author: LEVY, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al. v. BURRUS MILL & ELEVATOR CO.
    (No. 1337.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 21, 1914.)
    1. CARRIERS (§ 122) — CARRIAGE OX GOODS— Ability of Carries.
    Where a shipment of goods was only partially destroyed by the carrier’s negligence, neither the consignee nor the shipper is justified in abandoning the shipment and charging the carrier with its full value; hence, where the goods were again damaged after the refusal of the consignee to accept the goods, and of the shipper to give instructions for disposition, the shipper is not entitled to recover full amount of the damage in an action based solely on the carrier’s liability as such.
    TBd. Note. — For other cases, see Carriers,, Cent. Dig. §§ 537, 538, 557-559; Dec. Dig. §1 122.]
    2. Carriers (§ 140) — Carriage of Goods— Liability.
    Where, on delivery the consignee refused to accept a shipment, and the consignor declined to give orders for its disposition, the carrier’s liability as such ended, and it was thereafter liable only as a warehouseman.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 609, 609y2, 611-616; Dec. Dig. § 140.]
    Appeal from Tarrant County Court; Chas. T. Prewett, Judge.
    Action by the Burrus Mill & Elevator Company against the St. Louis Southwestern Railway Company of Texas and another. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    On December 16, 1910, the appellee shipped a car load of flour and shorts from Ft. Worth, under through bill of lading, to Fincher Bros., as consignees, at Waldo, Ark. The goods were billed to Fincher Bros, on open account, as previously agreed upon, and ap-pellee prepaid all freight charges to and received the through bill of lading from the Ft. Worth & Denver City Railway Company. On arrival of the shipment at destination the agent of the delivering carrier, the St. Louis Southwestern Railway Company, after properly placing the car, tendered delivery of the same to the consignees. The consignees immediately after the tender by the agent opened the car and found by examination that the flour and shorts, were somewhat damaged by rain as a result of the car being defective and leaky. There was no total or substantial destruction of the shipment; but some of the barrels of flour and shorts were partially damaged. On account of this damage the consignees refused to further receive the shipment from the railway company, or to give orders for the disposition of the same. After the ear had been refused by the consignees, the agent notified the appellee, who also at once refused to give any instructions for disposition of the car. About three days after the refusal to accept the freight, and while the car was at the location previously tendered for unloading, a hard rain fell, causing further and more serious damage to the goods in the car.
    The appellee brought the suit, under the contract of shipment, for the full market value of the entire shipment. After the suit was instituted, the appellee and the appellants, by an agreement without prejudice to the suit, made an agreement for the sale of the contents of the car, and that the proceeds of the sale, less- expenses incurred, be paid over to and received by appellee. The amount received by appellee as the net proceeds of the sale, and eliminated from the suit under the agreement, was $360.70. The further sum of $360.70, it is admitted in the evidence, was the aggregate value of the loss sustained by the wetting of the goods in the two separate instances. The appellee recovered judgment for the latter $360.70. The witnesses testify that the contents of the car at the time and in the condition tendered by the appellants had a greater market value than before being rained on after the refusal to accept the delivery, and that the goods still had the market value of several hundred dollars after being rained on the second time. But the evidence fails to show the amount of the damage to such part of the goods that got wet in transit, and before tender of delivery, or to present any data sufficient to determine the amount.
    Thompson & Barwise and A. O. Wood, all of Ft. Worth, for appellants. McGown, Murphy & McGown, of Ft. Worth, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVY, J.

(after stating the facts as above). The only serious error presented by the assignments is, we think, that of excessive verdict under the facts in the record.. The evidence showed admittedly that at the time the shipment was tendered to the consignees, and by them refused, there was not a total or substantial destruction, but only a partial injury, to part of the contents of the car. This fact being true, neither the consignees, as owners, nor the shipper, in virtue of the contract of shipment, was justified in abandoning the shipment and charging the carrier the full value. Railway Co. v. Everett, 37 Tex. Civ. App. 167, 83 S. W. 257; Railway Co. v. Pitts & Sons, 37 Tex. Civ. App. 212, 83 S. W. 727; Railway Co. v. Mercantile Co., 104 S. W. 1072; Railway Co. v. Moore, 47 Tex. Civ. App. 531, 105 S. W. 532; Hutchinson on Carriers, § 1365. The appellant’s liability as a carrier to appellee must therefore be measured by the amount of the damage to the contents of the car in transit, and to the time of the tender of the freight, which fulfilled the contract of transportation. The evidence fails to fix the amount of that damage or present any data sufficient to determine the amount. The $360.70 shown in the evidence to be the full damage to the contents of the car chiefly occurred, as must be inferred from the evidence, after the tender and refusal to accept the shipment. And neither the jury nor this court would be warranted in saying how much of the damage occurred before the tender. The appellants having fulfilled the contract of transportation when the goods were tendered for delivery at destination, they were, after the delivery had been rejected, in legal effect discharged from the responsibility imposed upon them as carriers of the goods, and thereafter the relation and duties of the carrier towards the goods in their possession, with respect to the care necessary to protect them against injury or loss for the owner, was that of a warehouseman. Whether that liability would in this case be east upon the initial carrier under the contract sued on is not a question involved in this appeal, for appellee’s pleading does not warrant a recovery against appellants, or either of them, in the relation of warehousemen. Concluding, as we do, that under the evidence the amount of recovery had in this case is excessive, the tenth assignment, making the point, should be sustained. As the evidence in the record does not enable the court to. fix. the amount appellee should recover, the amount of remit-titur cannot be suggested. Therefore the judgment is reversed, and the cause remanded.

It is suggested that the instruction complained of in the eighth assignment is not to be understood as being approved as correctly measuring appellants’ liability under the facts in this record.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    SOLOMON et al. v. MERCHANTS’ & PLANTERS’ NAT. BANK et al.
    (No. 1272.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 4, 1914.)
    1. Bills and Notes (§ 537) — Execution—-Issues — Evidence.
    Evidence that, though the note sued on was not signed by one defendant, it was signed for Mm under his authority, by his son, was insufficient to present any issue as to whether such defendant executed the note.
    [Ed. Note. — For other cases, Notes, Cent. Dig. §§ 1862-1893; 537.] see Bills and Dec. Dig. §
    2. Bills and Notes (§ 58) — Deeense—CON-TEMPORANEOUS AGREEMENT.
    An agreement between the makers of a note that it should not be used unless signed by other parties will not defeat the payee’s right to recover on it, unless he had notice thereof when he accepted it.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 104; Dec. Dig. § 58.]

      3. Bills and Notes (§ 537 )— Action on Note — Issue oe Fraud — Evidence.
    In an action on a note, defendants’ evidence, which merely showed an ordinary transaction of parties borrowing money from the plaintiff bank on the faith of their own and other signatures to a note and failing to repay it as agreed, presented no issue of fraud as to other makers and the bank’s notice thereof for submission to the jury.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. § 537.]
    4. Principal and Surety (§ 113) — Discharge op Surety — Banking.
    Where the principal on a note payable to a bank has money on deposit in the bank after maturity more than sufficient to pay it, the bank’s failure to apply it to the payment of the note will not discharge the surety.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 235-239; Dec. Dig. § 113.]
    5. Bills and Notes (§ 537) — Principal Debtor — Submission op Issues — Evidence.
    In an action against A. as principal and P. and others as sureties on a note, evidence that A. asked to borrow money of the plaintiff bank and later returned with the note upon which he secured the money, that “P. spoke to him about the matter before the money was loaned, and said he thought it would be all right,” that P.’s name was the only one on the note when a surety signed it, that A. and P. together asked another surety to sign with them, and that P. stated that he would see that such surety “did not lose anything on it,” presented an issue for the determination of the jury as to whether P. was a principal debtor on the note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. § 537.]
    6. Appeal and Error (§ 499) — Presentation for Review — Exclusion op Testimony-Bills op Exception.
    Exceptions to the exclusion of testimony could not be considered on appeal, where the grounds thereof were not set out in the bills of exceptions.
    [Ed. Note. — For other cases', see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    7. Appeal and Error (§ 1173) — Disposition op Cause.
    That a judgment for plaintiff on a verdict following a peremptory instruction must be reversed for new trial as between the defendants to determine who is the principal debtor and who are sureties, will not require that it be reversed as between defendants and plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-A572, 4656; Dec. Dig. § 1173.]
    Appeal from Franklin County Court; J. J. Walker, Judge.
    Action by the Merchants’ & Planters’ National Bank and others against H. C. Solomon and others. From judgment for plaintiffs, defendants Solomon and another appeal.
    Affirmed in part and reversed in part.
    The appellee bank, plaintiff below, sought a recovery against appellees J. R. Penn and W. T. Barnett and appellant Solomon and Morton on a promissory note, whereby they and one J. T. Adair, and each of them, undertook to pay to the order of said bank on October 1, 1912, the sum of $336. In its petition the bank alleged that the other makers of the note were sureties for Adair, who, it averred, was the principal debtor. As a reason why it did not sue Adair, the bank alleged that he was insolvent, and that his residence was unknown to it. The trial court peremptorily instructed the jury to find in favor of the bank, and on their verdict rendered judgment in its favor against Solomon, Morton, Penn, and Barnett for the sum of $346.64. The appeal is prosecuted by appellants Solomon and Morton alone.
    Cowan & Hunt, of Mt. Vernon, for appellants. Wilkinson & Wilkinson, of Mt. Vernon, for appellees.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

(after stating the facts as above). Various reasons why the court should not have peremptorily instructed the jury in favor of the bank for the amount due on the note are urged by appellants in their brief. It is insisted: First, that the testimony made an issue as to whether appellant Morton executed the note or not. But clearly, we think, it did not. While the note was not actually signed by Morton, it was signed by his son for him, and he testified he authorized his son to so sign it. It is next insisted that there was testimony showing that Solomon executed the note on the condition that same would also be executed by one Hughes. But it is not pretended that the bank at the time it parted with its money on the faith of the note knew anything about such a condition. In Davis v. Gray, 61 Tex. 506, the Supreme Court held that an agreement between the makers of such a note that it should not be used unless signed by other- parties will not defeat the right of the payee to recover on it, unless it is shown that he had notice thereof at the time he accepted it. In the absence, that court said, of such notice, the payee may “rely upon the intention of all the parties whose signatures were on it, to make with him the contract which the note evidenced.” And see 1 Daniel on Neg. Inst. § 854. It is next insisted that “the question of the fraudulent scheme of Adair and Penn and the bank’s notice thereof” should have been submitted to the jury. Appellants do not cite us to, and we have not found in the record, any testimony tending to show the existence of such a scheme. The transaction seems, for anything appearing to the contrary in the record, to have been the ordinary one of parties borrowing money from a bank on the faith of their own and other signatures to a note and failing to repay it as agreed upon. We do not understand that an issue of fraud is made by evidence showing nothing more than such a transaction. Finally it is insisted that the testimony made an issue as to whether the bank, after notice to it of the assumed fraudulent conduct of Adair and Penn, permitted them to withdraw money to their credit on cheeking accounts with it, instead of applying such money to the satisfaction of the note. In reply to this contention it is enough to say that if there had been evidence of fraud on the part of Adair and Penn of which the bank had notice, and if Adair and Penn had had money to their credit on such accounts with it, the bank was not bound to apply it to the debt evidenced by the note in order to protect appellants against the liability they assumed when they executed the note.

“Where,” said the court in Houston v. Braden, 37 S. W. 468, “the principal on a note payable to a bank has funds on deposit in the bank after maturity, more than sufficient to pay it, the omission of the bank to appropriate the deposit to the payment of the note will not discharge the surety.”

The court which decided the Braden Case quoted approvingly as follows from a Pennsylvania case (Bank v. Legrand, 103 Pa. 309, 49 Am. Rep. 126) in which the Pennsylvania court undertook to state the general rule and an exception to it, applicable to a case like this one, is:

“We fully recognize the rule that, where a principal creditor has the means of satisfaction actually or potentially within his grasp, he must retain them for the benefit of the surety, but we regard the case of bank deposits as an exception to the rule. * * * While it is true that a bank is a mere debtor to its depositor for the amount of his deposit, and therefore, in an action by the bank against the depositor, on a note upon which he is liable, the latter may set off his deposit, yet we do not think the bank is bound to hold a deposit for” its protection. “A bank deposit is different from an ordinary debt, in this,- that from its very nature it is constantly subject to the check of the depositor, and is always payable on demand. The convenience of the' commercial world, the enormous amount of transactions by means of bank cheeks, occurring on every business day in all parts of the country, require that the greatest facilities should be afforded for the use of bank deposits by means of checks drawn against them. The free use of cheeks * * * would be greatly impaired if the banks could only honor them on peril of relieving indorsers, without ap investigation of the state of the depositor’s liabilities upon discounted paper.”

And see Bank v. Powell, 149 S. W. 1103.

In their answer appellants alleged that Penn was not a surety on the note, as he claimed to be and as the bank averred he was, but, instead, was a principal with Adair, and that, as sureties for him as well as for Adair, they were entitled, in the event a recovery was had by the bank against them, to judgment over against Penn. The testimony with reference to this phase of the case was about as follows: Dupree, the president of the appellee bank, testified that “Adair borrowed the money for which the note was given.” “Adair,” he said, “came to the bank and asked to borrow the amount of money. I made out the note and gave it to him. He afterwards came back with the note, and I accepted the note and let him have the money.” He further testified that Penn “spoke to him about the matter before the money was loaned, and said he thought it would be all right.” Dan Morton, who signed the note for his father, appellant Morton, testified that at the time he so signed it “Penn’s name was the only name on the note.” Appellee Barnett testified that Adair and Penn, together, came to him and asked him to sign the note with them, and that Penn then stated that he would see that he (witness) “did not lose anything on it.” Penn did not testify. We are of the opinion that the testimony referred to above made an issue as to whether Penn was a principal debtor on the note or not, which should have been submitted to the jury, and therefore that appellants’ ninth assignment of error should be sustained. Bills of exception taken to the action of the court in excluding certain testimony offered by appellants, which we cannot consider in connection with assignments which complain of such action of the court, because the grounds of the objections to the testimony are not set out in the bills (Ry. Co. v. Blocker, 138 S. W. 160; Armstrong v. Burt, 138 S. W. 175), indicate that appellants, had they been permitted to do so, could have produced other testimony than that recited tending to prove their contention that Penn was a principal, and not a surety on the note.

The fact that the judgment should be reversed for a new trial as between appellants and Penn is no reason why it should be reversed for such a purpose as between appellants and the bank. It therefore will be affirmed in so far as it is in favor of the bank against appellants, and reversed in so far as. it determined the issue between appellants and Penn, and the cause as between them will be remanded for a new trial.


author: HUFF, C. J.

text:
    McKEE v. GARNER.
    (No. 616.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 16, 1914.
    On Motion for Rehearing, June 13, 1914.)
    1. Trial (§ 255) — Instructions—Requests— Necessity.
    Where the court’s charge does not place the burden of proof on either party, a party desiring an instruction on the burden of proof must request it.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    2. Teespass to Try Title (§ 35) — Issues — Burden of Proof.
    A plaintiff in trespass to try title who sues as landlord against a tenant, holding over after the term and notice to vacate, or in violation of the rental contract, must show a wrongful holding of possession by defendant.
    [Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.]
    3. Malicious Prosecution (§ 72) — Wrongful Sequestration — Instructions.
    An instruction authorizing exemplary damages on finding that plaintiff was actuated by hate and malice in suing out a writ of sequestration, and that he did not have probable cause to “believe” that' his property -would be injured by defendant, is not objectionable for the use of the word “believe” in place of the word “fear.”
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 168-173; Dec. Dig. § 72.]
    4. Tbespass to Try Title (§ 47) — Judgment.
    Where, in trespass to try title, the issues involved the right of possession and damages for the wrongful ouster of defendant, a judgment for defendant for possession, and for damages as found by the jury, was sufficient as against plaintiff not entitled to possession.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.]
    On Motion for Rehearing.
    5. Trial (§ 251) — Instructions — Issues — Evidence.
    Where evidence raising an issue was received without objection, though the issue was not presented by the pleadings, instructions submitting the issue to the jury were proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    6. Trial (§ 296) — Instructions—Requests— Necessity.
    A party failing to request a correct charge on a point may not complain of a charge, which, though verbally inaccurate, was substantially correct, when taken in connection with the other instructions given, and not likely to have prejudiced the objecting party.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    Appeal from District Court, Clay County; P. A. Martin, Judge.
    Action by S. B. McKee against J. F. Garner. From a judgment for defendant, plaintiff appeals.
    Affirmed, and motion for rehearing overruled.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. Wantland & Parrish and Taylor & Humphrey, all of Henrietta, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

The appellant, S. B. McKee, brought an action of trespass to try title against appellee, J. F. Garner, in the district court of Clay county, on January 13, 1913. The appellee answered by a plea of not guilty and specially: First. He admitted that he was in possession and alleges that he was in lawful possession, by virtue of a rental contract entered into between appellant and appellee, until the 31st day of December, 1913, and for all the crop season of the year 1913, and that in reliance thereon he had gone to great expense in preparing the land for a crop, but that appellant and one W. Forest, in disregard of the rental contract and appellee’s right of possession, on or about the 20th day of January, A. D. 1913, unlawfully entered on the land and ejected appellee therefrom to his damage, $2,000, praying that Forest be cited and that he have judgment for possession of the land against said parties. Second. That on the 13th day of January, 1913, S. B. McKee made and filed his affidavit and bond for sequestration, stating in the affidavit that he was entitled to possession of the land and that he fears J. F. Garner would make use of his possession to injure such property and thereby procured a sequestration writ, which was placed in the hands of the sheriff, who, by virtue thereof, ejected appellee from the land; that appellee at that time was entitled to possession of the land by virtue of the rental contract as appellant’s tenant for the year 1913; that the affidavit was wrongfully and fraudulently made without any just or legal grounds or excuse for believing the same true; and that it in fact was false, and that it was willful, malicious, and wrongful on the part of appellant and without just or legal right on his part to do so. He sues for actual damages, setting out the items, and for exemplary damages in the sum of $2,500. Both appellant and Forest answered the appellee’s plea in reeonvention, appellant denying that he rented the premises for the year 1913 to appellee; that ap-pellee was appellant’s tenant during the year 1912; and that during that year he did agree with appellee to lease him 80 acres to plant wheat by November 1, 1912, but that he wholly failed to. plant same in wheat by November 1, 1912, and on November 16,1912, appellant notified appellee and demanded possession by January 1, 1913; that appellee breached his contract and by reason thereof had a right to terminate same and did terminate same by notice, as above alleged. And he further alleged certain advances made to appellee for the year 1912, giving the items, and that appellee appropriated certain portions of the crop for that year to his own use belonging to appellant, giving items and amounts. The facts are sufficient to support the verdict of the jury that there was a rental contract between appellant and appellee for the rental of the premises for the year 1913 and that the appellee was rightfully in possession of the land and was entitled to the possession thereof for the year 1913 and until December 31, 1913; that the sequestration proceedings were wrongfully sued out and appellee wrongfully ejected from the premises; and that by reason thereof appellee sustained actual damages in the sum of $61. The facts are also sufficient to show that the writ was not only wrongfully sued out, but that it was willfully and maliciously sued out without probable cause to fear that the premises would be injured and to support the verdict of the jury for exemplary damages in the sum of $250. Judgment was entered for appellee for possession of the land for the year 1913, and for damages as found by the jury against appellant, as above set out. From this judgment McKee alone appeals.

The first assignment .objects to the first paragraph of the court’s charge. The proposition thereunder, is to the effect that, it being admitted that appellant had title to the land, the burden was on Garner to show that he had a valid rental contract. The charge of the court did not place the burden on any one in terms, but simply instructed the jury if they found when Garner was evicted that no rental contract existed for the year 1913 to find for appellant. If the appellant desired a charge on the burden of proof and on whom it rested, he should have requested a proper instruction to that effect. This he did not do. As we understand the case, we do not agree with appellant in his proposition as applicable to the pleadings and facts in this case. True, the action is in form one of trespass to try title. The answer and the supplemental petition, however, show that it was brought by the landlord against his tenant on two grounds: One for holding over after the term expired and notice to vacate, and the other that the tenant had violated the rental contract. The tenancy of the appellee was recognized as having been in existence and that he had been rightfully in possession but that he was wrongfully holding over after the expiration of the lease afid notice to vacate after he had breached his contract. Instead of bringing a forcible entry and detainer suit, appellant resorted to the action of trespass to try title. The title to the land was not really involved in this action, but' the right of possession was the only issue. If appellant had brought a forcible entry and de-tainer suit, he would have been required to prove his right of possession by showing a termination of the lease and notice to vacate or that the contract had been breached by the tenant, giving appellant the right to the possession. Thurber v. Conners, 57 Tex. 96; Tyler v. Davis, 61 Tex. 675; McKie v. Anderson, 78 Tex. 207, 14 S. W. 576; Juneman v. Franklin, 67 Tex. 411, 3 S. W. 562. It was not necessary in this case to prove title under the pleading. The tenant’s possession under the landlord estopped him from disputing the landlord’s title. The right of possession for the year 1913 was therefore the only question. When appellant showed ap-pellee entered as his tenant, all that was then required of him to do in order to recover possession was to show a wrongful holding over after notice. The supplemental petition admitted appellee had rightfully entered, but alleged facts showing a wrongful holding over after the expiration of the term. The burden of so showing, we think, was on the appellant, before he could get possession.

The second assignment complains of the second paragraph of the court’s charge. The objection appears to be that there was no evidence showing a rental contract for the year 1913. We think the testimony raises the issue sufficiently and that the court properly submitted the question to the jury for their finding, which we believe to be supported by the evidence.

The third assignment asserts the court committed error in the fourth paragraph of the charge. The complaint here appears to be that by the charge the court authorized the jury to find exemplary damages if they should find appellant “was actuated by hate and malice in suing out the writ of sequestration herein and that he did not have probable cause to believe that his property would be injured by defendant”; then in their discretion they could award exemplary damages, etc. The real criticism appears to be that the court should have instructed the jury that appellant did not have probable cause to “fear” that his property, etc. That the words “believe” and “fear” are not the same in meaning. The trial court used the language of the appellate courts in sequestration proceedings:

“To authorize a verdict and judgment for exemplary damages under Benfield and Alfred’s pleadings in this case, the writ under which the property was seized must have been sued out by the party applying therefor, wrongfully, maliciously, and without probable cause for believing that he was entitled thereto.” Lynch v. Burns (Civ. App.) 79 S. W. 1084.

In that case the affidavit had been made that “he feared they would remove the property.”

The case of Cobb v. Johnson, 101 Tex. 440, 108 S. W. 811, cited by appellants, simply holds that the defendants in that proceeding were in possession under a void contract; hence there was probable cause for suing out the writ. We do not regard that case as applicable to the facts in this case. The court held in the case of Simpson v. Lee (Civ. App.) 34 S. W. 1053, cited by appellant, that:

“If at the time he sued out the writ he knew or should have known, that he had no title, then he would be liable for exemplary damages” — citing Christian v. Seeligson, 63 Tex. 405; Clark v. Pearce, 80 Tex. 146, 15 S. W. 787.

So in this case, if appellant knew, or should have known, that he was not entitled to possession of the property, he then knew he had no right to eject the appellee. To give him the right to the writ, he should have had the right of possession and also grounds to fear injury to the property. The primary meaning of the words “fear” and “believe,” it is true, are different; but we do not see very well how a man can fear injury to property without at the same time believing it would be injured. If he did not believe it would be injured, he certainly had no probable cause to fear its injury. In order to fear he must have been apprehensive of injury, but this apprehension must have been from a probable cause. In order to justify the writ, such fear must have been upon probable cause. The synonyms of belief are faith, opinion, credence, persuasion; but, when it is qualified by a “probable cause,” faith, opinion, or persuasion must have a probable cause, or, in other words, evidence which inclines the mind to believe there is a cause. When the affidavit in this case was made, it substantially asserted: Prom the evidence I am inclined to fear injury. The court in substance instructed the jury: If you find appellant, from the evidence before him, did not have cause for his opinion that injury would be inflicted upon the property, etc. The shade in the meaning of the two words, qualified by probable cause is so immaterial that the criticism of the charge becomes hypercritical. We believe the charge of the court is substantially correct.

The fourth assignment complains of the sixth paragraph of the court’s charge in submitting to the jury the issue on appellant’s cross-action, based on claim for advances alleged to have been made by appellant and items for certain rents alleged to have been appropriated by appellee during the year 1912. The error assigned is based on the proposition that, where the evidence is undisputed, the court should not submit the issue to the jury, but should peremptorily charge the jury. The appellee denied any such indebtedness and testified, as we think, to the facts which made it an issue of fact to be passed on by the jury. We do not agree with appellant that the items claimed by him were undisputed by appellee. The court properly submitted it to the jury for their finding.

The fifth assignment complains of the court’s answer to the jury’s question, which answer is to the effect that, if the jury should find for appellee, their verdict should include the restoration of the premises, and that they could not find exemplary damages unless they found that appellee was entitled to possession of the premises.

As seen from what we have said above, all that was involved in this suit was the right of possession of the premises and the damages for ejecting appellee therefrom. If, under the contract, appellee was entitled to possession, then he had the right to regain possession if he had been wrongfully removed therefrom. We believe the court’s view to have been correct in this case. We do not interpret the suit as one for the value of the possession. The items for actual damages do not include one for the value of the possession and was not so included in the appellee’s answer.

We overrule the sixth, seventh, and eighth assignments of error. We think the evidence sufficient to support the verdict of the jury.

The ninth assignment is overruled. We do not believe it will subserve any useful purpose to discuss this assignment at any length. Under the issues, the judgment was a proper one. This was a suit for a tort. The value of the use of the place was not involved by the pleadings, and therefore the amount of the rents under the terms of the contract were not properly in the case for adjustment, and were not put in issue by the pleadings of either party-only the right of possession and certain specific damages for wrongfully removing appellee out of possession were in issue. At any rate, appellant is not injured by the judgment of the court. If appellee should sue for the value of the possession during the time he was off the land, it may be that he would be estopped by the proceedings in this ease. This, however, is not decided by us,' and we do not wish, by what we have said, to be understood as intimating what the rights of the parties are or should be under such a proceeding.

We find no such error as will require a reversal.

The judgment of the lower court is affirmed.

On Motion for Rehearing.

In stating that the appellee did not sue for the value of the use of the premises, in the orignial opinion, we find upon examination of the record that we were in error. There is a count in the cross-petition for the value of the use of the premises. We, however, followed appellant’s 'brief in the main, in making the statement of the issues. The trial court did not submit the issue to the jury for their finding on the value of the use of the place. We regard this error on our part as being immaterial, as all the issue on the value of the premises for the year 1913 was in effect withdrawn from the jury by the trial court. The use we made of the above statement was in discussing the fifth and ninth assignments of error. We regard the answer of the court to the question propounded to him by the jury, of which complaint is made in the fourth assignment, as being against the appellee, of which he could have complained, and that the court’s charge in answer to the question was really in favor of appellant, and that no injury was shown to appellant, by reason of such answer; and the ninth assignment we think shows no injury. The reasons given by us in the opinion apply with as much force under the issues submitted by the court to the jury as if there had been no pleading asking for the value of the use of the premises, which, as above stated, was withdrawn from the consideration of the jury by the trial court in his main charge.

In the motion for rehearing, the appellant urges that we were in error in overruling the fourth assignment, because the appellee, in answering the appellant’s claim for appropriating rents, etc., did not plead specially his offset or counterclaim. Without deciding at this time whether it was necessary to so plead the counterclaim, we think it is sufficient to state that appellant presented no assignment complaining that the pleadings were insufficient. The proposition presented under that assignment for our consideration was, where the evidence is undisputed, it is error to submit the issue to the jury. The evidence of appellee, of which complaint is now Fere macfe, was' ¿Matted without objection and so remained in the record. It might have been excluded upon the proper objection if the pleading was insufficient to admit it; but, having been admitted, the issue was raised by the testimony to be determined by the jury under proper instructions.

The third assignment complains of the charge of the court upon the question of exemplary damages. The charge perhaps is not verbally correct; but when considered in connection with the entire charge, in which the court informed the jury that there must have been a rental contract, and that appellee was required to show his right to possession of the land before he could recover exemplary damages, was, we think, sufficient in connection with the court’s charge on probable cause. While this phrase was not clearly applied, as it should have been, we yet think it substantially presents the issue correctly and no injury is likely to have resulted to appellant therefrom. If the charge was not correct, appellant should have requested a correct charge on the point at issue and, not having done so, ought not now to complain because the charge is verbally inaccurate.

The motion for rehearing is overruled.


author: CONNER, C. J.

text:
    PETERS v. H. H. HARDIN & CO. et al.
    (No. 7487.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 15, 1912.)
    Assignments (§ 49) — Equitable Assignment — Checks—Bank Deposit.
    That the maker of an antedated check exhibited to the payee a deposit slip covering the amount of the check when it was executed did not necessarily indicate an intention that the check was intended as an equitable assignment pro tanto of the borrower’s deposit.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 85-98; Dec. Dig. § 49.]
    Appeal from Howard County Court.
    . Action by C. C. Peters against H. H. Hardin & Co. and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    J. T. Brooks, of Big Springs, and Slay, Simon & Wynn, of Ft. Worth, for appellant. Littler & Penix and S. I-I. Morrison, all of Big Springs, and C. K. Bell, of Ft. Worth, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   Conclusions.

CONNER, C. J.

The vital question in this case is whether the check given to appellant, Peters, by L. J. Sheets constituted under the circumstances an assignment pro tanto of the funds Sheets at the time had to his credit in the First State Bank of Big Springs; 'The trial court determined the question adversely to appellant, and we are called upon to reverse this finding. The case most nearly in accord, perhaps, with appellant’s contention herein is that of the New York Life Insurance Co. v. Patterson, 35 Tex. Civ. App. 447, 80 S. W. 1058, by the Court of Civil Appeals for the Third District, in which a writ of error was refused by the Supreme Court. In that ease, however, there was a finding both by the trial court and the Court of Civil Appeals that the transaction there involved authorized the conclusion that the parties to the check intended the transaction as an assignment of the fund drawn upon. But here the finding on the part of the trial court having power to discredit interested witnesses is directly to the contrary. Had the finding in the case before us been in appellee’s favor on the issue of assignment vel non, we would be very much inclined to hold that the evidence warranted such a conclusion, but, after a careful consideration of the facts as presented in the record, we feel unable to say as a matter ,of law, that the evidence requires a finding in direct opposition to that actually made by the trial court. It is conceded, as it must be, that the mere drawing of a check by one upon a bank in which he has funds to his credit will not, in the absence of a purpose to do so, amount to an assignment of the fund. See House v. Kountze, 17 Tex. Civ. App. 402, 43 S. W. 561, and authorities therein cited. The circumstances here relied upon as indicating an assignment rests largely upon appellant’s own testimony, and amounts principally to the fact that at the time Sheets drew the check in appellant’s favor he exhibited a deposit slip covering the amount of the check. If this be wholly credited we are not prepared to hold that it, in legal effect, is more than is to be implied from the mere drawing of the check. It is significant had the intent of the parties been to make an assignment pro tanto of the fund that terms either in the check or verbally manifesting such intent were not used. We ought not to be required to overturn the trial court’s findings to the contrary from doubtful circumstances when the parties themselves omitted to clearly evidence in some way their purpose to constitute the transaction such as appellant now insists that it is. It seems clear to us that Sheets’ deposit at the bank was not a special one in the sense that the check thereon of itself operated as an assignment of the fund to the extent called for by the check.

So that, on the whole, we conclude that the trial court’s findings of fact and law must be sustained, and the judgment affirmed.


author: HENDRICKS, J.

text:
    HARRISON v. HUNTER et al.
    (No. 638.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 20, 1914.)
    1. Alteration of Instruments (§ 9) — Consent — Effect of Provisions of Contract.
    Where an order for a piano expressly stipulated that a note for the purchase price attached thereto', but separated from the order by a perforated line, might be detached therefrom, the detaching of the note for the purpose of negotiating it was not an alteration of the contract.
    [Ed Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 47-53; Dec. Dig. § 9.]
    2. Bills and Notes (§ 157) — Negotiability —Certainty as to Time of Payment.
    A note was not rendered nonnegotiable by the fact that the amount thereof was payable in installments.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 399, 400; Dec. Dig. e 157.]
    3. Bills and Notes (§ 157) — Negotiability —Certainty as to Time of Payment.
    A note payable in installments was not rendered nonnegotiable by a provision maturing till of the installments at the holder’s option upon default for 30 days in the payment of any installment.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 399, 400; Dec. Dig. § 157.]
    4. Bills and Notes (§ 157) — Negotiability —Certainty as to Time of Payment.
    A note payable in installments was not rendered nonnegotiable by a provision for a discount of 6 per cent, if the full amount thereof should be paid at maturity of the first installment.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 399, 400; Dec. Dig. § 157.]
    Appeal from Potter County Court; W. M. Jeter, Judge.
    Action by C. W. Harrison against C. L. Hunter and others. Judgment for defendants, and plaintiff appeals.
    Reversed and rendered.
    S. E. Fish, of Amarillo, for appellant. Hugh L. Umphres, of Amarillo, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

The appellant, C. W. Harrison, sued the appellees, C. L. Hunter and Seth Treadwell, as the makers of the following promissory note:

“September 11, 1912..
“For value received, the undersigned promises to pay at Iowa City, Iowa, to the order of Dyon-Taylor Company three hundred & no/100 dollars, as follows: „ __
„ __ Three months after date, 12/11/12.... $75 00
Five months after date, 2/11/13.75 00
Seven months after date, 4/11/13.75 00
Eight months after date, 5/11/13.75 00
“A discount of 6% will be given if the full amount of this instrument is paid at maturity of the first installment. Nonpayment of any installment for more than thirty days after maturity renders remaining installments due at holder’s option.”

The record is that the Lyon-Taylor Company, the payee in the note, sold the defendants a piano, for which the latter executed a written order, and at the same time executed the above note in payment for said piano. The written order executed by defendants described the note as a detachable note, and it was expressly stipulated in said order that if the same was accepted, said note would be detached. The order made by the defendants for the piano was accepted by the Lyon-Taylor Company, and the note was detached from said order, and on the 9th day of October, 1912, before the maturity of the first installment in said promissory note, the same was sold and transferred to appellant, Harrison, for a valuable consideration. The order mentioned and the note described were on one sheet of paper, separated by a perforated line and easily detached. The defendants, appellees herein, answered by non est factum that said note was only part of a contract constituting a single writing, separated by said perforated line, which was deceptive, and that the detaching of the note from the contract by the Lyon-Taylor Company was an alteration and a forgery, further alleging that the plaintiff was not an innocent purchaser of the instrument in due course of business, and also that the consideration for said note had failed.

The only issue submitted to the jury affecting the note and appellant’s cause of action was:

“Did the defendants herein, in the execution of the contract in question, authorize the detachment of the note sued on herein, so that it might become a negotiable instrument in the hands of said Lyon-Taylor Company?”

One of the appellees, C. L. Hunter, testified in part with reference to the transaction of the execution of the note and order as follows:

“The note and the order signed by us and introduced in evidence were upon one single sheet of paper that appeared to have perforated or dotted lines” separating the note from the order.

He also said:

“I read the note and the order and knew what they contained before I signed them.”

The other appellee, Treadwell, and co-obligor of said note, testified that Mr. Hunter attended to the matter principally, and that he did not pay much attention to the transaction. There is no fraud in issue in the cause, except that attempted to be raised by the defendants with reference to the form of the instruments, with the perforated line between the same, and the alleged lack of authority by Lyon-Taylor Company in detaching the note. The order for said piano by Hunter & Treadwell, and'the sale of same by Lyon-Taylor & Co., was in furtherance of an advertising scheme, ostensibly for the benefit of the business of the former in offering the piano as a prize to the person securing the highest number of votes; the butcher business of appellees to be increased thereby. There is a guaranty of increased sales by the Lyon-Taylor Company, with reference to the business of Hunter & Tread-well, and the latter testified in a general way that the advertising scheme was a failure in so far as increasing their business was concerned.

The appellant, Harrison, testified' that when he purchased the note, before the maturity of the first installment, it was not attached to any contract or order, and the first time that he received any information to the effect that the note was questioned was through his attorneys; that he was not acquainted with the methods used by the Lyon-Taylor Company of disposing of prize pianos. The assistant manager and financial secretary of the company testified to the sale of the note to the appellant, along with other notes, for the sum of $1,000.

The appellant assigns that the trial court erred in refusing his requested instruction for a peremptory verdict, which assignment we think should be sustained. There was not any alteration of this contract; the defendants authorized, in the order for the piano, the Lyon-Taylor Company to detach said note when said order was accepted by said company, which was done. The note is also negotiable; because the whole amount of the note is payable in installments, does not destroy its negotiability. The installments are payable at a definite time for a definite amount; and the further feature maturing all the installments by the nonpayment of any installment, for more than 30 days after maturity, permitting the holder, at his option, to mature all of said installments, likewise does not destroy its negotiability.

“A note payable by installments, the whole of which is to become due upon failure in the payment of one installment, is negotiable;. and so is a note, the whole amount of which is to become due upon default in payment of one installment of interest.” A. & E. Enc. of Law (2d Ed.) vol. 4, p. 94.

The only entertainable doubt as to the negotiability of this instrument, results from the following provision: “A discount of six per cent, will be given if the full amount of this instrument is paid at maturity of the first installment,” which, however, is a definite amount payable at a definite time, reducing the note a certain amount if the option is exercised. A note payable “on or before” a certain date is negotiable. The maker of such an instrument has the option to pay at any time before the stated maturity of the same, but the payee-or holder of said note cannot, of course, demand payment before that day. National Bank v. Kenney, 98 Tex. 293, 83 S. W. 368. It is unnecessary to cite the Texas authorities holding that a stipulation for 10 per cent, attorney’s fees upon principal and interest does not destroy, in this state, the negotiability of a promissory note; the amount is made certain. The Supreme Court of Minnesota, in the case of Loring v. Anderson, 95 Minn. 104, 103 N. W. 723, had under consideration a note containing the following stipulation:

“A discount of six per cent, to be allowed if paid on or before October 1, 1903.”

That court recognized the doctrine that if theré is a promise to pay a stated sum of money, plus or minus an indefinite amount or discount, the instrument is nonnegoüable, holding, however, that:

“An instrument, whereby the maker promises to pay to the payee, or order, or bearer, a definite amount or discount, is a promissory note, and * * * ig negotiable.”

That court cited, and quoted from, the case of Mansfield Savings Bank v. Miller, 2 Ohio, Cir. Ct. R. 96, not accessible to us, announcing the same doctrine, applicable to a note, and containing substantially the same provision. The Supreme Court of Minnesota further said:

“While there is a contingency before the maturity of the note as to whether the maker will pay it at maturity or before, there is no contingency or uncertainty as to the amount to be paid in full discharge of the note at maturity, or at any time before, if the maker elects to pay before.”

If the note is negotiable, the appellant is an undisputed, innocent purchaser of the same, and we reverse and render such judgment as the trial court should have rendered, for the full amount of the note, principal, and interest in favor of the appellant against appellees.

Reversed and rendered.