to be a copy of the opinion of the Amarillo court on motion for rehearing, which we presume to be correct. Appellant concedes that the Wells Fargo Case is authority in support of ap-pellees’ motion, but urges that the majority of the court for the Seventh district, Chief Justice Huff dissenting, are in error in holding that the case of Hughes v. Doyle, 91 Tex. 421, 44 S. W. 65, and other cases cited on the motion for rehearing, support the conclusions reached. But, irrespective of the question discussed and the conclusions reached by the Amarillo court in the ease cited, as to the authority of the commissioners’ court to prescribe the number of terms of the county court which may be held in any year and the time when such terms shall begin and end, we are confronted with the statement in the caption of the transcript that the term of the county court of Cooke county in which this judgment was rendered was “a term of the county court begun and holden at Gainesville, Tex., and for the county of Cooke, before Hon. R. V. Bell, judge of said court, on the 7th day of December, A. D. 1914, and ending on the 31st day of December, A. D'. 1914.” Thus it will be seen that, irrespective of the question as to -whether or not the December term of the county court might have been legally caused to continue over and beyond January 4, 1915, the only evidence before us is that said December term of the court ended December 31, 1914, and that no notice of appeal was given by appellant prior to said last day of the term, and no appeal bond appears in the record as having been filed within 20 days after the expiration of the December term, or at any other time.

Under such a state of the record, we hold that the appellant has not perfected his appeal so as to give this court jurisdiction, and therefore appellees’ motion to dismiss is granted.

Appeal dismissed.
      <g^3Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    ARANSAS HARBOR TERMINAL RY. v. SIMS.
    (No. 5507.)

    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 20, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Carriers <@=>347 — Carriage ox Passengers — Alighting — Contributory Negligence.
    Where a passenger, with weak eyes, wearing glasses, and weighing 246 pounds, in attempting to alight in the daytime from a railroad train by taking hold of the handrail with both hands, stepped off and was injured, the distance to the ground being about three feet and there being no footstool, such action did not constitute contributory negligence as a matter of law.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346,1350-1386, 1388-1397,1402; Dec. Dig. <§=>347.]
    2. Trial <§=>352 — Action eob Injuries — Submission ojt Issues — Fokm oe Interrogatories.
    In an action against a railroad company for injuries to a passenger in stepping from a train, the submission of the issue whether defendant was negligent, as negligence of a carrier of passengers was defined in an instruction given, was not reversible error on account of the form of the question as failing to limit the jury to the consideration of the facts raised by the pleadings ; the court having informed the jury that the ease would be submitted on the issues raised thereby.
    LEd. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. <@=>352.]
    Appeal from District Court, San Patricio County; W. W. Walling, Special Judge.
    Action by Exer Sims against the Aransas Harbor Terminal Railway. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Denman, Franklin & McGown, of San Antonio, for appellant. Jas. G. Cook and M. C. Nelson, both of Sinton, for appellee.

      Writ ol error pending in Supreme Court.

   MOURSUND, J.

This is an appeal from a judgment for $1,000, recovered by Miss Exer Sims against the Aransas Harbor Terminal Company on account of injuries sustained by her in alighting froui a train, which injuries she alleged were caused by the negligence of said terminal company in failing to provide and maintain a safe way of departing from its cars, in failing to provide reasonably safe appliances to enable her to alight from the car, and in failing to provide assistance to her in alighting from the car. Defendant denied the allegations of the petition, and pleaded that plaintiff was guilty of contributory negligence which proximately caused her injuries.

Appellant contends that the undisputed evidence shows that appellee was guilty of contributory negligence which directly and proximately caused her injuries. Appellee was a passenger on appellant’s train, which arrived at Aransas Pass in the daytime. All of the passengers got off, appellee being the last one to leave the car. In alighting, she took hold of the rod with both hands and stepped off. The distance was about three feet. She weighed 246 pounds. Her eyes were weak, and she wore glasses. She did not realize that'the distance from the step to the ground was so great. She had on three-button Oxford shoes, and when she placed her foot on the ground and rested her weight on it, her ankle turned and was badly sprained. She was reasonably active, considering her weight, and had not theretofore fallen on account of her ankle giving way. Appellant failed to furnish any stool or to assist the passengers in any way in alighting from the car. This evidence does not conclusively show that plaintiff acted otherwise than an ordinarily prudent person would have acted under similar circumstances, and it cannot be held that she was guilty of contributory negligence as a matter of law. M. P. Ry. v. Watson, 72 Tex. 631, 10 S. W. 731; G., C. & S. F. Ry. v. Vinson, 24 S. W. 956; T. & P. Ry. v. McLane, 32 S. W. 776; Weatherford, M. W. & N. W. Ry. v. White, 55 Tex. Civ. App. 32, 118 S. W. 799.

The court, after defining the term, “negligence,” when applied to carriers of passengers, submitted the issue as follows:

“Was the defendant, Aransas Harbor Terminal Railway, negligent, .as negligence of a carrier of passengers is above defined?”

Defendant, at the proper time, filed the following objections to such question:

“(a) The court does not state therein the acts of negligence charged in plaintiff’s petition, but leaves it to the jury to determine what acts of negligence are charged in said petition; (b) because said petition charges several alleged acts as constituting a breach of defendant’s duty, and avers what plaintiff erroneously construes to be defendant’s duty, and the submission of the issue as framed by the court leaves it to the jury, not to find as to the alleged acts of omission or commission by defendant charged as breaches of duty by defendant, but to determine whether defendant has been negligent, thus leaving to the jury the decision of a legal question and the determination of the construction of plaintiff in her petition as to what are defendant’s duties, and whether same have been so breached as to constitute negligence.”

These objections were overruled, and error is assigned to the action of the court in submitting such issue. The charge should be so drawn as to direct the jury to the consideration of the specific acts of negligence alleged in the petition. Appellee contends that the question submitted was correct as far as it went, and was not an affirmative misdirection of the jury, but an omission of which advantage could not be taken without requesting the submission of an issue which would supply the omission, or requesting an instruction limiting the jury, in deciding the issue, to the acts alleged to have caused the injury. This contention is sustained by eases decided prior to the passage of the amendment to article 1971, Revised Statutes 1911 (Acts 33d Leg. c. 59, § 3 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971]), requiring all objections to the charge to be made before it is given. See Dallas Con. Elec. Ry. Co. v. Motwiller, 101 Tex. 521, 109 S. W. 918; S. A. & A. P. Ry. v. Long, 19 Tex. Civ. App. 649, 48 S. W. 599. The reasons for not reversing a case on account of omissions were much more cogent when the court was not apprised of such omissions until after the verdict was returned, but as the amendment made no change in the rules to be applied with reference to omissions, it seems it is necessary, in order to be in a position to complain of an omission, that the party should present and request the giving of ■ a charge covering the matter omitted.. Selden Brick Construction Co. v. Kelley, 168 S. W. 985. But in this case, even if that rule should not be applied, no reversal should take place on account of the form of the question. The court, in its charge, informed the jury that the case would be submitted upon special issues raised “by the pleadings and the evidence,” and the form of the question as submitted was not calculated to cause the jury to base its verdict upon matters proved but not alleged. Besides the statement of facts does not disclose any evidence of acts of omission or commission on the part of defendant causing injury to plaintiff other than those pleaded, so defendant could not have been harmed by the manner in which the issue was submitted. Dallas Con. Elec. St. Ry. Co. v. Motwiller, supra.

Appellant, by its third assignment of error, attacks the definition of negligence given by the court. The definition was correct. H. & T. C. Ry. Co. v. Dotson, 15 Tex. Civ. App. 73, 38 S. W. 642; M., K. & T. Ry. Co. v. Kemp, 173 S. W. 535; St. Louis, A. & T. Ry. Co. v. Finley, 79 Tex. 85, 15 S. W. 267; I. & G. N. Ry. Co. v. Welsh, 86 Tex. 203, 24 S. W. 391, 40 Am. St. Rep. 829. The matter of the failure to draw the issues so as to require a finding in answer to inquiry concerning the acts of negligence pleaded is again complained of under this assignment, but, having been fully discussed in disposing of the preceding assignment, it'is unnecessary to say anything further concerning the same.

By the last assignment appellant attacks the sufficiency of the evidence to sustain the finding that appellee was not guilty of contributory negligence. We have already held that the evidence did not show contributory negligence as a matter of law, and this assignment, as we construe it, raises the same issue; but, if intended as a contention that the great preponderance of the evidence shows contributory negligence, and that the judgment is therefore manifestly unjust, the same must be overruled, for we consider the evidence to be of such character as to warrant the jury in finding that appellee was not guilty of contributory negligence.

The judgment is affirmed.
      <g=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    SCRUGGS v. E. L. WOODLEY LUMBER CO.
    (No. 828.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1915.)
    1.Appeal and Error @=>194 — Gbounds of Review — Exception.
    The fact that a special exception in plaintiff’s supplemental petition was not in due order of pleading was no cause for reversal, where no exception to the supplemental petition was taken in the court below, on the ground that it was not in due order of pleading.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1241-1246; Dec. Dig. @=> 194.]
    2. Payment @=>9 — Incumbered Property-Legal Tendee.
    A creditor is not required to accept incumbered property in settlement of his account and to assume the incumbrance, but need accept nothing but a legal tender.
    [Ed. Note. — Eor other cases, see Payment, Cent. Dig. §§ 38, 40, 41, 49, 53; Dec. Dig. @=> 9J
    3. Evidence @=5354t-Books op Account— ElBST PEEMANENT ENTEY — ORIGINAL EN-TEY.
    In an action for the balance due on a bill of lumber furnished to build a residence on land, the plaintiff’s daybook or journal, kept as a book of account in the regular course of business, and the first book in which the items of sale entered by plaintiff’s yardmen on slips torn from a pad were first permanently entered, after the preliminary proof, was admissible as a book of original entry.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. @==>354.]
    '*4. Evidence @=>354 — Books op Account-Collateral Facts.
    Under the rule as to the admission of books of original entry containing items of account, books not containing charges made in the regular course of business are inadmissible to prove the collateral matters shown therein, which matters must be shown by independent testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dee. Dig. @=>354.]
    6. Evidence @=>354 — Books op Account— Alteeation.
    In an action for the balance due on a bill of lumber furnished to build a residence upon land, legal title to which was in defendant, who bad contracted to convey it to one S. on payment of a certain sum, an account book, showing charges against J. F. or J. F. S., was not inadmissible because plaintiff’s manager wrote after S.’s name the word “residence,” where it appeared that S. was procuring material about the same time, and where there was no indication of fraudulent intent.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. @=>354.]
    6. Sales @=>53 — Action poe Price — Question poe Jury.
    In an action for the balance due on a bill of lumber furnished to build a residence upon land, the legal title to which was in defendant, but which he had contracted to convey to one S. on payment of a certain amount, evidence ' held to make defendant’s agreement to pay therefor a question for the jury.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 145-151; Dec. Dig. @=>53.]
    7. Te!ial @=>251 — Instructions—Pleading.
    In such action, where the plaintiff did not plead any estoppel or waiver as against the defendant, an instruction that if defendant waived the size of the house, or knew the size of the house actually built, plaintiff could recover, and that defendant would be estopped to claim that the lumber was furnished for a house of that size for which there had been no agreement, should not have been given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. @=>251.]
    Appeal from Wheeler County Court; M. M. Miller, Judge.
    Action by the E. L. Woodley Lumber Company against W. C. Scruggs. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    H. B. Hill, of Shamrock, and C. E. Gustavus and M. J. R. Jackson, both of Amarillo, for appellant. M. Reynolds and C. E. MlcVey, both of Shamrock, for appellee.
   HUFF, C. J.

This was a suit to recover the balance due appellee for the sum of $391.-43, on a bill of lumber furnished to build a residence upon land, the legal title to which was in appellant, but who had contracted with one Smith to deed the land to him upon the payment of certain sums of money. It is alleged, in effect, that appellant made the order for the lumber and, upon a sufficient consideration, agreed to pay the bill upon the contract so entered into with appellant. Appellee delivered the lumber to Smith, who erected the house upon the land, to which appellant had the legal title. There was a verdict and judgment in favor of appellee for the amount sued for.

The first assignment will be overruled. The facts are sufficient to raise the question of an agreement; that is, that the minds of the parties met.

The second assignment will be overruled. The fact that special exception No. 6 in appellee’s supplemental petition was not in due order of pleading is no cause for reversal on the ground that the court sustained the exception to paragraph 6 of appellant’s answer. This was a formal matter, and an exception should have been presented in the court below to the exception contained in the supplemental petition on the ground that it was not in due order of pleading. The exception will not be entertained in this court, where it is made for the first time. We think the court properly sustained the exception. We know of no rule of law or equity that will require a creditor to accept in settlement of his account property incumbered by indebtedness and to assume such indebtedness. The appellee was not required in law to accept anything but a legal tender.

Under the third assignment it is urged that the shopbooks. of appellee should not have been admitted in evidence. The bill taken by appellant urges that this book was not the book of original entry. It appears to have been the daybook or journal. The testimony to which appellant refers as showing the book not to be one of original entry is to the effect that appellee was a lumber company and dealer in lumber. In making sales the yardmen noted on a tablet or pad the sales made, to whom made, and the articles sold. This pad or slip was turned in to the bookkeeper, who entered the items from this slip of paper which had been torn out of a pad by the yardman making the sale or delivering the article. Both the manager and bookkeeper testified as to the method, and the bookkeeper who made the entries testified as to the correctness of the books, and that he made the entires in the daybooks or journal. This book is shown by the testimony to be the first book of permanent entry. Tlie objection here urged is that:

“The tickets were the matters of original entry and were the basis of the charges in such book, and that the tickets were the first and original entry.”

It will be observed that there was* no exception that the book kept, and the entries made were not entered in due course of business, and not correctly kept or proven up by the proper parties making them; the only objection being that the book was not the book of original entry. We shall, for the purpose of this opinion, presume all the necessary preliminary proof was made, and consider the sole question as to whether this was the book of original entry within the meaning of the rule. In Railway Co. v. Johnson, 7 S. W. 838, the Supreme Court, speaking •through Judge Gaines, said:

“It seems, however, pretty well established that the first permanent records of the transactions by the creditor are to be deemed original entries, if made within a short time after the transactions themselves, although the items may have been previously entered, as a temporary assistance to the memory, upon some slate, book, paper, or other substance not intended to be preserved. In an old case this court admitted the rule generally recognized in the courts of this country, but strongly animadverted upon it as a dangerous innovation of the principles of the common law, and refused to extend it, in cases of merchant’s account, beyond such articles as are usually sold by a merchant in course of his business. Cole v. Dial, 8 Tex. 347. It is usually confined to accounts for labor performed, or to goods sold by regular dealers in merchandise.”

In the case then under consideration, the court refused to extend tire rule to transactions between shippers of grain and the railroad. The appellant cites the case of Cathey v. Railway Co., 104 Tex. 39, 133 S. W. 417, 33 L. R. A. (N. S.) 103. In that ease the register of the railway company showed the time •trains pass the yards. This register was made up from slips or cards prepared and furnished the keeper of the register by the .employes operating the trains. It was held •these slips or cards were original evidence. In the case cited Judge Ramsey, who rendered the opinion of the court, cited the Johnson Case, evidencing thereby the shop rule would not be extended to registers of railroads as to the movement of its trains. In the case of Guthrie v. Mann, 35 S. W. 710, cited by appellant, the court simply held the books were not competent to prove a receipt, but the receipt itself should be proven. Pohl v. Bradford, 25 S. W. 984, held, as it is universally held, under the shopbook rule, that the ledger is not admissible where it is shown to have been made up from the daybook or journal. In Baldridge v. Penland, 68 Tex. 441, 4 S. W. 565, it is held the books of original entry should be produced or accounted for, and that items on the account which do not appear to be such as were usually dealt in by the business could not be proven by the books.

Books are not admissible under this rule, unless they are used in the regular course of business and kept by the parties as books of account. Hence books for some purpose other than that of making charges in the course of business do not fall under the rule or items entered in account books which are not such as are handled in the regular course of the business, and therefore cannot be proved by the books. It is the general holding, under this rule, that collateral facts cannot be shown by the books. If other facts, aside from the sale and delivery of the articles or the performance of the work and labor are necessary to make out the ease, these facts cannot be established by the books or affidavit of the party, but must be made out by independent testimony. The cases cited by appellant evidently had in view these general principles in deciding the cases then in hand. Mr. Jones on Evidence, vol. 3, §■ 569, discusses the question now involved, as follows:

“In addition to the requirement that the entries in the book of account be made in the regular course of business, it is equally essential that they constitute the party’s original entries or the first permanent records of the transaction in question, in order to be admissible in evidence. Thus, if the entries are made in a daybook or journal and transferred thence to a ledger, the entries in the ledger are not competent, but it is no objection to the book, if otherwise regular, that the entries which they contain were first made temporarily. * * * The former strict idea of what constituted original entries has been modified to fit the necessities of new business conditions. Inasmuch as under the modern methods of extensive business houses the information relative to the transactions constituting the accounts must pass through various hands before being permanently recorded, some system of temporary memoranda preparatory to the permanent records is necessary to insure convenience as well as accuracy. It would be impracticable to preserve, for any length of time, the tags, slips, or tokens constituting such original memoranda, and impossible, in view of the changing of employés, to obtain the testimony of the persons who made the temporary memoranda or conducted the transaction. Hence, following the rule of necessity, the courts do not regard such temporary memoranda as the originals, but look to the permanent records as such original entries when properly verified by a suppletory oath.”

See, also, Elliott on Evidence, vol. 1, §§ 459, 469; Rogers v. O’Barr et al., 81 S. W. 750; Barclay v. Deyerle, 53 Tex. Civ. App. 236, 116 S. W., on page 125. The boohs in this case clearly fall under the shopbook rule, and we think it is sufficient to show that the daybook or journal is the first permanent book of entry, and that, if the other necessary requirements are shown, is admissible, and that the slips of paper, used as memo-randa, are not, under this rule, the original entry, such as will require their production. This assignment will be overruled.

The fourth assignment urges the trial court should have excluded the books because it was shown that they had been altered. The account appears to be in the name of J. E. or J. Erank Smith, Residence. The manager says after the bookkeeper made the entries that he, the manager; wrote after Smith’s name, “residence.” We find nothing in the fact that the word “residence” was written in the account to indicate a fraudulent appearance. It appears Smith was procuring material about the same time for a church that he was procuring material for the house. We think the explanation was sufficient, and if it satisfied the trial court as to the appearance of the books, we think there would be no error shown requiring a reversal of the ease. Jones on Evidence, vol. 3, § 576.

The fifth, seventh, and eighth assignments are overruled for the reasons given under the first assignment.

The evidence presents a conflict as to whether appellant and appellee reached an agreement. If appellee’s witnesses are to be believed, appellant agreed to pay and ordered the lumber to build the house. He did so for his own interest and financial benefit, and the inference may be _ drawn therefrom that he left the size the house should be to the determination of Smith. Appellant owned the land on which the house was being erected, that is, he had the legal title thereto and had contracted with Smith to deed him the property if Smith paid for it, and the testimony indicates Smith had practically defaulted before the lumber was delivered. The circumstances, we think, in this 'ease, are sufficient to raise the issue presented by the trial court for the jury’s finding.

We believe the court, however, was in error in giving appellee’s specially requested charge No. 3, which substantially instructed the jury that if appellant waived the size of the house, or, knowing it, that is, the size of the house actually built, that appellee could recover, or that appellant would' be estopped to claim the lumber was furnished for a house of that size, for which there had been no agreement. There was no estoppel or waiver pleaded by appellee. Under the pleadings this charge should not have been given. We doubt the sufficiency of the testimony to sustain the question of waiver or estoppel; however, we will not, at this time, hold the court was in error because of the insufficiency of the testimony. It occurs to us the only issue in the case was whether there was entered into the agreement alleged. If there was,. appellant was liable; if not, he was not. Under the conflict and the peculiar state of facts in this case, this charge was calculated to divert the attention of the jury from the issue presented by the pleadings. Assignment No. 6 will be sustained, which will require a reversal of this ease.

Reversed and remanded.
      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes