author: HALD, J.

text:
    FT. WORTH & D. C. RY. CO. v. W. A. NABORS FRUIT CO.
    (No. 1264.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 9, 1918.
    Rehearing Denied Feb. 6, 1918.)
    1.Carriers <@=>76 — Actions for Conversion —Persons Entitled to Sue.
    Persons authorized to take possession of the contents of a car containing a shipment of fruit had such possession as entitled them to sue the carrier for conversion of the fruit, and the carrier, having recognized their authority and accepted a receipt from them for the contents of the car, could not question their right of possession.
    2. Carriers <3=^89 — Failure of Consignee to Receive Goods — Sale by Carrier.
    Rev. St. 1911, art. 729, providing that should any perishable property remain unclaimed it shall be the duty of the carrier to sell it at public auction after giving five days’ notice, supersedes the common law in respect to the manner of selling, and a sale by a carrier without the notice required by statute was illegal, and might be made the basis of a suit for conversion, though the carrier complied with the common-law rule with reference to the salé of goods.
    3. Carriers <@=»94(3) — Conversion of Goods —Evidence of Value — Sufficiency.
    In an action against a carrier for the conversion of a shipment of fruit, which the carrier-took possession of and sold because of the consignee’s failure to unload the fruit, evidence of the market value of the fruit on August 22d did not support a judgment, where the illegal sale was made on August 25th, the goods being of a perishable nature and subject to rapid deterioration.
    4. Carriers <S=3lOO(l) — Receipt of Goods by Consignee — Duty to Remove.
    The consignees of a carload of fruit had no right to retain possession of the car and peddle fruit therefrom at retail, but were bound to unload the car within a reasonable time, failing to do which they were liable for demurrage and for the reasonable expenses incurred by the carrier in caring for the produce after retaking possession up to the time of a sale.
    Appeal from Potter County Court; T. W. McBride, Judge.
    Action by W. A. Nabors Fruit Company against tbe Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Turner & Dooley and A. S. Rollins, all of Amarillo, for appellant. Kimbrough, Underwood & Jackson, of Amarillo, for appellee.
   HALD, J.

Appellee sued appellant railway company in the county court to recover damages in tbe sum of $364, for tbe alleged conversion of a quantity of fruit and vegetables. A trial before a jury resulted in a verdict and judgment in favor of appellees, in the sum of $236.60. It appears from the record that W. A. Nabors, as consignor, made the shipment to J. S. McAfee as consignee, and that tbe car arrived in Amarillo on or about August 17, 1916. Upon its arrival it was delivered to Phagan and Logan, who took charge of it and receipted appellant therefor. Phagan and Logan at once commenced peddling the fruit and vegetables from the car at retail in violation of tbe instructions given them by appellant company not to do so. Again, on tbe 19th day of August, appellant served notice on said parties that they would not be permitted-to use the car as a salesroom for the purpose of selling and peddling its contents. The cár was never unloaded in the ordinary manner, but up to the time when appellant took possession the fruit and vegetables were sold to such customers as made application to Phagan and Logan to purchase. The sales continued until August 21st, when appellant took possession of the car and sealed the doors, and advised Phagan and Logan that they would redeliver the ear at any time they would unload it. Phagan and Logan broke the seals of the car soon after appellant had taken possession, and were again selling the goods as before, when on August 22d appellant again took the car, sealed it, and ran it into the yards of the company. After advertising the contents of the car for sale by publication, appellant sold said contents at auction on August 25th, for the sum of $135.

Under the first assignment of error it is insisted that appellant was entitled to a peremptory instruction in its favor because the record failed to show that appellees had such an interest in the subject-matter of the suit as would entitle them to maintain the action. It sufficiently appears from the record that Phagan and Logan were authorized to take possession of the contents of the car, and, after having recognized their authority and accepted a receipt from them for its contents, appellant cannot be heard to question their right of possession. This being a suit for conversion, they had such possession as entitled them to recover. Bank v. Brown, 85 Tex. 80, 23 S. W. 862; Robertson v. Gourly, 84 Tex. 575, 19 S. W. 1006. It is further contended by appellant that there is no competent evidence from which the jury could compute the damages claimed according to the legal measure. Appellant requested a special, charge to the effect that it had the right, upon the refusal of Phagan and Logan to unload the car, to act upon such refusal, and that thereafter, if appellant used ordinary care and exercised reasonable diligence in the manner in which it handled the contents of the car, to return a verdict for the defendant. The ear being sold on August 25th, without any effort on the part of appellant to comply with Revised Statutes, art. 729, we think the company was guilty of conversion. In this connection appellant contends that it complied with the common-law rule with reference to the sale of goods, and was not required to advertise the property for five days as required by the statute. Whatever may be the rule in other jurisdictions, it is settled in this state that the statute regulating the sale of freight by a carrier supersedes the common law in respect to the manner of selling, and that a sale by the carrier, not made in accordance with the statutory provisions, is illegal, and may-be made the basis of a suit for conversion. St. L. S. W. Ry. Co. v. Ark.-Tex. Grain Co., 42 Tex. Civ. App. 125, 95 S. W. 656; Gulf, C. & S. F. Ry. Co. et al. v. North Texas Grain Co. et al., 32 Tex. Civ. App. 93, 74 S. W. 567; Carter & Corey v. I. & G. N. Ry. Co., 93 S. W. 681.

The contention of appellant, however, that the evidence does not support the judgment must be sustained. The illegal sale having been made on August 25th, the measure of damages was the market value of the goods on that date and interest. The only evidence upon the question of market value was confined to the value of the property on August 22d and since the goods were of a perishable nature, subject to rapid deterioration, appellant’s contention on this point must be sustained. Under the rule established by the courts of this state, appellees clearly had no right to retain possession of the car and peddle their goods from it at retail. Wichita Falls, etc., Ry. Co. v. Wattam, 168 S. W. 398; Wattam v. I. & G. N. Ry. Co., 168 S. W. 973. It was the duty of appellees to unload the car within a reasonable time; failing to do this they are liable for demurrage and for reasonable expenses incurred by appellant in caring' for the produce up to the time of the sale. It is true that appellant introduced no written or printed rule forbidding shippers to peddle goods from cars nor do we understand that it was necessary to have a written or printed rule forbidding this practice. In any event, the existence of such a rule was proven by parol without objection. What is here said disposes of the material questions presented and all assignments not specifically mentioned are overruled.

For the reasons stated the judgment is reversed and the cause remanded.

HUFF, C. J., not sitting.
      «gc^For other cases see same topic and KEY-NUMBER-in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    CLOSNER & SPRAGUE et al. v. ACKER et al.
    (No. 5904.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 19, 1917.
    On Motion for Rehearing Jan. 23, 1918.)
    1. Set-Off and Counterclaim <@=o29(1) — Claims with Subject-Matter of the Action.
    In a suit by an assignee of part of a series of notes secured by vendors’ lien against the maker, the assignors, and a subsequent purchaser, who assumed their payment, the subsequent purchaser filed a cross-bill against the assignors and an irrigation company organized -and managed by them, for fraud inducing the sale of the land to him, and for the failure of the irrigation company to furnish water pursuant to a water contract acquired by him as part of his purchase. Held'that, as the cause of action by plaintiff was founded on the deed from the assignors to the maker of the notes, which also created a lien for the rest of the series of notes retained by the assignors, and as plaintiff made the deed from the maker to the subsequent purchaser and its obligation part of his cause of action, the cross-bill was maintainable under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1330, providing that nothing in the preceding article shall prohibit defendant from pleading any set-off or any counterclaim founded on a cause of action arising out of or incident to or connected with plaintiff’s cause of action, since, in order to render a final decree, it was necessary to determine whether any surplus obtained from a sale of the px-operty should be paid to the subsequent purchaser or to the assignors to apply on the notes retained by them.
    2. Vendor and Purchaser <@=3(3) — Nature oe Transaction — Sale or Agency.
    Owners of land executed an option to R., whereby they bound themselves to deed the land to certain persons, as directed by R., in consideration of a certain price, to be paid as therein specified. When agents employed by R. had procured a purchaser for certain land, the owners deeded the land to one of the designated persons, who paid therefor partly in cash and partly by notes secured by a vendor’s lien, and thereupon conveyed to the purchaser so obtained. Held,, that the relation between the owner and R. was that of vendor and purchaser, and not that of principal and agent, and such owners were not liable for misrepresentations made by its vendee or by the agents employed by R.
    3. Fraud <@=30 — Persons Liable — Notice.
    Where the purchaser accepted a deed from the vendee designated by R., and expressly assumed the notes executed by such vendee, and made additional notes to the vendee, he had notice that such vendee was his vendor, and that he was not the agent of such owners.
    4. Fraud <@=>28 — Acts Constituting.
    There was nothing fi-audulent in the owners’ giving such option, as they had a legal right to limit their liability to their own statements, and to save themselves from liability for the misrepresentations of others, provided such limitation was not concealed from the purchase!'.
    5. Principal and Agent <§=22(1) — Evidence-Declarations oe Agent.
    The statement of a person that he was a sales agent for defendants, made in their absence, was not admissible to prove agency.
    6. Exceptions, Bill oe <@=31 — Necessity of Approval.
    An assignment, which predicated error upon a state of facts shown by a bill of exceptions not approved by the trial court, could not be considered.
    7. Judgment <@=256(1) — Conformity to Verdict.
    In a suit to foreclose a vendor's lien, in which one of the defendants filed a cross-bill for fraud inducing the purchase of the land and for the failui'e of an irrigation company to fuxmish water for irrigation, where the jui'y found for such defendant on the issue as to the failure to furnish water, the court erred in ignoring the verdict and rendering judgment against him on that cause of action.
    8. Action <@=45(1) — Joinder oe Causes — Repugnant Causes oe Action.'
    Causes of action by a vendee for fraud in representing that the land was subject to irrigation, and for failui'e to furnish water for irrigation as agreed, were repugnant and contradictory, and could only be alleged properly in the alternative, as it would be a double recovery to recover full compensation because the land was not subject to irrigation, ‘and in' addition damages for failure to furnish water.
    On Motion for Rehearing.
    9. Appeal and Error <@=1173(2) — Reversal as to Parties Not Appealing.
    In an action by the assignee of part of a series of notes secured by a vendor’s lien against the maker, the assignors, and a subsequent purchaser, who assumed their payment, the subsequent purchaser filed a cross-action against the assignors for fraud, and an insurance company, which had acquired the rest of the notes of the series after maturity as collateral security, was impleaded. Judgment was rendered for the subsequent purchaser against the assignors, the amount due on the notes held by the insurance company being deducted from the amount of the recovery, and such notes were ordered canceled. The assignors appealed, but there was no appeal by the insurance company. Held,, that the court liad jurisdiction to reverse the judgment as against the insurance company, on reversing the judgment against the assignors, as the appeal brought up the entire case, and brought all the parties before the court in such a way as to give jurisdiction to render any judgment to which the appellants might show themselves entitled.
    Appeal from District Court, Bexar County; R. 'B. Minor, Judge.
    Suit by Max Acker against Closner & Sprague and others. John F. Mudge and wife filed a cross-actidn, in which the American National Insurance Company intervened. Judgments for plaintiff against Mudge and wife, and for the latter on their cross-complaint against Closner & Sprague and another. Closner & Sprague, John F. Mudge and wife, and another appeal.
    Affirmed in part, and reversed and remanded in part.
    Denman, Franklin & McGown, of San Antonio, and Williams & Neethe, of Galveston, for appellants. George P. Brown, of Laredo, and Don A. Bliss, of San Antonio, for ap-pellees.
   SWEARINGEN, J.

Max Acker filed this suit to recover the amount of five notes and to foreclose a vendor’s lien on 40 acres of land designated sufficiently for our purpose as lot 10, block 238. The parties made defendant by plaintiff were Ray E. Jackson, the maker of the notes, John F. Mudge, who assumed the payment of the notes, which assumption was expressed in the deed to Mudge, John Closner and W. F. Sprague, indorsers, and the following,- who had or claimed some interest in the land: Lucy E. Mudge, wife of John F. Mudge, George C. Wright, W. W. Ryan, and the Valley Reservoir & Canal Company. Ray E. Jackson, W. W. Ryan, and George C. Wright, alleged to reside in the state of Missouri, made no appearance.

John F. Mudge and wife answered that Closner & Sprague were the real owners of the notes held for them by tbe plaintiff, and by a cross-action sought to set off against the notes damages for deceit and fraud inflicted upon them hy the misrepresentations of representatives of the Jacksqn-Vreeland Land Company, selling agents of Closner & Sprague. In the same cross-action the Mudges sought to offset damages caused them by the failure of the Valley Reservoir & Canal Company to furnish water according to the terms of a contract for irrigating the land purchased. The damages claimed on both counts far exceeded the amount of the notes, and judgment was asked for the excess.

The American National Insurance Company, urged to he made party defendant by Closner & Sprague, impleaded by the cross-action of John E. Mudge, intervened as the owner of five notes, numbered 6, 7, 8, 9, and 10, Qf the same series as the five notes, numbered 1, 2, 3, 4, and 5, sued upon by plaintiff. The intervener’s notes were made by Jackson, indorsed by Closner & Sprague, and secured by vendor’s lien as were plaintiff’s five, but expressly made subordinate to the five notes owned by plaintiff, by an agreement when the plaintiff acquired his five. No personal judgment was sought by the in-tervener by reason of the assumption of the notes by Mudge.

Closner & Sprague and the Valley Reservoir & Canal Company excepted to the cross-action for misjoinder of causes of action, and denied the allegation of agency, and denied all the allegations of the cross-action, except that the Valley Reservoir & Canal Company admitted the execution of the contract by it to furnish water for irrigation, with the terms of which, it was alleged, the Mudges had failed to comply.

Special issues were submitted to a jury. Judgment was rendered by the court, after overruling the exception and plea of mis-joinder, in favor of the plaintiff for the amount of his notes, together with attorney’s fees, and foreclosing the lien as prayed for by plaintiff, and the court rendered judgment in favor of Mudge o-n his cross-action against the appellants for the sum of $14,-055.60, being the balance, as stated in the decree, that Mudge was entitled to recover after deducting the sum of $1,593.07, the amount of the notes sued on by the intervener, the American National Insurance Company. It appeared from the undisputed evidence that the intervener acquired these notes as collateral after their maturity. Judgment was against the Mudges'on their cross-action for failure to furnish water. There is no appeal by any of the parties from the judgment in favor of Acker. This appeal was taken by John Closner, Wm. E. Sprague, and the Valley Reservoir & Canal Company from the judgment against them in favor of John F. and Lucy E. Mudge on their cross-action for deceit John E. and Lucy E. Mudge cross-assigned error, complaining of the judgment against them on their claim for damages for failure to furnish water to irrigate.

Because of the assignment presenting the plea of misjoinder, it will be necessary to say that plaintiff, in stating his cause of action, pleaded the deed from Closner & Sprague to Ray Jackson, the maker of plaintiff’s notes, and also set out the assumption to pay same expressed by Mudge in the deed from Jackson to him. One of the two causes of action alleged in the cross-action is:

That Closner & Sprague owned thousands of acres of land in the semi-arid portion of Southwest Texas, and conceived the scheme of subdividing it into lots and blocks and selling it at high prices as irrigated lands, and in furtherance of that scheme organized the corporation known as the Valley Reservoir & Canal Company for the purpose of furnishing water to irrigate their lands. They were the owners of all the stock and were the .absolute managers of the said corporation. That Closner & Sprague and the Valley Reservoir & Canal Company employed the Jackson-Vreeland Land Company, a corporation, as. their agent to find purchasers for these lands. That the said agent, through its representatives, induced'John F. and Lucy E. Mudge to buy the 40 acres of land described by plaintiff in his first amended petition as lot 10, block 238, and in addition 40 acres in lot 15, block 238, and also 40 acres out of the E. % of lot 2 and the W. y2 of lot 3 in block 277. That John E. and Lucy E. Mudge were induced to purchase the above-described land by the following representations, made to them by the representatives of the Jackson-Vreeland Land Company, the agent of appellants:

“That said land had what is called a water right, entitling it to be irrigated by waters from the canal of the said Valley Reservoir & Canal Company, and that the said Valley Reservoir & Canal Company then owned and operated a pumping plant and a canal, with laterals, which furnished abundance of water to irrigate all the lands including the land hereinbefore mentioned [the three tracts of 40 acres each purchased by Mudge], and * * * that the Valley Reservoir & Canal Company had abundant facilities to irrigate said land, and were ready right at that time to furnish the water necessary to irrigate the land.”

That these representations were untrue. That, had they been true, the land would have been of the value of $185 per acre, the amount paid and promised hy Mudge; but, being untrue, the value of the land was only $10 an acre. That because of the deceit and fraud John F. and Lucy E. Mudge were damaged in the sum of $21,000, the difference between the value of the land as it actually was and the amount paid ‘and obligated to be paid by Mudge for the 40 acres involved in plaintiff’s suit, as well as the other 40 acres purchased from Closner & Sprague, and also the 40 acres purchased from the Valley Reservoir & Canal Company.

In addition to the foregoing alleged cause of action John F. and Lucy E. Mudge alleged that a certain' water contract had been acquired by them as part of this purchase, which entitled them upon certain conditions to receive water from the Valley Reservoir & Canal Company, upon demand, in sufficient quantities to enable them to produce profitable crops upon, the 120 acres of land purchased ;' that the water was not furnished in 1914 and 1915, causing itemized and valued damages to John E. Mudge; and it was further alleged in the cross-action:

“That though the plaintiff herein [Max Acker] may be the holder of said notes, yet he holds the same for the benefit of the said Closner & Sprague, who are the real owners thereof.”

From the evidence,'we find: That John Closner and W. P. Sprague owned thousands of acres of land, which they subdivided into lots and blocks to be sold as irrigable lands; that they organized, owned, and managed the Valley Reservoir & Canal Company, incorporated for the purpose of furnishing water from the Rio Grande river to irrigate the lands involved in this suit; that this corporation also owned one of the 40-acre tracts which was mentioned in the cross-action, but was not mentioned in the plaintiff’s petition ; that Closner & Sprague signed an option agreement by which they bound themselves to W. W. Ryan to execute a deed to either Ray Jacks on or Merrill Jackson as directed by Ryan, for lands selected by Ryan, for which Closner & Sprague were to be paid $75 an acre, partly in cash, the remainder evidenced by notes made by the grantee in the deed, and secured by vendor’s lien to be 'expressed in the’ deed; that Ryan employed the Jackson-Vreeland Land Company to advertise the lands and promote excursions of land buyers from Northern states to the lands; that John F. and Lucy E. Mudge were among the excursionists and were induced to buy the 120 acres of land described in their cross-action; that they were told by the representatives of the Jackson-Vreeland Land Company that the 120 acres of land would be furnished water in sufficient quantities to irrigate successfully as soon as they prepared the land for cultivation; that the facilities for furnishing water were ample at the time of the purchase; that the Mudges believed -these statements and relying upon the truth of them bought the land; that the statements were not true; that water was never furnished, though ¡Mudge prepared and planted his lands. The Valley Reserv.oir & Canal Company executed a water contract to Jackson, which was assigned by him to Mudge When Mudge purchased the land from Jackson. This contract bound the water company to furnish Mudge water for irrigating his lands upon certain conditions. .The company failed to comply with its obligation to furnish water which failure caused Mudge to lose his crops.

During the trial it was admitted in open court that Max Acker had in good faith become the owner of his five notes before maturity for value and at the time of the trial was the bona fide owner of them. On October 28, 1913, upon Ryan’s demand, 'Closner & Sprague and the Valley Reservoir & Canal Company executed and delivered deeds conveying the three tracts of land to- Ray Jackson for $75 an acre one-fifth of which was paid in cash, the balance evidenced by notes made by Ray Jackson, the grantee in the deeds. On the same day, Ray Jackson conveyed the same lands to John E. Mudge for $185 an acre. This $185 an acre was paid partly in cash, partly by notes payable to Ryan, partly by deeding Mudge’s home, and partly by the assumption by Mudge of the outstanding vendor’s lien notes made by Ray Jackson payable to the order of Closner & Sprague. .

The first four assignments present the question of misjoinder, and all four must be overruled. The' cause of action averred by plaintiff himself was founded upon the deed from Closner & Sprague to Jackson in which was evidenced- the agreement creating plaintiff’s notes and lien. This same contract also expressed the liability on and lien for the five notes not purchased by plaintiff, but retained by Closner & Sprague, and at the time of the trial subject to legal offsets against them. In order to render a final decree on plaintiff’s petition it became necessary to determine to whom any surplus obtained from the sale of the property should be paid. If Mudge had no legal offset, the surplus should be applied to the satisfaction of the notes numbered 6, 7, 8, 9, and 10, which were secured by a vendor’s lien, though inferior by agreement to the lien securing the notes numbered 1, 2, 3, 4, and 5. If Mudge established a legal set-off in this suit against Closner & Sprague, the surplus should be by the decree awarded to Mudge.

The relative rights of Mudge, Closner & Sprague, and the plaintiff, in the property and the proceeds of the sale thereof, all depended upon the terms of the deed that is the foundation of plaintiff’s cause of action. It was the making of this contract, expressed in the deed, which Mudge averred was accomplished by the deceit and fraud of Closner & Sprague through their agents. Then, again, plaintiff also made a part of his petition the agreement of Mudge to assume the payment of plaintiff’s five notes, which agreement was expressed in the deed from Jackson to Mudge. Thus plaintiff made that deed and all its obligations a part of his cause of action. Among these obligations was the promise of Mudge to assume the payment of all of the ten notes of the series made by Jackson, five of which belong to plaintiff and five to Clos-ner & Sprague. This deed is specially attacked because of the alleged fraud and deceit of Closner & Sprague through agents. The substance of the cross-action as above stated is that the agreement was induced by false statements to Mudge by Closner & Sprague through their agent, the Jackson-Vreeland Company.

The cross-action averred was a part of, grew out of, and was connected with plaintiff's cause of action, and is specifically authorized by article 1330, Vernon’s Sayles’ Tex. Civ. St., to be joined in a suit like this. Mathonican v. Scott & Baldwin, 87 Tex. 396, 28 S. W. 1063; Harris v. Cain, 41 Tex. Civ. App. 139, 91 S. W. 866; U. S. Fidelity & Guarantee Company v. Fossati, 97 Tex. 497, 80 S. W. 74. The rule of law by which the question of misjoinder is determined has been applied to facts in the following additional eases: Holloway v. Blum, 60 Tex. 625; Burditt v. Glasscock, 25 Tex. Supp. 45; Hurlock v. Reinhardt, 41 Tex. 580; Eccles v. Hill, 13 Tex. 65; Thomas v. Chapman, 62 Tex. 197; Frey v. Railway, 86 Tex. 465, 25 S. W. 609; Coutlett v. U. S. Mart. Co., 60 S. W. 820; Johnson v. Davis, 7 Tex. 173; Clegg v. Varnell, 18 Tex. 294; Carla Land & Irr. Co. v. Dimmit Bank, 165 S. W. 899; Keel & Son v. Grain Co., 143 S. W. 238; Williams v. Robinson, 63 Tex. 576; Stewart v. Gordon, 65 Tex. 344; Love v. Keowne, 58 Tex. 191; Adams v, First Nat. Bank, 178 S. W. 996; Haberzettle v. Dearing, 80 S. W. 539; Kemendo v. Fruit Dispatch Co., 61 Tex. Civ. App. 631, 131 S. W. 73; Key v. Fouts, 44 Tex. Civ. App. 424, 99 S. W. 448; St. Louis, etc., v. Hengst, 36 Tex. Civ. App. 217, 81 S. W. 832; Gulf, etc., v. Browne, 27 Tex. Civ. App. 437, 66 S. W. 341; 2 Daniel on Neg. Ins. (6th Ed.) §§ 1422-1437.

The contentions raised by the first four assignments have been considered by us in detail ; but we do not so discuss them, because it seems to us the general discussion above given requires that all be overruled.

Appellant in the trial court consistently and persistently insisted that the relation between Closner & Sprague and the Valley Reservoir & Canal Company, on the one side, and Ray Jackson, on the other, was that of vendor and purchaser, and not a relation of principal and agent. Declarations of agency were admitted over timely objections. Excerpts from advertising literature published by the Jackson-Vreeland Company, referring to the lands as those of Closner & Sprague, and statements of Closner, years after the sale, to prove agency, were likewise admitted over objections. After the close of the testimony, numerous special instructions ' based upon this contention were requested and refused. The issue of agency submitted by the court was, in due form and time, objected to; likewise the instruction explaining same. Tile answer of the jury to the issue of agency and the decree in accord with the verdict on the issue of agency were all assailed. All these contentions are presented from various viewpoints for our review in appellants’ assignments, numbered 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27. All can properly be disposed of by our conclusion that there was no evidence that the Jackson-Vreeland Land Company was the agent of the appellants, and therefore that company and its representatives had no power to fasten liability for deceit and fraud upon the appellants.

The fifth, sixth, and seventh assignments present the trial court’s refusal to instruct a verdict in favor of Closner & Sprague and the Valley Reservoir &. Canal Company against J. F. Mudge and wife on their cross-action. Appellants insist that the refusal was error, because there was no evidence that the JacksonWreeland Land Company was the agent of any or all of the three appellants. The allegation in the cross-action is that the Jackson-Vreeland Land Company was, by express agreement, made the exclusive agent for the sale of the lands involved in this suit; that, as agent, the land company made the false representation that induced the sale. It is further alleged in the cross-action that, for the purpose of avoiding liability for misrepresentations, the appellants concealed the agency agreement under the guise of an option agreement.

This allegation is an admission by the Mudges that the contract between Closner & Sprague, one party, and Ryan, the other party, was on its face an option contract, by the terms of which the relation of principal and agent does not appear to have been created, but, on the contrary, upon the face of the option contract, the relation between Closner & Sprague, on the one side, and AV. AV. Ryan, on the other, was that of vendor and purchaser. An examination of the option agreement proves the correctness of the admission, for the agreement binds Closner & Sprague to deed the land to Ray or Merrill Jackson, as directed by Ryan, in consideration of $75 an acre, one-fifth of which to be paid in cash on delivery of deed, and the balance to be secured to be paid by ten several notes executed by the grantee, either Ray or Merrill Jackson, and secured by vendor’s lien on the land conveyed. This stipulation proves beyond question the relation was that of vendor and purchaser. One of the oldest and commonest rules of law is that an agent for effecting sales cannot be a purchaser. Briggs v. Boyd, 56 N. Y. 289; Porter v. Woodruff, 36 N. J. Eq. 174; Kerfoot v. Hyman, 52 Ill. 512; Jansen v. Williams, 36 Neb. 869, 55 N. W. 279, 20 L. R. A. 207; Robinson v. Easton, 93 Cal. 80, 28 Pac. 796, 27 Am. St. Rep. 167; Keene v. Demelman, 172 Mass. 17, 51 N. E. 188; Harney v. Burhans, 91 Wis. 348, 64 N. W. 1031; Chezum v. Kreighbaum, 4 Wash. 680, 30 Pac. 1098, 32 Pac. 109; Turnley v. Micheal, 15 S. W. 912; Allen v. Clopton Realty Co., 135 S. W. 242; Slayden v. Palmo, 53 Tex. Civ. App. 227, 117 S. W. 1054; Collier v. Robinson, 61 Tex. Civ. App. 164, 129 S. W. 389; Hammons v. Clwer, 59 Tex. Civ. App. 610, 127 S. W. 889; Hamburger v. Thomas, 118 S. W. 770; Newton v. Dickson, 53 Tex. Civ. App. 429, 116 S. W. 143; Cases on Agency by Wambaugh, 911. See note 4, pages 912, 913. Illustrative, see Mechem on Sales, § 49.

In all discussions of contracts, where the issue is whether they are sales contracts or merely agency contracts, one test is: Does the contract obligate one party to convey and the other party to pay? If so, the contract is one of sale, and not agency. The instrument under consideration is not a sales contract, but an option binding Closner & Sprague to convey to Jackson, when demanded by Ryan, in consideration of payment by Jackson. The only distinction between the option and the sales contract relevant to this case is that Ryan could demand the deed or refuse to demand it. But, if he demanded it, the contract before us required Closner & Sprague to convey, and required Jackson to pay for, the land. There is no question that the agreement did not create the relation of agency, but, on the contrary, expressly negatived that relationship.

The deed from Closner & Sprague to Ray Jackson conveyed the land to Jackson, possibly in trust for Ryan, but certainly passed the title out of Closner & Sprague and into Jackson. The execution of the ten notes created a valid obligation against Jackson. This deed and these ten notes do not evidence an agency relationship between Jackson and Closner & Sprague, but on the face unequivocally evidence the relation of vendor and purchaser. That Closner & Sprague were not selling to Mudge through an agent was clearly and unmistakably brought to the notice of Mudge before he acquired title and before he executed his notes for the purchase; for he accepted a deed executed by Ray Jackson, and expressly assumed the notes payable by Jackson to Closner & Sprague, and made additional notes payable to Ray Jackson. This is sufficient notice to him that Jackson was his vendor, and not Closner & Sprague.

The cross-action avers that this method of passing the title into Mudge was a subterfuge, for the purpose of enabling Closner & Sprague to avoid liability for false representations of the agents of the Jackson-Vreeland Company. We do not understand why it should be termed a subterfuge, since it was a plain transaction, clearly understood by Mudge before he bought. Mudge knew, from the deed and notes, that his vendor was Jackson, and willingly bought with that knowledge. Any contrary idea he may have inferred from other or previous oral statements was positively eliminated by the deed and notes. He knowingly accepted the deed, and executed the notes, and assumed Jackson’s obligations to Closner & Sprague.

The insinuation that there was some taint of fraud, because Closner & Sprague desired to avoid liability for misrepresentations by the Jackson-Vreeland Company and its agents, is not tenable. They had a legal right to limit their liability to their own statements, and to save themselves from liability for the misrepresentations of others, provided, of course, this limitation was not concealed from Mudge. When an indorser of a negotiable instrument writes the words •"‘Without recourse” above his indorsement, his motive is to limit his liability on a note he sells and for which he receives a consideration. The motive is not fraudulent, but prudent. We fail to find in the statement of facts one particle of evidence to sustain the theory that the option contract, and the deed to Jackson, and the deed from Jackson to Mjudge were a disguise to conceal the true relationship of agency.

The statement of Jackson, that he was a sales agent for Closner & Sprague, made in their absence, is not admissible testimony to prove agency. Alamo Live Stock Commission Company v. Heimer, 192 S. W. 591; Coleman v. Colgate, 69 Tex. 88, 6 S. W. 553; Latham v. Pledger, 11 Tex. 445; Wright v. Doherty, 50 Tex. 42; Gulf, etc., Co. v. York, 74 Tex. 364, 12 S. W. 68; Guitar v. McGee, 139 S. W. 624. The recital in the literature that Closner & Sprague owned the land advertised was the exact truth. They did own it until they sold it to Jackson. The evidence proves beyond question and without conflict that Closner & Sprague were the vendors of Jackson, and Jackson was the vendor of Mudge. It proves that the JacksonVreeland Land Company .was the selling agent for Ryan, and that Jackson was an agent of the Jackson-Vreeland Land Company. The misrepresentations of Jackson, or of the Jackson-Vreeland Land Company, could not give Mudge a cause of action against Closner & Sprague. Because there was no evidence that the Jackson-Vreeland Land Company was the agent of Closner & Sprague and the Valley Reservoir & Canal Company, the court should have instructed the jury to find for the appellants upon the issue of deceit by misrepresentation.

This also disposes of those assignments urging error because the verdict was contrary to the evidence.

Assignments 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 are sustained.

Appellants’ assignment numbered 42 is not considered, because it predicates error upon a state of facts shown by a form of bill of exception, which the record shows was not approved by the trial court.

By cross-assignment the appellees, John P. and Lucy E. Mudge, assail the court’s decree for the reason urged that the pleadings and evidence made the issue of damages for failure to furnish water as contracted for irrigating the lands' belonging to the Mudges, the issue was properly submitted to the jury which answered in favor of the Mudges, and, notwithstanding the verdict, the judgment rendered was against this item of the cross-action.

We think this orossl-assignment should be sustained. The court erred in ignoring the verdict, of the jury. In view of another trial, it may be proper to say that the two causes of action averred by the cross-action are repugnant and contradictory, and could only be alleged properly in the alter- . native. A recovery on both would have been a double recovery. To recover full compensation because tbe land was not subject to irrigation, and then in addition to recover an annual compensation for failure to furnish water, would be a most flagrant instance of double compensation. It may be the trial court was influenced by such an opinion, and therefore sought to prevent the injustice by that part of its decree complained of in this assignment.

We reverse that portion of the judgment against Closner & Sprague and the Yalley Reservoir & Canal Company in favor of John E. Mudge and Lucy E. Mudge on their cause of action alleged in the cross-action for deceit and fraud, and reverse that portion of the judgment against John F. and Lucy E. Mudge upon their cross-action for failure to furnish water. That portion of the judgment which is against the intervener, the American National Insurance Company, in favor of John F. and Lucy E. Mudge, is reversed. That portion of the judgment which is in favor of the plaintiff, Max Acker, is affirmed. The cause is remanded for retrial of the issues presented in the cross-action by John F. and Lucy E. Mudge. The cause of action alleged by plaintiff is not to be retried.

Affirmed in part; reversed and remanded in part.

On Motion for Rehearing.

Appellees, in their motion for rehearing, complain that this court had no jurisdiction to reverse the judgment in so far as it disposed oi the issues against the American National Insurance Company in favor of the Mudges. The reason urged by appellees is that the American National Insurance Company did not appeal from the judgment. We followed the procedure expressly authorized by the Supreme Court in the case of Thompson v. Kelley, 100 Tex. 536, 101 S. W. 1074. In that case the question was certified to the Supreme Court and the answer, through Associate Justice Williams, was that, even though some of the parties did not appeal, yet the appeal brought up the entire case, and brought all the parties before the appellate court in such way as to give jurisdiction to render any judgment to which the appellants may show themselves to be entitled.

In the present case, the notes were held by the American National Insurance Company merely as collateral security. Closner & Sprague, two of the appellants, were the owners of the notes. These notes by' the judgment of the trial court were canceled, and the amount thereof was applied as a partial payment on the amount of the judgment rendered against Closner & Sprague in favor of the Mudges on the action for deceit. Since there should have been no judgment against appellants for deceit, the notes should not have been canceled. That, under these circumstances, this appellate court has the jurisdiction to reverse the judgment against the American National Insurance Company, in accordance with the decision of the Supreme Court above mentioned, is fully supported by the following decisions: Reeves v. McCracken, 103 Tex. 416, 128 S. W. 895; Tynberg v. Cohen, 76 Tex. 409, 13 S. W. 315; Mosler Safe Co. v. Atascosa County, 184 S. W. 324.

We have carefully reconsidered our original opinion, in the light of the motion for rehearing, but believe a correct disposition has been made of the ease. The motion for finding of additional facts and to correct our finding of other facts has all been carefully considered, and the conclusion reached that we have stated the material facts correctly, though much of the testimony proving those facts has been properly omitted.

The motion for rehearing and the motion for additional findings of fact are overruled.
      <®=»For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: HARPER, O. J.

text:
    HENSLEY et ux. v. PENA.
    (No. 782.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 17, 1918.)
    1. Trespass to Tex Title <©=>32 — Petition— Abandonment oe Plea.
    Where plaintiff pleads her title specially, she abandons her plea in trespass to try title, but does not thereby subject the petition to general demurrer.
    2. Cancellation of Instruments <@=>37(1)— Averment of Grounds for.
    Allegations in petition setting up the title of plaintiff specially, and asking for cancellation of deed and possession of land assigned examined, and held sufficient.
    3. Trespass to Try Title <©=>44 — Question for Jury.
    Where plaintiff alleged and testified that she did not sign the deed, nor sell the land to defendants, it was not error for the court to submit to the jury the question whether plaintiff signed such deed in the presence of a notary public, whose certificate was on such deed.
    4. Deeds <g=>194(2) — Delivery—Presumption from Possession of Deed.
    That a deed properly executed is found in possession of the purchaser is prima facie evidence of its delivery, but such evidence may be affirmatively rebutted by testimony of the grantor that she did not execute the deed.
    5. Deeds <@=67 — Delivery of Invalid Deeds of No Effect.
    Where a deed was not executed by the owner of the land, delivery could give it no legal effect.
    Error from District Court, Presidio County ; P. R. Price, Judge.
    Action by Mrs. Antonio Pena against S. J. Hensley and wife. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    See, also, 190 S. W. 247.
    K. C. Miller and AY. C. Jourdan, both of' Marfa, and J. D. Martin, of San Antonio, for plaintiffs in error. Belcher & Sutton, of Marfa (O. C. Belcher, of Del Rio, and O. R. Sutton, of Marfa, of counsel), for defendant in error.
   HARPER, O. J.

Antonio Pena, appellee, brought this action in-trespass to try title, and further alleged that the land sued for was patented to her husband, then deceased, and that it was their homestead and still is; that she learned that defendants were claiming title to it by virtue of a deed purporting to have been executed by her; that at the time the deed purports to have been executed she was an aged, uneducated, and illiterate Mexican woman, unable to read and write; that she had no recollection of signing the deed; that it was never her intention to convey the lands or any interest therein, and that she did not do so in fact; that it was without consideration; that it was not delivered .to her, nor did she acquiesce in its delivery to said S. J. Hensley; that, if she be mistaken as to the above, then the deed was never intended by either of the parties to become absolute, but that it was intended to convey the lands in trust for her several children, to avoid trouble with and among them; that there was no necessity for the trust, and no duties to he performed by the grantee named, and none has been performed by'her; that by reason of said facts the deed is void and cloud upon her title; and prayed for title, that the deed be canceled, and for possession and for general and special relief. Defendants answered by general and special demurrers, general denial, and not guilty. Submitted to jury by special issues, and upon.their verdict judgment was rendered for plaintiff canceling the deed.

The first assignment is that the plaintiff’s petition is subject to general demurrer.

The first proposition is that by pleading her title specially she abandoned her plea in trespass to try title. The second is that she, having asked for cancellation of the deed, was compelled to plead her title specially, and evidence of such plea is not admissible tinder the general plea; and, third, that plaintiff is bound by the allegations in her petition, and the proof must conform to the allegations.

The first is a correct proposition of law, but we fail to see how it indicates that the petition is subject to general demurrer. As shown by the excerpts copied from the petition, plaintiff set up the facts and asked cancellation of the deed and removal of the cloud. As to the second, she alleged that the lands in controversy were patented to her husband, deceased, and that she still retained her half interest as a homestead living on it, and as to the third it is a correct proposition of law, but has no application to the petition. It might apply if the proof did not conform to the allegations.

The second assignment urges that the court erred in submitting the question:

“Do you find from the evidence that Mrs. Antonio Pena, in the presence of J. Humphreys, a notary public, signed the deed introduced in evidence, from Mrs. Antonio Pena to Mrs. S. J. Hensley.”

The proposition is that, in order to avoid a notary’s certificate, regular on its face, you must allege and prove facts entitling such party to such affirmative relief. She alleged that she did not sign the deed, and testified that she did not sell or deed the land to Dr. and Mrs. Hensley.

The third assignment is that the court erred in submitting the question as to whether she delivered the deed in question.

The first proposition is that, where a deed has been properly executed, found in the possession of the vendee, and recorded it is prima facie evidence of its delivery, and the second proposition is that delivery to the husband of vendee is a sufficient delivery. The answer is that prima facie proof may be rebutted as has been affirmatively done in this case. Since the pleading, evidence, and verdict of the jury were to the effect that tie deed was not executed by her, delivery would give- it no vitality or legal effect.

Binding no error in the record, the cause is affirmed.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LEVINE v. GEORGE P. IDE & CO.
    (No. 5952.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 23, 1918.)
    Sales <@=3359(1) — Breach of Conditions by Seller — Sufficiency of Evidence.
    In action for purchase price of goods tendered back to plaintiff, evidence held sufficient to sustain a finding that plaintiff did not agree not to sell goods to another merchant in defendant’s city.
    Error from Bexar County for Civil Cases; John H. Clark, Judge.
    Suit by George P. Ide & Co. against A. Levine. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Chambers & Watson, of San Antonio, for plaintiff in error. Mason Williams and J. C. Hall, both of San Antonio, for defendant in error.
   SWEARINGEN, J.

The defendant in error, George P. Ide & Co., brought this suit against plaintiff in error, A. Levine, to recover the balance of $220.94 due for goods sold and delivered to A. Levine, and also sued for $146 paid by George P. Ide & Co. for one-half the expense of a display window in Levine’s store. Without a jury, the court rendered judgment against Levine for the balance prayed for, $220.94, and against the Ide Company on its count for the $146. There is no complaint as to the judgment for the $146. The appeal is from the judgment for $220.94 awarded against plaintiff in error.

The George P. Ide Company pleaded its incorporation, and set out the sale and delivery of itemized goods to Levine at prices agreed upon, and that the balance due was $220.94. In answer Levine claimed that .the Ide Company had breached the contract of sale in this, that as the inducing consideration for the contract, the Ide Company agreed to give Levine the exclusive right to handle the Ide collars in San Antonio, Tex., and especially agreed not to sell its goods to a certain designated merchant in San Antonio. The answer further avers that because of this breach of the contract Levine shipped the unsold portion of the goods he had bought, consigned to the Ide Company at Dallas, but that the Ide Company refused to receive them, and they were lost. The answer further set forth that there was a balance due to the Ide Company of $20.05 which was tendered in court.

The evidence consisted of the testimony of W. R. Williams, who represented the Ide Company, and who personally made the sale to Levine, and of the correspondence between plaintiff in error and defendant in error, and of the testimony of A. Levine.

Prom this testimony we find ‘that the goods were sold and delivered to Levine, and that there was a balance of $220.94 due for the goods by Levine. The only conflict in the testimony was about the exclusive right asserted by Levine. Williams in his testimony and in his letters introduced in evidence, denied that the Ide Company had agreed to sell to none but Levine in San Antonio, and denied that he promised not to sell to the designated merchant. Levine testified that such was the agreement. The court determined the issue of fact in favor of the Ide Company. There was sufficient evidence to sustain the court’s finding. Upon this finding, the judgment rendered is correct.

The judgment is affirmed.
      (g^jjFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LANG v. BOHLEN.
    (No. 5938.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 2, 1918.
    Rehearing Denied Jan. 30, 1918.)
    1. Bills and Notes <@=>477 — Defenses — Fraudulent Sales — Pleadings — Sufficiency.
    In action on note given for agency of a churn, defendant’s averment that the churn was wholly incapable of doing the work that the payees represented to him that it would do, and was of no use, and unsalable, is very general, but is sufficient against a general demurrer.
    2. Pleading <@=>34(3) — Demurkek—Effect.
    Against a general demurrer, all presumptions are indulged in favor of the petition.
    3. Pleading <@=>34(4) — Insufficient Answer-Remedies.
    If plaintiff desires to know more specifically what representations were which defendant alleged induced the note in suit, he may acquire such information by special exception, in which case every presumption is indulged against the sufficiency of the allegations.
    4. Bills and Notes <@=>537(4) — Defenses— Misrepresentations — Questions for Jury.
    Whether representations of plaintiff induced defendant to believe that 'plaintiff’s churn was unusually efficient, so that defendant gave his note for the agency thereof, was for the jury.
    5. Bills and Notes <@=>538(8) — Defenses— Instruction.
    In action on note which defendant alleged was given for agency of churn under false representations as to agency of chum and its especial qualities, instruction that plaintiff could recover if the churn would make butter was error.
    Appeal from District Court, Frio County; J. F. Mullally, Judge.
    Action by Albert Boblen against Max Lang. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    S. T. Dowe, of Pearsall, and J. D. Dodson, of San Antonio, for appellant. S. T. Phelps, of San Antonio, for appellee.
   SWEARINGEN, J.

Appellee, Albert Boh-len, brought this suit against appellant, Max Lang, to recover the amount of a note made by the latter and to foreclose an attachment lien.

Appellant, in defense, averred that the consideration for which he executed the note was a right to sell in the state of Wisconsin a churn, the patent for which belonged to Wells & Bohlen. And appellant averred that he found the same to be wholly incapable of doing the work that said Wells & Bohlen had represented to him that it would do, and found said churn to be of no use and unsalable. Appellant further averred that he was induced to make and deliver the said note by the false and fraudulent representations of said Wells & Bohlen, they then and there well knowing that said representations were false and fraudulent. The case was submitted to the jury in a general charge to which timely exception was made by appellant.

The evidence sustained the cause of action alleged in appellee’s first amended petition. There was evidence in support of the averment in appellant’s answer, and evidence contradicting those averments.

The court instructed the jury that if they found that the churn was capable of making butter, then appellee is entitled to recover. Three assignments contend that under the pleadings and evidence this charge was erroneous. The contention must be sustained. The averment that the churn was wholly incapable of doing the work that said Wells & Bohlen represented to him that it would do, and was of no use, and unsalable, is very general, but is sufficient against a general demurrer against wbicb all presumptions are indulged in favor of a petition. Had tbe appellee desired to know more specifically wbat tbe representations were, be could have acquired that information by a special exception, in which case every presumption is indulged against the sufficiency of the allegations. No special exception was made.

There was evidence that tended to prove that appellant contracted to purchase a right to sell the churn because he was led to believe the churn a useful and salable article and relied upon representations of Wells & Bohlen, the payees of the note,'that the churn was salable and of value as a commercial article, and that appellant could make a profit by selling it in the state of Wisconsin. There was evidence that it was not salable, and worthless for the purposes for which it was offered. Neither the averment of appellant’s defense nor the evidence limited the issue to the question of whether or not the churn would make butter. The jury may have found that the churn would make butter and at the same time may have found from the pleadings and the evidence that it was worthless for the purpose for which it was bought; that Wells & Bohlen knew it was worthless for that purpose, and fraudulently induced appellant to believe it was valuable as a commercial article. It is apparent that appellant did not intend to make butter. He bought the right to sell the churns, and no doubt believed that the churn had such superior merits over other churns as to enable him to readily sell them at a profit. Whether or not this conviction was induced by representations of Bohlen was a question for the jury. The charge was error.

The judgment is reversed, and the cause remanded.
      <@E»For other capes see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    LEE et al. v. BRITISH & AMERICAN MORTGAGE CO.
    (No. 5792.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 10, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Judges <@=»42 — Disqualification—Interest in Land Involved.
    Where land sold under execution-to satisfy a judgment in favor of the purchasers had prior to the sale been incumbered by a trust deed containing a power of sale, and thereafter, in compliance with the deed of trust, the trustee sold all the right and title of the judgment debtor, the execution purchasers thereafter had no interest in the land, and one of them who subsequently was elected district judge was not disqualified in an action involving such land.
    2. Appeal and Error <©=>837(2) — Review — Matters Considered — Other Cases.
    On appeal in an action to vacate a judgment the records of the Court of Civil Appeals on appeals in the former case may be looked to and considered in disposing of the appeal.
    Error from District Court, Brown County; Jno. D. Robinson, Judge.
    Suit by W. J. Lee and others against the British & American Mortgage Company. From a judgment for defendant, plaintiffs bring error.
    Affirmed.
    E.. B. Hendricks, of Austin, for plaintiffs in error. Harrison & Miller, of Brownwood, for defendant in error.
   KEY, C. J.

The plaintiffs in error brought

thi$ suit in the district court of Brown county, seeking to set aside a certain judgment and decree rendered by the same court in favor of the British & American Mortgage Company, and against the plaintiffs in error, involving title to two tracts of land; and the plaintiffs in e'rror also sued for title and possession of the land. The mortgage company and S. L. McCracken and T. L. Simmons, who held under that company, were made defendants. The case was tried by Judge John D. Robinson, and judgment was rendered for the defendants.

The case has been in this court before, and was reversed because the trial court sustained an exception to the plaintiffs’ petition and dismissed the same. Lee v. British-American Mortgage Co., 51 Tex. Civ. App. 272, 115 S. W. 320. The nature of the case is fully disclosed by the opinion of Chief Justice Fisher in the report referred to.

This court sustained several objections urged against the plaintiffs’ bill or petition, but held that the trial court committed error in dismissing the case, because of the allegations to the effect that Judge John W. Goodwin, who made the orders in 1901 and 1902, which effectuated a partition of the land, was disqualified, because of the fact that he had been employed as counsel in the case, and was interested in and asserting title to the subject-matter of the litigation. We there held that, if the facts were as alleged, the orders made by Judge Goodwin were void.

At the last trial the case was submitted to a jury upon two special issues, and in response thereto the jury found: First, that at the time Judge Goodwin made the orders referred to he was not interested in and was- not claiming the lands in controversy; and, second, that he was not at that time, nor prior thereto, counsel in the case. In this court the charge that Judge Goodwin had been counsel in the case seems to have been abandoned, and the only question presented for decision is presented by one assignment of error, which charges that the verdict and judgment are contrary to the law and the evidence, because the undisputed evidence shows that at the time the judgment was rendered and orders made by Judge Goodwin he owned an interest in the land derived through a purchase at constable’s sale, at which sale he and his father became the purchasers. The proof shows that Judge Goodwin was first elected district judge in 1900. On the 3d day of November, 1891, W. J. Lee’s interest and title in the land in controversy was sold under execution by a constable to satisfy a judgment in favor of Judge Goodwin and his father, and they became the purchasers at that sale.

The records in this and the original case, as disclosed by this and other appeals, show that long prior to any right or title which Judge Goodwin and his father may have acquired to the land the same was incumbered by a trust deed executed February 11, 1890, by W. J. Lee, that the trust deed contained a power of sale, and that in compliance with that instrument, on the 22d day of May, 1899, the trustee sold all the right and title which W. J. Lee had to the land. Thus it will be seen that all the right and title which Judge Goodwin .rand his father acquired through the constable’s deed was W. J. Lee’s equity or right of redemption, and as that had theretofore been foreclosed and extinguished by the trustee’s sale under which the mortgage company acquired the land, neither Judge Goodwin nor his father owned any interest therein at the time he made the orders complained of. Hampshire v. Greeves, 104 Tex. 620, 143 S. W. 147.

In the case above cited our Supreme Court said:

“The contention of plaintiff’s counsel to the effect that ‘the right of redemption of a junior lien holder is not cut off by a procedure to which the junior lien holder is not a party’ is not sound, as we think, and not supported by authority or reason. The rule is thus tersely stated in Jones on Mortgages, par. 1897: ‘The purchaser [under foreclosure proceeding by sale under the power given in the mortgage] takes the mortgagor’s title divested of all incumbrances made since the creation of the power.’ And again, in the same section: ‘A sale regularly exercised under a power is equivalent to strict foreclosure by a court of equity properly pursued.’
“It was held in Aiken v. Bridgeford & Co., 84 Ala. 295, 4 South. 266, and in Childress v. Monette, 54 Ala. 317, that: ‘When a regular sale is made under a power contained in the instrument, not only the mortgagor, but all persons claiming any interest in the equity of redemption by a privity of estate with him, are considered as parties to the proceeding, and are precluded by it as fully as if they had been made parties defendant by regular subpoena in an ordinary foreclosure suit.’ ”

This being a bill of review in which it is sought to reopen a case that has already been tried and disposed of, the records of this court embracing appeals in the formér case may be looked to and considered in disposing of this appeal. Warren v. Frederichs, 83 Tex. 380, 18 S. W. 750; Wood v. Cahill, 21 Tex. Civ. App. 38, 50 S. W. 1071; Edgar v. McDonald, 106 S. W. 1135; Richardson v. State, 47 Tex. Cr. R. 592, 85 S. W. 282.

The sole assignment upon which this case Is submitted in this court does not charge that Judge Goodwin, or his father, are now, or were at the time the orders complained of were made, asserting any claim to any of the land, and the uncontroverted testimony shows the contrary.

No error has been shown, and the judgment is affirmed.

Affirmed.

JENKINS, J., did not participate in the decision of this case.
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text:
    HOFF et ux. v. CLARK.
    (No. 5931.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 2, 1918.
    Rehearing Denied Jan. 30, 1918.)
    1. Appeal and Error <@=557 — Preparation op Record — Duty op Trial Judge.
    Defendants having'been granted 30 days after adjournment of court in which to file a statement of facts, where a request for the court to make the statement was not presented within 30 days, the court could not be required to make such statement, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2073, providing that the judge shall not be required to prepare a statement of facts, unless a request therefor is presented within the time allowed for filing.
    2. Process <§=¿>38 — Citation — Notation op Date op Issue.
    Notation by the clerk of date of issue of citation upon the back thereof was sufficient, within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2180, requiring the date of issuance to be noted on the same; the statute not requiring that the date of issuance be in the body of the citation or on its face.
    3. Process <@=34 — Essentials — Statement op Action.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1852, specifying what citation shall contain, does not require the setting out of a detailed statement of the cause of action.
    4. Appeal and Error <@=544 (2) — Findings op Trial Court — Review.
    Findings of the trial court will not be disturbed, in the absence of a statement of facts.
    Appeal from District Court, Aransas County; F. G. Chambliss, Judge.
    Suit by George R. Clark against Chas. F. Hoff and wife. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    John B. Eddins, of Rockport, and Wm. H. Russell, of San Antonio, for appellants. W. H. Baldwin, of Rockport, for appellee.
   SWEARINGEN, J.

Appellee, G. R. Clark, sued Chas. F. Hoff and wife, Helen E. Hoff, to recover judgment for the amount evidenced by the promissory note made by appellants and to foreclose a lien evidenced by a deed of trust executed by appellants. Both of appellants were duly notified by proper process to appear and answer the suit on September 4, 1916. Both appellants made default. On the 6th day of February, at an ensuing term of the court, judgment was rendered for ap-pellee for the sum of $1,406.90, which was the amount of principal, interest, and attorney’s fees. Appellants’ motion for a new trial, presented within two days after the rendition of the decree, was overruled on February 13, 1916. The term of court ended February 15, 1916.

In the order overruling the motion for new trial, appellants were granted thirty days af t-er the adjournment of court within which to file statement of facts. On the - of May, nearly 90 days after the adjournment of court, for the first time appellants presented a statement of facts signed and certified to by their attorneys and requested the court to prepare the statement of facts because counsel could not agree upon a statement. No statement was made by the court, and none agreed to by the attorneys. The court, upon request of appellants, filed its conclusions of fact and law, to which no exception was taken.

Appellants’ first assignment urges that they were wrongfully deprived of a statement of facts, by the court’s failure to prepare and file one. Had the appellants requested the court to prepare the statement within the 30 days after the adjournment of court, the duty then would have devolved upon the court to make the statement; but since the request for the court to make the statement was not presented to the court within the 30 days, but for the first time nearly 90 days after the adjournment of court, the court could not be required to make the statement. The statute very clearly makes this rule. Y. S. C. St. art. 2073; Dobie v. Scott, 188 S. W. 286; Harris v. Camp, 148 S. W. 597. The first assignment is overruled.

By the second assignment it is contended that the citation is not sufficient to support the judgment, because the clerk noted the date of its issuance on the back of the citation and not upon its face. V. S. R. C. St. art. 2180, does not require the date of issuance to be in the body of the citation nor on its face. All required is that the clerk officially note on the citation as evidence of the time when the citation was delivered by the proper official to the officer for service on the defendants. The notation must be made on the citation by the clerk; if not, the citation would not support the judgment, for the statute is mandatory, and must be strictly observed. In this case the date of issuance was noted on the citation. In the case of Pruitt v. State, 92 Tex. 434, 49 S. W. 366, relied upon by appellants to support this assignment, the court held that a clerk’s notation on the back of a petition was no part of the petition filed by the plaintiff in the suit. This ruling has no bearing upon the question here presented, because the statute does not require the clerk’s notation of issuance of service to be a part-of the citation, but only requires that the clerk note the date of issuance on the citation. In the very nature of things the notation could not be a part of the citation, which must be complete in itself before it can be issued, the issuance being necessarily of the completed instrument and subsequent to its completion. The second assignment is overruled.

The third assignment is overruled, because the citation sufficiently states the nature of plaintiff’s demand.

There is no merit in the fourth assignment, because the citation stated the nature of plaintiff’s demand, which complied strictly with the statute. Article 1852. A detailed statement of the cause of action is not required to be set out in the citation. If the defendants reside outside the county where the suit is filed, as in this ease, a copy of the petition is required to accompany the citation. This requirement was complied with, and gave appellants a full statement of the cause of action.

The fifth and sixth assignments are overruled, because the findings of fact by the trial court were not excepted to, and, even had they been excepted to, could not be considered, because there is no statement of facts before us, under which circumstances the finding of the trial court cannot be disturbed.

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


author: PHILLIPS, C. J.

text:
    WARD CATTLE & PASTURE CO. v. CARPENTER.
    (No. 2713.)
    (Supreme Court of Texas.
    Feb. 13, 1918.)
    Statutes <&wkey;110:!4 (1) — Title—Constitution.
    Acts 33d Leg. e. 72 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7235), entitled “An act to amend article 7235, chapter 6, title 124, of the Revised Civil Statutes of Texas, 1911, with reference to the mode of preventing horses and certain other animals from running at large in counties named, so as to include Ochiltree, Moore, Sherman, Hansford, Henderson, Cameron, Hartley, Dallam, Concho, Pecos, Reeves, Wharton, Gonzales, Kerr, Kendall, Haskell, Young, Cottle, Hardeman and Hall counties, and declaring an emergency,” to the extent that it attempted to exclude Matagorda county from the operation of the Stock Law (Rev. St. 1911, art. 7235), is violative of the constitutional requirement as to the title of statutes.
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Suit between the Ward Cattle & Pasture Company and William Carpenter. To review judgments of the district court and of the Court of Civil Appeals, the company brings error.
    Judgments affirmed.
    Krause & Wilson, of Bay City, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for plaintiff in error. Gaines & Corbett, of Bay City, for defendant in error.
   PHILLIPS, C. J.

The question in the case is whether the Act of the Thirty-third Legislature (Chapter 72, page 131, General Laws of 1913 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7235]), was effective to exclude Matagor-da County from those counties of the State entitled to the benefit of the stock law.

Matagorda was included as one of such counties by the Act of 1909. This act wa's brought forward in the revision of 1911 as Article 7235. Under it, an election was duly held in March of 1913 in a certain subdivision of the county to determine whether the stock law should be there put into operation, resulting in favor of the law. An injunction suit assailed the validity of the election upon the ground that by the Act of 1911 Matagorda County was dropped from the list of counties that might avail themselves of the law. The election was sustained, the Court of Civil Appeals holding that the caption of the Act of 1911 was such as not to authorize the attempted omission of Matagorda County in the body of the Act. 'Holman v. Cowden & Sutherland (Civ. App.) 158 S. W. 571. A writ of error was refused in the case. ' This left the status of Matagorda County as it was under the Act of 1909 — that is, Article 7235.

The Act of 1913 — involved here — is an amendment of Article 7235. It, likewise, in the body of the Act, omits, or attempts to omit, Matagorda County from the list of enumerated counties entitled to invoke the stock law; and again, as applied to this Act, the question recurs as to whether the title will ■ support Matagorda County’s exclusion from the benefits of the law.

The title of the Act is in these words:

“An Act to amend Article 7235, Chapter 6, Title 124, of the Revised Civil Statutes of Texas, 1911, with reference to the mode of preventing horses and certain other animals from riin-ning at large in counties named, so as to include Ochiltree, Moore, Sherman, Hansford, Henderson, Cameron, Hartley, Dallam, Concho, Pecos, Reeves, Wharton, Gonzales, Kerr, Kendall, Has-kell, Young, Cottle, Hardeman and Hall counties, and declaring an emergency.”

No one reading this title could reasonably conclude that the purpose of the Act was other than to merely enlarge Article 7235 so as to have it include in its designation of the counties privileged to prohibit the running of stock at large, the additional counties named. The statement that the article was to be amended as to “counties named so as to include” those referred to was a distinct assurance that the object of the Act was a limited one, and that its scope was to amend the article in that way and no other. This is true, whether the term, “counties named,” be construed as meaning those named in the original article or those named in the amend-atory Act. The phrase, “so as to include,” etc., of itself, definitely fixes the character of the amendment as one seeking no other alteration in the original article than to bring the additional counties within its purview. This is the plain sense of the language, and no amount of reasoning can change it. It gives no hint that Matagorda County, or any other county found in Article 7235, was to be dropped from the article and excluded from its benefits. If it was intended to signify that such was to be the effect of the Act, it was a deceptive and misleading title.

The purpose of the constitutional provision in respect to the title of legislative acts is well understood. It is that by means of the title the legislator may be reasonably apprised of the scope of the bill so that surprise and fraud in legislation may be prevented. True, according to previous decisions of this court, if the title had only declared that the purpose of the Act was to amend Article 7235 of the Revised Statutes, it would have supported an act amending the article so as to omit Matagorda County. But with this title announcing, as it does, that the article was1 to be amended in a particular way, no legislator would reasonably have conceived that it was to be amended in another way exactly contrary to that stated. This is a case illustrating the wisdom and justice of the constitutional provision.

The Act, to the extent that it attempted to exclude Matagorda County from the operation of Article 7235, violates the Constitution. The result is that Matagorda County is still entitled to avail itself of the stock law as provided in Article 7235. The judgments of the District Court and Court of Civil Appeals are accordingly affirmed.
      <i£^>For otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    THOMAS v. STATE.
    (No. 4865.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    Larceny ¡&wkey;55 — Evidence—Sufficiency.
    Evidence held to sustain conviction of the offense of horse theft.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Walter Thomas was convicted of horse theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of horse theft, and assessed the lowest punishment. No complaint was made to the court’s charge, and there are no bills of exception. Appellant’s defense was alibi. This question was submitted by the court in a proper charge. The jury found against him on it.

The proof was sufficient to show and justify the jury to believe that appellant lived near Kosse and near where the owner of the stolen horse resided, and knew the premises where and the way the horse was kept. The horse, saddle, bridle, etc., were stolen in the night of January 8th. The owner and his folks early next morning saw the horse had been stolen, and began hunting for it and having others do so. Some two weeks later they located the horse in Austin. Two witnesses swore positively that appellant appeared in Austin with the horse on January 13th, and sold it to one of them. He told one of them where he had sold or traded the saddle before he reached Austin. This saddle was found where he said he had disposed of it, and recovered. The horse was recovered. Appellant denied that he was the person whom these two witnesses identified with the horse. He claimed that he was at Marlin at the time the horse was stolen and some days thereafter. All this was for the jury. The evidence was sufficient to sustain the conviction.

The judgment is affirmed.
      ig^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    JOHNSON v. STATE.
    (No. 4830.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    1. Forgery <&wkey;40 — Circumstantial Evidence — Passin® Forged Check.
    Passing a forg-ed check with knowledge of its forgery is a circumstance against defendant charged with forgery.
    2. Criminal Law <&wkey;S14(17) — Instructions —Failure to Charge on Circumstantial Evidence.
    In a prosecution for forgery of a check, where the check which defendant procured to be cashed was not payable to him, and the proof that he knew it was forged was not direct, and his passing it was to be inferred only from circumstances detailed in evidence that he gave a note or paper to a negro boy and told him to take it to a drug store and bring the money back,' etc., the court’s failure to charge on circumstantial evidence was erroneous.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Jim Johnson was convicted of forgery, and he appeals.
    Judgment reversed, and cause remanded.
    Arthur A. Seale, of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted and convicted of forging a check for $9.50 on the Stone Fort National Bank of Nacogdoches purporting to be drawn by Robert Berger in favor of George Whitker. The check was forged. Appellant obtained a blank check on the Stone Fort National Bank from a witness. He gave a negro boy what the latter described as a note or paper, and told him to take it to the drug store of Mr. Stripling, and told the boy to bring him the money back and he would give him a quarter. The boy took the check to the drug store, and Mr. Stripling before cashing it required the boy to write George Whitker on the back of it and his own name, and'gave him the money, which the boy gave to appellant. A negro by the name of George Whitker had worked for Robert Berger. Payment was refused when the check was presented, and the money returned to Mr. Stripling, who had cashed the check. Mr. Stripling said that when he found the check was spurious he found appellant at the home of his stepfather Mallory. He said:

“I brought the defendant to town and carried him to the Stone Fort Bank, and he got the money on some other checks he had, and he paid it all; he first wanted to just pay a part of it and pay the other some other time, but I told him that wouldn’t do, so he got the money and paid it all. As to what statement defendant made to me at that time about this transaction, I really don’t believe he made any statement at all, outside of what I have already told. If he did, I don’t remember it now. He paid me the money back.”

There is no statement by the appellant or any one else, so far as the record shows, that the appellant wrote the check or signed it, nor is there any evidence that it was in his handwriting. That appellant made the forged instrument was the main fact to be proved. The evidence that he made it is wholly circumstantial. Passing a forged check with the knowledge of its forgery is a circumstance against an accused charged with forgery, and in some instances facts surrounding a fraudulent passing brings the accused in such juxtaposition to the forgery as to take the case out of the rule requiring a charge on circumstantial evidence. Gaut v. State, 49 Tex. Cr. R. 495, 94 S. W. 1034; Jackson v. State, 193 S. W. 301. The check in this instance was not payable to the appellant. The proof that he knew it ¡vas forged is not direct, and Ms passing it is to be inferred only from circumstances detailed in the evidence.

There was an exception to the failure of the court to charge on circumstantial evidence which presents error requiring reversal. Nichols v. State, 39 Tex. Cr. R. 80, 44 S. W. 1091; Hanks v. State, 56 S. W. 922; Dysart v. State, 46 Tex. Cr. R. 53, 79 S. W. 534.

The judgment of the lower court is reversed, and the cause remanded.


text:
    ANSELMO v. STATE.
    (No. 4826.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    1. Criminal Law <&wkey;1090(ll) — Appeal — Scope.
    It is only through bills of exception, as required by Code Cr. Proc. 1911, art. 744, and the statement of facts when new trial is refused, as provided for by article 844, that the court is apprised of occurrences at the trial, and in view of article 938, stating procedure on appeal in criminal cases, court can consider as ground for reversal only matters presented for review as so required.
    2. Criminal Law <&wkey;687(l) — Evidence—Reception.
    Where accused’s wife described the knife with which he killed deceased, and her description was not controverted, and the evidence then closed, it was not an abuse of discretion to de-' cline to open the evidence the next day for the admission of the knife.
    3. Criminal Law <&wkey;1153(2) — Expert Opinion-Qualifications of Witness — Discretion of Court.
    Generally speaking, the decision of the trial judge as to the qualification of an expert to give testimony is not reviewable.
    4. Criminal Law <&wkey;1169(2) — Appeal — Harmless Error.
    Assuming that undertaker was not qualified to state cause of deceased’s death, admission of such evidence was not harmful, where the circumstances, as to the cause of the death of deceased, were conclusive.
    Appeal from Criminal District Court, Dallas County; Root. B. Seay, Judge.
    H. Anselmo was convicted of murder, and be appeals.
    Affirmed.
    John White, of Dallas, for appellant.. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant appeals from a judgment condemning him to 12 years’ confinement in the penitentiary for the offense of murder.

Appellant and deceased were Mexicans,'’or of Mexican descent. Deceased was stabbed and killed on the streets of Dallas at nighttime. Appellant admitted that he stabbed a man whom the other testimony identifies as deceased named in the indictment, and the evidence shows that the deceased died almost Immediately from the wounds. The state’s theory as developed by the evidence of its witness Baker and some corroborating circumstances was that the appellant slipped up behind the deceased and stabbed him. Appellant’s theory and testimony was that the deceased and others, all of whom were unknown to him, attempted to rob him, and that he stabbed in self-defense, or to prevent the robbery. The state’s witness Baker claimed to have been present, but knowing none of the parties, simply a pedestrian on the streets. Appellant fled from the scene of the homicide, dropping his hat, which was picked up and identified on the trial as belonging to him. Baker went to the deceased and was joined about the time he fell by a police officer, who called an ambulance in which deceased was taken away from the scene.

We are unable to agree with the appellant that the evidence is insufficient.

Several bills of exception were prepared and refused by the court upon the ground substantially that they embodied matters entirely contrary to the record of the trial. As presented, the complaint was not of refusal to allow proper hills, but it is suggested that the bills as in the record and refused by the court should be considered. It is only through bills of exception and statement of facts verified as required by statute (article 744, O. O. P., and article 844) that this court can know judicially what takes place in the conduct of a trial except in instances where bystanders’ bills are presented. It is only matters presented for review in the manner required by law that this court is authorized to consider as ground for reversal of judgment. O. C. P. art. 938.

The appellant’s wife -der.eribed the knife in his possession while testifying as a witness, and on the next morning, after the evidence had closed the evening before, there was an effort made on the part of appellant to introduce the knife in evidence. The wife’s description of the knife was not controverted, nor was there any conflict with her testimony on the subject, and as disclosed by the bill, with its qualification, there was no abuse of the court’s discretion in refusing to reopen the evidence.

The undertaker testified that the wound inflicted upon the deceased caused his death, or that he bled to death therefrom. The witness testified to the facts touching his qualification which, in the opinion of the trial judge, was sufficient, and generally speaking the decision of the trial judge as to the qualification of an expert to give tes-timony is not reviewable. Holder v. State, 194 S. W. 162, and cases there cited. In explanation of the bill, the trial judge directs attention to the fact that the witness gave without objection substantially the same testimony as that objected to. The evidence, if improper, would not have been harmful for the reason that the circumstances were conclusive' as to the cause of the death of the deceased.

The criticism of tile testimony of the witness Baker as to the identity of the appellant goes to its weight and not to its admissibility, and is not really upon a controverted issue when considered in connection with the testimony of the appellant, in substance, that he stabbed the deceased to prevent injury to himself.

Finding no reversible error in the record, the judgment of the lower court is affirmed.
      <jfc»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DURSTON et al. v. STATE.
    (No. 4718.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    Indictment and Information &wkey;>124(4) — Joint Information.
    Prosecution for misdemeanor, under Pen. Code 1911, art. 756, for unlawfully practicing medicine without complying with article 750, requiring licenses, cannot be sustained under a joint charge against two defendants; the license being personal to the individual, and his practicing without obtaining it being a personal default, not one that he can commit in connection with another.
    Appeal from Johnson County Court; B. Tay Jackson, Judge.
    C. J. Durston and Nellie R. Fleming were convicted of a misdemeanor, and they appeal.
    Judgment reversed, and prosecution ordered dismissed.
    F. E. Johnson, of Cleburne, W. R. Booth, of Ft. Worth, and Morris & Hartwell, of Da Crosse, Wis., for appellants. ' E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellants were each convicted of a misdemeanor, and each fined $50. They were charged under article 756, P. C., fiar unlawfully practicing medicine; that is to say, not complying with the requisites of the statute (article 750), with reference to obtaining a license.

The information charges the offense jointly against both appellants, and' its legality is challenged upon this ground. It is not criminal to practice medicine, but it is unlawful to do so for pay without obtaining a license. A license authorized is personal to the individual. His practicing without obtaining it is a personal default, not one that he can commit in connection with another, and the prosecution for the default cannot be sustained under a joint charge.

The exact question has not been reviewed in this state, so far as we have learned. It was passed upon by the Court of Appeals-in Missouri in the case of State v. Hendricks, reported in 187 S. W. 272, involving an indictment charging the same offense, in the same manner as that involved here, and for cogent reasons and upon full citation of authorities, the indictment was held bad. Other authorities sustaining the principle are State v. Wainwright, 60 Ark. 280, 29 S. W. 981; State v. Hall, 97 N. C. 474, 1 S. E. 683; Maull v. State, 37 Ala. 160; Chowning v. State, 91 Ark. 503, 121 S. W. 735, 18 Ann. Cas. 529; Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; Walker v. Commonwealth, 162 Ky. 111, 172 S. W. 109; Townsend v. State, 137 Ala. 91, 34 South. 382. Following the authorities cited, we are constrained to hold that the court was in error in refusing to quash the information.

The judgment of the court below is reversed, and the prosecution ordered dismissed.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    HAVERBEKKEN et al. v. STATE.
    (No. 4845.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Bail &wkey;36&wkey;Am?EAi>-RECOGNizANCE.
    It is not permissible for defendants when jointly convicted to enter a joint recognizance.
    2. Bail <&wkey;72 — Appeal — Recognizance — Amendment.
    In view of Vernon’s Ann. Code Cr. Proc. 1916, art. 923, providing for amendment to recognizance on appeal from conviction, two defendants, jointly convicted of affray, have the right to amend their recognizance, which was defective by reason of being joint.
    3. Criminal Law &wkey;>1092(l) — Apfea3>-Bill of Exceptions — Approval.
    In view of Code Cr. Proc. 1911, art. 744, requiring a bill of exceptions in criminal eases, bill of exceptions on appeal from a conviction must be approved by the trial judge.
    Appeal from Bosque County Court; W. A. York, Judge.
    Chris and Martin Haverbekken were convicted of affray, and they appeal.
    Dismissed.
    See, also, 194 S. W. 1114.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellants were jointly tried and convicted of affray, and each fined $1.

In appealing they made a joint recognizance. This, it appears, is not permissible under the decisions of this court. Goldman v. State, 35 Tex. Cr. R. 436, 34 S. W. 122; Hogg v. State, 40 Tex. Cr. R. 109, 48 S. W. 580; McMeans v. State, 37 Tex. Cr. R. 130, 38 S. W. 998; Hodges v. State, 38 S. W. 1019; Bowers v. State, 33 S. W. 974; Irvin v. State, 32 S. W. 899. Under article 923 appellants would have the right, if they desired to, to amend their recognizance, in which event we will order reinstatement of the dismissal, which must be ordered. Vernon’s C. C. P. p. 888, and cases cited; Chancey v. State, 48 Tex. Cr. R. 535, 90 S. W. 632; Thomas v. State, 66 Tex. Cr. R. 472, 147 S. W. 578; Cryer v. State, 36 Tex. Cr. R. 621, 37 S. W. 753, 38 S. W. 203.

The state, through its Assistant Attorney General, calls attention to the fact, however, that the bills of exception in the record have not been approved by the trial judge. This, of course, is requisite. C. C. P. art. 744, and cases cited thereunder. He also calls attention to the fact that the statement of facts was filed more than 20 days after adjournment of the term of county court at which the trial took place, and for that reason objects to its consideration, citing O. C. P. art. 844a, and cases cited thereunder in Vernon’s O. C. P.

The appeal will be dismissed, with the permission to enter into a new recognizance if appellant so desires.