author: KEY, C. J.

text:
    GILL et al. v. FLYNN et al.
    (No. 5449.)
    (Court of Civil Appeals of Texas. Austin.
    March 24, 1915.
    Rehearing Denied April 28, 1915.)
    1. Homestead <&wkey;115 — Mortgages—'Validity.
    A conveyance of a homestead intended as a mortgage is void as to any one not an innocent purchaser.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §| 183, 184, 186-190; Dec. Dig. <&wkey;> 115.]
    2. Homestead 129 — Conveyance— Bona Fide Purchasers.
    Where the credit man and representative of a corporation prepared a conveyance of a debtor’s homestead, the terms of which indicated that the debtor was to receive the purchase price and did not show the conveyance was for the benefit of the corporation, neither the credit man nor the corporation can claim to be an innocent purchaser, though they did not know of the debtor’s misrepresentations to his wife by which her signature was obtained.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 233, 234; Dec. Dig. &wkey;*129.]
    3. Homestead &wkey;>118 — Conveyance — Evidence— Sufficiency.
    In a suit to set aside a conveyance of a homestead, evidence held to show that the plaintiff wife’s signature was obtained by fraud.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 192, 195, 203-209, 216, 217; Dec. Dig. &wkey;118.]
    Error from District Court, Brown County; John W. Goodwin, Judge.
    Action by E. H. Flynn and another against C. W. Gill and others. There was a judgment for plaintiffs, and defendants Gill and Badford bring error.
    Affirmed.
    A. H. Kirby and Theodore Mack, both of Ft. Worth, for plaintiffs in error. Arch Grinnan, of Brownwood, for defendants in error.
   KEY, C. J.

Mrs. Belle Flynn, joined by her husband, E. H. Flynn, brought this suit against A. E. Duff, J. C. Duff, C. W. Gill, and the J. M. Badford Grocery Company, seeking to recover the title and possession of a house and two lots in the town of Bangs, in Brown county, Tex., and also asking for a decree canceling certain deeds, notes, and , alleged liens for the purpose of removing cloud from the plaintiffs’ title. We deem it unnecessary to set out in full all of the pleadings, and content ourselves with saying that the plaintiffs alleged that the instrument in the form of a deed executed by them to C. W. Gill, and under which the defendants hold the property, was intended as a mortgage, and therefore was void because at the time referred to the property was the homestead of the plaintiffs. Mrs. Flynn also alleged that her signature to and acknowledgment of that instrument was secured by fraudulent misrepresentations made to her by her husband, by which she was induced to sign and acknowledge the deed; the substance of such representations being that he, the husband, was selling the property for $500 in cash and $2,000 in vendor’s lien notes, which notes he would sell to the Bangs Mercantile Company for money and use the proceeds of the sale in purchasing another homestead for himself and wife. The defendants filed elaborate answers, denying that the deed from the plaintiffs was intended as a mortgage, and averring that they were innocent purchasers without notice, and entitled to protection as such. After hearing all of the testimony, the trial court instructed a verdict for the plaintiffs, which was returned, and judgment rendered accordingly, and from that judgment defendants have brought the case to this court, and present the contention that the trial court committed reversible error when it declined to permit the jury to pass upon the rights of the parties and peremptorily instructed a verdict for the plaintiffs.

We have reached the conclusion that the case was properly disposed of, and as it cannot be intelligently discussed without presenting the substance of the testimony bearing upon the question of fraud, we state the same as follows:

The undisputed proof shows: That at the time in question E. H. Flynn and A. E. Duff were engaged in the mercantile business' in the town of Bangs under the Arm name of the'Bangs Mercantile Company. That the firm was indebted to the Badford Grocery Company, of Abilene, Tex., in the sum of $4,075, all of which was past due. This was in the fall of 1912, and the undisputed testimony shows that after an unsuccessful effort by the Radford Grocery Company to collect said debt, and about November 7, 1912, an agreement was entered into between E. H. Flynn, acting for himself and the Bangs Mercantile Company, and O. W. Gill, acting for himself and the Radford Grocery Company, as a result of which an instrument in the form of a deed was prepared, which purported to convey the property in controversy from E. H. Flynn and his wife to C. W. Gill. The consideration expressed in the deed was $500 cash and four vendor’s lien notes, executed by C. W. Gill, for the sum of $500 each, and payable in one, two, three, and four years. At that time, - and when Mrs. Flynn signed and acknowledged that instrument, the property which it purported to convey was the homestead of Mrs. Flynn and her husband, E. H. Flynn. At the time in question another instrument was prepared, which purported' to convey the four notes above referred to from Flynn and his wife to the Bangs Mefcantile Company, and that instrument and the deed referred to were sent to Mrs. Flynn, who was then in the state of Indiana, accompanied by a letter from her husband, E. H. Flynn, and she and her husband both testified that the latter stated in the letter that he was selling the property for $500 in cash, and that he would receive $2,000 from the Bangs Mercantile Company for the notes, and would invest the proceeds derived from the sale of the property conveyed by the. deed in another homestead; and Mrs. Flynn testified that she relied upon that statement and promise, and would not have signed and acknowledged the deed, if she had known that such was not to be the result of the transaction. She also testified that she was not familiar with her husband’s business, and did not know that he or the Bangs Mercantile Company was indebted to the Radford Grocery Company at that time. An agent of the Radford Grocery Company named Davis testified that he went to Bangs, and in a conversation with both members of the Bangs Mercantile Company insisted upon the payment of the indebtedness of that company to the Rad-ford Grocery Company, and said that E. H. Flynn stated that he was willing to sell his homestead and apply the proceeds to that debt. He also testified that he informed C. W. Gill, who was a member of the firm of Radford Grocery Company, what Mr. Flynn had said concerning his willingness to apply his homestead, or the proceeds thereof, to the payment of the debt. C. W. Gill testified:

“I was representing the Radford Grocery Company as credit man at that time. After visiting Mr. Flynn, Mr. Davis came back and told me that he- had checked up the collateral and Mr. Flynn was considerably short, probably $3,000 or $4,000. Mr. Davis simply told me that Mr. Flynn was short in his collections, and that in order to reinstate himself with the Radford Grocery Company he was perfectly willing to sell his home to anybody and pay the proceeds to cover this charge. I was representing the Radford Grocery Company, and Mr. Davis was talking to me as their representative. After that I thought about the matter, and realized that probably we would make a loss later on, and I decided, if I could buy the property myself from Mr. Fylnn, and the company would use the paper that I gave Mr. Flynn against the property, I would make the deal, with him. I talked with Mr. Radford about it, and be agreed that the company would use the paper. I then telephoned Mr. Flynn that I would meet him in Brownwood on the 7th of November, and for him to bring Mr. 'Duff with him. When he came to Brownwood I put up a check as a forfeit, and Mr. Flynn put up a check on the Bangs Mercantile Company. After the deed came back from Mrs. Flynn, we came back down here (meaning Brownwood). Mr. Leach turned the vendor’s lien notes and the cheek over to me, and I suppose that he delivered Mr. Flynn’s cheek to him. The cheek went from Flynn to the Bangs Mercantile Company, and from the Bangs Mercantile Company to the Radford Grocery Company, as the indorsements show. It was the agreement that these notes were going to the Radford Grocery Company in lieu of the debt that the Radford Grocery Company held against the Bangs Mercantile Company. These notes contained a lien against that property. I certainly did not ask Mr. Flynn what he wrote in that letter to his wife. Mr. Flynn told me that he had to explain the same to his wife, but it was none of my business what he wrote.”

Mrs. Flynn signed and acknowledged the deed and the instrument transferring the notes to the Bangs Mercantile Company and returned them to her husband. A short time thereafter Mr. Flynn and hig partner, Mr. Duff, and C. W. Gill, met in Brownwood again, when the check for $500 and the four vendor’s lien notes signed by C. W. Gill were delivered to them by Mr. Leach, to whose custody they seem to have been intrusted until the matter was ready for final consummation. Thereupon Mr. Flynn indorsed the check and the four notes to the Bangs Mercantile Company, and his partner, Mr. Duff, acting for the Bangs Mercantile Company, immediately indorsed them to the Radford Grocery Company, and they were at once taken possession of by C. W. Gill, acting for the Radford Grocery Company. Mr. Flynn expressed doubt about the genuineness of his signature to the indorsement on the check, but we dispose of the case upon the assumption that it was genuine.

We deem it unnecessary to set out all the testimony tending to show that the instrument purporting to be a deed from Flynn and his wife to C. W. Gill was or was not a mortgage. If it was a mortgage, as it undertook to convey appellees’ homestead, of course, it was void and of no effect, at least as to any one not entitled to protection as an innocent purchaser. But counsel for appellant contend that the instrument referred to was not a mortgage, or at any rate that appellant had the right to have the jury pass upon that question; but the answer to that contention is that, while it might have been necessary for the court to have submitted that issue to the jury, if the appellees’ case had rested alone upon the question of mortgage vel non, there was another theory in the ease, which we hold justified the court in directing a verdict for the appellees, and that theory was that if the instrument was a deed the undisputed proof shows that Mrs. Flynn’s execution of it was procured by fraud, of which fraud both C. W. Gill and the Radford Grocery Company had notice; and it was agreed at the trial that the Duffs acquired no better title than C. W. Gill had, and therefore were not themselves innocent purchasers without notice. Upon this branch of the ease we agree with counsel for appellees; and, assuming that the instrument referred to was a deed, and not a mortgage, and assuming that appellee E. H. Flynn signed his name to the indorsement upon the bach of the $500 check, still the undisputed proof shows that Blrs. Flynn’s execution of the deed was procured by fraud, and that, as before stated, both C. W. Gill and the Radford Grocery Company had notice of such fraud. C. W. Gill, the grantee in the deed, acted both for himself and the Radford Grocery Company in the transaction. He wrote the deed, which recited a cash consideration of $500, and the further fact that four $500 vendor’s lien notes were to be executed and delivered to E. H. Flynn; yet he knew at the time that E. H. Flynn would not receive $500 in cash.and the notes referred to, in the sense that he could exercise absolute dominion over them and use them for the purchase of another homestead, or in any other manner that he saw proper, and that the only benefit that would result to E. H. Flynn or his wife would be the discharge of $2,500 of the indebtedness owing by him and his partner to the Radford Grocery Company. This being the case, and conceding that C. W. Gill and the Radford Grocery Company were ignorant of the contents of the letter written by E. H. Flynn to his wife, and had no knowledge whatever of the representations made in that letter, still they had actual knowledge of the fact that the recitals in the deed were misleading, and calculated to deceive and impose upon Mrs. B’lynn, and therefore they cannot successfully claim to be innocent purchasers without notice of the fraud. In that respect this case is quite similar to the case of Scoggin v. Mason, 46 Tex. Civ. App. 480, 103 S. W. 831, decided by this court, and we copy as follows from the opinion of Chief Justice Fisher in that case;

“Proceeding with the facts that relate to the transaction with the Rotan Grocery Company, we find that on April 13, 1906, appellee, Mrs. Mason, and her husband, J. A. Mason, executed and delivered a deed, absolute in form, which was intended to be of that'nature and character, to H. H. Shear, conveying the land in controversy. It is conceded that the conveyance to Shear was for the use and benefit of the Rotan Grocery Company, and that the latter by that conveyance was intended to become the owner of the property. The deed is in the usual form of a conveyance of land, and recites a total consideration of $600, and also recites that $300 was cash in hand paid, the receipt of which is thereby duly acknowledged, and that $300 was the assumption of payment by the vendee of the note due Scoggin, which was covered by the deed heretofore stated as executed to him.' The deed was properly signed and acknowledged by the wife and husband in the manner required by statute in conveying the homestead, and there is no attack made upon the officer’s certificate as not stating the facts. The property conveyed was at that time the homestead of the plaintiff and his wife, and she has since then, to the present time, continued to occupy the same as a homestead. She was abandoned by her husband under circumstances which would justify her in suing alone. The deed was explained to her by the officer who took her separate acknowledgment.in accordance with its terms, and she signed the same supposing the recital of a cash consideration of $300 was true and correct; and she testified, in effect, that if she had known that no cash was to be received as a part of the consideration she would not have consented to the sale of her homestead. At or about the time, and before, this deed was executed, her husband stated and represented to her, for the purpose of getting her to join in the conveyance, that a part of the consideration was to be paid in cash, and with this they would buy another home in lieu of the old, which it seems from the evidence was pointed out and selected for this purpose. She relied upon this statement and promise; otherwise she would not have sold. As a matter of fact, other than the indebtedness to Scoggin, the husband was then also indebted on an account to the Rotan Grocery Company in the sum of about $300, and there was then, an agreement between the agent of the latter, who negotiated the transaction, and the husband, that no cash consideration would be paid; but it was agreed that the consideration should, in addition to the Scoggin note, bo the debt due by the husband to the Ro-tan Grocery Company. The agent of this company wrote and prepared the deed, and in his evidence he states: ‘Yes; T wrote the deed myself. It is ordinary to state a cash consideration when payment is made in any way, and that is the reason I stated it that way in the deed. Yes; I did write it as a cash consideration, when in fact it was not a cash consideration. I knew it was not paid in cash, except as to the account. We considered that cash. I don’t know what Mrs. Mason agreed to, only by the. deed. Yes; I know the deed does not recite a line about his debts, except the Scoggin debt; it shows that. Yes; I was acting as the agent of the Rotan Grocery Company, and as the agent of H. H. Shear. It was made to Shear just for convenience. The Rotan Grocery Company owns it. I think I was in Mr. Mason’s store while he was gone up to his house to see his wife about the selling of the place. I did not have it already written up. I wrote it up there in the clerk’s office. I did not tell Mr. Mason to state to his wife the deal between us. He told me before that he had talked to his wife about it.’
“Of course, it must be conceded that the wife has such an interest in the homestead upon which she can base an action to rescind on the ground of fraud; and it must follow that the fruits of the fraud may be wrested from all that participate in it, or all that profit by it with notice. Martin v. Robinson, 67 Tex. 381, 3 S. W. 550. There can be no question here but that a fraud by the husband was perpetrated upon the wife by material statements and representations of a dual nature — those that related to the existing fact that the consideration for the conveyance agreed to was in part cash, and those that related to the promise and agreement made that the cash would be invested in another home. It is clear that these representations in both respects were falsely made, and with the intention that the promise should never be kept. When representations as to a matter material are falsely made as to an existing fact, or if they consist of promises made relating to something material, with an intention never to perform, such, for instance, that the consideration of the transaction is of a certain nature, and that there will result therefrom a substantial benefit to the party to whom the representation is made, and who, by reason thereof, is induced to act, and there is a deliberate failure of fulfillment, fraud is the result, for which rescission and cancellation is the remedy. 2 Pom. Eq. (3d Ed.) §§ 875-90S; Pironi v. Corrigan, 47 N. J. Eq. 135, 20 Atl. 218; Martin v. Jordan, 60 Me. 531; McMullin’s Adm’rs v. Sanders, 79 Va. 364; Morgan v. Dinges [23 Neb. 271], 36 N. W. 544 [8 Am. St. Rep. 121]; Fairchild v. McMahon [139 N. Y. 290], 34 N. E. 779 [36 Am. St. Rep. 701]; Simar v. Canaday, 53 N. Y. 298, 13 Am. Rep. 523; Boles v. Merrill, 173 Mass. 491, 53 N. E. 894 [73 Am. St. Rep. 308]; Thomas v. Sweet [111 Ky. 467], 63 S. W. 787 [65 S, W. 827]; C. T. & M. C. Ry. Co. v. Titterington, 84 Tex. 223, 19 S. W. 472 [31 Am. St. Rep. 39]; McFarland v. McGill [16 Tex. Civ. App. 298], 41 S. W. 402; St. Louis Expanded Metal Co. v. Burgess [20 Tex. Civ. App. 527], 50 S. W. 486; American Cotton Co. v. Collier [30 Tex. Civ. App. 105], 69 S. W. 1024. The principle stated is merely elementary, and is extracted from the authorities cited, and, although none on the facts are directly in point, some are closely related by analogy. The facts here present not a case merely of breach of contract or failure of consideration, for which equity by rescission would afford no relief (Moore v. Cross, 87 Tex. 561, 29 S. W. 1051; Railway Co. v. Titterington, supra; Mayer v. Swift, 73 Tex. 369, 11 S. W. 378), but it is one where representations and promises are falsely and fraudulently made concerning the real consideration upon which the transaction is based, and the benefit therefrom to be received by the party who is induced to act by reason of such statements. And in such a case, as said in Pironi v. Corrigan: ‘The just expectations of the complainant have not been fulfilled, and that part of the consideration of the deed has failed. This conclusion leads to the setting aside of the conveyance.’ There is between husband and wife a relation of trust and confidence; _ and the former in his business transactions with the latter, relating to her property interests, rests under the duty to make a true and full disclosure of the facts known, and to abstain from representations which are not true, and which are calculated to deceive, and which are of a nature likely to induce action to her injury. In a case of abuse of confidence and duty, the wife, if she has sustained substantial injury, would have a right of action to rescind. Wiley v. Prince, 21 Tex. 639.
“It only remains to be. seen to what extent, if any, these principles, and the relief provided, would apply to one shown by the evidence to be so situated as the appellant the Rotan Grocery Company. They must have known, when dealing for the purchase of the homestead, where the validity of the conveyance depends upon the separate acknowledgment of the wife, that it is not the mere previous negotiations that create the right acquired; but, as said in Davis v. Brewster, 59 Tex. 96, the real question is: With what intent did the husband and wife execute the instrument, which was not completed until the delivery? And from this it must follow that its status, as fixed and completed at that time, will determine the right of the purchaser. The deed, as prepared and separately, upon its face spoke the truth. The consideration was accurately stated as agreed to with the wife, and when she signed and acknowledged the instrument it became effective as a conveyance, and only binding upon her to the extent of the terms and conditions therein expressed. And thereafter these terms, in material respects, could not be changed by the husband and the purchaser without her consent. While it is true that a purchaser dealing with the husband may, ordinarily, act upon the assumption that he has acted in good faith with the wife (Pierce v. Fort, 60 Tex. 469), but to concede the right of the husband and the purchaser to consummate the sale of the homestead by virtue of terms and conditions materially different from those stated in the conveyance as executed and delivered is virtually to destroy the force of the statute that requires the joinder o'f the wife, under separate acknowledgment, in order to create a valid conveyance; and, if it can be said that that part of the instrument which calls for a cash consideration is material, we see no reason why a change as to it should not come within the prohibition, as well as any other of its material terms;, and, if such is the case, the substitution of the other consideration by the husband and purchaser deprived the wife of the benefit she expected to receive in consenting to joining in the conveyance, and, in such instance, it ought to be held that a purchaser who is a party to such a change takes subject to the fact that the change may result in an imposition upon the wife, or, at least, in such a case, good faith and fair dealing should require from the purchaser information of the wife as to whether her rights by the change would be seriously affected. The deed being tested by its terms existing when delivered, the change thereof in the consideration to be paid, ascertained by the agreement between the husband and the purchaser, materially affected the interest of the wife; and the purchaser, a party to such a change, ought not to be relieved from its consequences by the assertion that he knew, and supposed the wife also knew, that the recital in the deed did not truthfully and correctly state the consideration as agreed to by him and the husband. The answer to this would be that the deed as delivered informed him that the wife intended it to have a certain effect, and it cannot be said that it was treating her fairly to ignore one of its important stipulations, and give it an effect different from what the deed expressly required, without an inquiry from her. She having executed the deed with the recital in it of a cash consideration, that fact alone should have been sufficient to excite his inquiry as to whether the wife had consented that a different consideration could be received. In Connecticut Mut. Life Ins. Co. v. Smith [117 Mo. 261] 22 S. W. 629 [38 Am. St. Rep. 656], the Supreme Court of Missouri, in considering inferential facts on the question of notice, said: ‘Notice in this connection does not mean positive information brought directly home to the parties sought to be charged. Anything that will put a prudent man upon inquiry is notice; and gross negligence in failing to make inquiry when the surrounding facts suggest the existence of others, and that inquiry is to be made, is tantamount in the courts of equity to notice. Major v. Bukley, 51 Mo. 227; Leavitt v. Laforce, 71 Mo. 353; Roan v. Winn [93 Mo. 503], 4 S. W. 736. This is the universally prevalent doctrine of courts of equity in all jurisdictions. 2 Pom. Eq. Jur. §§ 596-600. And actual notice may be inferred from circumstances and by reasonable deductions. Brown v. Volkening, 64 N. Y. 76. Courts of equity, since their earliest foundation, have always recognized that the still small voice of suggestion, emanating as it will from contiguous facts and surrounding circumstances pregnant with inference and provocative of inquiry, is as potent to impart notice as a presidential proclamation or an army with banners.’
“There was nothing, up to the time of this delivery, that appellee was aware of, that would lead her to believe that her hopes and expectations, based upon the representations of her husband, would result in disappointment. If it may be conceded that the agent of the Rotan Grocery Company, who negotiated with the husband in the transaction, and who prepared and wrote the deed, had no actual knowledge that the wife did not know the real consideration, still, in preparing that instrument, he concealed, under one of its material recitals, a fact so important that, if the instrument under his preparation had been made to speak the truth, the entire transaction would have failed, and the instrument would not have been executed by her. He knew, when this instrument came -back to him, delivered by the husband, that at that time only it became effective, and that it had been, according to its terms, explained to the wife by the officer who took her acknowledgment, and that, when she finally became bound by the same, the false recital was calculated to deceive and mislead one not knowing the truth; and, if the trial court or this court were so charitably inclined as to acquit him of any intent to so frame the deed as to deceive the wife and to conceal the true facts, it must be confessed that the result was the same, as she in fact was deceived to her disadvantage.”

We note appellants’ contention that, notwithstanding the fact that the testimony of Mrs. Flynn was corroborated by that of her husband as to the false and fraudulent representations by which she was induced to execute the deed, inasmuch as they are both interested parties, the jury was not required to accept their testimony as true, though they were not contradicted. There are cases which support the rule relied upon by appellants, but we do not think that this case comes within that class, because the recited consideration in the deed, which was placed there by one of the appellants, strongly corroborates Mrs. Flynn’s testimony to the effect that she was deceived and led to believe that, as'a result of the transaction, her husband would obtain a consideration equivalent to $2,500 in money, which he could use for the purchase of another homestead. The deed itself, as prepared by appellant Gill, was highly calculated to deceive and impose upon Mrs. Flynn; and when she and her husband both testified that the latter made false representations to her which were in harmony with, and to a large extent confirmed by, the deed itself, we think a finding of the jury against her on the question of fraud could not be permitted to stand.

This renders it unnecessary for us to decide whether or not the acceptance by the Radford Grocery Company of the check and notes for $2,500, and the cancellation of the evidence of the indebtedness of the Bangs Mercantile Company to the Radford Grocery Company, was such a consideration as will support the plea of innocent purchaser, and we express no opinion upon that question.

Upon a consideration of the entire record, our conclusion is that the trial court made a proper disposition of the case, and therefore its judgment is affirmed.

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


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    ANTHONY v. HARDIN, Sheriff, et al.
    (No. 760.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 3, 1915.)
    1. Exemptions &wkey;>13 — Tools and Implements op Trade — Abandonment op -Trade.
    One conducting a moving picture show who did not show for two or three weeks, but who then opened up for two or three nights to some prospective purchaser, but who after two or three exhibitions closed the business, and who informed an officer having an execution that he had quit, and did not expect to open up the business, had abandoned the business, and the appliances used therein, exempt while the business was continued, were subject to execution.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 12; Dec. Dig. &wkey;>13.]
    2. Appeal and Error <&wkey;724, 736 — Questions Review able — Assignment op Error.
    An assignment of error which contains several specifications of error, and which is argumentative, and which violates the court rules on the subject, will be disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022, 3028, 3029; Dec. Dig.. &wkey;724, 736.]
    Appeal from District Court, Roberts County ; F. P. Greever, Judge.
    Action between C. H. Anthony and O. B. Hardin, Sheriff, and another. From a judgment for the latter, the former appeals.
    Affirmed.
    Troy Smith, of Miami, and Baker & Willis, of Canadian, for appellant. C. Coffee, of Miami, and Hoover & Dial, of Canadian, for appellees.
   HENDRICKS, J.

O. B. Hardin, one of the appellees, as sheriff of Roberts county, levied an execution upon certain property previously used by the appellant for the purpose of conducting a moving picture business, and the exemption of this property at the time of the levy is the issue in the cause.

Treating the property as subject to exemption, when used for the purpose of conducting the business for which the same is adapted, in accordance with the opinion of the Dallas Court of Civil Appeals in Campbell v. Honaker’s Heirs, 166 S. W. 74, however, we think the finding of the trial court is sufficiently sustained by the testimony that the use of the property applicable to the moving picture business, and that the business itself had been abandoned by the appellant at the time the levy was made.

Viewing the record from appellees’ standpoint, as it should be viewed, as one of sufficiency to sustain the issue of abandonment, it is disclosed that the sheriff, when the execution was placed in his hands for levy, sought the appellant, and discussed with him the matter of the execution; and in their conversation appellant stated that he had lost $700 in conducting the business, and had closed it down for good, except that he “was going to run it two or three nights,” and thought that he could get the sum of $50 out of it, at the same time having a prospective purchaser and desiring to sell it, and to demonstrate what the business would do.

Appellant testified:

“At the time I showed the last time I had not been showing for two or three weeks. Q. You stopped showing for some two or three weeks, and then opened up for two or three nights to some prospectives? A. No, sir; not altogether. 1 had a chance to make some money.”

The record discloses that after the two or three exhibitions, as indicated, the business was not continued. Appellant said:

“I closed it down on the 11th day of February, 1914. On the T2th, 13th, and 14th we showed the 101 Ranch pictures.”

The execution was levied the 16th of February. Before the sale of the property under execution the appellant gave written notice to the appellee ITardin that he claimed the property as exempt. The sheriff, however, said that:

“At the time of the sale Mr. Anthony [the appellant] was present; he' was pointing out things to me; he divided the slides; there were some of them that belonged to people in town; and he was right there helping to dispose. of the stuff. I do not remember his consulting with me with reference to the price of anything only just the moving picture machine. X remember making the mistake he said on the price, and he corrected me. He did not-make any objection at all at that time.”

This officer again said, evidently referring to the conversation occurring previously to the time of the actual levy:

“He [Anthony] told me before I went to levy on the stuff * * * that he had quit and never expected to open it up any more, * * * and, if he had not made that statement, I would not say what I would have done.”

Justice Gaines said, in the case of Willis v. Morris, 66 Tex. 628, 1 S. W. 803, 59 Am. Rep. 634:

“A lot in a town or city occupied as a place of business, * * * ceases to be exempt when the business is abandoned. * * * In analogy to this rule, we think that, when a mechanic abandons his trade, his tools are no longer exempt from execution.”

See, also, McCord-Collins Co. v. Lazarus, 50 S. W. 1048.

If at the time of the levy of the execution the moving picture business had been “closed” by appellant as his occupation, without any intention of resumption, the moving picture “apparatus” was subject to levy; and the notice to the sheriff just before the sale claiming the property as exempt could only be regarded for what it was worth, and did not restore the exemption; the lien of the execution had attached. Appellant argues that the statements, if made by him, were mere chance statements, inconsiderately made, and should not be weighed against him as a circumstance of abandonment. Of course, the value of declarations and admissions may be weakened or strengthened according to conditions; but we think in this instance the existent conditions when the declarations as to intention were made strengthen the value of the same as corroborative of appellant’s scienter in regard to his business. He was approached by the sheriff with an execution; the matter was discussed, and the moving picture business was mentioned; the appellant knew that the officer had the property in view, and prevailed upon him not to levy, and the appellant made the unequivocal statement that he was through with the business except for two or three nights, as suggested; the business had been closed for two or three weeks previously to the temporary opening, and thereafter again “closed down” in conformity with the very declaration made. Under the conditions, we think the statements have considerable weight, especially connected with the actual happenings, as proof of a definite intention in regard to the business; while the testimony of the sheriff as to the actions of the appellant at the time of the sale and the actual manifestations of the appellant at said time may be of slight significance as to the mind of the appellant, but we are not prepared to say, notwithstanding appellant had previously given notice that he claimed the property as exempt, that what he did at that time should be entirely disregarded as without any probative value. It is true that our Supreme Court has said that upon the cessation of business in a business homestead by a failing debtor a reasonable time should be permitted for resumption. Scheuber v. Ballow, 64 Tex. 168; Gassoway v. White, 70 Tex. 477, 8 S. W. 117. Those cases were unaccompanied by any declaration of a definite intention by the debtor, andi; as Chief Justice Stayton said in Tackaberry v. Bank, 85 Tex. 494, 22 S. W. 153:

“But it never has been held that the exemption would continue if, at the time the assignment was made, there was no intention to continue on the premises the former business, or to pursue some other character (of business) such as to give exemption.”

The first assignment of error, attempting to raise the issue discussed herein, upon the objections of appellee, is disregarded. It contains in reality several specifications of error, is argumentative, and violates practically every rule on the subject of proper assignments. However, we have concluded to decide the case on its merits, under the third assignment of error in appellant’s brief.

The judgment of the lower court is affirmed.
      (g^^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    STOCKTON v. JONES et al.
    (No. 5472.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 14, 1915.)
    1. Appeal and Error &wkey;>1010 — Findings— Conclusiveness.
    A finding supported by evidence and riot attacked by assignment of error is conclusive on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. <&wkey;>1010.]
    2. Homestead &wkey;>128 — Mortgages — Validity.
    Where a creditor of a debt not within any of the constitutional exceptions to the prohibition against incumbering a homestead took a mortgage of the homestead of the debtor and his wife, with knowledge of the existence of the homestead, the mortgage was void.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 224-232; Dec. Dig. &wkey;128.]
    Appeal from District Court, Wharton County; Sam’l J. Styles, Judge.
    Action by H. P. Stockton against W. D. Jones and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    H. A. Cline, of Wharton, and A. D. Dyers, of Temple, for appellant. Cappel & Rowan, of El Campo, for appellees.
   CARL, J.

On the 4th day of June, 1913, W. F. O’Briant and his wife, May A. O’Briant, executed and delivered to H; P. Stockton a deed, wherein they purported to convey to him the west one-half of farm block No. 17 in the town of Louise in Wharton county; the consideration therein expressed being $412.06, which is stated to be a cash consideration. This deed was acknowledged before R. F. Hudson, a notary public of Wharton county, on the same day the deed bears date, and was filed for record on the day of its execution. On the same day this deed was executed, W. F. O’Briant and Stockton entered into an agreement whereby the former rented the property from the latter, from June 4, 1913, until the 1st day of January, 1914, for an expressed consideration of $35 cash paid. Subsequent thereto, O’Briant and his wife went to the country, but left their furniture in the house, and the defendant W. D. Jones was left in charge of the property for them. When Stockton demanded possession of the property, it was refused, and he thereupon filed suit for the property in trespass to try title, naming W. D. Jones and W. F. O’Briant as defendants. O’Briant pleaded not guilty, and in a plea in intervention he and his wife, May A. O’Briant, set up the fact that the property was their homestead before, at the time, and ever since the execution of said deed; that said deed was in fact intended to be a mortgage to secure something over $400 which O’Briant owed Stockton; and that it was agreed and understood at the time of the execution and delivery of said deed that it was merely to secure said debt and that when said debt was paid Stockton would reconvey the property. It is also charged that Stockton agreed to withhold the deed from the record. Mrs. O’Briant alleges that she was not examined separate and apart from her husband at the time the deed was executed, but that he was present all the time; that Hudson, the notary, did not read the deed to her; and that her husband had told her that it was only a mortgage. So that at the time the same was executed she did not know that it was a deed conveying the title to the property. Fraud, on the part of Stockton and his agent, Hudson, who is the cashier of the People’s Bank, owned by Stockton, was also pleaded as a ground for setting aside the, deed.

Upon a trial before the court, without the assistance of a jury, the court found that the property in question was the homestead of W. F. O’Briant and wife at the time of the execution of the deed, and that this deed was intended to serve as a mortgage to secure what W. F. O’Briant owed Stockton’s private bank. The evidence was ample to support both of these findings. It is not contended that the debt secured falls within any of the constitutional exceptions to the inhibition against incumbering the homestead. These findings are not attacked by any assignments of error and are therefore conclusive..

There was ample testimony to show that the property was the homestead of O’Briant and wife, which fact appellant knew, and also that the deed was intended to be a mortgage to secure what O’Briant owed appellant’s bank, aside from the evidence of appellee and his wife, as to what they had been offered for the property. And, where that is true, in a trial before the court, we would not disturb the finding. And since the property was a homestead and the instrument was a mortgage, it becomes absolutely immaterial whether W. F. O’Briant was present or not when his wife acknowledged the deed; for in either event it would be void. Neither was there error in overruling the motion for a new trial, based upon the affidavit of Mrs. Ida Merrifield, to the effect that Mrs. O’Briant told her she had to go alone to sign the deed. At most, that would only be persuasive, because her husband' may have been at the bank when she got there, even if she did go alone. But whether he was there or not is immaterial.

We have carefully examined all assignments of error, and find them without merit.

Therefore the judgment of the trial court is in all things affirmed.
      <gz^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COLEMAN VITRIFIED BRICK CO. v. SMITH.
    (No. 5441.)
    (Court of Civil Appeals of Texas. Austin.
    March 24, 1915.
    Rehearing Denied April 21, 1915.)
    1. Total @=260 — Instructions—Refusal of Instructions Covered by Charge Given.
    It is not error to refuse requested instructions, where the instructions given fairly and fully submit the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    2. Nuisance &wkey;54 — Actions—Evidence—Instructions.
    Where, in an action for damages caused by the erection and maintenance of a brick plant on land adjacent to plaintiff’s residence, there was evidence that a third person had previously maintained a small brick plant on the premises where defendant maintained the plant complained of, but there was no proof that the small plant caused any injury to plaintiff, an instruction, limiting the jury to a consideration of the injury caused after defendant became the owner of the plant and stating that he was not responsible for any injury caused by prior owners, sufficiently guarded defendant’s rights.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 130; Dec. Dig. @=54.]
    3. Trial <&wkey;312 — Instructions on Jury Returning to Court — Statutory Provisions.
    The statute requiring the submission to the jury of special issues does not repeal the statute authorizing a judge, on request of the jury, to give additional instructions.
    TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. &wkey;312.]
    4. Trial @=312 — Instructions on Jury Returning to Court.
    A party may not complain of an instruction given to the jury returning into court and asking for further instructions, which conforms to instructions originally given and is favorable to appellant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. &wkey;312.]
    Appeal from District Court, Coleman County; John W. Goodwin, Judge.
    Action by W. M. Smith against the Coleman Vitrified Brick Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. A. B. Miller, Woodward & Baker, and Snodgrass, Dibrell & Snodgrass, all of Coleman, for appellant. W. Marcus Weatherred, of Coleman, for appellee.
   KEY, C. J.

Appellee sued appellant for damages, alleged to have been caused by the erection and maintenance of a brick plant in the town of Coleman on lots adjacent to appellee’s residence, fixing his damages at $500 for discomfort to himself and family, and $2,500, depreciation in the market value of his homestead. Appellant answered by special exceptions, a denial of the truth of the allegations in plaintiff’s petition, and averred that appellant did not establish a brick plant, but that the same was established by one W. W. McDonald, and had by regular chain of title become the property of appellant, and that the same had been maintained by McDonald and by appellant for more than two years prior to the institution of appellee’s suit, and for that reason the suit was barred by limitation. Appellee, by supplemental petition, excepted to so much of appellant’s answer as set up the purchase of the brick plant already in existence, and specially denied the allegations of appellant’s answer. There was a jury trial, which resulted in a verdict and judgment for ap-pellee for the sum of $400, as damages to his property, and $250 for discomfort to the plaintiff and his wife, and appellant asks-a reversal of that judgment.

No complaint is made as to the amount of damages awarded by the verdict, and the questions of law that are presented in appellant’s brief are neither new nor novel; and, for that reason, we deem it unnecessary to discuss them separately or to write an elaborate opinion.

Several of the assignments of error relate to the action of the trial court in giving and refusing instructions, all of which assignments are overruled, because we are of opinion that the case was fairly tried, and that the trial court gave to the jury such, and only such, instructions as were necessary to enable them to understand the rules-of law by which they were to be governed in deciding the case. While the proof showed that W. W. McDonald had previously established and maintained a small brick plant on the premises where appellant subsequently constructed and maintained the plant complained of by appellee, there was no proof that it caused any injury to appellee’s premises; and the court in charging the jury limited them to a consideration, of injury and damage caused after” appellant became the owner of the property, and specifically instructed them that appellant would not be responsible for any injury or damage caused by prior owners. So it is that the court’s charge fully and carefully guarded appellant’s rights in that regard, and no error was committed in refusing any further instructions upon that subject.

As the case was submitted by the court to the jury, the question of limitation was not involved, and no error was committed in refusing to submit that question to them. Before the jury reached a verdict, they returned into court and inquired of the judge if they could consider the condition of the old plant, or confine themselves entirely to a consideration of the conditions and results of the new plant, and thereupon the judge gave an additional written charge, telling the jury to confine themselves to the effects, if any, of the new plant owned by appellant. Appellant assigns error upon the giving of that charge, and contends that it was not only erroneous and misleading, but that since the recent legislative enactment requiring all cases to be submitted upon special issues, etc., a trial judge has no authority, alter a case has been submitted to a jury, to give any additional charge. We overrule that contention and hold that the legislation referred to did not repeal the article of the statute which authorizes a judge, upon request of the jury, to give additional instructions. We also hold that appellant has no just ground of complaint against the charge that was so given in this case; it merely repeated what the court had already told the jury, which was, in substance, that appellant was not responsible for what had been done by the former owners of the property, and was responsible only for such injury and damage as had been caused by appellant. That charge was distinctly favorable to appellant, and all the objections urged against it are overruled.

Several assignments in appellant’s brief complain of the action of the trial court in reference to the admission of testimony, some because certain evidence was admitted, and others because certain testimony that was offered was excluded. Those assignments have been duly considered, and are all overruled. The evidence supports the verdict both as to liability and amount of damages.

Our conclusion upon the whole case is that no reversible error has been shown, and therefore the judgment of the court below should be affirmed, and it is so ordered.

Affirmed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    GULF, C. & S. F. RY. CO. v. J. A. BOWERS & SON.
    (No. 8140.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 27, 1915.)
    1. Carriers &wkey;>228 — Carriage of Live Stock —Delay in Transportation — Shrinkage.
    In an action against a common carrier for damages to a shipment of live stock through delay in transportation and rough handling, evidence examined, and held to warrant the refusal of a peremptory instruction for defendant and to sustain a verdict for plaintiff based upon the shrinkage in the weight of the cattle when delivered.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. &wkey;>228.]
    2. Trial <&wkey;-253 — Instructions — Ignoring Evidence.
    In an action for damages to a shipment of live stock through the carrier’s delay in transportation, an instruction to find for defendant if the shipment could not have reached its destination in time for the morning market was properly refused, where the evidence showed that the market was open until 3 o’clock p. m. and sometimes as late as 7 p. m.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. &wkey;253.]
    3. Trial &wkey;>250 — Instructions — Application to Pleadings and Evidence.
    An instruction eliminating the grounds of recovery and submitting issues not made by the pleadings nor sustained by the evidence is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. &wkey;250.]
    Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.
    Action by J. A. Bowers & Son against the Gulf, Colorado & Santa F6 Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Lee & Lomax and W. D. Smith, all of Ft. Worth, and Terry, Cavin & Mills, of Galveston, for appellant. J. A. Templeton, of Ft. Worth, for appellees.
   BUCK, J.

Suit was filed by J. A. Bowers & Son against appellant for damages alleged to have been sustained in the shipment of two car loads of cattle, consisting of 57 cows, 4 bulls, and 4 steers, shipped from Caldwell, Tex., to Ft. Worth, Tex., on December 3, 1912. Recovery was sought by reason of alleged delays in transportation and rough handling causing alleged shrinkage in weights of the cattle and depreciation in market value. From a judgment for plaintiffs in the sum prayed for, to wit, $140.40, the defendant railway company appeals.

The evidence showed that the cattle were loaded on the cars at about 2 o’clock p. m. December 3d, and left Caldwell at 4 o’clock p. m., one car reaching North Ft. Worth at 3:40 p. m. December 4th, and the other at 12:50 a. m. December 5th. The shippers did not accompany the shipment, either in person or by agent. The distance from point of origin to destination is 191 miles. The scheduled time for such run by through freight trains is 18 hours and 5 minutes, but various witnesses testified that it ordinarily takes about 14 or 15 hours to make the trip. The two plaintiffs testified that they have made such trip in 10 hours, but that ordinarily it takes 14 or 15 hours. The shipment arrived at Ft. Worth in different ears from those in which they were loaded. Therefore it might be said that the evidence ’ showed conclusively that the cattle had been unloaded en route. These cattle had been fed on hulls and meal for 90 days, 30 days of which feeding was prior to the purchase of the cattle by plaintiffs. The 65 head weighed 51,450 pounds, and sold at' prices ranging from $3.50 to $4.70 per hundredweight.

In its first and second assignments appellant complains: First, because of the refusal of the court to give to the jury the peremptory instruction asked by defendant; and, second, because it is alleged that the verdict of the jury is without evidence to support it, and is therefore contrary to the law, in this, that the great weight and preponderance of the evidence shows that the question of how much the cattle will shrink in transportation and how much they will shrink by being delayed and arriving at the market late is largely a matter of speculation and guesswork; that it depends on several things, to wit, weather conditions, time cattle were unloaded at the market, manner of feeding the cattle, and the fill they were allowed to take just before they were loaded on the cars for transportation, etc. It is further urged in said second assignment that there is no testimony in this case as to the various conditions which effected the shrinkage in the cattle.

In discussing these two assignments it may be well to note that the testimony tended to establish: (1) That ordinarily cattle will lose somewhat in weight and in depreciation in market value by reason, of shipment even when handled with due care and transported with due dispatch; and (2) that they will lose more in shrinkage by reason of the first day’s shipment than for subsequent days, and that the loss in shrinkage and in depreciation from delays will decrease for each day after the first 24 hours. If 15 hours be taken as the ordinary time required for the trip, then the first shipment reaching Ft. Worth was S hours and 40 minutes beyond the usual and customary time in making the run, and the second car 17 hours and 5 minutes, from the time the two cars actually left Caldwell to the time they were placed for unloading at the stockyards. If they had made the run in the usual time, the two cars would have reached Ft. Worth not later than 7 a. m. December 4th, which would have given time for the cattle to receive their fill and be ready for the market the morning of the 4th. The evidence tends to show that the market for cattle at the Ft. Worth Stockyards ordinarily closes about 3 o’clock p. m., but that sometimes buying and selling continue until as late as 7 o’clock p. m. The testimony of the two plaintiffs, C. L. Brown, salesman for the commission company who sold these cattle, and other witnesses, tends to show that a 24 hours’ delay in shipment will cause a depreciation in tlie market value of cattle of about 10 cents per hundredweight and a shrinkage in weight of from 20 to 50 pounds per head. There does not seem to be any controversy as to the character and kind of cattle shipped, as to upon what they had been fed for the 90 days last prior to the shipment, and there is no intimation in the record that weather conditions, either- at the time of loading or unloading, were unfavorable. The testimony of men who have been engaged for many years in the buying and selling and handling of live stock, and the shipment thereof, as to the effect upon cattle of delays in shipment, is not mere speculation and guesswork, but its reliability depends largely on the experience and fairness of such witnesses, though of course their judgment as to the extent of shrinkage or depreciation is not reducible to anything like a mathematical certainty. Nor does any witness in this record, so far as we have been able to determine, purport to testify as to the exact amount of shrinkage or depreciation that would take place under a given condition or set of circumstances. If the testimony of the witnesses for the plaintiffs upon these matters is to be relied on — and we see no reason why it is not credible — we think the plaintiffs have established a depreciation in market value not to exceed 10 cents per hundredweight, or $51.45, and a loss resulting from shrinkage of from 20 to 50 pounds per head. The average price at which these cattle were sold was $4.10 per hundredweight; the average price per head was $34.40. By subtracting $51.45, the amount of recovery admissible under the testimony for depreciation in market value of the cattle as sold, from $140.40, the amount of the recovery, we have $88.95, which gives a recovery of $1.36 per head for such shrinkage, which allows only some 33 or 34 pounds per head for shrinkage, and we think the evidence amply sustains this amount. Therefore we overrule appellant’s first and second assignments of error, and also the third, which raises in another form the same question.

In its fourth assignment appellant complains because the court failed to give its special charge No. 6, which reads:

“Gentlemen of the jury, you are charged in this cáse as follows: The defendant could not be required under the law to move plaintiffs’ cattle from Caldwell to Ft. Worth within any particular time, or for any particular market, but could only be required to use ordinary diligence and care to transport the cattle from Caldwell to Ft. Worth within a reasonable time. If you find, therefore, and believe from the testimony in'this case, that the plantiffs’ cattle could not in any event have reached Ft. Worth in time for the market on the morning of December 4, 1912, then you will find for the defendant in this case and so say by your verdict.”

We do not think that defendant was entitled to this charge. The charge in question was erroneous in that it instructed a verdict for defendant if the jury should find that the cattle could not have reached Ft. Worth in time for the morning market of December 4th, when the evidence shows that the market at Ft. Worth was open generally until 3 o’clock p. m. and sometimes as late as 7 p. m., as heretofore stated. Moreover, it eliminates the questions of whether or not the cattle were depreciated in market value and were shrunken in weight, which were the two grounds for plaintiffs’ recovery, and submits an issue not made by the pleadings, nor sustained by the evidence, to wit, the question of whether or not by reason of said delay plaintiffs lost the benefit of the market of the morning of December 4th. There is nothing in. the record to show that there was any difference in the market's of December 4th and December 5th. The fourth assignment is overruled.

We do not think that the charge contained in the fifth paragraph of the court’s main charge is subject to the criticisms of being on the weight of the evidence, and hence we overrule appellant’s fifth assignment of error.

Finding no reversible error, the judgment of the trial court is affirmed.
      ^=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CHICAGO, R. I. & G. RY. CO. et al. v. GLADISH et al.
    (No. 764.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 10, 1915.)
    1. COURTS &wkey;>169 — Juridiction — Amount in Controversy.
    Where the amount in controversy is in excess of the court’s jurisdiction, a portion thereof cannot be remitted to bring the matter within the jurisdiction of the court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 450, 458, 465; Dec. Dig. &wkey;169.]
    2. Courts <&wkey;170 — Jurisdiction — Amount in Controversy.
    The amount demanded in the pleading fixes the amount in controversy, so as to determine the jurisdiction of the court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. &wkey;170J
    3. Justices or the Peace <&wkey;32 — Jurisdiction.
    The jurisdiction of the justice court over the subjects committed to it by the Constitution is as general and exclusive as that of the district courts.
    [Ed. Note. — For other cases, see Justices of the Peace, Dec. Dig. <&wkey;>32.]
    4. Appeal and Error <&wkey;1091 — Presumptions.
    In the absence of a transcript showing to the contrary, the presumption is that the.judgment of the county court, rendered on appeal from justice court, is correct.
    [Ed. Note. — B’or other cases, see Appeal and Error, Cent. Dig. §§ 4302-4311, 4331; Dec. Dig. <S&wkey;1091.]
    5. Appeal and Errior <&wkey;>1091 — Presumptions — Justices op the Peace.
    Though the transcript is silent, the citation issued by the justice is not necessarily regarded as the pleading on which the cause is submitted to the inferior court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4302-4311, 4331; Dec. Dig. &wkey;>1091.]
    6. Appeal and Error <&wkey;1091 — Judgmeni^-Presumption.
    Where there were no written pleadings either in the justice or the county court to which the case was appealed, other than defendants’ general denial, it will be presumed that the oral pleadings of plaintiffs were such as to authorize proof of facts to support the judgment, though the citation issued by the justice was ambiguous and might have authorized judgment for an amount in excess of his jurisdiction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4302-4311, 4331; Dec. Dig. &wkey;1091.]
    Appeal from Sherman County Court; J. W. Elliott, Judge.
    Action by Y. M. Gladish and 'others against the Chicago, Rock Island & Gulf Railway Company and others, begun in justice court, and appealed to county court. From a judgment there for plaintiffs, defendants appeal.
    Affirmed.
    N. H. Lassiter, of Ft. Worth (Moore & Powell, of Dalhart, of counsel), for appellants. John H. H. Stahl, of Stratford, for appellees.
   HENDRICKS, J.

The appellees sued the appellant in the justice court to recover damages on account of alleged injury to cattle in transportation. The citations served upon the railway companies suggest an amount, considering the aggregate of the items of plaintiff’s damage stated in the same, beyond the jurisdiction of the justice court. The defendants neither answered nor appeared in the justice court, and the judgment in that court was for “the sum of $200, with interest thereon at the rate of 6 per cent, per annum from - hereof,” etc. The transcript on appeal from the justice to the county court, and also in this court, exhibits the following entries upon the justice court docket:

“Suit upon open account for damages for $200.00 of date due now; interest at -. Filed 5th day of June, 1914. * * 15 July 27th, 1914. In open court on trial of this cause plaintiffs are given leave to amend their claims so as to read and ask for $9.00 extra feed bill at Herrington, caused by defendants’ delays en route beyond the usual and reasonable time of transportation; with proviso that plaintiffs are in no event asking for judgment to exceed $200.-00, interest and costs.”

Standing alone, whether this is a demand for $200 or $209, we cannot say. The statement of the nature and result of the suit in the citation also contained a proviso:

“That plaintiffs claim the foregoing, sums as damages [moaning the items embodied in said citation] with this proviso, that they are not asking more than a total judgment of $200.00, exclusive of interest and costs aforesaid.”

We admit the rule that, where the amount in controversy by pleading is more than the jurisdiction of the court, a portion thereof cannot be remitted to bring the amount within the jurisdiction, where the amount demanded is a fixed sum (Railway Co. v. Canyon Coal Co., 102 Tex. 480, 119 S. W. 294); also the rule that the amount demanded in the pleading is the criterion of the real amount in controversy and not the amount indicated or demanded in the prayer.

Our Supreme Court holds, however, that the jurisdiction of the justice court is as general and exclusive over the subjects committed to them by the Constitution as that of the district and county courts within their province. Clayton v. Hurt, 88 Tex. 595, 32 S. W. 876. The Supreme Court of the United States says:

“It is undoubtedly true that a superior court of general jurisdiction, proceeding within the general scope of its powers, is presumed to act rightly. All intendments of law in such cases are in favor of its acts. It is presumed to have jurisdiction to give the judgments it renders until the contrary appears. And this presumption embraces jurisdiction, not only of the cause or subject matter of the action in which the judgment is given, but of the parties also.” Galpin v. Page, 18 Wall. 350, 21 L. Ed. 962, 963.

This is, of course, the familiar rule on collateral attack. And upon appeal from a justice to a county court, and then to an appellate court, in the absence of a transcript showing to the contrary, the presumption is that the judgment of the county court is correct. Maass v. Solinsky, 67 Tex. 290, 3 S. W. 289 (Sup. Court). It has been the holding of the courts that the citation issued by thejustice of the peace, where the transcript is silent, is not necessarily regarded as the pleading upon which the cause "is submitted to the inferior court. Wooley v. Corley, 57 Tex. Civ. App. 229, 121 S. W. 1139. Again, it is held where a justice court -case is appealed to the county court, but there were no written pleadings in either ■court other than the defendant’s general denial, on a further appeal to the appellate •court, it will be presumed that the oral pleadings of plaintiff were such as would authorize proof of the facts to support the .judgment. Bowman v. Southwestern Land Co., 107 S. W. 585. Also see Telegraph Co. v. Levy, 102 S. W. 135.

The appellant would have us to take the :amount of the demand embodied in the citation as conclusive of the demand asserted by the appellee in the justice and county courts; but though this record may suggest in the justice court that the appellee was amending an oral pleading of the same amounts, as suggested by the citation, however, we are unable to definitely state what the appellee orally demanded against the appellant in that court, or in the county court. If in the justice court the oral pleadings or ■demand was “a suit upon open account for damages for $200.00 of date due now,” the justice court had jurisdiction; and this ree-•ord being entirely silent as to the amount plaintiff pleaded in the county court, where all parties appeared, if the justice court would have had jurisdiction, the county -court would also have had the jurisdiction. We would be compelled to presume that the demand in the county court, orally pleaded in that court and not disclosed in this court, ■was within that jurisdiction upon appeal.

Justice Hodges, in the case of Wooley v. Corley, supra, speaking of the citation out of the justice court as a writ starting the suit, said:

“It is issued in advance of the appearance of the parties for trial and pleading. It may or may not contain a statement of the cause of action as (orally) pleaded by the plaintiff. Certainly the law will not presume that it does. Upon the appearance of the defendant the plaintiff may state a cause of action entirely different from the nature of the demand embodied in the citation.”

The judgment rendered herein as to amounts are within the jurisdiction of the county and justice courts, and the only impeachment of the jurisdiction of the inferior courts is a doubtful condition of the record, and which we are constrained to hold does not affirmatively show lack of jurisdiction; the contention being in effect that the citation is conclusive, aided by other suggestions in the record, which do not, however, definitely remove the doubt, but without knowing what the plaintiff orally demanded, and with another portion of the record stating that it is a “suit upon open account for damages due now.” It is again held by our Supreme Court, as to allegations of jurisdictional amount, where the written record is ambiguous and doubtful, and subject to two constructions, the record will be construed to support, rather than defeat, the jurisdiction of the court rendering the judgment. Rayzor v. Railway Co., 172 S. W. 1103. Upon a similar subject, see Fertilizer Co. v. Bank, 104 Tex. 188, 135 S. W. 529. The cited case of Ft. Worth Stock Yards Co. v. Witherspoon, 166 S. W. 502, and other similar cases, not cited, have no just application to the character of question involved here.

We are inclined to think the presumption will have to prevail against the appellants as to the matter of jurisdiction, and that, being the exclusive question, the judgment of the trial court is affirmed.
      <2&wkey;]ror other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    LEWIS v. STATE.
    (No. 3534.)
    (Court of Criminal Appeals of Texas.
    May 5, 1915.)
    Appeal from Criminal District Court, Harris County; G. W. Robinson, Judge.
    Henry Lewis was convicted of burglary, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

From a conviction for burglary, with the lowest penalty assessed, this appeal is prosecuted.

There is neither a statement of facts nor bill of exceptions in the record. . In the absence of these, no question is raised’ which we can review.

The judgment is affirmed.


author: PEENDEEGAST, P. J.

text:
    TANNER v. STATE.
    (No. 3547.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    John Tanner was convicted, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PEENDEEGAST, P. J.

Upon an indictment and trial for murder, appellant was convicted of aggravated assault, and fined $75.

There is no statement of facts or bill of exceptions in the record. No question is raised which we can review in the absence of these.

The judgment is affirmed.


author: PHILLIPS, J.

text:
    BOLES v. ALDRIDGE et al.
    (No. 2552.)
    (Supreme Court of Texas.
    April 28, 1915.)
    1. Exchange of Property <@=>5 — Rescission —Misrepresentation.
    A positive representation as to the condition of land exchanged, though expressly made as upon information, but affirmed as being true when in fact it is false, affords ground for rescission of a contract for the exchange of lands made in reliance thereon.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dee. Dig.. <@=5.]
    2. Exchange of Property <S=^8 — Rescission —Question for Jury — Evidence.
    In a suit to cancel a trade of land on the ground of misrepresentation, evidence that plaintiff relied upon statements of defendant, and believed them to be true, was sufficient to justify submission of the issue whether he made the trade in reliance on such misrepresentation.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. <&=8.)
    3. Exchange op Property t§=^5 — Rescission.
    An assumption by one of the parties to an exchange of lands of an indebtedness of the other, does not preclude rescission by the indebted party on the ground of fraud, where the creditor has not agreed to accept the undertaking.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. <&=»5.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by James G. Boles against G. W. Aldridge and another. Judgment for defendants was affirmed by the Court of Civil Appeals (153 S. W. 373), and plaintiff brings error.
    Reversed and remanded.
    J. Ralph Bell and Davis & Davis, all of Gainesville, for plaintiff in error. Potter, Culp & Culp and Stuart, Bell & Moore, all of Gainesville, for defendants in error.
   PHILLIPS, J.

The plaintiff in error, Boles, being the owner of certain town lots and 200 acres of land in Cooke county, made an exchange of his property with the defendants in error, Aldridge and wife, for a tract of 640 acres owned by the latter in Reagan county, based, as he claims, upon certain material representations made by Aldridge concerning the Reagan county land, which the evidence tended to show were untrue. The suit was by Boles to cancel the trade upon the ground of the misrepresentation. The trial court instructed a verdict against him. The honorable Court of Civil Appeals affirmed the judgment because, among other reasons, the evidence disclosed that in making the statements constituting the basis of the suit Aldridge informed Boles that he had not seen the Reagan county land, and that his representation concerning it was based upon what others had told him.

We think the case should have gone to the jury. It is true that Aldridge related that he had never been upon the land; but, according to Boles’ testimony, his statements concerning it which induced the trade were not made as merely the communication of his information. They were made as affirmative representations, followed by or in conjunction with a statement that he had never been upon it. But this, according to Boles’ testimony, was not all that Aldridge said. He added that while he had never been upon the land, “he knew the parties that had been upon it; that they were perfectly reliable; and he would guaranty what they had told him.” This amounted to nothing less than his adoption of the statements of such parties, and his assumption of full responsibility for them. It was a character of statement calculated to allay suspicion and restrain investigation, rather than excite doubt or induce inquiry; and there can be no doubt of material representations, made under such circumstances, affording sufficient ground for an action of this nature.

The positive representation as a fact of that which is untrue and concerning which a party has no knowledge is equivalent to an assertion that he knows it to be true, and, where material, is equally actionable with a statement known to be false. And where one man makes to another a certain definite and material statement concerning property, as was the testimony here, plainly for the purpose of influencing the other’s action, and expressly vouches for its truth, the circumstance that he revealed his want of actual knowledge renders it none the less his own affirmative representation. It could not be otherwise, for such a statement loses its quality as mere related information when once its reliability is positively affirmed and vouched for. It then takes on the full character of a definite representation, as it could be meant for nothing else, and comes within the rule to which we have adverted because it assumes to be truth. It is of no consequence that it is made without actual knowledge but upon information, and such disclosure is made at the time. That does not operate as a qualification in the face of the fact that the information is vouched for as in all respects reliable, and full responsibility for it announced. The positive affirmation of the truthfulness of information, upon which it is stated that a representation of fact is made, clearly amounts to an affirmation of the truthfulness of the representation itself. The inquiry in all such cases is not whether the party making the representation has actual knowledge, but whether the statement is made as one of fact and purports to be the truth. According to Boles’ testimony, Ald-ridge’s representations were of that character. They were definite statements of the actual condition of the land, and bore the full semblance of truth through Aldridge’s positive assertion of the reliableness of the information upon which he based them.

The rule is fully recognized that what one states to another merely as his information touching the subject of a transaction will not support an action for rescission, if such was in fact the information received, though in fact it was untrue. But that rule has no application where a positive representation of fact is made as upon information, and in the same connection the stated information is definitely affirmed as true.

Undoubtedly Boles would not be entitled to recover in this action unless he closed the transaction influenced by and in reliance upon Aldridge’s representations, as distinguished from a mere willingness,' the representations aside, to rest the trade upon Aldridge’s promise of indemnity, expressed in his written guaranty, if the land was not as he stated. But that was a question of fact, and Boles’ testimony was such as to justify the submission of the issue to the jury. In one portion of his testimony occurs the statement that he relied altogether upon what Aldridge said to him, and, in another, that he believed what Aldridge stated to be true, otherwise he would not have made the trade; and that he then entered into the agreement for the trade, at which time the written guaranty had not been given.

In the state of the record, the fact that in the exchange Aldridge assumed the payment of certain indebtedness against Boles’ property presented no obstacle to a rescission at the latter’s suit. There was neither pleading nor proof that the holder of the indebtedness had agreed to accept "Aldridge’s undertaking. So far as the record discloses, the agreement, therefore, was of no force except as between Boles and Aldridge and was subject to cancellation in the suit. Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672.

The judgments of the district court and the Court of Civil Appeals are reversed, and the cause is remanded to the district court for further trial.
      @=s>For other cases see same topic and KEY-NUMBER in all Key-Nurubered Digests and Indexes


text:
    MADDOX v. CLARK.
    (No. 2650.)
    (Supreme Court of Texas.
    April 28, 1915.)
    1. Exchange or Property ©=55 — Rescission —Misrepresentations.
    A definite and material representation of the condition and valuó of land exchanged, which is relied upon and proved to be untrue, though stated at the time to be made not upon actual knowledge but upon information, will support an action for rescission, where in the same connection the party making the representation affirms the truthfulness of the information.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. ©=55.]
    2. Exchange op Property ©=so — Rescission. ' An assumption by one of the parties to an
    exchange of lands of an indebtedness of the other does not preclude rescission by the debtor, where the creditor has not agreed to accept the undertaking.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. ©=55.]
    3.Appeal and Ebbob ©=>1082 — Preservation op Grounds pob Review — Objections in Intermediate Court.
    The reformation of a judgment by the Court of Civil Appeals will not be reviewed, in the absence of an objection in that court by motion for rehearing and application for a writ of error on that ground.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1133-1136, 4270, 4281-4284,4289-4292; Dec. Dig. ©=5.1082.]
    Error to Court of Civil Appeals, Second Supreme Judicial District.
    Action by S. B, Maddox against J. P. Clark. Judgment for defendant was affirmed by the Court of Civil Appeals (163 S. W. 309), and plaintiff brings error.
    Affirmed.
    D. J. Brookreson, of Benjamin, for plaintiff in error. Jas. A. Stephens, of Benjamin, for defendant in error.
   PHILLIPS, J.

Maddox instituted the suit in trespass to try title to recover of Clark certain lots in the town of Knox City. By cross-action Clark, joined by his wife, sought the rescission of the trade in which they had conveyed to Maddox the lots sued for, and others, in exchange for 160 acres of land in Montague county; Clark executing and delivering to Maddox his notes in the transaction, as well, in the aggregate sum of $950. The ground of the cross-action was certain misrepresentations concerning the Montague county land alleged to have been made to defendants by Maddox and L. P. Bennett as his agent, which induced the conveyance of their property and the procurement of Clark’s notes for $950 through fraud and imposition, he being uneducated and unable to read, when, according to the agreement in the trade, they should only have been for the principal sum of $500. Four of the lots conveyed to Maddox had been in turn conveyed by him to an innocent third party at the time of the trial. He had also transferred Clark’s notes, without recourse, to an innocent holder. The trial resulted favorably to the defendants, and judgment was rendered for them against Maddox for the amount of the notes and the value of the lots he had sold, less certain credits, canceling their deed to the lots sued for, and restoring to Maddox the Montague county land. The Court of Civil Appeals for the Second District reformed the judgment so as to postpone execution for the amount of the notes until Clark should pay them, and affirmed it. 163 S. W. 309.

The lots conveyed by the defendants to Maddox in the transaction, or some of them, constituted their homestead. Maddox had only owned the Montague county land three days, when its exchange for the defendants’ property was made. The defendants appear to have been ignorant people, and the evidence sustains the verdict that they were induced to trade their property for the land which they had never seen by representations of Maddox and Bennett concerning it, which were untrue.

Clark’s testimony was that both Maddox and Bennett, in connection with their representations, stated that they had never seen the land. The ruling of the Court of Civil Appeals that, under such circumstances, the representations were actionable, was in conflict with the holding of the Court of Civil Appeals for the Sixth District in Boles v. Aldridge, 153 S. W. 373, decided in this court upon this date; and a writ of error was granted in the present case for the settlement of the conflict.

We held in Boles v. Aldridge that a definite and material representation of fact, which is relied upon and proves to be untrue, though stated at the time to be made not upon actual knowledge but upon information, will support an action for rescission, where, in the same connection, the party making the representation affirms the truthfulness of the information. This but amounts to an affirmation of the truthfulness of the representation itself, which is therefore sufficient to support the action.

Our holding in Boles v. Aldridge controls this case. The court submitted to the jury the representations of both Maddox and Bennett, and likewise the issue of the latter’s agency. According to Clark’s testimony, the representations of both concerning the land were positive statements of fact in respect to its actual condition, and not simply the relation of what others had told them. Both stated they had never seen it, but, according to Clark, Bennett in the same connection also said, “I will vouch for the land.” This could mean nothing else than that their common statements concerning it were true, and amounted to a distinct affirmation to that effect. According to the testimony of Mrs. Clark and her daughter, the representations made to Mrs. Clark were positive and without any information that neither Maddox nor Bennett had ever seen the land.

In addition, the evidence tended to establish that Maddox had never received any such information about the land as was embodied in the representation he made to Clark according to the latter’s testimony, though it should be stated that both he and Bennett denied having made the representations attributed to them by the defendants. Clark testified that Maddox’s statement to him was that 40 acres of the land were in cultivation, and that it had upon it a plank house, a log house, a well of water and an orchard; and that in fact there was no house upon it, nor any well. The only testimony given by Maddox touching any information received by him concerning the land was his statement “that a drummer, who said he was doing business in Nocona, stated to him that it was worth $25 per acre at least, but said he had never seen the land, and that there were different kinds of land in that country.”

There was no plea that the defendants had waived or ratified the fraud; therefore no such issues were in the case. Nor was there any pleading or proof that the holder of Clark’s indebtedness, secured by lien by the lots and assumed by Maddox in the trade, agreed to accept the latter’s undertaking. In this state of the record Maddox’s assumption of the indebtedness was binding only between the Clarks and himself, and was subject to cancellation in the suit.

Complaint is made by the defendants in error at the reformation of the judgment by the Court of Civil Appeals, but, in the absence of any such objection in that court by a motion for rehearing and an application for a writ of error by the defendants upon that ground, we cannot review that question.

The judgment of the Court of Civil Appeals is affirmed.
      <g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    SCOTT v. STATE.
    (No. 3503.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.
    On Motion for Rehearing, May 5, 1915.)
    1. Criminal Law <§=>595 — Continuance — Absence of Witness — Materiality of Testimony.
    A defendant charged with crime is not entitled to a continuance to procure the testimony of a witness, who would not in any way contradict the evidence of the state.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. <&=>595J
    2. Criminal Law <@=>784 — Instructions — Necessity—Circumstantial Evidence.
    In a prosecution for larceny of a number of turkeys, where there was evidence positively identifying two of the turkeys sold by the defendant as those belonging to the prosecuting witness, it is not necessary to 'charge on circumstantial evidence.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960: Dec. Dig. <§=>784.]
    3. Criminal Law <§=>1038 — Request eor Charges—Necessity.
    In a prosecution for a misdemeanor, the defendant cannot complain that the court’s charge did not sufficiently present an issue, where he made no written request for a charge on that issue.
    [Ed. Note.—Por other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. <§=>1038.]
    4. Criminal Law <§=>730 — Misconduct oe Prosecutor — Argument — Cure by Instruction.
    In a prosecution for larceny of turkeys, where, on objection by the defendant to the argument of the prosecuting attorney, the court told the jury that it was improper for the county attorney to refer to the defendant as “Turkey Tom” and as a “Gobbler,” and they should not consider it, and instructed the attorney to use only the defendant’s true name, the conviction will be affirmed.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <§=730.]
    5. Criminal Law <§=^1187—Appeal—Invited Error—Conversation.
    Where accused stated at the time that he had no objection to the whole of a conversation being elicited, and himself elicited a part of the conversation, he cannot complain on appeal that thereafter the witness was permitted to detail the whole conversation which was necessary to enable the jury to understand the matter and determine the weight to be given to-the part elicited by defendant
    [Ed. Note.—Eor other cases, see Criminal Law, Cent Dig. §§ 3007--3010; Dec. Dig. 1137.]
    On Motion for Rehearing.
    6. Criminal Law <®=v1133—Appeal—Motion to Rehear — Matters Considered — Affidavits.
    On a motion for rehearing, the Court of Criminal Appeals cannot consider affidavits presented to it in the first instance, showing that defendant had a good defense to the prosecution, especially where no reasons were given why the witnesses were not all to testify at the trial.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. <@=^1138.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    Tom Scott, was convicted of larceny, and he appeals.
    Affirmed, and motion for rehearing overruled.
    Chas. D. Earty, of Georgetown, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft, and his punishment assessed at one day’s imprisonment in the county jail and a fine of $10.

In his first bill of exceptions appellant contends that the court erred in overruling his application for a continuance. The application shows that he obtained process for Frank Perry; the sheriff’s return showing that no such person could be found in the county. He now says it was issued by mistake for Franh Perry, and that Fred Perry is the person whose attendance he desired. As qualified by the court, the bill presents no error. In addition to this, all he says he can prove by the witness Fred Perry is that he at some time (not stated) had seen the turkeys ’of Mr.. Rader, and that when he saw them they were painted with a certain color of paint. Mr. Rader himself testifies he painted his turkeys in the late summer or fall; the information alleging they were stolen on the 27th day of November, 1914. It may be that Fred Perry did see the turkeys in the late summer or fall, and they were then painted. This evidence would in no wise contravene the state’s testimony.

The remarks of the county attorney complained of present no error. It was but a criticism of the evidence offered in behalf of the defendant.

The case did not call for a charge on circumstantial evidence, and the court did not err in so holding. Mr. Gholson swore positively that he purchased the 19 head of turkeys in question from appellant, and that they were delivered to him by appellant. Mr. Rader, while swearing that he believed all the turkeys he found in Gholson’s possession were the turkeys he had lost, swore positively to two of them; they having been marked by having one of their toes cut off. Milo Hood also positively identifies one of the turkeys as the turkey he had sold Mr. Rader. In addition to this, it is shown that the turkeys lost by Mr. Rader and the turkeys sold by appellant to Mr. Gholson consisted of the same number of hens, the same number of gobblers, and the same number of small turkeys. As two of the turkeys were positively identified, it was not a case depending wholly on circumstantial evidence.

As no written charge was presented by the appellant on the other issue he now complains of, this being a misdemeanor, the matter is not presented in a way we would be authorized to reverse because thereof, if the charge of the court did not sufficiently present that issue.

It is made to appear by another bill that, in presenting the ease, the county attorney referred to appellant as “Turkey Tom” and then as a “Gobbler.” When the court’s attention was called to the fact that these names were being applied to appellant, he tdld the jury it was improper for the county attorney to so refer to appellant, and not to consider it, and then instructed the county attorney to refer to him by his true name only.

As the defendant stated at the time he had no objection to the whole of the conversation being elicited, and especially as he elicited a part of it, there was no error in permitting Mr. Gholson to detail the conversation he did. After appellant had elicited a part of it, it took it all for the jury to properly understand the matter and be able to pass on the weight to be given that part elicited by appellant.

The evidence for the state, if believed by the jury, authorized a conviction; and the judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing herein, the sole ground being “that he has a good defense to said ease, as shown by the affidavits hereto attached,” and then attaches some half dozen affidavits to facts which would have been admissible on the trial, but no reason is stated why the witnesses were not called when the case was tried. Certainly some of the testimony was as well known to appellant before as since the trial; for instance, that he had purchased a certain turkey'from a witness named. However, this court cannot consider such affidavits filed for tlie first time in this court. It is not a trial court but an appellate court. We pass on the record as made in the trial ■court, and cannot consider other evidence. Pye v. State, 71 Tex. Cr. 94, 154 S. W. 222.

The motion for rehearing is overruled.
      <§=>F°r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes