author: HALL, J. BOYCE, J.

text:
    CALIFORNIA STATE LIFE INS. CO. v. ELLIOTT.
    (No. 1129.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1917.
    Rehearing Denied April 11, 1917.)
    1. Vendor and Purchaser <&wkey;267 — Vendor’s Lien — Release—“Balance Due.’;
    Where a deed from a vendor who received vendor’s lien notes in payment pi’ovided that the purchaser upon payment of one-tenth of the balance due upon the notes, though made after maturity, would be entitled to a release of the vendor’s lien on a proportional part of the land to be designated by him, the phrase “balance due” includes principal and unpaid interest due on the notes at the date of the payment (citing Words and Phrases, Balance Due).
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758.]
    2. Tender &wkey;12(2) — Sufficiency.
    Where a man does not know exactly what sum is due, he must at his peril take_ care to tender enough, and a deficient tender gives him no rights.
    [Ed. Note. — For other cases, see Tender, Cent. Dig. § 22.]
    3. Tender &wkey;9 — Time oe — Common-,Law Rule.
    While at common law a tender must be made before suit is filed, the rule that tender may be made after default is now almost wholly universal, and tender at any time before suit save in cases where time is the essence of the contract is good.
    [Ed. Note. — For other cases, see. Tender, Cent. Dig. §§ 13-19.]
    4. Contracts &wkey;147(3) — Construction — Canons.
    That construction should be given a contract which will harmonize and give an interpretation to each clause consistent with the meaning of the rest of the instrument.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 730, 743.]
    5. Vendor and Purchaser <&wkey;267 —Agreements — Construction.
    Where a deed to land in payment for which the vendor received vendor’s lien notes provided that the purchaser on payment of one-tenth of the balance due on the notes might secure a release of the vendor’s lien on a proportional part of the land to be designated by him, the purchaser cannot after default and institution of foreclosure suit pay one-tenth of the balance due and demand a release on the lien on a proportional part of the land: such agreement being only collateral to the main purpose of the contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758.]
    Boyce, J., dissenting in part.
    Appeal from District Court, Deaf Smith. County; D. B. Hill, Judge.
    Action by the California State Life Insurance Company against Robert Elliott. From, the judgment, plaintiff appeals.
    Reversed and remanded.
    Veale & Lumpkin, of Amarillo, for appellant. Gilliland & Estes, of Hereford, for ap-pellee.
   HALL, J.

Appellant-.insurance company sued the appellee to recover' the principal, interest, and attorney’s fees upon three vendor’s lien notes and to foreclose the lien upon certain town property situated in the city of Hereford, alleging that on June 28, 1909, for á valuable consideration, defendant executed and delivered to A. A. Moody three certain promissory notes, the first in the sum of $500, the second for the sum of $400, and the third for the sum of $500, each due and payable at Hereford, Tex., after one, two, and three years, respectively, all bearing interest at the rate of 10 per cent, per annum from date, and containing a provision that in the event of default in the payment of either of said notes 'or any installment of interest when due, and said notes are placed in the hands of an attorney for collection, an additional charge of 10 per cent, on the principal and interest should be added as attorney’s fees; that each of said notes were given for a part of the purchase money of the west half of block 8 of Evants addition to the town of Hereford, in Deaf Smith county, Tex., which said land was conveyed to the defendant by the said Moody and wife on the 28th day of June, 1909, by a deed of general warranty in which the vendor’s lien was expressly retained on said property to secure the payment of said notes; that afterwards, on or about February 21, 1911, the said Moody, by an instrument in writing, sold, assigned, and conveyed to the Amarillo National Life Insurance Company the above-described notes and lien, and afterwards, to wit, on or about the 7th day of April, 1916, the said Amarillo National Life Insurance Company for a valuable consideration sold and transferred to plaintiff each of the said notes and lien by written transfer; that on or about the 9th day of September, 1916, and after the maturity of all of the notes, the defendant, Robert Elliott, for a valuable consideration, made, executed, and delivered to the Amarillo National Life Insurance Company his certain instrument in writing, whereby the time of the payment of the above-mentioned notes was extended until the 28th day of June, 1916, and the vendor’s lien therein mentioned was renewed, and in said instrument the defendant obligated himself, in consideration of the extension of time granted him in which to pay said three notes, to pay the same on June 28,1916, according to the terms and provisions thereof; that- said extension was duly recorded in the deed records of Deaf Smith county; that said notes are long past due; that plaintiff is the owner and holder of the same, no part of which has ever been paid except certain credits mentioned and described in the pleadings; that by reason of the defendant’s failure to pay said notes it was compelled to place same in the hands of its attorneys for collection; that by reason thereof the defendant became liable to plaintiff for the principal, interest, and attorney’s fees due upon said notes; and that, although said sums are long past due and payable, and although the defendant has been requested to pay the same, he has failed and refused to pay either of said notes or any part thereof.

Defendant answered by general demurrer, general denial, and by special answer, in which he admitted the execution and delivery of the notes and his liability thereon, and that under and by virtue of the provisions in the deed from Moody and wife to him he was entitled to have released from plaintiff’s vendor’s lien a certain part of the lands therein conveyed, to be designated by him, and in said answer designated one-half an acre situated on the west part of said block; that the provision in the deed from Moody is as follows:

“But it is expressly agreed and stipulated that the vendor’s lien is retained against the above-described property, premises, and improvements until the above-described notes and all interest thereon are fully paid according to their face and tenor, effect, and reading, except that vendor agrees to release such a proportional part of said land when payment shall be made amounting to not less than one-tenth part of the balance due, when this deed shall become absolute.”

Defendant further alleges that on December 2b', 1913, he paid on the above-mentioned notes the sum of $101.46, which amount was credited on note No. 1, and that on June 26, 1916, he tendered the appellant the sum of $49.10, requesting a release of the vendor’s lien upon the one-half acre of land above mentioned, which tender and request was by the appellant refused, and that by the terms of said deed and by virtue of said payment and tender the defendant had paid and delivered to plaintiff a one-tenth part due on said note, and by reason thereof was entitled to defeat plaintiff’s lien against the above-described one-half acre of land; that the $49.10 is here tendered to plaintiff; that after he had purchased said property he built a residence upon the west one-half acre of the block, and has used and occupied the same since said time as his homestead; and that by reason thereof he was entitled to a cancellation of plaintiff’s vendor’s lien against the one-half acre of land above mentioned.

By supplemental petition plaintiff alleged that defendant was in law and in equity estopped from setting up any defense for the reason that on or about the 9th day of September, 1915, and after the maturity of the note sued upon, and after the defendant had paid the sum of $101.46 on December 26,1913, on note No. 1, that the defendant made, executed, and delivered to the Amarillo National Life Insurance Company, the then owner of said notes, a contract in writing, wherein the time of payment of said notes was extended to June 28, 1916, and the vendor’s lien retained to secure said notes renewed, and that defendant by said contract guaranteed to pay said notes according to their terms and provisions, and acknowledged such notes, due and owing, and acknowledged the validity of the vendor’s lien, which said renewal contract was duly recorded in the deed records of Deaf Smith county. Plaintiff introduced in evidence the three notes described in the petition, note No. 1 showing a credit of $101.46 December 26, 1913, and each of the notes showing a credit of all interest due on December 28, 1913. Plaintiff also offered in evidence a deed from Moody and wife to Robert Elliott, dated June 28, 1909,-conveying the block of land in question and describing the three notes sued upon; a written transfer of the three vendor’s lien notes executed by Moody to the Amarillo National Life Insurance Company and a transfer by said Amarillo National Life Insurance Company to the appellant company of the same notes, together with the vendor’s lien; also the renewal and extension agree-, ment made with Elliott dated September 9, 1915. The record contains a written stipulation by the attorneys that on June 26, 1916, defendant Elliott tendered plaintiff $49.10, and that on December 23, 1913, he paid $101.46 on note No. 1, and that at the time of the tender of said $49.10 the defendant demanded a release of part of the block No. 8 of Evants’ addition to the town of Hereford, and being described in his- answer, which tender plaintiff refused to accept and still refuses to accept, and waived the tender of said sum of $49.10 into open court; that the one-half acre of land described in defendant’s answer has improvements upon same of the value of $3,000, which have been placed upon said land since the date of said notes; that the defendánt is a married man and erected said improvements upon said land and moved thereon with his family in the" year 1910, for the purpose of making it his home, and has resided there since said date; and that the remaining 4% acres -of land are worth between $200 and $300 per acre.

A jury was waived, and a trial before the court resulted in a judgment in favor of the plaintiff insurance company against the defendant in the sum of $1,881.93, being the amount of the principal, interest, and attorney’s fees due upon said notes, decreeing a foreclosure of the vendor’s lien against 4% acres of the land, and denying a foreclosure as against the one-half acre upon which the improvements were situated and described in the defendant’s answer, and canceling the lien as to said half acre.. This judgment is dated November 17, 1916. On November 18, 1916, there- was entered what is styled a “corrected judgment,” which in its terms is identical with the original judgment, except that it cancels the lien upon the west one-half acre of land upon defendant paying into court the sum of $190.21.

The third assignment of error is that the court erred in holding that, under the clause and provision contained in the - deed from Moody and wife to the defendant, Elliott, to the effect that the payment of one-tenth of the balance due upon said notes could be made after their maturity, when so paid defendants would be entitled to a release of the vendor’sdien on the proportional part of said land, to be designated by him. Under the provision in the deed before appellee could demand a release of one-tenth of the land he must have paid, or tendered, not less than one-tenth of the “balance due.” The balance due on June 26, 1916, included the principal and unpaid interest on that date. 1 Words and Phrases, 679; Appeal of Sinclair, 116 Pa. 316, 9 Atl. 637. On December 26, 1913, after appellee had paid $101.46, which was credited on note No. 1, there remained due and unpaid the principal sum of $1,298.54.

The notes provide that the interest at the rate of 10 per cent, is payable annually, and in default of the payment of the interest when due it shall be added to the principal and bear interest at the rate of 10 per cent. Calculated upon this basis, there was due on the notes June 26, 1916, when apipellee tendered the sum of $49.10, the full amount of $1,649.78. If we include the $101.46 paid December 23,1913, the amount paid, together with that tendered June 26, 1916, amounts to $150.56. Ten per cent, of the amount due on that date is $175.12. Adding the amount paid to the amount tendered, it is clear that appellee had not paid and tendered 10 per cent, of the “balance due” on June 26, 1916.

“A debtor must tender the entire sum due, and nothing short of an offer to fully perform by a tender of everything the creditor is entitled to receive is sufficient.” Hunt on Tender, § 186.
“It has been decided repeatedly, where a man does not know exactly what is due, he must, at his peril, take care to tender enough. A mistake in tendering an amount less than the sum' due is the misfortune of the tenderer, and cannot have the same legal effect as a tender of the full amount due. The general rule is that the amount of the deficiency does not make any difference. Where the amount tendered was 41 cents short of the amount due, the tender was hold bad. So where the amount due was $649.-44, and the deficiency was 70 cents, the tender was held not good.” Hunt on Tender, § 195; 38 Cyc. 137; 3 Elliott on Contracts, § 1960; 28 A. & E. Enc. of Daw, 17.

There is some conflict in the authorities concerning the right of the tenderer to the release when the tender is made after maturity of the debt and before suit to foreclose is. instituted. In Chrisman v. Hay (C. C.) 43 Fed. 552, it is held that, although the debt has matured, the tender may be made at any time before suit is begun. The following authorities hold that the privilege cannot be exercised after maturity of the debt and default. Reed v. Jones, 133 Mass. 116; Verner v. Tuch, 52 Hun, 269, 5 N. Y. Supp. 219; Clarke v. Cowan, 206 Mass. 252, 92 N. E. 474, 138 Am. St. Rep. 388; Brown v. Cleveland Trust Co., 30 Ohio Cir. Ct. R. 364; Fulton v. Jones, 167 App. Div. 765, 153 N. Y. Supp. 87; Baldwin v. Benedict, 111 Iowa, 741, 82 N. W. 956; 1 Jones on Mortg. p. 1051; Woodburn v. Gannon, 36 N. J. Eq. 69.

In Chrisman v. Hay, supra, in discussing the right of Mrs. Hay to redeem after maturity of the debt, the court said:

“It now appears that she is no longer endeavoring to carry out her contract with com.plainants. The payments are largely in arrears, and the case is ripe for a foreclosure and sale. Under such circumstances it would work a fraud upon the rights of complainants if it were held that the mortgagor, while wholly in default on her part, should be permitted to select out the more valuable lots from the mortgagor’s tract, and redeem them, leaving the less valuable unredeemed.”

Under the common-law rule a tender must be made before suit is filed where no time is fixed for payment. 3 Elliott on Contr. § 1963; 38 Cyc. 149, d.

“The common-law rule that a tender cannot be made after a default has been changed in some states by statute or by the decisions of the court of last resort. In case of money demands, where the amount is liquidated or capable of being made so by mere computation, and the damages are merely the interest, the rule that a tender may be made after a default is now almost if not wholly universal. And where such a rule obtains a tender of the amount due, with interest to date, may be made at any time before suit, except in cases where time is of the essence of the contract and the circumstances will not warrant a court of equity in relieving the party from the consequences of his default.” Hunt on Tender, § 281.

We think this rule has been adopted in this state and is applicable to the instant case. Pell v. Chandos, 27 S. W. 48; Bolton v. Gifford, 45 Tex. Civ. App. 140, 100 S. W. 210.

That construction should be given a contract which will harmonize and give an interpretation to each clause consistent with the meaning of the rest of the- instrument. Hearne v. Gillett, 62 Tex. 23. Clarke v. Cowan, 206 Mass. 252, 92 N. E. 474, 138 Am. St. Rep. 388, is a case involving the construction of a contract in many features similar to the one under consideration. Morton, J., said:

“Moreover, it was, we think, a privilege to be exercised before the mortgage debt became due according to the terms of the mortgage. Until that time, except for some such arrangement, the mortgagee would not have been bound to accept any payment which the mortgagor might desire to make, and when the debt became due there was no longer any necessity for the continuance of the agreement, since the mortgagor could pay or tender the entire amount due and the mortgagee would be obliged to accept the same. Any other construction would, we think, be inconsistent with the provisions of the mortgage.”

According to the terms of the notes and the extension agreement, the notes were payable absolutely in full on June 28, 1916. Appellant had the right to demand payment of the entire amount due, and in the event of Elliott’s default to foreclose the lien on all the land. If we should hold that appellee had the right at that time to pay one-tenth of the debt and demand a release of a proportionate part of the land, then we have placed such a construction upon the instruments constituting the contract as will bring about a repugnancy in their terms and a conflict between the rights of the parties to it. He cannot be forced to pay it all, and on the same day haye the option of paying only one-tenth. If the contract obligates appellee to pay in full at maturity or surrender all the land, then he cannot claim the privilege of paying less and demanding a release of any of the property at the same time. The promise to pay the debt in full, secured by the lien on the land, is the primary and principal obligation of appellee. His right to pay less and obtain a partial release is a collateral assurance inserted for his benefit, and should not be enforced, if the contract is strictly construed, when he is in default and his hands are not dean. Since appellant did not see fit to sue at once upon maturity of the debt, equitable considerations prompt us to also extend the privilege until appellant, by suit, demands the whole of his debt, though we incline to the opinion that his option is terminated by maturity of the debt.

We deem it unnecessary to considér the remaining assignments, though some of them present interesting questions. We think our construction of the contract harmonizes its otherwise conflicting stipulations, and because tender of one-tenth of the debt was not made before 'suit filed, the judgment is reversed, and here rendered that the appellant recover the full amount of its debt, with a foreclosure of the vendor’s lien upon all of the land described in the deed.

Reversed and rendered.

HUFF, O. J., not sitting.

BOYCE, J.

While I concur in the disposition made of this case, I am not prepared to concur in the reasons assigned by Judge HALL for the conclusions reached. •

The provision for a partial release is a part of the very terms of the instrument that creates the lien itself. B'y the terms of the deed a lien is “retained * * * until” the indebtedness is “fully paid, * * * except that vendor agrees to release such a proportional part of said land, when payment shall be made, amounting to not less than one-tenth of the balance due.” There is no express limitation on the life of the ■ exception. Why should it not exist so long as the lien itself exists, and that would be “until” the indebtedness was “fully paid,” or the lien foreclosed. When we hold that the exception ends with the.maturity of the indebtedness and while the lien still exists we read something into the contract that is not in it. It does not appear to me that the exercise of the right to secure a partial release, after the maturity of the indebtedness, is inconsistent with the duty to pay all of the indebtedness at such time. The parties to the contract may limit the lien in such way as they may see fit. The right granted is to secure the release of a part of the land and the part payment is a mere condition of the exercise of this right, and the contract does not provide that the maturity of the indebtedness shall put an end to this right. The exercise of the right after maturity does not in any manner limit plaintiff’s liability for the payment of the balance nor the right of the mortgagee to enforce the same against ■ the unreleased portion of the land, and'through execution against other property. The mortgagee is in no better or worse position whether the release is secured before or after maturity of the indebtedness. I am of the opinion that, as the contract provides for a partial release on partial payment and contains no limitation as to when the right to secure a partial release must be exercised, it will continue as long as the lien continues. As I understand the decisions, the weight of authority supports this conclusion. The Massachusetts decisions and the federal court decision cited by Judge HALL are the only courts whose decisions I have read that directly hold that, in the absence of something in the face of the mortgage or notes limiting the time within which the right to secure a partial release must be exercised, such right may not be exercised at any time before foreclosure. The rule was established in Massachusetts in the leading case of Reed v. Jones, 133 Mass. 116, by a divided court. In the New York cases the contract in each instance contains special provisions which the court held to have the effect of showing that it was the intention of the parties to limit the time within which the release might be secured. The following cases hold that,, where the contract provides for a partial release on part payment and contains no limitation of time within which the right is to be exercised, it continues until the lien is foreclosed. American Net & Twine Co. v. Githens, 57 N. J. Eq. 539, 41 Atl. 405; Vawter v. Crafts, 41 Minn. 14, 42 N. W. 483; Commercial Bank v. Hiller, 106 Mich. 118, 63 N. W. 1012; Gammel v. Goode, 103 Iowa, 301, 72 N. W. 531.

The provision for release does not specify the particular land to be released nor how it is to be selected. Some authorities hold that such provision is void for uncertainty. McCormick v. Parsons, 195 Mo. 91, 92 S. W. 1162; Hanna v. Palmer, 61 N. E. 1051. Under the decisions of this state the grantee of the right would have the power of selection (Oxsheer v. Watt, 91 Tex. 124, 41 S. W. 466, 66 Am. St. Rep. 863), and the grant would not fail for uncertainty, provided the instrument was sufficiently certain as to the rule ■that must be followed in making the selection of a proportional part of the land. Does the provision for release of a proportional part of the land mean proportional in area, or proportional in value ? The proportion may be with reference to either, and if the instrument is so ambiguous as that it cannot be determined which, was meant, then it 'could not. be given effect. There are good reasons for holding that the parties might have intended to have the proportion determined in either way. . There would be less difficulty in carrying the provision into effect under the power of selection if the proportion is regarded as applicable to area, because the grantee would then only have to designate the particular part of the land constituting the proportional part to which he desired release, while, if the proportion has reference to value, differences of opinion might arise as to the relative value of different parts of the land, which could only be settled by a judgment of court, and the power become impossible of being given effect except through the courts. On the other hand, it would hardly seem probable that the parties intended to place an arbitrary power of selection in the hands of the party granting the lien that might be used to destroy or impair the relative value of the security. It seems to me to be rather evident that the parties only intended by the provision in question that the value of the security should be reduced in proportion to the reduction made by the payment of the indebtedness constituting the lien. If this be the intention of the parties, then such intention could only be effected by holding that the proportion of the land to be released is to be determined by its value, rather than its' area.

In the case of State v. Commissioners of S. & U. Land, 34 Wis. 162, a law donating public lands to aid in the construction of a canal provided that as a certain proportion of the work was completed the Governor should certify the proportion of said lands the donee had become entitled to in consideration of the work done, who should thereupon be entitled to patent to “said proportion of said lands as selected” by the donee, and the question in the case was as to the meaning of “proportion” as thus used. The question was discussed at some length, and the difficulty with reference to selection, if the proportion was to be determined in value, was considered by the court, but was held not to be controlling, and the court held that the proportion was to be determined with reference to value rather than area in such case.

If it can be said that the meaning here is not ambiguous, I am inclined to think that it should be construed as authorizing a release of a proportional part in value of the lands upon payment of such proportion of the indebtedness. • The record shows that since the execution of the note sued on the defendant had erected improvements of the value of $3,000 on the half acre of land which was sought to be released. It was also shown that the remaining 4% acres of land was worth between $200 and $250 per acre. The improvements became a part of the. realty and subject to plaintiff’s lien, and of course, if value is to be taken into consideration in determining the proportion, defendants are not entitled to a release of this one-half acre. I am therefore of the opinion that the judgment should be reversed and rendered for the plaintiff for this reason.
      <g^s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    CHAPMAN v. LEVY & LEVY.
    (No. 7646.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1917.
    On Rehearing and For Additional Findings, April 14, 1917.)
    1. Oonteacts &wkey;211 — Construction — Time as Essence. , . _
    , . Where the maker of notes for the pnce of paving refused to sign them until they were indorsed “not to be due or payable until the paving, curbing, and guttering, * * * are completed and accepted by the city engineer, and the contract for paving was not signed till after the date of maturity appearing on the face of the notes, if such date was fixed as the time for completing the paving, it was not of the essence of the contract, and was waived by the conduct of the maker of the note.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 938-943.]
    2. Bills and Notes <&wkey;538(l) — Performance — Estoppel or Waiver.
    In an action on notes for the price of paving, an instruction that if defendant knowingly permitted plaintiffs to pave the street adjacent to his property in accordance with the contract between them, and did not object while the work was in progress, and his acts were reasonably calculated to induce plaintiffs to believe that he would pay in accordance with the contract, he is estopped to deny liability, in connection with an instruction that if, before the work of paving was begun, plaintiffs and defendant agreed that the notes for the price should be released, and plaintiffs proceeded to pave contrary to defendant’s instructions, the jury should find for defendant, was not error.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1895-1898, 1992, 1906, 1997.]
    3. Appeal and Error <&wkey;1050(l) — Review— Harmless Error — Admission op Evidence.
    In an action on notes for the price of paving, where the defense was that plaintiffs had forfeited the contract by delay in performance, but, under the facts of the ease, time was not of the essence of the contract, any error in the admission of testimony as to the increase in the value of the property by reason of the paving was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068,1069, 4153, 4157.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by Levy & Levy against L. C. Chapman. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Hamp P. Abney and Webb & Webb, all of Sherman, for appellant. McReynolds & Hay, of Sherman, for appellees.
   RAINEY, C. J.

Appellees sued appellant to recover on three promissory notes executed by appellant to appellees, bearing date September 17, 1913; one for the sum of $765.-38, one for $294.12, and one for $137.26, due according to the face of the notes on or before November 15, 1913, with interest at the rate of 8 per cent, per annum after due, until paid and stipulating for 19 per cent, attorney’s fees. The back of said notes contained this indorsement:

"This-note not to be due or payable until the paving, curbing and guttering in front of and abutting 395 feet on the west side of North Elm street are completed and accepted by the city engineer of Sherman, Texas.”

Also this indorsement:

“19-9-1914. Work completed and figures are correct. E. D. Lumsden, City Engineer.”

The appellant in his answer admitted the execution of the notes, but claimed that at the time the notes were executed appellant and appellees entered into a verbal agreement under which the appellees undertook to and promised appellant that they would construct said improvements on said streets not la1;er than November 15-, 1913, and that by reason of the fact that the pavement for which the notes were given was not constructed and completed by November 15, 1913, the appellant was released from any obligation to pay said notes; and further claimed that a new agreement had been entered into between appellant and appellees that said paving should not be constructed, and that the appellant was released from his liability on account of the execution of said notes. The appellees in their supplemental petition denied that they entered into any agreement by the terms of which they were to construct the pavement in question by November 15, 1913, or that they entered into any subsequent agreement with appellant by which they released appellant on said notes and agreed not to construct said pavement; but alleged in substance that the only agreement they had with the appellant was that they desired him to give some security for the notes, which he did not do, and that at no time were they ever notified by appellant that he had repudiated his contract and denied liability on the notes. They further allege in their supplemental petition that the appellant was estop-ped to deny liability on the notes by reason of the fact that he had received and accepted the benefit of the pavement which they had constructed in front of‘his property; that he had never demanded the surrender of said notes or notified the appellees that he refused to be bound on same, or that he denied liability on account of the execution thereof.

The case was tried with a jury, and resulted in a verdict and judgment for appellees, from which this appeal is taken.

Appellant’s first assignment of error is to the effect that his notes were canceled by the nonperformance of the contract, and that that issue was not submitted to the jury. A charge presenting this issue was requested by appellant to this effect, and refused by the trial court.

The appellees were paving contractors, and the portion of the two streets, Broekett and North Elm, on which the paving was done, was not within the corporate limits of Sherman, and the contract of paving same was the voluntary obligation and undertaking of parties owning property on said streets. The work of paving was delayed, and was not begun and completed until late in 1914, when Lumsden, the city engineer, placed Ms in-dorsement on the notes:

“10-9-1914. Work completed and figures are correct.”

The appellant would not sign the notes until after they were indorsed that they were not to be due until the paving was completed and accepted by the city engineer, which shows that the date, November 15, 1913, was not intended as of the essence of the contract, as it was some time after that date before appellant signed the contract with the ap-pellees for paving. The owners of the property abutting the said streets were delayed in signing the contract, and appellant was about the last one to sign, which was some time in February or March, 1914, which shows that November 15,1913, stated in the notes, was not the time absolutely agreed upon for the completion of the paving. Kirchoff v. Voss, 67 Tex. 320, 3 S. W. 548; Primm v. Barton, 18 Tex. 206; Tharp v. Lee, 25 Tex. Civ. App. 439, 62 S. W. 93; Carroll v. Hassell, 161 Mo. App. 424, 143 S. W. 835. The notes in tMs case called for interest at 8 per cent, after maturity, and there is nothing therein to indicate that time was of the essence of the contract. In Kirchoff v. Voss, supra, it is said:

“TMs contract for interest at the rate of 10 per cent, after maturity of the note indicates that time was not the essence of the contract, and there is nothing in the contract to indicate that either party so regarded it at the time the contract was made. If a party desires to malve time the essence of the contract, he should leave no doubt of the intention of the contracting parties so to make it.”

In the case of Carroll v. Hassell, supra, in speaking on the question of time being of the essence of the contract, the court said:

“Ordinarily time is not of the essence of a contract, and a failure to perform on the exact day agreed upon is not a breach. In order to make time of the essence of a contract, so that it must be performed within the time named, the contract must so provide, or there must be something connected with the purpose of the contract and the circumstances surrounding it which make it apparent that the parties intended that the contract must be performed at or within the time named.”

If November 15, 1913, was agreed upon by the parties as the specified time for the completion of the paving, appellant, by Ms conduct, waived it, and the court did not err in refusing to give the special charge, as there was no issue requiring the jury to pass upon it. There being no issue on this point for the jury to determine, the answers to questions propounded by them to the court became immaterial.

Appellant’s second assignment of error complains of the third paragraph of the court’s charge, which paragraph is as follows:

“You are instructed that if you believe from the evidence that the defendant, L. C. Chapman, knowingly permitted plaintiffs to pave and improve that portion of Elm and Broekett streets adjacent to Ms property in accordance with the terms of their contract, and that .the defendants did not object to the doing of said work wMle the same was in progress, and if you further believe that the acts and conduct of the defendant were reasonably calculated to induce plaintiffs to believe that he (the defendant) wanted said street paved in front of Ms property and would pay therefor in accordance with the terms of his contract, and that the plaintiffs were thereby induced to pave and improve in front of defendant’s property, you are instructed that the defendant is estopped to deny his liability to pay for said work, and in such event you will find for plaintiffs.”

Because there was absolutely no evidence in the case raising the issue submitted by said instruction, and because said third paragraph of the main charge required the defendant to object to the plaintiffs doing the said work while the same was in progress, and holding the defendant responsible for knowingly permitting said plaintiffs to pave said streets, because the plaintiffs and defendant having agreed to cancel said contract and note, it was not the duty of the defendant to object to plaintiffs doing the said work, he having no way of hindering them from doing the same; said work being a public work, and said street being a public street, over which the defendant had no control.

Paragraph 2 of the court’s main charge is as follows:

“On the other hand, if you find and believe from the evidence that before the work of paving Elm and Broekett streets was begun plaintiffs and defendant agreed that defendant should not he required to pay the notes sued on in this case, and that he would be released from their payment, and that after such agreement, if any was made, plaintiffs proceeded and did the paving in front of defendant’s property contrary to defendant’s instructions, then you will find in favor of defendant, unless you should find in, favor of plaintiffs under paragraph 3 of this charge.”

The issues presented by the two paragraphs were duly raised by the pleadings and the evidence, and in them we find no reversible error. The evidence shows that at the beginning of the work appellant was willing for the work to be done, and only objected at that time because he could not raise the money. As to his protesting there was some conflict in the testimony, which was determined by the jury in appellees’ favor.

There are a number of other assignments of error which relate to the admission of evidence over appellant’s objections, on the ground that the testimony was irrelevant and immaterial to any issue in the case. Of these assignments the third, fourth, seventh, and ninth pertain to the property of appellant being increased in value by reason of the paving being done. The issue was raised by appellees’ supplemental petition, wherein it was alleged, in effect, that appellant owned property on North Elm and Broekett streets, which property had been greatly enhanced in value, while the paving, curbing, and guttering constituted a valuable improvement to said property, etc. That he was using and enjoying the benefits thereof, and that he never denied his liability thereon until its completion, which he did for the purpose of not paying for same. Appellant testified on cross-examination:

“I knew that the city had tied Elm and ¡Brockett streets on to his contract for paying other streets. I don’t know whether he told me that or not. I went to the city council. X was one of the parties that went there to get the contract through. X knew it was customary for all property owners to- sign up before the work was started, and the reason it was especially so on this was because this was not advertised in the regular way. They relied on this as a tied-on contract to the other original contract. I knew that. Don’t know whether he told me or not. My impression is that there wasn’t any advertising by the city with reference to the paying on West Brockett and North Elm streets. Those two streets were payed at the express request and instance of tie property owners on those two streets. I stated that I was one of the property owners that went down to the city council to get the paving done. That was after Levy & Xjevy were at work on Birge street. The Eairview folks wanted to connect that paving with Brockett street. As far as I was concerned I did it more on account of the Fairview folks wanting it. I didn’t want to be a stumbling-block between them and town. I wanted the street paved. I wouldn’t have signed that if I hadn’t. * * * X consider pavement as a good improvement. I consider building a brick house on a lot good improvement if you have got the money. I consider pavement a good investment if you have got the money. * * * It is usually considered that the price of the paving increases the value of the property.”

While this testimony was not strictly admissible on the main issue of the case, it bore on the question of estoppel and tended to show a motive for denial of liability. There was evidence showing that appellant had solicited appellees to do the paving, and had acquiesced in it being constructed. His attorney made the following admission:

“We admit plaintiffs’ cause of action in so far as it may not be defeated by matters of defense, and ask for the opening and closing of the case.”

Conceding, however, that such ruling was error, time was not of the essence of the contract, and the. other evidence not showing a positive and distinct agreement between the parties that said notes and contract for the paving were released, and the appellant standing by and seeing the work being done without protest, and the jury under charge of the court having found that there was no understanding to cancel the notes and release appellant from the contract, we arp of the opinion that the paving having been completed, the appellant was liable for the payment thereof, and the admission and exclusion of evidence by the court as complained of not relating to the main issue of liability, such ruling was harmless, and therefore not reversible error.

The fifth, sixth, eighth, and tenth assignments relate also to the admission of evidence. If it be conceded that the court erred in its ruling, we think it harmless.

The judgment is affirmed.

On Rehearing and for Additional Findings.

It is complained by appellant that in our original opinion we held that Brockett and North Elm streets were not in the corporate limits of the city of Sherman, and our attention is directed to the testimony of city engineer as follows:

“In 1913 and 1914 * * * I was in charge of the work of constructing the paving, curbing, and guttering on West Brockett and North Elm streets in the city of Sherman. Levy & Levy did the work.”

We therefore find that said streets are within the corporate limits, and the paving was done under a contract between appellee and' the city of Sherman, but that it was voluntary on the part of abutting owners as to whether they sighed a contract for paving in front of their property.

As to the time Chapman signed the contract for paving there was some evidence tending to show that it was about September 17, 1913, but we also find as in the original opinion in support of the judgment that it was signed several months after that time. The finding that said streets were in the corporate limits does not, in our opinion, change the result in disposing of the case, and the motion for rehearing is overruled. •
      «E^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEX, C. J.

text:
    SHAW et al. v. PROOTOR et ux.
    (No. 7615.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 27, 1917.
    On Motion for Rehearing, March 24, 1917.)
    1. Husband and Wife , <&wkey;S5(3) — Disabilities of Coverture — Contracts.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4624, providing that neither the separate property of the husband nor the. community property, other than the personal earnings of the wife, and the income, rents, and revenues from her separate property, shall be subject to her debts, except for necessaries, and the wife shall never be the joint maker of a note without the joinder of her husband, a note by the wife without being joined by the husband is a nullity, and she cannot be legally bound thereon.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 334, 339.]
    2. Husband and Wife &wkey;>238(5) — Actions— Judgment — Vacation.
    A judgment on a note executed by a wife, without being joined by her husband and without his consent, will be set aside on direct attack,- though she appeared by attorney and did not set up coverture.
    [Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. § 860.]
    3. Husband and Wife <&wkey;238(6) — Judgment —Recovery of Money.
    Whore a married woman failed to appear or defend garnishment proceedings on a judgment , against her, she cannot recover an amount paid thereunder on the ground of invalidity of the judgment.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 8G1.]
    On Motion for Rehearing.
    4. Appeal and Error <&wkey;1175(l) — Disposition of Cause — Reversai>-Rendition of Judgment.
    A judgment refusing to vacate a judgment against a married woman, on a note signed by her without her husband joining and without his consent, and merely enjoining the execution thereof, will be reversed and rendered, to declare the former judgment void.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573, 4575, 4576, 4583-4587.]
    5. Husband and Wife <&wkey;238(5) — Actions— Judgment — Vacation.
    . In an action to set aside a-judgment rendered against a wife upon a note which she signed without her husband joining, and against others, the husband was a necessary party, and the other defendants in the former action, who were in no position to have the judgment set aside, were not necessary parties.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 860.]
    6. Husband and Wife <&wkey;238(5) — Judgment —Vacation—Action—Conformity of Judgment to Issues.
    An amended petition, alleging that the court was without jurisdiction to render a judgment against a married woman, one of the plaintiffs in the present action, with allegations duly attacking the judgment, and praying that it be set aside and vacated, and closing with a prayer for such other and further relief, both general and special, in law and in equity, as the plaintiffs may show themselves entitled to, was sufficient for the granting of relief to vacate the judgment.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 860.]
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by Fred J. Proctor and wife against O. W. Shaw and another. From a judgment for plaintiffs, defendants appeal, and plaintiffs file a cross-assignment of error.
    Affirmed in part, and in part reversed and rendered.
    Adams & Stennis, of Dallas, for appellants. Lewis & Roark, of Dallas, for appellees.
   RAINEX, C. J.

Appellee sued appellants in the county court at law to set aside a judgment in cause No. 20340 in said court, wherein appellants were plaintiffs and Nettie Temple Proctor, one of the appellees herein, and Louis F. Proctor, were defendants, and to recover from appellants the sum of 8205.65, which had been collected under a writ of garnishment bond on said judgment, and to enjoin appellants from selling certain furniture levied on by virtue of.an execution issued on said judgment, and from attempting to enforce said judgment, alleging that said furniture was the community property of appel-lees, and was exempt, said appellees constituting a family. Appellants answered, alleging that the judgment against the said Nettie Temple Proctor in said cause No. 20340 was a valid judgment, and that appellants were not seeking to levy on any exempt furniture of appellees as a family, but were seeking only to levy upon so much of said furniture as was not exempt. The case was tried on its merits, and judgment rendered in favor of appellees, vacating said judgment in said cause No. 20340; that the furniture levied on was exempt; that the obligation upon which said judgment was based in cause No. 20340 was not for the benefit of Nettie Temple Proctor’s separate estate, and was not for necessaries for herself and children; and that the furniture was exempt. The trial court further held that the recovery of said $205.65 was a misjoinder of causes of action and was eliminated from the case. O. W. Shaw and H. L. Tenison prosecute this appeal.

The controlling point in this case is dependent upon the validity of the judgment rendered against Nettie Temple Proctor in cause No. 20340. The basis of that judgment was a promissory note executed by Nettie Temple Proctor and her son, Louis F. Proctor. At the time of the execution of said note Nettie Proctor was a married woman, and she did not execute said note with the knowledge or consent of her husband, Fred J. Proctor. Said note was not given for the benefit of her separate estate, nor for necessaries for herself and children, but was executed to accommodate her son in a business transaction. The note was transferred to an innocent purchaser, who knew nothing of Nettie Proctor being a married woman. She answered in said cause, and was represented by an attorney, but coverture was not pleaded by ber. At the time she was operating a rooming house, and for several years during that time her husband, Fred J. Proctor, was in bad health, and stayed out West with his daughter, coming into the city occasionally. They were never divorced, and both testified they were not separated. The appellants never knew of her being married, and supposed she was not married. She settled all the bills and purchased all the furniture. Fred J. Proctor testified that he frequently sent her money while he was out West. She deposited money in the bank in her own name, and $205.65 was garnished, but she never defended, and said amount was credited on the judgment.

Vernon’s Sayles’ Civil Statutes 1914, art. 4624, provides:

“Neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payments of debts contracted by the wife, except those contracted fox necessaries furnished her or her children: Provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract.”

A bote being signed by the wife without being joined by the husband is a nullity, and she cannot be legally bound thereon. Billingsly v. Land Co., 58 Tex. Civ. App. 67, 123 S. W. 194; Hall v. Decherd, 62 Tex. Civ. App. 426, 131 S. W. 1133; Thompson v. Morrow, 147 S. W. 706; Newton v. Puente, 131 S. W. 1161.

This was a direct attack to set aside and vacate the judgment in cause No. 20340, brought by the husband and wife, and it being shown that it was founded on a note executed by the wife, and not authorized or consented to by the husband, and not for a debt authorized by the statute, the trial court was not empowered to render judgment against the wife thereon, and said judgment is not enforceable against the property of herself and husband. Lane v. Moon, 46 Tex. Civ. App. 625, 103 S. W. 216; Haas v. Bank, 42 Tex. Civ. App. 167, 94 S. W. 439; Trimble v. Miller, 24 Tex. 215; Cruger v. McCracken, 87 Tex. 584, 30 S. W. 537. In the case last cited, supra, it is shown where a married woman signed an appeal bond without being joined by her husband, and Mr. Gaines, Chief Justice, said:

“The execution of the bond by Mrs. Cruger being a nullity, it follows that the Court of Civil Appeals did not acquire, by such execution, jurisdiction to render judgment against her.”

So in this case, the note having been signed by Mrs. Proctor without being joined by her husband, in the suit on the note the court did not have the power to render judgment thereon; and, the attack to set aside the judgment being brought in time, the court did not err in holding it inoperative against her and granting the injunction staying the execution levied on the property.

Considering the proposition of appellee on cross-assignment complains of the court for failing to render judgment for the fund of $205.65 for appellant, said sum being realized in garnishment of the American Exchange National Bank, we will say the court did not err. Said Nettie Temple Proctor never pleaded in the original proceeding, nor appeared in any way to resist the garnishment proceeding. The $205.65 stands, and although she voluntarily paid it it is not recoverable by the appellee. Pitts v. Elsler, 87 Tex. 347, 28 S. W. 518. The property in suit was community, and not subject to the debt of the .wife; such debt not having been contracted for in the manner as prescribed by statute.

The judgment is affirmed.

On Motion for Rehearing.

We fell into error in our former opinion in stating that the court below rendered judgment vacating the judgment in cause No 20340. This was incorrect, as the judgment herein did not vacate said judgment in case No. 20340, but allowed it to stand, and enjoined the execution issued by virtue thereof and levied on the property in controversy in so far as Nettie Proctor was concerned.

Being under the impression that the trial court had vacated the judgment theretofore rendered in cause No. 20340, we fell into error in affirming the judgment of the trial court, and after reconsidering the case we think said judgment as to Nettie Proctor ought to be reversed, and here rendered for her, for the reason the judgment in cause No. 20340 as to Nettie Proctor is void; the court being without any power to render such judgment against her as stated in the original opinion.

Appellants contend, in effect, in their motion for a rehearing, as in their briefs, that said action was not an action to vacate and set aside the judgment in cause No. 20340, for that all of the original parties to the same are not parties to this suit, and that there is no prayer to vacate said judgment. In this suit Fred J. Proctor, the husband of Nettie Proctor, was not a party to suit No. 20340, while Louis F. Proctor and O. H. Bussy, Jr., who were defendants with Nettie Proctor in cause No. 20340 are not parties to this suit. Fred J. Proctor, as husband of Nettie Proctor, joining with her, was a necessary party in maintaining an action to vacate said judgment, while Louis Proctor and C. H. Bussy, Jr., were in no position to have the judgment set aside, and were not necessary parties in this suit.

The amended petition on which the parties went to trial set out the proceeding in the case No. 20340, alleging that the court was without jurisdiction to render judgment against Nettie Proctor, with allegations duly attacking said judgment, and that it “be set aside and vacated,” and closing said petition with a prayer, among other things, “for such other and further relief, both general and special, in law and in equity, as they may show themselves entitled to.” This we think, in effect, was sufficient for the granting of relief to vacate said judgment.

The appellees claim that they are entitled to judgment for the sum of $205.85. It is insisted by appellants that there is not pleading in the record upon which such a recovery could be had, as shown by the amended petition on which a trial was had. With this we concur, and adhere to our original holding on this proposition.

The judgment heretofore rendered by this court will be changed as follows: The judgment of the court below, holding the judgment in cause No. 20340 binding, is error, and reverse the same as to Nettie Proctor, and here render judgment, and setting aside the judgment in cause No. 20340 as to Nettie Proctor, and in other respects affirm the same.

Appellees’ motion for rehearing is granted in part, and overruled in part.

Appellants’ motion is overruled.
      <&wkey;For otter oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    ÆTNA CLUB et al. v. STATE.
    (No. 676.)
    (Court of Civil Appeals of Texas. El Paso.
    March 15, 1917.
    Rehearing Denied April 12, 1917.)
    1. Intoxicating Liquors <§=>264 — Enjoining Illegal Sale — County Attorney’s Powers.
    Under the direct provisions of Rev. St. 1911, art. 4674, a county attorney may enjoin a public nuisance created by a private corporation’s unlawfully selling intoxicating liquors, although Const, art. 4, § 22, requires suits inquiring into corporate charter rights to Be brought by the Attorney General, for abating the nuisance would only incidentally affect the corporate powers.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 403.]
    2. Pleading <§=>420(2) — Amendment—Waiver of Objection by Failure to Request Continuance.
    In action to restrain the illegal sale of intoxicating liquors, the defendant cannot object to an amendment allowed at the trial, where he made no application for a continuance.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1409, 1410, 1412.]
    3. Intoxicating Liquors <§=>275 — Enjoining Illegal Sale — Admissibility of Evidence.
    Where defendant in suit to enjoin its illegal sale of liquor, claimed to be a club organized in good faith for relieving distress, etc., evidence that gambling was permitted upon its premises is admissible to contradict such claim.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 411.]
    4. Intoxicating Liquors <§=>275 — Enjoining Illegal Sale — Admissibility of Evidence.
    In action to enjoin illegal sale of intoxicating liquors, a district attorney’s testimony that a temporary injunction against defendant was in force is inadmissible.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 411.]
    5.Appeal and Error <§=>690(5) — Harmless Error — Admission of Evidence.
    In action to enjoin illegal sale of liquor, admitting evidence that a temporary injunction against defendant was in force is harmless error where the bill of exceptions does not show upon what grounds it was procured.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2902.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Suit by the State of Texas against the ¿Etna Club and W. C. Clark. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Weeks & Owen, of El Paso, for appellants. C. W. Croom and P. H. Marcum, both of El Paso, for the State.
   HIGGINS, J.

This suit was filed by the state of Texas through the county attorney of El Paso county, against W. C. Clark and the rntna Club. The allegations of the petition and the relief sought are substantially the same as in the petition in case of Frank McLean and Wigwam Athletic Club v. State of Texas, 193 S. W. 430, this day decided. The substance of the defendants’ answer is a denial of the allegations of the petition; that Clark was the manager of the premises for the club, and that the ¿Etna Club was a bona fide club, organized for the purpose of relieving distress and rendering moral and financial assistance to and for the intellectual advancement of persons of'the negro race in El Paso county, and that the sale of liquor was made to its members only, and was an incident to the purposes of its incorporation, the allegations of the answer bringing the case within the purview of the rules announced in State v. Duke, 104 Tex. 355, 137 S. W. 654, 138 S. W. 385.

Upon trial before a jury, the following facts were found: That the ¿Etna Club, since its incorporation and on the date the suit was filed, had not conducted in good faith its business so as to carry into effect the purposes set forth in its charter; that the main business of the ¿Etna Club, as it was and had been conducted on and prior to the date suit was nled, was the sale or dispensing of intoxicating liquors to its members and invited guests; and that on said date and prior thereto, it had been using its charter as a shield or makeshift for the purpose of selling intoxicating liquors to its members.

Judgment was rendered, enjoining defendants from using the premises of the club or any part thereof for the purpose of selling spirituous, vinous, and malt liquors, or either of them, and from keeping the same for sale thereon. From this judgment, the defendants prosecute this appeal.

It is first assigned as error that the county attorney of El Paso county was without authority to prosecute the suit, it being andnquiry into the charter rights of a private corporation and an action to prevent the defendant corporation from exercising a power not conferred upon it by its charter, and therefore such an action as must have been brought -by the Attorney General of the state under the provisions of section 22, article 4, of the Constitution. The majority of the court is of the opinion that there is no merit in this contention. Our views upon this phase of the case are set forth at length in McLean & Wigwam Athletic Club v. State of Texas, above cited. Chief Justice Harper dissents from this conclusion, his views upon the question being set forth at length in the dissenting opinion filed by him in the case just mentioned.

It is next assigned as error that the court erred in permitting plaintiff to file a trial amendment when the cause was called for trial because same set up a new cause of action, and defendant was not afforded time in which to meet the allegations contained therein. If defendant desired additional time to meet the allegations contained in the trial amendment, an application for a continuance should have been made. No such application was made, and this assignment is therefore without merit.

Error is assigned to the action of the court in permitting the witness Hall to testify that some time in May, 1915, he arrested a number of negroes in the club playing cards, and that they pleaded guilty to gambling. To the admission of this testimony the defendant objected, upon the ground that it was immaterial, irrelevant, and because there were no allegations in the petition that gambling was permitted in the club, and that the same was calculated to prejudice the jury against the defendants. The question of good faith was a very material issue in the case. If the club was not organized and conducted in good faith for the purpose of relieving distress and rendering moral and financial assistance to and for the intellectual advancement of persons of the negro race, then it would certainly have no right to sell liquor without paying the tax required by law and securing a license to sell such liquor. It can hardly be contended that to permit gambling upon the premises was consistent with the purposes for which the club was organized, and the evidence tended very strongly to rebut the contention that the club was a bona fide organization incorporated for the purposes specified.

Error is also assigned to the action of the court in permitting District Attorney Bridgers to testify that in May, 1915, he, as district attorney, had procured a temporary injunction against the ¿Etna Club, and that the same was standing on the docket of the court undisposed of. The defendant objected to the testimony upon the ground that it was immaterial and irrelevant, and the objection should have been sustained. The error, however, in admitting the testimony, was harmless. The bill of exception does not show the grounds upon which the district attorney procured the temporary injunction, and it may have been based upon allegations foreign to the issues here involved. In the condition of the record, we do not think that the admission of this testimony shows reversible error.

The sufficiency of the evidence to support the judgment is also questioned. We have examined the evidence, and are of the opinion that it is sufficient to support the verdict returned and judgment rendered. All other contentions made in the case have been considered, and the conclusion is reached that the injunction was properly granted, and that the judgment should be affirmed. It is so ordered.
      ^saFor other cases see same topic and KEY-NUMBER in all Key-NUmbered Digests and Indexes


author: WALTHALL, J.

text:
    ALVARADO v. SOUTHERN PAC. CO.
    (No. 680.)
    (Court of Civil Appeals of Texas. El Paso.
    March 29, 1917.)
    1. Limitation of Actions <&wkey;74(l) — Fedebal Employees’ Liability Act — Insanity.
    Under federal Employers’ Liability Act April 22, 1908, e. 149, § 6, 35 Stat. 66 (U. S. Comp. St. 1913, § 8662), providing that no action shall be maintained under the act unless commenced within 2 years from the day the cause of action accrued, there being no exception in the act extending the time within which suit may be brought by an employé in the event of his insanity, the courts are not at liberty to apply state statutes extending or tolling the time for filing a suit because of insanity, so that, where the injuries to a railroad em-ployé engaged in interstate commerce rendered him insane, his cause of action accrued at the time of the injury, and a suit could hot be maintained under the act by his next friend more than 2 years after the date of the injury.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 413.]
    2. Limitation op Actions &wkey;>55(4) — Federal Employees’ Liability Act — Limitation op Time to Being Action.
    If federal Employers’ Liability Act April 22, 1908, § 6, is a statute of limitation and could be tolled for want of some one who could sue u]3on the right of a railroad employé rendered insane by injuries received by him while engaged in interstate commerce, the employé having a mother who was entitled to sue as his next friend, a cause of action in his behalf accrued at the date of the injury.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 302.]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by Fred M. Alvarado, by Ms next friend, Mrs. C. Alvarado, against the Southern Pacific Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Geo. E. Wallace and W. S. Berkshire, both of El Paso, for appellant. Beall, Kemp & Nagle, of El Paso, for appellee.
   WALTHALL, J.

Appellant, through his next friend, Mrs. C. Alvarado, brought this suit against appellee, the Southern Pacific Company, in the district court of El Paso county, Tex., for personal injury alleged to have been sustained by Fred M. Alvarado, at Los Angeles, Cal., through the negligence of appellee. Appellant alleged that by reason of the injuries received, Fred M. Alvarado was rendered insane, and that he was insane at the time of the filing of the suit. The following agreed statement of facts appears in the record:

“It is agreed by and between plaintiff and defendant in open court, by and with the knowledge and consent of the court, that plaintiff shall not be required to make a complete statement of all the evidence introduced by him on the trial of this cause, it being agreed by the parties to this suit that the evidence adduced upon the trial of the cause by plaintiff was briefly and substantially as follows, to wit: That the alleged accident to plaintiff occurred on the 16th day of March, 1913, while he was employed by the defendant in working in, on, and around and repairing a locomotive boiler which was used and intended to be used in interstate commerce, and that both plaintiff and defendant were at said time engaged in interstate commerce. That the federal Employers’ Liability Act and amendments thereto control the rights of the plaintiff and .defendant in this case, and that the injuries which the plaintiff sustained, if any, were sustained by him while engaged in interstate commerce. That the defendant introduced no evidence, and the evidence of the plaintiff was sufficient to raise the issue for the jury, and showed and tended to show, that plaintiff was struck on the head by a side set; that the side set weighed four to six pounds, and that the injury sustained by plaintiff was due to the negligence of defendant, and rendered _ him insane, and that he has continuously since the date of said accident been insane. That no legal guardian has ever been appointed for the person or estate of plaintiff. That this suit was instituted in this court on the 15th day of April, 1916, by Mrs. C. Alvarado, mother of the plaintiff, as his next friend, and for the sole use and benefit of said Fred M. Alvarado. That plaintiff is 29 years old.”

The case was heard before a jury, and after the plaintiff’s evidence was introduced and he had rested his case, defendant presented a motion to instruct a verdict in its favor on the ground that the pleadings and uncontroverted evidence show that if plaintiff was injured, he was injured while in the employ of defendant company and while engaged in interstate commerce, and that the federal Employers’ Liability Act and amendments thereto apply, and the pleadings and uncontroverted evidence show that if plaintiff was injured, his injuries occurred in Los Angeles, Cal., on the 16th day of March, 1913, and that this suit was not instituted until the 15th day of April, 1916, and more than 2 years had elapsed after the accident prior to the institution of the suit, and because the same is not maintainable under the federal Employers’ Liability Act after the expiration of 2 years, there being no exception extending the time beyond the 2-year limit in the statutes. The trial court sustained defendant’s motion, and instructed the jury to return a verdict in favor of defendant. The correctness of the court’s ruling on the motion is the only question presented in the record. The contentions made by the appellant under his several assignments are to the effect that where a person is rendered insane through the negligent act of another, and no legal guardian is appointed for his person or estate, the statute of limitation does not run against a cause of actipn of such insane person because there is no one legally authorized to file the suit; and because the limitation does not commence to run until there is such person in existence; and because section 6 of the federal Employers’ Liability Act provides that suit shall be brought within two years after the cause of action accrues, and if a person is injured, and such injury immediately rendered Mm insane, then and in that event the cause of action will not’ accrue so as to start the statute of limitation until there is some one legally appointed or authorized to file and prosecute the suit.

The contentions of the defendant are, substantially, that the pleading and proof show that more than two years had elapsed between the happening of the accident causing the injury and the filing of the suit, and for that reason the cause of action had ceased to exist; that plaintiffs rights were created by the act of Congress, and under the act ceased to exist at the expiration of 2 years from the accrual of the cause of action; that the statute is not merely one of limitation, but is a period of time fixed by the federal statute, at the expiration of which plaintiffs cause of action absolutely ceased; that were it conceded that section 6 of the federal act is a statute of limitation, same would control to the exclusion of any state law, and there being no suspension of the statute of limitation under the act, the laws of this state suspending the statute of limitation on account of insanity have no application; that the plaintiffs cause of action accrued immediately upon the happening of the accident, and at all times since the happening thereof he could have brought his suit by the intervention of a next friend, as was in fact done in this case; that plaintiffs rights, if any, under the pleadings and proof are governed by the federal Employers’ Liability Act and to hold that his right of action is not barred or has not ceased to exist would be in contravention of the statutes and laws of the United States.

Section 6 of the federal Employers’ Liability Act of April 22, 1908, provides that:

“No action shall be maintained under this act unless commenced within two years from .the day the cause of action accrued.”

The question to be determined is whether the action accrued so that the period of time stated in the statute began to run from the happening of accident causing the injury complained of, and the right terminated before the suit was filed. The above agreement as to the facts shows that:

“The blow received on the head by plaintiff rendered him insane, and that he has continuously since the date of said accident been insane.”

The suit was not brought within two years next after the accident. The accident did not result in the death of Fred M. Alvarado, so that the pecuniary loss sustained by him by reason of the injury remained with him. The question then is: Was there any person in esse at the time of the accident who could bring the suit? We think we need not discuss what the question would have been had death resulted, thereby giving rise to a cause of action in others, in which administration on the estate of a decedent or some qualification in others might be necessary before a suit could be brought. This suit was brought by a next friend, and no question is made as to her right to sue. There was then a person in esse who could and did bring the suit upon the cause of action. If Mrs. O. Alvarado, plaintiff’s mother, was legally authorized-to sue, plaintiff’s proposition that limitation would not begin to run, as there was no one legally authorized to file the suit, would be without merit. We think the statute would not be tolled until such time as the next friend might elect to sue. The plaintiff’s rights are governed by the federal Employers’ Liability Act. The Supreme Court of the United States in Atlantic Coast Line Railroad Co. v. Burnette, 239 U. S. 199, 36 Sup. Ct. 75, 60 L. Ed. 226, holds that the provision of that act is not a mere statute of limitation. Any statute of a state suspending the operation of the statute of limitation in that state is inapplicable. Kavanagh v. Folsom (C. C.) 181 Fed. 401. There being no exception in the federal act, extending the time within which a suit for a personal injury by an employé of a railroad engaged in interstate commerce can be brought, in the event of his insanity, courts are not at liberty to apply state statutes extending or tolling the time for filing suit, or extending the time for bringing the suit by judicial construction. The rule would be otherwise if this were a suit in one state for a liability accruing in another state, where the state law would be involved and the rule of limitation is controlled by the lex fori. But the federal Employers’ Liability Act under which this suit is brought is equally the law of all the states, and there is not provided in the act, or in the federal statutes, a saving against the time for filing the suit as to insanity. It was so held in Shorick v. Bruce, 21 Iowa, 305, referred to in 25 Cyc. 1265, where it is said:

“Limitations run against every one without regard to disability of insanity, unless there is a saving of such cases in the statute.”

Vaught v. Virginia & S. W. R. R., 132 Tenn. 679, 179 S. W. 314, was a suit brought by the administrator of Campbell, under the federal Employers’ Liability Act. The Supreme Court of Tennessee in that case said:

“It was not the intention of Congress, upon enactment of this law, to permit any variation of its terms by the Legislatures of the states; but the intention is clear, from the rules of law applying in such matters, as well as upon reason, that Congress, in taking over control of the whole subject, intended that the limitation of 2 years was conditioned upon the right to sue at all. The statute created a right of action which did not before exist. The condition to that right was that suit should be instituted within 2 years from the date the right of action accrued. While Congress gave the right to institute the action in the state courts, this does not change the rule so well settled in other actions of like character predicated upon federal statutes. The action broadened the forum within which suit might be instituted and extended it to state courts; but it is nevertheless 'a federal law. There is no provision in the federal act giving the right upon voluntary nonsuit, to institute a new suit after the expiration of two years.”

In that case suit had been brought in a state court within 2 years and dismissed, and was again brought in the federal court, under the state statute permitting the commencement of a new action within 1 year without trial upon the merits. In Shorick, Guardian, v. Bruce, 21 Iowa, 305, the Supreme Court said:

“The thought that the statute would not run because Wilson, the ward, was a person of unsound mind, or incapacitated to sue, finds no support, either in the statute or in the rules of common law. See this subject discussed in Campbell v. Long, 20 Iowa, 382. The statute makes mo exception in favor of lunatics or those of unsound mind. Not laboring under any of the disabilities mentioned, they are not exempt from the- operation of the statute. Angelí on Limitation, §§ 474, 194, and 185.”

To the same effect is Collier v. Smaltz, 149 Iowa, 230, 128 N. W. 396, Ann. Cas. 1912C, 1007.

The case of Sasser y. Dayis, 27 Tex. 656, cited by appellant, is not in point for the reason that while the general provision of the statute of limitation of this state at the time the suit was brought declared that all actions for injuries to the person of another shall be brought “within one year next after the cause of action or. suit, and not after,” it was held the general provision was controlled by a subsequent section in the same law excepting from the operation of the general provision persons of unsound mind during the existence of their disabilities. There is no such provision in the federal statute under which this suit was brought. The cases we have examined convince us that we must look alone to the federal act in determining the rule to be applied ; that inasmuch as the federal act contains no exception to the provision that no action shall be maintained under the act unless commenced within two years from the date the cause of action accrues, the period of time within which the suit must be brought would commence on the happening of the accident. But if we should be mistaken as to that, and if the statute is one of limitation and would be tolled for want of some one who could sue upon that right, as held by Circuit Judge Brigham in American Ry. Co. of Porto Rico v. Coronas, 230 Fed. 545, 144 C. C. A. 599, L. R. A. 1916E, 1095, still we think, in this case, there was one who could and did sue for the plaintiff, and against whose right to sue no question is made. We then have present all of the facts essential to put the statute in motion, a cause of action, a person in esse to sue, and the one against whom the cause of action is laid. The view we entertain of the question presented is that there was no error in instructing the verdict.

The case is affirmed.
      (SspE'or oilier eases see same topic and H.EY-NUMBER in all Key-Numbered Digests and Indexes