text:
    PANHANDLE PACKING CO. v. STRINGFELLOW.
    (No. 827.)

    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1915.
    Rehearing Denied Nov. 27, 1915.)
    1. CORPORATIONS <&wkey;81 — STOCK — SUBSCRIPTION — Waiver of Condition.
    Where the subscription contract to corporate stock was that it should not he binding until each subscriber had paid 50 per cent, of his subscription, and a subscriber was active in all matters preceding the organization of the company, attended the first meeting, was chosen as one of the directors and accepted the appointment, met with the others, the following day, when they took steps to procure a charter, which he signed and acknowledged, and was one of the committee employing counsel to procure it, and also signed the affidavit to procure the charter, was elected second vice president, and, after incorporation, acted with the other directors of the company, told a directors’ meeting on the day he signed the .affidavit that he had just paid half his subscription to stock at the bank, and was also one of the committee to whom the first 50 per cent, of subscriptions was to be paid, such subscriber waived the condition of his subscription that it should not be binding until half the amount was paid in, since, where a subscriber to stock prior to organization acquiesces in the mode of incorporation, or participates in a corporate meeting, acts as a director of the corporation, as a member of its committees, attends its meetings, or votes for its expenditures or contracts, he waives any condition to his subscription.
    [Ed. Note. — -For other cases, see Corporations, Cent. Dig. §§ 266-284; Dee. Dig. <$=^81.]
    2. Corporations &wkey;>34 — Stock — Subscription-Waiver OF IlXEGALITT OF INCORPORATION.
    Where a subscriber to corporate stock took active part in the organization of the company, being elected director and second vice president, he could not urge as a defense to the company’s action on his subscription that the company was not regularly and legally organized, in that half its capital stock had not been paid in when its charter was issued; that being a matter of which the state alone could complain.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 81-96; Dec. Dig. <&wkey;34.]
    3. Corporations <&wkey;84 — Stock Subscription-Abandonment.
    Where written lists of subscribers to the stock of a corporation were secured, and thereafter the incorporators who actually obtained the charter apd made the affidavit therefor in it named themselves as the only subscribers, such action on the part of the incorporators did not affect the binding effect of the mutual obligation, between the original subscribers, evidenced by the subscription lists, and did not destroy the right of the corporation, when organized, to accept the lists and sue a subscriber thereto upon his undertaking, since the unanimous consent of all subscribers to corporate stock is necessary for withdrawal or cancellation of a single subscription.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 296-327; Dec. Dig. <&wkey;84.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by the Panhandle Packing Company against Nannie T. Stringfellow. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    Madden, Trulove, Ryburn & Pipkin and Kimbrough, Underwood & Jackson, all of Amarillo, for appellant. H. H. Cooper, of Houston, for appellee.

      Application for writ of error pending in Supremo Court.

   HALL, J.

Appellant sued in the district court of Potter county, filing its amended petition August 7, 1912, in which it is alleged that R. L. Stringfellow, the deceased husband of appellee, had subscribed for 25 shares of the capital stock of appellant, of the par value of $2,500; that by the terms of the subscription contract, upon demand of the executive committee of the subscribers of stock, 50 per cent, of each subscription should be paid to said committee, and the-remaining 50 per cent, of such subscription upon demand of the board of directors of appellant company, if the same should be-organized and officers selected; that by said subscription contract it was further agreed that, if any subscription should remain unpaid, and it should become necessary to place-the same in the hands of an attorney for-collection, then an additional 10 per cent, of the same should be added and paid by the-sribscribers as collection .fees. Appellant alleged its compliance with the terms and stipulations of the subscription agreement and', the consequent liability of Stringfellow.

Appellee answered by general demurrer, and specially excepted on the ground that the-petition showed upon its -face that, if String-fellow was indebted in any sum on the contract, it could be for only 50 per cent., for the-reason that 50 per cent, of the payments were required to be made to the executive committee,. and there was no allegation of any assignment or transfer of the cause of action from such committee. These excep tions were overruled.

Appellee answered further by general denial and two special defenses as follows:(a) That said corporation could not recover-under the terms of the subscription contract,, for the reason that it was specially stipulated that each subscriber should pay 50! per cent, of his subscription before the contract should become binding; (b) because-such subscription contract was abandoned, and the company was organized upon an entirely different subscription contract, in that certain persons, including the said R. L. Stringfellow, had subscribed for all of the-shares of stock in said corporation, and had: thereby abandoned the subscription contract sued upon. It is further alleged that appellant is estopped by reason of the organization of the company upon another and different subscription list and by its representations as to said list made to the secretary of state in procuring the charter.

Appellant filed a supplemental petition, alleging that Stringfellow had waived all provisions of the subscription contract requiring payment of his subscription, and that, if Stringfellow and the otlier incorporators did, in fact, represent that all the stock was subscribed by them, the said Stringfellow and his attorney induced such action, and the Panhandle Packing Company was not bound thereby.

The case was submitted to the jury upon six special issues, which, with the answers thereto, are as follows:

“First. Did the incorporators of the Panhandle Packing Company, to wit, O. W". Butt, W. H. Fuqua, H. B. Sanborn, T. S. Bugbee, O. H. Nelson, H. R. Morrow, and R. L. String-fellow, at the time they adopted the charter read in evidence before y'ou, intend to ignore and repudiate the several stock subscription lists dated May 20, 1908, offered in evidence before you, or did they adopt this method for convenience, intending that the subscribers to said subscription lists should take and pay for the stock according to the lists? Answer: (A) Yes. (B) No.
“Second. Did R. L. Stringfellow, without paying any part of the stock subscription, unite with said Butt, Fuqua, Sanborn, Bugbee, Nelson? Did Morrow, in taking out the charter of the Panhandle Packing Company, act as a director and vice president of the company after the charter was obtained until his death, and, if so, did he by so doing intend to waive the requirement in the subscription lists that each subscriber pay 50 per cent, of his subscription before a charter should be obtained? Answer: Yes.
“Third. Did the incorporators, by their, act, in applying for the charter of plaintiff company, the organization of such company after the charter was issued, and proceeding with the work and business of the corporation, intend to waive the requirement of the subscription lists that each individual subscriber should pay 50 per cent, of his subscription before a charter could be obtained? Answer: Yes.
“Fourth. Which subscriptions did the Panhandle Packing Company accept and act upon after it was incorporated, the signed lists in evidence before you, or the oral subscriptions made by said incorporators at the time the affidavit introduced in evidence was made? Answer: The oral lists.
“Fifth: Did the said incorporators, in making annlication for the charter, and in making the affidavit that 50 per cent, of the total capital stock had been paid in, take into account the moneys theretofore paid in by the several subscribers on the stock subscription lists, and use such moneys to make up the 50 per cent.? Answer: No.
“Sixth. Did the said incorporators take out the charter of the Panhandle Packing Company for and on behalf of the subscribers to said several stock subscription lists in evidence before you, or did they agree among themselves to subscribe for themselves the entire amount of the capital stock at the time they applied for the charter and made the affidavit which accompanied said charter to the secretary of state? Answer: (a) No. (b) Yes.”

The subscription contract, among other terms, stipulates that the undersigned subscribed for the amount of stock set opposite their respective names; that 50 per cent, thereof should be paid upon demand of an executive committee, composed of R. L. Stringfellow' and four other citizens, and the remaining 50 per cent, at such time and in such amounts as the board of directors of the corporation, after its formation, should require; that the corporation should have the right to issue and offer for sale mortgage bonds in an amount not exceeding $100,000, payable on or before ten years after date. There is a provision for 10 per cent, attorney’s fees in the event it should become necessary to file suit against any subscriber for the collection of the amount due, and contains this stipulation:

“It is understood that the subscription hereto is not binding until the full amount of $150,000 is subscribed, and must be paid before a charter can be obtained.”

R. L. Stringfellow’s name appears amongst other subscribers in the amount of $2,500. The list is dated May 20, 1908, and is one of nine similar lists which was being circulated for the purpose of obtaining subscriptions.

The secretary of state testified by deposition that in order to procure a charter O. W. Butt, W. H. Fuqua, O'. H. Nelson, H. R. Morrow, T. S. Bugbee, H. B. 'Sanborn, and R. B. Stringfellow filed an affidavit with him made before H. H. Cooper, a notary public of Potter county, stating in substance, that Butt had subscribed for 750 shares and paid $50,000 thereon; that San-born subscribed for 200 shares and paid the sum of $10,000; that Fuqua had subscribed for 125 shares and paid $6,250; that Nelson had subscribed for 125 shares and paid $6,250; that Bugbee had subscribed for 100 shares and paid $5,000; that Morrow had subscribed for a like number of shares and paid the same amount; that Stringfellow had also subscribed for 100 shares and paid the sum of $5,000.

During the trial the death of Stringfellow on the 9th of May, 1909, was admitted. It appears that a meeting was held at the courthouse on October 9, 1908, for the purpose of electing directors for the proposed corporation for the first year, at which there was in attendance in person or by proxy over 80 per cent, of the subscribers to stock, and R. I*. Stringfellow was named as one of the directors. On the following day the directors held a meeting to choose officers and take the necessary steps to obtain a charter. At this meeting Stringfellow was elected second vice president, and was also selected as one of a committee of three to draft by-laws, and to procure the assistance of an attorney in drawing the charter. It was further shown that Stringfellow attended two directors’ meetings held on January 6, 1909. The preliminary plans adopted for the formation of the company included the circulation of the subscription lists and an agreement that the several banks in Amarillo were made depositories for the funds to be, collected on subscriptions, and the presidents of the banks were constitute ed an executive committee for collecting and receiving the funds pending the procuring of the charter. R. L. Stringfellow was president of this committee. The books of the Panhandle Packing Company were kept by Francis Popham, who was secretary-treasurer of the corporation, and he testified that collections on subscriptions were made by the committee named in the subscription lists prior to incorporation; that the money so collected was deposited in the several banks according to the plans above stated; that the collections on the subscription lists continued after the incorporation of the company, and were handled in substantially the same manner; that the charges made on the hooks of the company against the banks and the credits taken on the part of the company were made on amounts represented to have been collected by the banks themselves; that prior to November 27, 1908, all subscribers had been notified to pay in 50 per cent, of their subscriptions. The minutes of April 13, 1909, show the call made by the corporation for the second installment of 50 per cent. The witness testified that he spoke personally to Mr. Stringfellow about his subscription. It was shown that in due time the company went forward with the construction of the plant; that it was finally completed and equipped for work. Francis Popham testified, further, that the subscriptions, as shown on the several lists, were transferred by him to the books of the company; that collections were made on these subcrip-tions by the committee named in the lists prior to incorporation, as well as thereafter.

On October 27, 1908, the date of the application for charter, it appears that Butt had paid $50,000 upon his subscription of $75,000, and that of the remaining $75,000 only $24,583 had been paid, aggregating $74,583 actually paid toward the capital stock of the company upon the subscription lists sued upon herein. It further appears that there were 143 subscribers, representing 261 shares, who had paid nothing upon their subscription.

The appellant at the close of the testimony requested a peremptory instruction in its favor, which was refused. The court entered judgment for the appellee upon the findings of the jury, and from this judgment the appeal is prosecuted.

The appellee’s first defense, based upon the fact that 50 per cent, of each subscription- had not been paid at the time of incorporation, cannot be upheld in the light of the uncontroverted facts. The record shows without dispute that Stringfellow was active in all of the matters preceding the organization of the company; that he attended the first meeting on October 9, 1908; was there chosen as one of the directors for the first year; that he accepted the appointment and met with the other directors the following day and took steps to procure a charter. He is one of the parties who signed and acknowledged the charter, as well as one of the committee employing counsel to procure it. He signed the affidavit filed with the secretary of state in order to procure the charter, was elected second vice president, and after incorporation, acted with the other directors in the management of the company. It is further shown that on the day the affidavit mentioned above was signed he left the directors’ meeting, went down to his bank for the pretended purpose of paying one-half of his subscription and upon his return reported that the matter had been arranged. He was also one of the committee of citizens to whom the first fifty per cent, of subscriptions was to be paid. We think under the law he waived this condition of his subscription, if, indeed, the contract can be construed tó mean that he should not become liable until 50 per cent, of each subscription was paid. It is said in Bowers on the Law of Waiver (section 228 et seq.):

“But performance of the condition of a subscription for stock is not always requisite to render the contract enforceable. A subscriber is not bound to insist upon it. He has the right to do so, but may waive the right, or, in other words, may forego its benefits.”

Section 229, Id.:

“A common condition inserted in the agreement of subscription upon the organization of a corporation is that there shall be a certain number of shares of the capital stock, and that a designated sum shall be paid for each share, and in other instances statutory provisions require a definite number of shares to be subscribed and a certain part of the capital stock to be paid in. In either event the stipulation or requirement must be fulfilled or the subscription does not become effectual so that payment thereof can be enforced.”

Section 230, Id.:

“But these provisions or conditions are solely for the benefit of the subscriber, and he has the right to take advantage of them or not, as he may desire. He may rely upon them as a defense in an action upon a subscription, or he may ■ so declare or conduct himself as to preclude such defense. In other words, he may waive the performance of such conditions, and in such event will be held to payment of the amount subscribed. A variety of facts and circumstances have been held to amount to a waiver of the conditions under consideration. Thus, if a subscriber to stock in a corporation subscribes prior to incorporation, he waives the defense that the capital stock of the corporation has not been subscribed, as provided for in his contract by acquiescing in the mode of incorporation, with knowledge of all the facts; or, if he know that the whole amount of the capital stock has not been subscribed, yet participate, in a corporate meeting, the condition is waived, and the subscription rendered absolute; and the same effect results where he acts as a director of the corporation or as a member of its committees, and likewise if he attend meetings, vote for expenditures or for making contracts, and do other acts which could be consistent only with an intention to proceed with his subscription and shares as if all the conditions had been complied with, a waiver will be imputed to him.” Cook on Stocks & Stockholders, §§ 181 to 198; Taylor Private Corporations, § 519; 7 R. C. L. “Corporations,” §§ 83 and 396, and authorities cited.

In so far as the defenses attack the regularity and legality of the incorporation of the- company, we think Stringfellow, by his conduct, has precluded himself from urging them, even though they were available to a stockholder. Although 50 per cent, of the capital stock Rad not been paid in at tbe time the charter was issued, this is a matter of which the state alone can complain. Dillard v. McAdams Lumber Co. (Cr. App.) 141 S. W. 1023; Conley v. Daughters of Republic of Texas (Sup.) 157 S. W. 937, 156 S. W. 197.

The next defense urged by appellees is that the subscription contract, upon which the suit was filed, was abandoned by the incorporators, and that the organization was ■effected under an oral subscription, as evidenced by the affidavit filed with the secretary of state. In reply to this contention appellants insist that an oral subscription is void. The general rule seems to be that oral subscriptions to¡ the capital stock of proposed corporations are valid, though it has been held in states where the statute requires all subscribers to stock to execute formal articles of incorporation that oral agreements to take stock are not enforceable. 7 R. C. L. '“Corporations,” § 195; 136 Am. St. Rep. 743, note (b); Somerset National Banking Co. v. Adams (Ky.) 72 S. W. 1125; 10 Cyc. 391, note 33.

Article 1123, R. S. 1911, does not require that more than three of the organizers of a corporation shall sign the application for charter, and we see no reason why the general law governing the formation of contracts should not apply to subscriptions to the capital stock of corporations. Aside from this question, we believe that the subscription contract sued upon was binding upon all of the subscribers, and that the in-corporators who actually obtained the charter and made the affidavit could not arbitrarily set it aside and bring into existence the proposed company upon a separate subscription undertaking; nor could they avoid liability on the written subscription previously signed by them. It is held in Belton Compress Co. v. Saunders, 70 Tex. 702, 6 S. W. 136:

“ ‘The agreement under consideration not only bears on its face the evidence of a consideration founded on the pecuniary advantage of membership, but also upon mutual promises expressed as clearly as words can speak. The mutual promises of the several subscribers constitute the consideration, but the promise is to pay the subscription to a third party, viz., the corporation, and the promise is valid and binding notwithstanding the corporation is to be formed thereafter.’ It is stated in Angelí & Ames on Corporations that: ‘The consideration which is necessary to sustain such a promise is raised by inference of law from the subscription itself and the privileges thereby conferred: and, from the same circumstance, the law will infer a duty to pay for the stock, and an implied obligation of equal force with an express contract, where nothing appears repugnant to such construction. As was said by Mr. Justice Sutherland, delivering the judgment of the court in Spear v. Crawford, 14 Wend. (N. Y.) 20 [28 Am. Dec. 513]: “The promise of the defendant and the other subscribers, although it is in form to take the shares subscribed by them respectively, is undoubtedly (when taken in connection with what precedes it,, and with the act of incorporation which is tbefe referred to, and in part recited) a promise, not only to take the shares, but to pay for them; to take them upon the terms and conditions set forth in the subscription paper.” ’ * * * It is further said by the same author: ‘A person subscribing before the organization of a proposed incorporated joint-stock company raises a mutuality in his contract which will render him liable to the company after incorporation.’ ”

In the case of Steely v. Texas Improvement Co., 55 Tex. Civ. App. 463, 119 S. W. 319, Neill, J., said:

“It is held in some jurisdictions that, where a number of persons sign a subscription paper agreeing to take stock in a corporation to be thereafter formed by them, there is a contract between subscribers themselves to become stockholders, without further act on their part, immediately upon the formation of the corporation, binding and irrevocable from the date of the subscription, unless canceled by consent of all the subscribers before acceptance by the corporation, and a continuing offer to the proposed corporation, which, upon acceptance by it after its formation, becomes, as to each subscriber, a contract between him and the corporation. See 10 Cyc. 388, and note 13, for cases cited, among which is Belton Compress Co. v. Saunders, 70 Tex. 699, 6 S. W. 134, in support of this principle. Cook on Corporations, §§ 71, 72; 1 Thomp. Corporations, § 1205. It may be stated as a corollary to this principle that a subscriber to such subscription paper cannot withdraw or obtain a cancellation of his subscription except by the unanimous consent of the other subscribers.”

No attempt was made to prove that String-fellow ever withdrew his subscription or endeavored to obtain the consent of the other subscribers that he might do so. String-fellow, Nelson, Butts, Euqua, Morrow, Bug-bee, and Sanborn must be held to have been acting in a representative capacity in procuring the charter upon the affidavit filed by them. They could not, without the unanimous consent of all the subscribers, set aside the contract formally entered into between them. See, also, 7 R. C. L. “Corporations,” §§ 193, 196.

In procuring the charter, Stringfellow acted as one of a committee appointed by his cosubscribers for that purpose. He was their agent to perfect the incorporation of the identical company named in the subscription lists. It is clear from this record that no other or different company was incorporated; in fact, appellee make no contention to the contrary. Although the committee may have concluded that a more direct method of accomplishing the desired end was to file the above-mentioned affidavit with the secretary of state naming themselves as the only subscribers, it did not set aside or in any way modify the binding effect of the mutual obligation existing between the subscribers and evidenced by the subscription lists; nor did the affidavit destroy the right of the corporation when organized to accept the lists and sue upon the undertaking entered into by the subscribers. One cannot violate the fiduciary relation existing between himself and his co-obligors and be allowed to profit by his own wrong. This record does not disclose any such intention upon the part of ■any of the incorporators, and we are not willing to impute such motive to them. Upon the whole record, we are convinced that the ■court should have entered judgment for appellant upon the second and third special •issues, and the answers of the jury thereto. As we understand the law, it is immaterial whether the incorporators intend to ignore the stock subscription lists or not. They •could not lawfully do this without the consent of all the other subscribers; nor could the company do so after its incorporation. Whether Stringfellow and the other members of the special committee intended to file the charter in behalf of all subscribers or for themselves only, and whether they took into account the money on hand which had been paid in by the several subscribers in making the affidavit, are all matters of no moment under the principles of law announced above.

The remaining special issues submitted immaterial questions upon which a judgment could not have been based. . What is here said disposes of all other material matters raised by the assignments not considered in detail.

The judgment is reversed, and here rendered in favor of appellant for $2,500, with interest at 6 per cent, from April IS, 1909, and 10 per cent, of principal and interest as •attorney’s fees.

Reversed and rendered.

HENDRICKS, X, not sitting.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests, and Indexes


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    HAYES v. G. A. STOWERS FURNITURE CO.
    (No. 480.)

    (Court of Civil Appeals of Texas. El Paso.
    Nov. 11, 1915.
    On Rehearing, Dec. 2, 1915.).
    .1. Appeal and Error <&wkey;301 — Record on Appeal — Assignments oe Error.
    Assignments of error not included in the motion for a new trial cannot be considered on appeal, unless they arise after the motion for new trial has been filed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Deo. Dig. &wkey;3301J
    2. Appeal and Error &wkey;>301 — Record on Appeal — Propriety oe Judgment.
    If a judgment could not properly have been rendered as it was rendered, the error was fundamental, and could not be waived by a failure to assign it as error in a motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743,1753-1755 ; Dec. Dig. <§^301.]
    "3. Judgment <&wkey;199 — Notwithstanding Verdict — Propriety.
    It was error for the court on facts found by the jury in favor of the defendant to render judgment for the plaintiff.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. <&wkey;>199.]
    ■4. Judgment <&wkey;199 — Judgment Notwithstanding Verdict.
    A judgment non obstante veredicto is not permissible and cannot be sustained, but the court can only set aside a verdict contrary to the evidence.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. &wkey;199.]
    5. Sales <&wkey;48 — Legality oe Object.
    Where the seller of furniture at the time of the sale agreed with the buyer that the furniture should be used in a bawdyhouse, and that the title to the goods should remain in the seller pending monthly payments on the goods, and the furniture was necessary for the operation of the house, the contract was for an illegal object, so that the courts will not enforce payment of installments due and unpaid.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 101-107; Dec. Dig. &wkey;48J
    On Rehearing.
    6. Appeal and Error <&wkey;209 — Hatters Reviewable— Preservation of Exceptions.
    Failure to raise the objection of insufficiency of evidence to sustain the verdict in the trial court precludes raising the objection for the first time on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1290-1298, 1300, 1303; Dec. Dig. t&wkey;>209.]
    Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.
    Action by the G. A. Stowers Furniture Company against Rose Hayes. From judgment for plaintiff, defendant appeals. Reversed, and judgment for defendant. On rehearing.
    Rehearing denied.
    L. M. Williamson, Hutcheson & Hutche-son, and Heidingsfelders, all of Houston, for appellant. J. V. Meek, of Houston, for ap-pellee.

      Application for writ oi error pending in Supreme Court,

   WALTHALL, J.

G. A. Stowers Furniture

Company, appellee, brought this suit in the district court of Harris county, Tex., against Rose Hayes, appellant, for the amount of $2,200.77, interest and attorney’s fees, alleged to be a balance of an indebtedness due for goods, wares, and merchandise (household furnishings) sold and delivered, and to foreclose certain mortgages on goods, wares, and merchandise, all itemized and described in the pleadings and exhibits. Appellant, in defense to the cause of action, pleaded that at the several times of the making of the contracts for the goods, wares, and merchandise for the value of which the suit is brought appellant was engaged in an illegal and unlawful business, to wit, in running a disorderly house in the restricted district in the city of Houston, Tex., which appellee well knew, and that said property leased by her of appellee was leased with the full knowledge, consent, and agreement on the part of appellee, for her to use in the furtherance of her said illegal and unlawful business, and that the appellee well knew that all payments that were to be made by her on the goods leased by her as aforesaid were to be derived by her from the proceeds of said illegal and unlawful business.

The appellee answered that it may be true that at the time of the purchases or some of them set out in the several contracts the appellant may have been living in the restricted district of the city of Houston, and that her business, as alleged by her, might have been illegal and unlawful, and it may be true that some agent of appellee was aware of the fact, but appellee specially denies that there was any contract or agreement that the payments specified in said contracts to be made by appellant was to he paid out of money derived by her out of any illegal or unlawful business, occupation, or trade.

The case was submitted to the jury on special issues. The issues submitted to and found by the jury which we deem pertinent to the issues presented in appellant’s several assignments of error are as follows:

“Special Issue No. 7: ‘It is an admitted fact that at the time of the first purchase made by the defendant from the plaintiff of the furniture set out in exhibits attached to plaintiff’s petition, amounting to $4,415.35, that it was her purpose to use same in an unlawful business, to wit, in running a bawdyhouse, and it is admitted that the plaintiff’s agent, M. P. Strickland, knew that the furniture was to be so used. Now, answer the following question: Was there any agreement or contract between plaintiff’s said agent, M. P. Strickland, and the defendant, that he should receive his pay out of the proceeds of said unlawful business and that he should expect his pay solely therefrom? Answer this question, “It was the agreement,” or “It was not the agreement,” as you find.’ To this issue the jury answered: ‘It was not the agreement.’
“Special Issue No. 8: ‘When the defendant made the first purchase referred to in the preceding paragraph of $4,415.35, did E. E. Du-pree state to plaintiff’s agent, M. P. Strickland, that he would assist the defendant in paying therefor? Answer this question, “He did,” or “He did not,” as you find.’ To this issue the jury answered: ‘He did.’
“Special Issue No. 9: ‘If, in answer to the preceding question you have answered that E. E. Dupree did state to plaintiff’s agent that he would assist defendant in paying for said goods, then answer the following question: Did said promise on the part of E. Ei Dupree influence plaintiff’s agent to sell said goods to defendant, and did plaintiff’s agent expect E. E. Dupree to assist defendant in paying for said goods? Answer this question “Yes” or “No,” as you find.’ To this issue the jury answered: ‘Yes.’
“Special Issue No. 10: ‘When plaintiff company sold to defendant the goods sued for, was there any agreement between plaintiff company, acting through its agents, that plaintiff should be a silent partner with the defendant in the conduct of the unlawful business alleged by her? Answer this question “Yes” or “No,” as you find.’ To this issue the jury answered: ‘No.’
“Special Issue No. 11: 'When the plaintiff company sold the goods to the defendant, was there any agreement or understanding between plaintiff company’s agent and the defendant that said goods should be used in an unlawful business, as alleged by defendant, to wit, the running of a bawdyhouse, or did defendant have a right to use said goods for any purpose she saw fit? Answer this question that “It was the contract that it should be used for a bawdy-house,” or that “Defendant should use said goods as she saw fit.” ’ To this issue the jury answered: ‘It was the contract that it should be used for a bawdyhouse.’
“Special Issue No. 12: ‘When the goods were sold by the plaintiff to the defendant, was there any agreement or understanding between plaintiff’s agent and the defendant that the plaintiff was in any way to be the gainer from the illegal use from which the defendant might put said goods? Answer this question that, “There was such agreement,” or “There was no such agreement,” as you find.’ To this issue the jury answered: ‘There was no such arrangement.’
“Special Issue No. 13: ‘If the defendant did run a bawdyhouse, as alleged by her, and use the goods bought from the plaintiff in furtherance of said business, then state whether or not any agent or employé of the plaintiff took any part in the conduct of such business. Answer this question, “They did,” or “They did not.” ’ To this issue the jury answered: ‘They did not.’
“Special Issue No. 14: ‘When plaintiff sold defendant the first bill of goods amounting to $4,415.35, did E. F. Dupree sign the $300 worth of notes payable to plaintiff in part payment for said goods, and did the signing of said notes cause plaintiff’s agent to agree to sell said goods to the defendant? Answer this question “Yes” or “No.” ’ To this issue the jury answered: ‘Yes.’
“Special Issue No. 15: ‘When the goods were sold to the defendant by plaintiff’s agents, Walker and Willingham, was there any agreement, between defendant and said agents that plaintiff should be paid out of the proceeds of running a disorderly house? Answer this question “Yes” or “No,” as you find.’ To this issue the jury answered: ‘No.’ ”

On plaintiff’s motion, the court rendered judgment in plaintiff’s favor for $2,200.77, being the balance of the principal of its debt, together with interest and attorney’s fees as provided in the contract, for costs of suit, ordered the foreclosure of the chattel mortgages, and, the property having been sequestered by plaintiff and replevied by defendant, the court ordered the property restored to plaintiff, and, if not restored, execution against defendant and her sureties on the replevy bonds.

Appellant filed a motion for a new trial, embraced in three paragraphs: The first, error “in entering judgment for plaintiff” ; the second, error “in not entering judgment for the defendant”; and, third, error “in entering judgment for the plaintiff on the findings of the jury, because said findings are contrary to the law and the evidence.”

Appellant filed in the trial court assignments of error as under the old practice. Appellee objects to a consideration of any of the assignments because the grounds of error in the motion for a new trial are wholly insufficient under the statute and rules 67, 68, and 69 promulgated by the Supreme Court for the government of trial and appellate courts, and presents no error. Appellee objects to the consideration of any additional assignments the grounds, of which are not found in the motion for new trial. The. grounds of appellee’s objection have so often been sustained by the appellate courts that we need do no more than refer to the statute and the rules now in force. It is only as to matters arising in the trial after the motion for new trial has been filed that could be made the ground of an assignment separate and distinct from the grounds set up in the motion for a new trial.

However, the grounds in the motion for new trial and the grounds of error in the assignments not contained in the motion all go to the question of the proper judgment to be entered on the above facts found by the jury. If judgment could not properly have been rendered for appellee on the facts established by the verdict, the error would, in our opinion, be fundamental, and would not be waived by a failure to assign it as error in a motion for a new trial.

The question then recurs: Was it error to render judgment for appellee on the facts found by the jury? The issues tendered by the appellee in its pleadings and exhibits do not suggest an illegal demand. The only suggestion of the unlawfulness of the claim arises on appellant’s answer. It might be further noted from the record before us that the statement by the trial court in submitting to the jury the seventh special issue above quoted that “it is an admitted fact that at the time of the first purchase made by the defendant from the plaintiff of the furniture * * * that it was her purpose to use same in an unlawful business, to wit, in running a bawdyhouse,” and appellee’s knowledge of its intended use, and the findings of the jury on the eleventh issue to the effect “that it was the contract between appellant and appellee when the goods were sold that the goods should be used for a bawdyhouse,” are the only facts in the record, submitted to and found by the jury that suggest an unlawful debt. In answer to the seventh issue the jury found that there was no agreement between appellant and appellee that appellee should receive its pay for the goods sold out of the proceeds of the unlawful business. Then all that remains of the seventh issue is that appellee knew when the goods were sold that it was appellant’s purpose to use the goods in an unlawful business. The fact stated by the court as admitted in submitting the seventh issue, the fact found by the jury in the eleventh finding, and the provisions in the written contract for the sale and delivery of the goods, declared upon in appellee’s petition and introduced in evidence, might be stated thus: Appellee, with full knowledge that appellant was buying household goods for the purpose of installing and furnishing a house to be used by her as a bawdyhouse in the business of running a bawdyhouse in the restricted district of the city of Houston, sold and delivered to appellant the household goods, for partly cash and partly on time payments, and at the time of their sale and delivery agreed with appellant that the goods should be used for the bawdyhouse then being furnished, and in the contract of sale and delivery of said goods provided for the payment of the unpaid part of the consideration for the goods by monthly installments, that the title to the goods should remain in appellee until fully paid for, and that the goods sold appellant should be kept at her place of business, and not removed therefrom without the written consent of ap-pellee. Appellee in its brief undertakes to account for the finding of the jury in answer to the eleventh issue submitted to them, to the effect that, when appellee sold the goods to appellant, it was the contract between them that the goods should be used for a bawdyhouse, and insists that the finding of the jury is unsupported by any proof. However that may be, the court must render judgment in accordance with the facts found by the jury.'

Judgment non obstante veredicto is not permissible under our practice. The court can set aside a verdict rendered contrary to the evidence, but it has no authority to render judgment contrary to the facts found by the verdict. It can only set such verdict aside. The judgment herein rendered therefore cannot be sustained upon the theory that the eleventh finding is unsupported by the evidence.

Are the facts found by the jury and the above extracts taken from the contract of sale of the goods sufficient to outlaw the appellee’s claim and make it uncollectible through the courts?

We are of the opinion that a contract for the sale of the household goods made with a knowledge of the unlawful use to which the goods were to be put, contemplated by the parties at the time of their sale and delivery, and an agreement made and entered into between the parties to the contract of sale that the goods should be so used, and that during the time of such use the goods to be kept at such place and in such unlawful use, as found by the jury, whose finding we approve, coupled with the contract pleaded by the appellee, which shows that in the meantime the title to the goods to remain in the seller and the unpaid balance of the contract price to be paid in monthly installments, is affected by such vice as to render the contract unenforceable in the courts. We are aware of the decisions that hold that a mere knowledge that the goods may be put to an unlawful use is not sufficient to prevent the collection of the claim. But the facts of this case go far beyond a mere knowledge of an unlawful use. Here is an agreement that the goods to which appellee retains title should be put to the unlawful use, thereby necessarily participating in the wrong. The appellant was furnishing a house to be used as a bawdyhouse. The house to be so used must necessarily be furnished. It could not have been used without the aid rendered her by the appellee. The furniture was necessary to the use of the house. With the house furnished she could and did make unlawful use of both | house and furniture, and that with full knowledge of and agreement! with appellee as to the character of its use. The rule is well established that any contract, promise, or agreement “calculated to encourage immorality is void.” Hunstock v. Palmer, 4 Tex. Civ. App. 450, 23 S. W. 294. The Supreme Court of the United States held, in Hanauer v. Doane, 12 Wall. 342, 20 L. Ed. 439:

“It is contrary to public policy to give the aid of the courts to a vendor who knew that his goods were purchased * * * for the purpose of being employed in the commission of a criminal act, injurious to society or to any of its members.”

Bishop on Contracts, § 496, and Smith on Contracts, 195, 196, announce the principle that any contract encouraging prostitution or auxiliary to the keeping of a bawdyhouse is void.

The Court of Civil Appeals, in the above case of Hunstock v. Palmer, said, after reviewing a number of cases:

“It is the opinion of this court that rent should not be recovered for a house knowingly let to a person who will use it, or who does use it, for the depraved and immoral purposes of prostitution.”

The court put the decision on the ground that it was a question of whether a court will enforce a contract founded upon a vicious and degraded occupation, and from which must spring the consideration of the contract.

The Third Court of Civil Appeals, in the case of Anderson v. Freeman, 100 S. W. 350, where the defense was that the consideration for a note and chattel mortgage on certain furniture was for the immoral purpose of enabling Anderson to use the furniture in carrying on and conducting a house of prostitution, and where the court reached the conclusion and inference to be drawn from the evidence to the effect that the transaction was to enable Anderson to continue the immoral business, and where Freeman knew that from the continuance of the business Anderson expected to obtain money that would enable him to discharge the note and mortgage, the court held that the remedy upon the note must fall, because of the taint of the consideration in part.

We have reviewed a great number of cases, and, while they are not all agreed as to what facts are necessary to render a claim founded on an immoral consideration un-collectible through the courts, they are in harmony on the proposition that, where a transaction is had with knowledge, purpose, and effect to aid another in the commission of an unlawful act, a consideration founded upon such transaction cannot be enforced'. We believe the court was in error in rendering judgment for appellee on the facts found by the jury.

The judgment is reversed, and here rendered for appellant.

On Rehearing.

In its motion for a rehearing appellee insists that this court is in error in basing our conclusions upon the assumption that the sale of the goods to Rose Hiayes was made with knowledge as to the character of their intended use, and insists that there is no proof nor contention that any officer of the furniture company knew anything about the use to which the furniture would be put, except as to the first purchase, amounting to $4,415.35, sold by, Mr. Strickland, the manager of the corporation. Appellant points out items constituting subsequent sales amounting to $1,300, and insists that appel-lee should have judgment therefor, because Willingham and Walker, the salesmen who made the sales subsequent to the first, had no acquaintance with appellant, merely knew her to be a customer of the house, had no knowledge of the intended use of the goods, and that all purchases subsequent to the first were made without knowledge of Strickland and at a time when Strickland was out of the city.

Under the findings of the jury, appellee was not entitled to recover. Appellee’s statement that there is no evidence or not sufficient evidence to sustain the findings of the jury is not sustained by the record. There was ample evidence to sustain the findings. Appellee did not raise the question of the sufficiency of the evidence in the trial court, and is not in a position to question its sufficiency here.

The motion is overruled.
      <g=>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    VODRIE v. SCHOEDINGER.
    (No. 5534.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 10, 1915.
    Rehearing Denied Dec. 1, 1915.)
    Guaranty <&wkey;4, 76 — Contract ox Guaranty —Construction—Estop-pel.
    A contract by which material is sold on the order of one party, payment for which is guaranteed by another party, is a contract of guaranty, in spite of an agreement on the part of the guarantor to withhold from funds clue the buyer the amount guaranteed; and the buyer is personally liable, even though the guarantor, having withheld the sum, fails to pay to the seller', and the seller is not estopped by acceptance of the guaranty to sue the buyer.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 3-6, 86; Dee. Dig. <&wkey;>4, 76.J
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by F. O. Schoedinger against H. B. Vodrie and others. From judgment for plaintiff, defendant Vodrie appeals.
    Affirmed.
    O. M. Fitzhugh, of San Antonio, for appellant. Wm. Aubrey and H. M. Aubrey, of San Antonio, for appellee.
   MOURSUND, J.

Appellee sued appellant, and the firm of Waits & Graham for a balance due on a bill of material alleged to have been sold Vodrie at the special instance and request of all of the defendants, all of whom promised to pay the sum charged therefor. The material was to be used by Vodrie in fulfilling his contract with Waits & Graham to install certain, metal work in a building being erected by Whits & Graham as contractors. Waits & Graham made no defense. Vodrie pleaded that the goods were not shipped on his order, but on an order by Waits & Graham; that he received no benefit from the use of said material, and assumed no liability to pay for same; that previous to its being shipped plaintiff demanded and received an order and guaranty of payment for said material signed by Waits & Graham, but not signed by Vodrie, and that said guaranty of payment provided that, if the material was not paid for within 30 days after the date of invoice for same, said Waits & Graham would retain from the amount due by them to Vodrie, under his subcontract on said building, enough to cover the amount due plaintiff for said material; that said material was not paid for within 30 days after date of invoice, an'd that Waits & Graham did retain, from the amount due by them to Vod-rie, enough to cover plaintiff’s claim; and by reason of these facts Vodrie claimed he was not liable to plaintiff.

Judgment was rendered in favor of plaintiff against all defendants, and Vodrie was given judgment over against Waits & Graham. Appellant contends that such judgment is erroneous upon two grounds. His first contention is that he was not primarily and personally liable for the purchase price of the material; and the second is that, if he was liable, then he was relieved of such liability by reason of the fact that Waits & Graham withheld out of money due appellant sufficient to pay the bill, and that, as this was done at appellee’s demand, appel-lee is estopped from asserting that there is any further liability on the part of appellant.

Appellant’s first contention is not sustained by the evidence, which amply sustains a finding that the goods were sold upon an order by appellant. The instrument signed by Waits & Graham shows on its face that the debt is primarily that of Vodrie, and that Waits & Graham guarantee the payment thereof. It is true that in addition they agree that, if the material was not paid for by Vodrie within 30 days after date of invoice, they would, retain from Vodrie’s contract the sum of $438 and forward it at once. Waits & Graham retained sufficient money out of the amount due Vodrie to pay the balance due, but never paid the money to Schoedinger. We'do not think that Vodrie is released from 'liability because of the failure of Waits & Graham to comply with their contract of guaranty. There is nothing in the instrument which makes the firm of Waits & Graham the agent of Schoedinger, but there is a contract by such firm as guarantor binding it to do certain things. They failed to comply with their agreement. Vod-rie assented to the contract of guaranty by using it. Schoedinger exacted of Vodrie that he should not only procure the contractors to guarantee the payment of the bill, but that he should virtually assign to such contractors a portion of his claim against them, so that they could make good their guaranty without having to resort to their own funds, provided he did not pay within 30 days. If he was unwilling to risk compliance by his guarantors with their agreement, he could have refrained from availing himself of that method of procuring the material. We do not think there is any element of estoppel in the case.

The judgment is affirmed.

        &z)For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ELY, C. J.

text:
    DE GARCIA v. CHEROKEE LIFE INS. CO. OF ROME, GA.
    (No. 5515.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 3, 1915.
    Rehearing Denied Dec. 1, 1915.)
    1. INSUBANCE &wkey;>640 — LIFE INSURANCE — SUICIDE as Defense — Pleading — Coboneb’s Finding.
    The allegation of the answer in an action' on a life policy that the coroner found that insured committed suicide presents no defense; his finding not being proof or even evidence of suicide.
    [Ed. Note — For other cases, see Insurance, Cent. Dig. §§ 1554, 1609-1612, 1614-1624; Dec. Dig. <&wkey;640.]
    2. Insubance &wkey;>550 — Life Insurance — Admission of Suicide.
    The sending to insurer by the beneficiary’s attorney, with the proofs of death, of the coroner’s finding of suicide, is not an admission by the beneficiary, who knew nothing of the coroner’s investigation or report of the fact of suicide.
    [Ed. Note. — For other cases, see Insurance; Cent. Dig. §§ 1359-1361; Dec. Dig.. &wkey;550.]
    3. Evidence <&wkey;271 — Insubance — Cause of Death — Declarations.
    An insurer sued on a life policy may not introduce a letter written by its officers stating that insured committed suicide.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. &wkey;271.]
    4. Insurance <@=>659 — Life Insubance — Suicide — Evidence.
    Evidence in an action on a life policy that several years before a brother of insured met a violent death, and another brother charged with' his murder fled, has no bearing on the issue of insured having committed suicide.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1691-1693; Dec. Dig. <@=>659.)
    5. Appeal and Error <&wkey;1050 — Prejudicial Error — Admission of Evidence.
    The evidence being sparce as to insured having committed suicide, erroneous admission of .testimony which must have had a strong influence on the jury is prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068,1069,4153^tl57,4166 ; Dec. Dig. <@=>1050.]

      Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by Amparo C. De Garcia against the Cherokee Life Insurance Company of Rome, Ga. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Graham, Jones, West & George, of Brownsville, for appellant Taliaferro, Cunningham & Birkhead, of San Antonio, and James B. Wells, Joseph K. Wells, J. T. Canales, and Harbert Davenport, all of Brownsville, for appellee.
   ELY, C. J.

This is a suit instituted by appellant against appellee for the recovery of a judgment for $3,000, and interest, besides 12 per cent, damages and $500 as attorney’s fees on a certain life and accident insurance policy executed by the appellee on the life of Emanuel Garcia, a son of appellant. In the policy sued on appellant was named as the sole beneficiary. The policy was for the sum of $1,500 in case of death from natural causes, and for an additional $1,500 in case of death from an accidental cause.

Appellee answered by a general demurrer, a general denial, and defended on the ground that the insured had committed suicide during the first year of the existence of the policy, and that the amount payable to appellant should therefore only be- the reserve on the policy, which is alleged to be $6.11. Ap-pellee also offered to pay, in addition to the $0.11, $52.14, the amount of premium paid on said policy with interest.

The cause was tried by jury; the only issue submitted being whether or not Emanuel Garcia had committed suicide. The verdict of the jury was in favor of appellee, and judgment was accordingly rendered thereon.

In the answer of appellee appears the following:

“That defendant does not and has not willfully refused to pay the amount due to plaintiff on said policy of insurance, but has always been ready and willing to pay the amount so actually due, which is as hereinbefore stated, and was not bound to pay to plaintiff any greater amount upon such policy when demanded by plaintiff, for the reason that the officer appointed by law to investigate violent killings, and who did, in fact, investigate the death of Emanuel Garcia, found the fact to be that he died from a gunshot wound inflicted by him, with the intention of taking his own life. And the officers of the defendant could not, in the exercise of their reasonable discretion and in justice to their policy holders, pay plaintiff’s claim, in the face of such findings.”

That portion of the answer was specially demurred to by appellant, and the overruling of that special exception is the subject of the first assignment of error. We are of the opinion that the court erred in overruling the exception. The answer presented no defense whatever to the suit of appellant. The finding of the coroner as to the insured’s having committed suicide was not admissible in evidence, and, of course, was not admissible in the pleadings. The finding of the justice of the peace that insured committed suicide did not prove that fact. The presumption of the law is that no man kills himself, and evidence tending to show, not what some one else thought about the matter, but that the suicide was actually committed, must be adduced in order to successfully defend on that ground. It is well settled in Texas that a coroner’s verdict is not admissible as evidence, and this is admitted upon the part of appellee. Boehme v. Sovereign Gamp, W. O. W., 98 Tex. 376, 84 S. W. 422, 4 Ann. Cas. 1019. If appellee had no authority to refuse payment of the amount of the policy, then the finding of a coroner could be no justification for refusal to pay the same.

It appears from the evidence that an attorney representing appellant sent to ap-pellee, together with the proofs of death, the finding of the coroner, and it is insisted by appellee that this constituted an admission upon the part of appellant that the insured had come to his death at his own hands. Appellant was responsible for whatever was contained in the proofs of death, she having sworn to the same, but it was shown that she had no knowledge that the coroner had ever investigated the death of her son, and she knew nothing of any report made by him being sent to the company. It is impossible that the act of the attorney, in sending the report, could be distorted into an admission upon the part of appellant that her son had killed himself. In the case of Insurance Co. v. Newton, 89 U. S. (22 Wall.) 32, 22 L. Ed. 793, cited by appellee, there was an admission upon the part of the beneficiary that insured had killed himself, and, of course, that would be admitted as any other admission upon the part of a litigant affecting his interests. That case has no application to the facts of this case. The pleadings should have been stricken out and introduction of the evidence denied by the court. The first and second assignments are therefore sustained.

The third assignment complains of the introduction in evidence of portions of a letter written by the officers of appellee, in which it was stated that the (insured had committed suicide. It is clear that the evidence was inadmissible, and the third assignment is sustained.

The court permitted witnesses to testify to the effect that a brother of Emanuel Garcia had met with a violent death about five years before the death of Emanuel Garcia, and that another brother was charged with his murder and had fled the country. This testimony could have had no conceivable bearing upon the issue of suicide upon the part of insured, and it was error to admit it. The fourth assignment of error is therefore sustained.

We are of the opinion that the erroneous testimony had an effect in shaping the verdict of the jury. The evidence was very sparse as to the insured’s having committed suicide, and the evidence objected to must have had a strong influence upon the jury.

The matters set up in the remaining assignments are not likely to arise on another trial of the case, and therefore need not be considered.

The judgment of the trial court is reversed, and the cause remanded.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SOUTHERN NAT. INS. CO. et al. v. COBB et al.
    (No. 5509.)

    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 27, 1915.
    Rehearing Denied Dec. 1, 1915.)
    1. Insurance <©=>278 ■ — Fire Policy — Warranty as to Use.
    The provision in a policy insuring a building “while occupied as the Park Terrace Sanitarium” is not a warranty that the building will continue to be used as a sanitarium, in view of a ten-day vacancy clause and provision of the mortgage clause that a change to a more hazardous occupancy than the one mentioned in the policy would not affect the rights of the mortgage, indicating that it was contemplated that a change in occupancy, except to a more hazardous one, was permitted by the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 593; Dec. Dig. <©=>278.]
    2. Insurance <©=>278, 279 — Eire Policy — ‘ ‘Vacant’ ’ — “Occupiíed . ’ ’
    The usual distinction between vacancy and cessation of occupancy in a fire policy is that the first is used to indicate the removal of the furniture and individuals, and the second a change of the uses of the building — “vacant” meaning entire abandonment, deprived of contents, empty; and “occupied” implying an actual use by some person of such character as ordinarily pertains to the purpose to which the building is adapted or devoted.
    [Ed. Note. — Por other eases, see Insurance, Cent. Dig. §§ 593, 594; Dec. Dig. <©=>278, 279.
    For other definitions, see Words and Phrases, First and Second Series, Occupied, Vacant.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by R. S. Cobb against the Southern National Insurance Company and others. From a judgment for plaintiff and parties impleaded, defendants appeal.
    Affirmed.
    Templeton, Brooks, Napier & Ogden, of San Antonio, and Crane & Orane, of Dallas, for appellants. Boyle & Storey, McFarland & Lewright, and W. H. Kennon, all of San Antonio, for appellees.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

This suit was instituted by R. S. Cobb against the Washington Fire Insurance Company, Spring Garden Insurance Company, Southern National Insurance Company, Scottish Union Insurance Company, and J. O. Lamkin to recover on two promissory notes, each for $1,000, and to foreclose a vendor’s lien, said notes having been given to Mrs. W. E. Wright for an undivided one-half in a five-acre tract of land known as Park Terrace. It was alleged that the notes were due and unpaid, and that the insurance companies were claiming an interest in the land; that the companies had given policies of insurance on certain improvements on the land payable to J. C. Lamkin, with a mortgage clause in favor of Mrs Fannie Blum as her interest might appear; that she held a mechanic’s1 lien against said property, and when it was burned the insurance companies had paid the amount of her debt and claimed to have thus settled all for which they were liable on the policies. They pleaded the provisions of the policies, and contended that Lamkin had forfeited all his rights under the policies by reason of changing the uses to which the building was to be put and leaving it vacant for more than ten days. The court instructed a verdict for Oobb, Lamkin, and the Wrights, and upon the verdict judgment was rendered. For a more complete statement reference is made to the statement given on a former appeal of this case. Insurance Co. v. Cobb, 163 S. W. 608. The uncontradicted evidence showed that Lamkin did not breach any warranty in the policies of insurance, and that appellants were liable for the amount of the policies.

It is the contention of appellants that the following language in the policies of insurance formed a continuing warranty:

“On the two-story, frame, shingle roofed building, including foundations, awnings (except cloth awnings), all permanent piping and fixtures, for heating, lighting and water service, while occupied as The Park Terrace Sanitarium situated,” etc.

—and that the failure to use the same as “the Park Terrace Sanitarium” was a violation of the warranty, and, whether material or not, caused a forfeiture of the policies. It has been laid down as the rule in many cases that a clause in the application or policy stating the purpose for which the building is to be used is not a continuing warranty, but matter of description only, or, at the farthest, only a present warranty that the house is being so used. Gooley, Briefs Law Ins. p. 1624 et seq., and authorities cited. There are other authorities to the effect that the description of the uses to which the insured building is being put is a warranty merely in prsesenti, and is not a continuing warranty that the building shall be so used, and the mere falsity of the 'representation is not material unless the failure to occupy the building as represented occasions the loss. Joyce, Ins. § 2101 et seq. A warranty that the building was being used as a sanitarium was not a warranty that it should be so used during the entire risk, or that the use or occupation should not be changed. There is no provision for forfeiture if the occupation was changed, or the house became vacant, but, on the other hand, the provision as to a ten-day vacancy indicates that it was within the contemplation of the parties that the building might become vacant or unoccupied for at least ten days. Again, it appears from the mortgage clause that it was contemplated that there might be a change in the occupancy without a forfeiture of the policies, unless the changed occupancy of the premises was more hazardous than was permitted by the policy. If this was not in contemplation by the parties, it was utterly useless and unnecessary to provide that a change to a more hazardous occupancy than the one mentioned in the policies would not affect the rights of the mortgagee. The words “while used” might indicate that the policies should be in effect only during the time the building was used as “the Park Terrace Sanitarium,” but such a construction is utterly inconsistent with the further provisions as to a ten-day vacancy and a more hazardous use or “occupation of the premises for the purposes more hazardous than are permitted by this policy.” That inconsistency would at least raise doubts as to whether the descriptive words used in the policies were intended as a warranty, and such doubts would be resolved in favor of the insured. It must be held that vacancies and changes of occupancy were contemplated by the parties when the policies were executed, and, the evidence failing to show that the building had been vacant for ten days or had been occupied for more hazardous purposes, the court did not err in refusing to instruct a verdict for appellants and in instructing in favor of appellees. Ins. Co. v. Kempner, 87 Tex. 229, 27 S. W. 122, 47 Am. St. Rep. 99.

The usual distinction drawn between vacancy and a cessation of occupancy is that the first is used to indicate the removal of furniture and individuals from a house, and the other a change of the uses of the building. Insurance Co. v. Brady, 41 S. W. 513; Insurance Co. v. Cobb, 163 S. W. 608. Under the weight of authority “vacant” means entire abandonment, deprived of contents, empty. “Occupied” implies an actual use by some person or persons, of such character as ordinarily pertains to the purpose to which the building is adapted or devoted. Cooley, Ins. Briefs, pp. 1663, 1664. The building in this case was never entirely abandoned for ten days, but at all times the furniture was retained and people lived in it, and while, if it be admitted that it was not occupied for some time as a sanitarium, it was occupied as a home, which was not shown to be more hazardous than its occupancy as a sanitarium. The language of the policy further shows that a change of occupants1 could be made if it was done “without an increasing hazard,” indicating that changes not only in occupancy, but in occupants, could be made if the hazard was not thereby increased.

Our views, as herein expressed, dispose of all the assignments. If change of occupancy and occupants would not forfeit the policies, unless the hazard was increased by the change, the eleventh and twelfth assignments cannot be sustained, for the reason that ap-pellees would have the right to show that the hazard was not increased by the change, and so bring the change within the terms of the contracts of insurance. We can see no valid objection to the evidence referred torn the thirteenth assignment of error.

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


author: ■ HIGGINS, J.

text:
    EL PASO & S. W. CO. v. CHISHOLM.

    (No. 527.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 11, 1915.
    Rehearing Denied Dec. 2, 1915.)
    1. Constitutional Law <§=>305 — Dps Process oe Law — Notice—Jurisdiction.
    No judgment of a court is due process of law if rendered without jurisdiction in the court' or without notice to the party.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 925-927; Dec. Dig. <§=> 305.]
    2. Courts <<3=>7 — Jurisdiction—Transitory Actions — Personal Injuries.
    A state court may entertain jurisdiction of an action for personal injuries suffered by a citizen of the state in another state; such action being transitory and maintainable wherever a court may be found that has jurisdiction of the parties and subject-matter.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31; Dec. Dig. <§=>7.]
    3. Railroads <§=>33 — Foreign Corporations —Service oe Process.
    The state court has jurisdiction of an action for personal injuries to a citizen of the state suffered by the negligence of a railroad company operating in another state, where service was had upon its general manager located in this state; Rev. St. 1911, art. 1861, providing that in any suit against a foreign corporation process may be served on its general manager or any local agent within the state, and it not being essential to the validity of the service that defendant should have expressly authorized its general manager to receive service of process.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 70, 71; Dec. Dig. <§=>33.]
    4. Railroads <§=>33 — Foreign Corporations —“Doing Business witiiin State.”
    Where the managing officers of a foreign railroad corporation reside in this state, where they maintain their offices, and carry on business of the company which is executive and departmental in its nature, the railroad company is “doing business within the state.”
    [Ed. Note. — F'or other cases, see Railroads, Cent. Dig. §§ 70, 71; Dec. Dig. <@=^>33.
    For other definitions, see Words and Phrases, First and Second Series, Doing Business.]
    5. Railroads <§=>33 — Foreign Corporations —Service oe Process — Agents.
    Where the general manager of a foreign railroad company doing business within the state maintained a residence and business office in the county, service upon such general manager confers jurisdiction, since such agent represented the corporation in its business within the state.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 70, 71; Dec. Dig. <§=33.]
    6. Courts <§=>511 — Jurisdiction—Comity-Cause oe Action.
    Jurisdiction in one state of a cause of action arising in another state in transitory causes of action is exercised upon principles of comity.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1432; Dec. Dig. <§=>511.]

      Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by William CMsbolm against tbe El Paso & Southwestern Company. Erom an order dissolving an injunction restraining tbe prosecution of tbe suit, defendant appeals.
    Affirmed.
    Cbisholm filed suit against tbe El Paso & Southwestern Company in tbe district court of El Paso county, Tex., cause numbered 12540, to recover damages alleged to have been sustained through personal injuries received by him. He alleged that he was a citizen of said county, and while in the employment of the company in the operation of one of its trains engaged in interstate commerce in the state of New Mexico was injured through the negligence of said company. In this suit citation was issued and served in El Paso county upon H. J. Simmons, the general manager of the company. Thereupon, the company filed in said court this suit, wherein it sought to restrain the prosecution of cause No. 12540 on the ground that the service of citation therein was not such as would give the court jurisdiction of the suit.
    Appellant alleges that it is a railroad corporation, incorporated under the laws of the state of New Jersey, and operates a railroad in both interstate and intrastate commerce, which lies wholly in the state of New Mexico, connecting at the boundary line between the state of Texas and the state of New Mexico, with a line of railroad operated and owned by the El Paso & Northeastern Railroad Oompany, a corporation incorporated under the laws of Texas, and which runs from said point of connection to the city, of El Paso, in El Paso county, Tex., and over which freight, passengers, mail, and express originating upon appellant’s line of railroad pass to and from El Paso in interstate commerce and appellant participates in such interstate commerce with the El Paso & Northeastern Railroad Company by means of a division of revenue, but does not transport or handle in the state of Texas any commerce; that appellant is required under the laws of New Mexico to have and maintain, and does have and maintain, therein its principal office and place of business and an agent thereat, upon whom service of process might be had, the place of such office and principal place of business and the name of the agent thereof being stated in the petition; that appellant maintains and operates its trains and its railroad in the state of New Mexico by and through a superintendent and trainmaster therein, which superintendent resides and has his office and transacts all of his business pertaining thereto at and from the town of Tucumcari, in New Mexico, and the train-master resides and has his office and transacts all of his business in the town of Carrizozo, in New Mexico, and all trains and employes of appellant engaged in the operation of its trains and railroad are at all times while in such state under the direction and control of said officials; that appellant has never in any way constituted or appointed the said Simmons as its agent upon whom legal process might be served, and at the time of the service of citation in case No. 12540 he was not the agent of appellant for such purpose, except to the extent that he was legally made such under and by virtue of the statutes of the state of Texas.
    Appellant averred further that, under the' Constitution and laws of the United States, Chisholm was without right to sue it upon his alleged cause of action, arising, as it is claimed, in the state of New Mexico, by virtue of the service of process upon said general manager, and it was claimed that said suit could only legally be brought and maintained with service had in New Mexico, and that the bringing and maintaining of the suit in a Texas court and requiring appellant to answer therein under such service so made upon its general manager was not due process of law, and was contrary to the Fourteenth Amendment to the federal Constitution, and any judgment therein rendered against it would be to deprive appellant of its property without due process of law. Other allegations made are not considered pertinent to the consideration and dispositions of the questions presented, and will not be stated. The averments of fact contained in the allegations stated will be assumed as true for the purpose of this appeal.
    The following facts are also established by the undisputed testimony of appellant’s officers, viz.: Mr. Hawks testified that during the time Simmons was general manager he was a resident of El Paso, Tex., and had his general office in said city; that he was general manager of the company for a number of years, and during all this time he executed all functions as general manager, performing those duties in El Paso; that he (Hawks) was general superintendent' of the company in the month of August, 1915, and performed the duties of general superintendent in El Paso; the company had no general superintendent of its lines in New Mexico; he had supervision over the men and their work; during the time he was general superintendent he had supervision over all the employes running and operating the road in New Mexico; he had acted as general superintendent from April, 1907, up until September 1, 1915, when he succeeded Mr. Simmons, during all of which time he maintained his office in El Paso and performed his duties as superintendent therein and on the line. El Paso was the only place at which he maintained an office. The superintendent and trainmaster in New Mexico were under his supervision and instruction. Mr. Simmons, as the ranking officer, would issue instructions, which would come to the witness, who would then issue instructions to the trainmasters, superintendents, and others. Instructions were also issued as to men in Arizona, Texas, and New Mexico. Superintendents reported to him. He and Mr. Simmons had the right to discharge the New Mexico superintendent or any other employs of the company in New Mexico, and exercised the right in many instances from his office in El Paso. The general passenger agent of appellant maintains offices in El Paso, as does the general claim agent also. The treasurer maintains an office there and performs his duties there. The general superintendent of motive power of appellant has an office in and resides in El Paso. A. L. Hawley testified that he was the general auditor of the El Paso Southwestern System and that there were about nine roads embraced in that system. There were four operating roads — the appellant and three others. Appellant had no other auditor than himself, and its accounts were kept in his office. He performed all the duties of general auditor of appellant in El Paso. It was agreed by counsel that 90 per cent, of the business of the El Paso Northeastern Railway Company and of the appellant is interstate business.
    Mr. Simmons’ connection with the company ceased September 1, 1915, when he was succeeded by Mr. Hawks. Chisholm’s suit was filed July 12, 1915, and citation thereon was issued and served upon Simmons while he was general manager of the company.
    In the court below a temporary injunction was issued, which was thereafter dissolved, and from the order of dissolution, this appeal is prosecuted.
    Hawkins & Franklin and W. M. Peticolas, all of El Paso, for appellant. Geo. E. Wallace and P. E. Gardner, both of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   ■ HIGGINS, J.

(after stating the facts as above). It is contended that, while the statutes of the state of Texas make the general manager the agent upon whom service of process may be had, yet, in the absence of an appointment by defendant, of such general manager as one upon whom service of process might be had, such statute is not valid or effective as to causes of action arising in another state against a foreign corporation ; that any judgment which might be rendered against the defendant in cause No. 12540 upon the cause of action therein asserted, which arose outside of the state and with service only upon a statutory agent, made such by the laws of the state of Texas, would not be due process of law under the Fourteenth Amendment to the federal Constitution. “No judgment of a court is due process of law if rendered without jurisdiction in the court, or without notice to the party.” Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896; Old Wayne Mutual Life Association v. McDonough, 204 U. S. 8, 27 Sup. Ct. 236, 51 L. Ed. 345.

The question manifestly resolves itself into a consideration of whether the district court of El Paso county, in the state of Texas, has jurisdiction over the subject-matter and person of defendant in the suit filed by Chisholm.

In Railway Co. v. Sowers, 213 U. S. 55, 29 Sup. Ct. 397, 53 L. Ed. 695, Mr. Justice Day, delivering the opinion of the court in that case, said:

“An action for personal injuries is universally held to be transitory, and maintainable wherever a court may be found that has jurisdiction of the parties and the subject-matter.”

This principle of law is so well established that further citation of authority would be a matter of supererogation. So far as relates to the subject-matter, the Texas court indubitably has jurisdiction.

Under the facts established by the testimony of Hawks and Hawley, it can admit of no question, in our opinion, that jurisdiction of the party was likewise acquired by the service of process upon the general manager, Simmons. Article 1861, R. S., provides that in any suit against a foreign corporation citation or other process may be served on its president, vice president, secretary, treasurer, general manager, or any local agent within the state. The service upon Simmons is expressly authorized by this statute, and the authority of the state to so provide is abundantly supported by the court of last resort in such matters. The contention that it was essential to the validity of the service that appellant should have expressly authorized Simmons to receive service of process has been unequivocally repudiated. Mr. Justice Day, in Commercial Mutual Accident Co. v. Davis, 213 U. S. 245, 29 Sup. Ct. 445, 53 L. Ed. 782, says:

“It is not necessary that express authority to receive service of process be shown. The law of the state may designate an agent upon whom service may be made, if he be one sustaining such relation to the company that the state may designate him for that purpose, exercising legislative power within the lawful bounds of due process of law.”

To the same effect is Connecticut Mutual Life Ins. Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569.

It would be a very difficult matter to formulate a definition of what constitutes doing business in a state by a foreign railroad corporation applicable in all instances, and the question may be best determined upon the facts arising in each case as it presents itself. Here from the testimony of Hawks and Hawley it is apparent that the company, through Simmons and its other officers and agents, was doing business in Texas. It appears that its managing officers and agents reside in El Paso county, maintain their offices there, there transact the ■business of the company confided to them, and that such business is executive and departmental in its nature, is most important, and in every respect must be considered company business. Surely, this may safely be treated as doing business by the company in Texas. Railway Co. v. Alexander, 227 U. S. 218, 33 Sup. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77; Com. Mut. Acc. Co. v. Davis, 213 U. S. 245, 29 Sup. Ct. 445, 53 L. Ed. 782; Conn., etc., v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569; Railway Co. v. Demere, 145 S. W. 623.

So it remains only to be determined whether the general manager in this case was such an agent as the state might lawfully designate as one upon whom service of process might be had. Upon this phase of the case it is settled that service of process upon foreign corporations doing business within the state may be had upon an agent who- there represents the corporation in its business (Peterson v. Railway Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 841; St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222; Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517; Conley v. Mathieson Alkali Works, 190 U. S. 406, 23 Sup. Ct. 728, 47 L. Ed. 1113; Railway Co. v. Cox [Sup.] 157 S. W. 745); and, as has been seen, appellant was doing business in this state, and in the transaction ¡of its business was represented by its general manager, Simmons, who had his residence and business office in the county where the suit was brought. Service upon Simmons was sufficient (Railway Co. v. Alexander; Com. Mut. Acc. Co. v. Davis; Conn., etc., v. Spratley; Railway Co. v. Demere—all supra).

It thus follows that the court had jurisdiction of the subject-matter and parties, and the injunction against the prosecution of the suit was properly dissolved.

Appellant insists that the rules of law and decisions to which we have adverted have been overruled by the decision of the Supreme Court of the United States in the recent case of Simon v. Southern Ry. Co., 236 U. S. 115, 35 Sup. Ct. 255, 59 L. Ed. 492, and it is thereby now established, that the power of the state to designate by statute' an individual upon whom service of process may be had in suits against foreign corporations is limited to causes of action arising upon business transactions transpiring and torts committed within the state enacting such law; and as to all other causes of action against such corporations service of process even upon any agent will not confer jurisdiction, unless such agent has been authorized by the corporation to receive process in its behalf.

The Simon Case is the only one of the number cited by appellant which can be considered as in any wise upholding the position assumed, and what we regard as the proper interpretation of the opinion therein rendered does not sustain appellant. It was there held in a suit brought in Louisiana against a foreign corporation, upon a transitory cause of action arising in Alabama, that service of process upon an Officer of the state of Louisiana, under a statute of that state authorizing such service, was not effective to give the courts of Louisiana jurisdiction, and the judgment rendered violated the due process clause of the Constitution. There was no Voluntary agency relationship whatsoever existing between the officer so designated and the corporation. His authority to receive service of process arose by virtue of the statute alone. In passing upon this state of facts, the Supreme Court simply held that the power of the state to designate one who was in no wise connected with the defendant corporation as one upon whom service of process might be had, if it exists at all, is limited to causes of action arising out of business and transactions transpiring within the state. It did not hold that the state was without authority to designate a duly accredited agent of the corporation located within the state, and there transacting the business of the corporation as a proper person upon whom service of process could be had.

It may be conceded that broad language is used in the Simon Case, but to give it literal application upon the facts presented here would be in conflict with rules of law established by numerous decisions of the Supreme Court over a long period of time. As to corporations it would overturn the universally accepted rule that an action upon ai transitory cause of action is maintainable wherever a court may be found having jurisdiction of the parties and subject-matter. If it was the intention of the court in the Simon Case so radically to change universally accepted principles and its own unbroken line of authority, it would doubtless have done so in no uncertain terms, and not by implication merely.

It is further asserted by the appellant that jurisdiction in one state of a cause of action arising in another state, even in transitory causes of action, is exercised only upon principles of comity, and in the instant ease should be denied. No reason is apparent why in this case recognition should be denied of the principle of comity indicated.

The court below did n'ot err in dissolving the injunction theretofore issued, and its judgment is affirmed.
      <@r=For other oases see same .topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HADU J.

text:
    PERRY v. SMITH.
    (No. 844.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1915.)
    Sales <s=>128 — Contract — Rescission — Evidence.
    Where a purchaser of a piano told the seller that he could not pay for it and that he wanted him to take it back, and the seller told him to keep it for a while and they would decide what ■a reasonable compensation for its use was, and that the purchaser should then pay for cartage, .and the seller would then return to the purchaser his notes given for the price, there was no rescission of the contract, so that the seller was still •entitled to recover on the notes.
    [Ed. Note. — P'or other cases, see Sales, Cent. Dig. §§ 257, 277, 318, 320, 321; Dec. Dig. <§=> 128.]
    Appeal from District Court, Hemphill ■County; E. P. Greever, Judge.
    Action by Earl B. Smith against J. S. Per•ry. Eram a judgment for plaintiff, defend.ant appeals.
    Affirmed.
    H. E. Hoover and J. L. Jennings, both of 'Canadian, for appellant. Baker & Willis, of ■Canadian, for appellee.
   HADU J.

Appellee sued appellant upon four promissory notes in the sum of $119.16 ■each, payable to the order of Earl B. Smith Music Company, and given for the purchase price of a certain piano. The notes provided for interest, attorney’s fees, and were secured by chattel mortgage on the instrument. There was a prayer for the amount sued for and a' foreclosure of the lien. Defendant’s answer consisted of general and special demurrers, general denial, and after admitting the execution and delivery of the notes, pleaded that thereafter he went to the payee and advised him that he was unable, to pay for the piano, whereupon an agreement was entered into between the parties, whereby the piano should be returned to appellee, and the notes surrendered and canceled. It was further alleged that the appellee told appellant to keep the piano at his house until appellee called for it, at which time they would adjust ,the matter of compensation for the use of the piano.

The evidence of Perry shows that the minds of the parties did not meet upon the agreement to rescind. It shows that a rescission might be effected when the notes were returned and an agreement between the parties made as to a reasonable amount to be paid by Perry for the use of the instrument, and that Perry was also to pay the cartage. No agreement was ever entered into as to what .amount was reasonable. There was nothing more than an understanding that Smith should accept the return of the piano at some future time, not stated, provided the appellee could regain ownership of the notes which he had hypothecated; and provided, further, Perry would return the instrument at Ms own expense and pay a reasonable amount for the use thereof while in his possession. Simpkins on Contracts (3d Ed.) pp. 16, 21; Summers v. Mills, 21 Tex. 78; Jackson v. Butler, 51 S. W. 1097; Hubbard City Cotton Oil Co. v. Nichols, 89 S. W. 705; City of Sherman v. Connor, 88 Tex. 40, 29 S. W. 1053; San Antonio, etc., Co. v. Marx, 87 S. W. 1166; Ingham v. Cisco Oil Co., 38 Tex. Civ. App. 608, 86 S. W. 630.

Several other assignments of error relating to the exclusion of evidence are presented in appellant’s brief, which are without merit or in the light of what has been said are immaterial in the decision of the case.

The court did not err in directing a verdict, and the judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes